City Council

Ethics Code Review Committee Agenda DATE: June 8th, 2023 TIME: 4:30 PM LOCATION: City Hall Conference Room I. CALL TO ORDER Chairperson Brian Zacharias II. ATTENDANCE III. ADOPTION OF MINUTES February 9, 2023, April 13, 2023 IV. NEW BUSINESS a. Review and Explanation of “Parking Lot” Items b. Review of Section 1-601 Applicability c. Review of Section 1-602 Employee Responsibilities V. COMMENTS a. Committee members b. Other council members in attendance (if any) c. Public (if any, 5 minutes each) VI. ADJOURNMENT  ETHICS COMMITTEE Minutes, February 9th, 2023 1) CALL TO ORDER The meeting was called to order at 4:38 PM by Chair Brian Zacharias 2) ATTENDANCE Present: Brian Zacharias, Deanna McLaughlin, Wallace Redd Absent: ? Also Present: Lance Baker, Jesse Cornett, Wanda Allen 3) PRESENTATIONS 1. Proposal – Way Ahead. Mr. Lance baker discussed possible methods by which the ethics committee could proceed to review the current ethics code. He also stated that there were a variety of resources committee members could look to. Mr. Baker also recommended having potential guest speakers come and discuss different types of ethics codes, as well as their pros and cons. Mr. Baker said he would look into the possibility of having guest speakers come in March. 2. Review of Current Ethics Code. Due to the absence of several committee members, a review of the current City Ethics Code was rescheduled to the next meeting of the committee. 3) NEW BUSINESS 1. Scheduling. There was a review of committee member availability. Due to the absence of some committee members it was decided to postpone determining a regular schedule until later. In the interim, the committee Chair will determine the next meeting date. 2. Scope of Project. The exact goals of the committee were discussed, to include whether the committee would be making statutory change proposals or any revisions to the structure of the ethics commission that reviews complaints.  3. Timeline. The estimated goal of completion for the ethics committee would be approximately August or September, but this may change as required. Once the ethics committee completes its revision recommendations, it would be advisable to have the Mayor call a special work session of the full city council to review the proposed changes, make further amendments, and then proceed through the process to either accept or reject the changes with the full city council. 4) PUBLIC COMMENT Council Member Wanda Allen provided input on possible means of how the full city council might review the proposed changes in the future, including providing interim updates. 5) ADJOURNMENT Councilperson Redd motioned for adjournment. Councilperson McLaughlin seconded. Motion passed. Meeting adjourned at 6:40 pm  ETHICS CODE REVIEW COMMITTEE APRIL 13, 2023 MINUTES CALL TO ORDER The monthly meeting of the City of Clarksville Ethics Code Review Committee was called to order by Chairperson Zacharias on Thursday, April 13, 2023, at 4:30 p.m. in the City Hall Conference Room, 1 Public Square, Clarksville, Tennessee. ATTENDANCE PRESENT: Zacharias, Redd, McLaughlin, Shakeenab and Smith ADOPTION OF MINUTES Councilperson Zacharias made a motion to defer the adoption of the February 9, 2023 minutes as presented. The motion was seconded by Councilperson Smith. A voice vote was taken; the motion passed without objection. PRESENTATION FROM DIRECTOR OF BUILDING & CODES DEPARTMENT: Mr. David Smith discussed non-employees serving on advisory committees. These committee members do not get paid for serving on these advisory boards. The boards need individuals who are versed in local issues and concerns. It can be a struggle to find local qualified people to volunteer their time and be willing to sign the required waiver that they have no interest in doing business with the city, directly or indirectly. Therein lies a big obstacle of local, qualified, licensed and insured individuals willing to make recommendations to the committee while not doing any business with the City for their personal gain. PRESENTATION FROM SAUL SOLOMON: Mr. Solomon, an attorney in Nashville with Klein Solomon Mills PLLC, advises the City’s Ethics Commission. He reviewed the Ethics Code and provided discussion items for the committee to consider. NEW BUSINESS: Ms. Stephanie Fox, Director of Internal Audit, reviewed the results from the Ethics Code Internal Audit performed on August 23, 2019. She addressed the need for updates to the City Code as well as the Bylaws. She also reminded them that there is little to no funding for the Commission when an investigation is initiated, thus causing more cumbersome points for a change in procedure. COMMENTS: City Attorney, Mr. Lance Baker suggested that the Committee postpone voting on any changes to the Code until more information and education of the process and the effects of those changes. He stated that MTAS is an excellent resource and speakers such as Melissa Ashburn and Elisha Hodge, who have agreed to come speak to the committee, can also provide valuable information. He reminded the Committee that any recommendations they provide cannot be weaker than state law. Mr. Baker suggested that the committee focus first on changes to the Code that involve gifts and donations. The Committee agreed to hear all speakers prior to voting on any changes to the Code. PUBLIC COMMENTS (allows 3 persons; 5 minutes each) There were no public comments. ADJOURNMENT Councilmember Shakeenab made a motion to adjourn the meeting and Councilmember Holleman seconded the motion. The meeting was adjourned at 6:11 p.m.  Question If someone subject to the Ethics Commission process resigns, should the 1 Ethics Committee dismiss the complaint? Should the Ethics Commission suspend action on an item if the subject of 2 the ethics complaint is facing criminal charges for the same act? Should a person that is currently engaged in litigation against the city be 3 entitled to file an ethics complaint against the person(s) involved in that litigation Should the Ethics Commission, City Attorney, or any other appointed person be able to make a judgement on whether an ethics violation has 4 occurred even after assuming all facts presented in a complaint are true? Should the Ethics Code explicitly authorize the Ethics commission to 5 establish rules related to the hearing process and how a hearing will be conducted? Should a city employee or elected official be entitled to legal representation at city expense? 6 Should the Ethics Code apply to a person appointed to an advisory board with no legislative or policy-making authority be exempt from all or portions of the Ethics Code? 7 Should the Ethics Commission receive a budget from the city to be used to 8 conduct investigations? Are the current requirements to file an ethics complaint too cumbersome, or create unnecessary obstacles to filing an ethics complaint? 9 Should the Ethics Commission have the authority to self-initiate an 10 investigation based on publicly available information? Should the Ethic Code allow the Ethics commission to perform an advisory function regarding planned activities that may violate the code? 11  Ethics Considerations Code Section The Ethics Commission has little, if any, authority to impose punishment/sanctions on someone who no longer works for the city. Someone who is subject to an ethics violation does not have Fifth Amendment protections against self-incrimination, and information they provide could end up being used against them in a criminal investigation The ethics complaint process could be weaponized or used as retaliation against a party in a lawsuit Allowing an ethics complaint to be discharged without an investigation could create an appearance of impropriety. At the same time, the ability to dispose of charges that are clearly frivolous or without merit could save the Ethics Commission valuable time and resources In the past, the Ethics Commission has created bylaws that define their policies and procedures. Does this give too much authority to political appointees? The city has a precedent of reimbursing employees who are the subject of a lawsuit that results from the fulfillment of their duties. Should that consideration be extended to people accused of Ethics violations, that do not necessarily rise to the level of criminal or civil misconduct? Applying the Code of Ethics to industry professionals who serve in an advisory capacity severely limits the number of people who are willing to serve in those positions. At the same time, someone who serves in those positions is in a unique position to make recommendations that could put their business interests at a competitive advantage with other local businesses in their industry. There is no mechanism in place to place to cover expenses related to investigating ethics complaints. A simple process for filing an ethics complaint could make it more likely that someone submits a complaint at the risk of increasing frivolous accusations. We may want to look at this item at the same time we are considering Item 2 on this list. Is the role of the Ethics Commission to seek out ethics violations, or simply adjudicate them? Serving in an advisory role could create issues where someone acting on their advice (assuming all relevant information was both provided and accurate) to the Ethics Commission when they end up the subject of an ethics complaint.  Code of Ethics Review Committee Parking Lot (as of 6/2/23) Section Question Consideration Not Currently If someone subject to the Ethics Commission process resigns, should the The Ethics Commission has little, if any, authority to impose 1 Addressed Ethics Committee dismiss the complaint? punishment/sanctions on someone who no longer works for the city. Should the Ethics Commission suspend action on an item if the subject of the Someone who is subject to an ethics violation can invoke 5th Amendment Not Currently 2 Addressed ethics complaint is facing criminal charges for the same act? protections but their choice to not answer questions could be used against them in an ethics investigation. Should a person that is currently engaged in litigation against the city be The ethics complaint process could be weaponized or used as retaliation entitled to file an ethics complaint against the person(s) involved in that against a party in a lawsuit. Could this process be used to produce Not Currently 3 Addressed litigation information that might have to be turned over as part of the discovery process in a civil or criminal trial? May be best to look at this at the same time we look at Item 2 Should the Ethics Code apply to a person appointed to an advisory board with Applying the Code of Ethics to industry professionals who serve in an advisory no legislative or policy-making authority be exempt from all or portions of the capacity may limit the number of people who are willing to serve in those Ethics Code? positions. At the same time, someone who serves in those roles is in a 4 1-601 position to make recommendations that could put their business interests at a competitive advantage (or their competitors at a disadvantage) with other local businesses in their industry. Should the Ethics Code explicitly authorize the Ethics commission to establish In the past, the Ethics Commission has created bylaws that define their 5 1-614 rules related to the hearing process and how a hearing will be conducted? policies and procedures. Does this give too much authority to political appointees? Should the Ethics Commission receive a budget from the city to be used to There is no mechanism in place to place to cover expenses related to conduct investigations? investigating ethics complaints. Should they receive funding similar to the 6 1-618 way the Internal Audit office does? See Title 6, Chapter 6, Sections 6-612 and 6-615 Should the Ethics Commission have the authority to self-initiate an Is the role of the Ethics Commission to seek out ethics violations, or simply 7 1-620 investigation based on publicly available information? adjudicate them? Should the Ethic Code allow the Ethics commission to perform an advisory Serving in an advisory role could create issues where someone acting on their function regarding planned activities that may violate the code? advice (assuming all relevant information was both provided and accurate) to 8 1-620 the Ethics Commission when they end up the subject of an ethics complaint. Are the current requirements to file an ethics complaint too cumbersome, or A simple process for filing an ethics complaint could make it more likely that create unnecessary obstacles to filing an ethics complaint? someone submits a complaint at the risk of increasing frivolous accusations. 9 1-621 We may want to look at this item at the same time we are considering Item 2 on this list. Should the Ethics Commission, City Attorney, or any other appointed person Allowing an ethics complaint to be discharged without an investigation could be able to make a judgement on whether an ethics violation has occurred create an appearance of impropriety. At the same time, the ability to dispose 10 1-621 a(6)(b) even after assuming all facts presented in a complaint are true? of charges that are clearly frivolous or without merit could save the Ethics Commission time and resources  Should a city employee or elected official be entitled to legal representation The city has a precedent of reimbursing employees who are the subject of at city expense? lawsuit that result from the fulfillment of their duties. Should that 11 1-621 b(1)(e) consideration be extended to people accused of Ethics violations that do not necessarily rise to the level of criminal or civil misconduct?  City of Clarksville Internal Audit Report Code of Ethics Audit August 23, 2019 Background: The City of Clarksville’s Code of Ethics was implemented to ensure the maintenance of high standards of honesty, integrity, impartiality, and conduct by employees and agents of the City, which is essential to ensure the proper performance of government business and the maintenance of confidence by citizens in their government. A code of ethics is also required by TCA 8-17-103 and the City of Clarksville Charter. The Charter requires the Code of Ethics to contain policies regarding gifts, gratuities, conflicts of interest, financial interests, use of information, and use of City property, as well as procedures for logging and investigating ethical complaints. The Code of Ethics, last amended in April 2013, addresses each of the requirements listed above and applies to all employees, which includes all full time and part time elected or appointed officials and employees, whether compensated or not, including those of any separate board, council, commission, committee, authority, corporation, or other instrumentality appointed or created by the City. The Code of Ethics also establishes an Ethics Commission, comprised of five citizens, tasked with receiving ethics complaints, determining whether a violation of the Code of Ethics occurred through hearings and investigations, and reporting their decisions, to include recommended actions as applicable. In addition to the Code of Ethics, the Ethics Commission has adopted a set of bylaws. Noncompliance with or an ineffective Code of Ethics jeopardizes public confidence and potentially negatively impacts organizational culture, which weakens the internal control environment of the City. A weakened internal control environment impacts compliance with other laws, productivity, ethical decisions, and overall operational effectiveness. Audit Objectives and Scope: The objectives and scope of this engagement include the following: ● Assess compliance with TCA 8-17-103 and the City of Clarksville Charter Article VI, Section 10; ● Assess compliance with Clarksville City Code Title 1, Chapter 6, section 1-601 requiring all employees to review the Code of Ethics and acknowledge understanding and agreement annually; ● Assess compliance with Clarksville City Code Title 1, Chapter 6, sections, 1-611 defining the Ethics Commission; 1-613 defining the requirement for the Commission to elect officers; 1-614 requiring the creation of Ethics Commission bylaws; and 1-623 pertaining to eligibility of candidates to the Commission; ● Assess Ethics Commission compliance with its bylaws as applicable; ● Review City Code Title 1, Chapter 6, sections 1-601 through 1-623 and make recommendations to improve the process, if applicable. The audit period is April 2013 through April 2019. This audit did not address the existence or validity of potential complaints, but focused solely on the processes established by the aforementioned laws and bylaws of the Ethics Commission. 1 Audit Results: Training and Acknowledgement Forms Observation: Management Action Plan: As noted, all full time and part time elected or appointed City General Human Resources (HR)​: HR will develop officials and employees, whether compensated or not, a follow up process to ensure compliance with the including those of any separate board, council, training completion and acknowledgement process. This commission, committee, authority, corporation, or other follow up process will include notifications to the instrumentality appointed or created by the City ​are employees, the employees’ department heads, and the required to review the City Code of Ethics, as codified in Mayor’s Office. Employees that do not comply with the the City Code, and sign a form of understanding and training completion and acknowledgement requirements agreement (acknowledgement form) confirming their will be subject to disciplinary action. review on an annual basis. The Code of Ethics, as written, directs the City Attorney and Human Resources HR will notify the Mayor’s Office of any City Council to coordinate and develop the review/signature/filing members not in compliance with the training completion processes. and acknowledgement requirements. The Mayor’s Office will address noncompliance directly with the City Council Not all City employees signed the acknowledgement members. forms in 2018 as required by the City Code of Ethics. This includes elected officials, City General (including CDE​: At CDE, the regular process for the collection of CGW), and CDE. Specifically, four of the 13 elected forms was to connect it to the performance appraisal and officials did not sign the annual ethics acknowledgement compliance training. Completion of acknowledgements in form. At least 54 employees from City General/CGW did 2018 was delayed due to the restructuring of the not sign the acknowledgement forms. No CDE appraisal system and separation in timing from the employees signed the forms in 2018, due to process annual employee compliance training. All employees did changes related to training and performance reviews. complete the acknowledgement forms in the first quarter of 2019. All new hires continued to complete the form at While there is a process in place to track the completion the time of hire. Going forward, the acknowledgement of the Ethics training for City employees, there is no forms will be collected during the first quarter each year current policy to follow up with employees and elected and will not depend upon another task for completion. officials who do not take the training as required. Additionally, there is no process in place to obtain Mayor’s Office​: The Mayor’s Office will develop a acknowledgement forms from the volunteer process to obtain the Code of Ethics acknowledgement commissions, committees, authorities, corporations, or forms from volunteers serving on commissions, other instrumentalities appointed or created by the City. committees, et al. The Code of Ethics ties completion of acknowledgement City Attorney​: The City Attorney, with input from the forms to the employee’s annual review. As management Mayor, will draft proposed amendments to the Code of plans to change the timing of this process, the Code of Ethics to place responsibility for coordinating and Ethics should also be updated to align with the process developing the review/signature/filing processes on the change. This may also be true for other areas of the Mayor’s Office instead of the City Attorney, and to Code of Ethics. remove the reference to the annual review process. The proposed amendments will be presented to the City Council for approval. Managers Responsible: Will Wyatt, HR Director; James Halford, Chief of Staff (Mayor’s Office); Lance Baker, City Attorney Estimated Completion Date:​ 12/31/19 2 Ethics Commission Noncompliance Observation: Management Action Plan: Several areas of potential noncompliance were noted in The City Attorney will advise the members to hold a relation to the Code of Ethics and Ethics Commission meeting to elect officers, as required by the Code of bylaws: Ethics and the Ethics Commission bylaws. ● The Code of Ethics requires the Ethics The City Attorney will also advise the Chairman that the Commission to elect officers and for those meetings are to be held at least annually, prior to July officers to serve terms of one year. The bylaws of 1st, to hold elections of officers. the Ethics Commission require the elected officers to take office on July 1st of each year. The Mayor’s Office will ensure that the Ethics The Commission met one time in February 2014. Commission meets annually. There is no record of any Commission meeting since that date, nor any record of officer Both members no longer eligible to serve on the Ethics elections. Commission resigned, as per the Code of Ethics and the ● Members of the Ethics Commission must be Ethics Commission bylaws. residents of Clarksville to be appointed and remain on the Commission. One member of the Commission no longer lives in the City of Clarksville. ● The Ethics Commission bylaws prohibit members from being an officer of a political party. However, one member of the Ethics Commission was recently elected as an officer of a political party. No City employee has been assigned responsibility to ensure that members meet requirements or to act administratively for the Commission in scheduling regular meetings. Managers Responsible:​ Lance Baker, City Attorney; James Halford, Chief of Staff (Mayor’s Office) Estimated Completion Date:​ 9/30/19 Code of Ethics Design Observation: Management Action Plan: The Code of Ethics and Ethics Commission bylaws have The City Attorney, with input from the Mayor, will draft provisions that potentially prohibit or negatively impact proposed amendments to the Code of Ethics, to be the effectiveness of the Ethics Commission in achieving presented to the City Council for approval. The its intended purpose. amendments will address the areas outlined in the observation. ● The April 2013 revision of the Code of Ethics specifies procedures requiring an individual The City Attorney will advise the Ethics Commission to wishing to file an ethics complaint to do so in review the bylaws for areas in which the bylaws may writing, after having signed and sworn under oath exceed their authority and/or scope and make as evidenced by a notary public. The complaint amendments as appropriate. must contain a summary of the facts giving rise to 3  the alleged ethics complaint and explain why those facts constitute a Code of Ethics violation. This language essentially requires the person filing the complaint to conduct their own investigation, gather evidence, and explain why the activity violates the Code of Ethics. In the six years since the revision, there have been zero ethics complaints filed. ● There is no provision in the Code of Ethics, nor the Ethics Commission bylaws, for the Ethics Commission to self initiate an investigation should publicly available information warrant consideration by the Commission. ● Per the Code of Ethics, the Ethics Commission can not obligate or bind the City in any way. If the Ethics Commission were to attempt to fulfill their duty to “conduct investigations” as provided for in Section 1-620(a) “Duties” of the Code of Ethics, there is no independent source of funds to hire an investigator or outside attorney. The Commission, consisting of volunteer members of the community, may not have the resources and expertise to investigate potential Code of Ethics violations. ● The current bylaws may expand the duties of the Commission beyond what is authorized by the Code or what is possible given the volunteer nature of the Commission. Managers Responsible:​ Lance Baker, City Attorney Estimated Completion Date:​ 12/31/19 Other Recommendations: There is no provision in either the Code of Ethics or the Ethics Commission bylaws for an employee under the jurisdiction of the Code of Ethics to obtain an advisory opinion from the Ethics Commission regarding anticipated, planned, and/or initiated activities that may violate the Code of Ethics. The Council should consider adding a provision to authorize the Ethics Commission to provide advisory opinions when requested. Management Comments: The City Attorney will consider adding this provision in the proposed amendment to the Code of Ethics. All proposed amendments will be presented to the City Council for consideration. Manager Responsible:​ Lance Baker, City Attorney Estimated Completion Date:​ 12/31/19 4