City Council

City of Petersburg City Council Virginia www.petersburgva.gov Samuel Parham, Mayor – Ward 3 Annette Smith-Lee, Vice Mayor – Ward 6 Marlow Jones, Councilor – Ward 1 Darrin Hill, Councilor – Ward 2 January 3, 2023 - Charlie Cuthbert, Councilor – Ward 4 W. Howard Myers, Councilor– Ward 5 Organizational Meeting Arnold Westbrook, Jr., Councilor – Ward 7 January 3, 2023 City Manager Petersburg Public Library John March Altman, Jr. 201 West Washington Street Petersburg, VA 23803 3:00 PM 1. Call to Order 2. Roll Call 3. Business or reports for/from the Mayor and other Members of City Council a. Nominations and appointment of Mayor b. Nominations and appointment of Vice Mayor c. Discussion and consideration of the Rules of Council. d. Consideration of a resolution to amend the Rules of Council and add Conflict of Interest. 4. Closed Session a. Closed Session Items: The purpose of this meeting is to convene in the closed session pursuant to: 1. §2.2-3711(A)(7) and (8) of the Code of Virginia for the purpose of receiving legal advice and status update from the City Attorney and legal consultation regarding the subject of specific legal matters requiring the provision of legal advice by the city attorney, as of actual or probable litigation, specifically including but not limited to the requirements of Code of Virginia Title 58.1, Subtitle IV, Chapter 41, Article 1 through 11; and Petersburg Circuit Court Case Number CL22- 787; and under subsection §2.2-3711(A)(29) of the Code of Virginia for the purpose of discussion regarding the subject matter of a public contract involving the expenditure of funds and terms or scope of such contract, where discussion in an open session would adversely affect the bargaining or negotiating strategy of the public body, specifically including but not limited to the discussion of the award and terms of a public contract; and under subsection §2.2-3711(A)(1) of the Code of Virginia for the purpose of discussion pertaining to performance, assignment, and appointment of a specific public officer of the City of Petersburg. 5. Adjournment Page 1 of 39  3.c . City of Petersburg Ordinance, Resolution, and Agenda Request DATE: January 3, 2023 TO: The Honorable Mayor and Members of City Council THROUGH: March Altman, Jr., City Manager FROM: Nykesha Lucas RE: Discussion and consideration of the Rules of Council. PURPOSE: To review and make changes to Rules of Council. REASON: To review and make changes to Rules of Council. RECOMMENDATION: To approve by resolution after changes have been made, if any. BACKGROUND: See attached Rules of Council. COST TO CITY: N/A BUDGETED ITEM: N/A REVENUE TO CITY: N/A CITY COUNCIL HEARING DATE: 1/3/2023 CONSIDERATION BY OTHER GOVERNMENT ENTITIES: N/A AFFECTED AGENCIES: N/A RELATIONSHIP TO EXISTING ORDINANCE OR RESOLUTION: N/A REQUIRED CHANGES TO WORK PROGRAMS: N/A ATTACHMENTS: 1. 22-R-01 Page 2 of 39 Page 3 of 39 Page 4 of 39 Page 5 of 39 Page 6 of 39 Page 7 of 39 Page 8 of 39 Page 9 of 39 Page 10 of 39 Page 11 of 39 Page 12 of 39 Page 13 of 39 Page 14 of 39 Page 15 of 39 Page 16 of 39 Page 17 of 39 Page 18 of 39 Page 19 of 39 Page 20 of 39 Page 21 of 39 Page 22 of 39 Page 23 of 39 Page 24 of 39 Page 25 of 39 Page 26 of 39 Page 27 of 39 Page 28 of 39 Page 29 of 39 Page 30 of 39 Page 31 of 39 Page 32 of 39  3.d. City of Petersburg Ordinance, Resolution, and Agenda Request DATE: January 3, 2023 TO: The Honorable Mayor and Members of City Council THROUGH: March Altman, Jr., City Manager FROM: Anthony Williams RE: Consideration of a resolution to amend the Rules of Council and add Conflict of Interest. PURPOSE: Council requested that the City Attorney prepare and present an Amendment to the Rules of Council incorporating a summary of the provisions of the Virginia Conflict of Interests Act into the Rules of Council. REASON: Requested by Council. RECOMMENDATION: Recommend City Council adopt the resolution. BACKGROUND: Council requested that the City Attorney prepare and present an Amendment to the Rules of Council incorporating a summary of the provisions of the Virginia Conflict of Interests Act into the Rules of Council. COST TO CITY: N/A BUDGETED ITEM: N/A REVENUE TO CITY: N/A CITY COUNCIL HEARING DATE: 1/3/2023 CONSIDERATION BY OTHER GOVERNMENT ENTITIES: N/A AFFECTED AGENCIES: N/A RELATIONSHIP TO EXISTING ORDINANCE OR RESOLUTION: Amends existing Rules of Council. REQUIRED CHANGES TO WORK PROGRAMS: N/A ATTACHMENTS: 1. RULE IX Page 33 of 39 RULE IX – CONFLICT OF INTERESTS City Council holds the public trust and public interest in the highest regard. To that end, each Member of Petersburg City Council shall comply in all respects with the State and Local Government Conflict of Interests Act, found in Code of Virginia, Title 2.2, Chapter 31, §§2.2-3100 et. seq. (hereinafter “the Conflict of Interests Act” or “the Act”) which is hereby adopted mutatis mutandis as if set forth fully herein. These Rules of Council shall supplement and not supplant any of the provisions of the Act. In any instance where these Rules conflict with any provision of the Act, the provisions of the Act shall supersede. The act divides conflicts into three broad sections – “Illegal Conduct and Undue Influence”; “Prohibited Acts”; and “Prohibited Contracts.” Prohibited Acts pertain primarily to formal actions being taken by the governing body, while Prohibited Contracts pertain to actual agreements between the individual Member (or their immediate family member) and the governing body upon which he or she serves. SECITON 1 - ILLEGAL CONDUCT AND UNDUE INFLUENCE A. Soliciting or Accepting Bribes – Members of Council are prohibited from accepting or soliciting bribes and from allowing money to influence their formal actions in their official capacity as a public official. B. Accepting Gifts and Donations – Members of Council may not accept money, loans, gifts, services, business opportunities, or other benefits if it is reasonable to construe that the benefit was given to influence the council member in his or her duties. An exception is made for political campaign contributions – but only if the contribution is used for a political campaign or constituent service purposes and is reported pursuant to the campaign disclosure laws. Council Members are prohibited from receiving gifts or benefits if he or she knows or reasonably should know that it is being offered to influence him or her in their official duties. Council Members are prohibited from accepting a gift from a private party whose interests can be affected by the council member’s actions, where the timing of the gift would lead a reasonable person to question whether the gift is being given to influence the council member. Council Members may not solicit, accept or receive a tangible gift that is valued at over $100 or a combination of gifts within a year with an aggregate value of over $100 if it is given to him by (1) a lobbyist, (2) a lobbyist’s principal, or (3) a person, organization, or business that is seeking to be or already is a party to a contract with the City. C. Use of Confidential or Non-Public Information - Council Members may not use information gained in or by virtue of their official capacity as Members of Council, which is not available to the public, for their own or another person’s economic benefit. Page 34 of 39  SECTION 2 – PROHIBITED ACTS – Discussion, Deliberation and Voting A. Definitions: Personal Interest in a transaction. A personal interest exists when an officer or employee or immediate family member has a personal interest in property or a business and such property or business is: 1. The subject of the transaction. 2. May realize a reasonable foreseeable direct or indirect benefit or detriment as a result of the action of the agency considering the transaction. A personal interest in a transaction does not exist when: 1. An elected member of a local governing body serves without renumeration as a member of the board of trustees of a not-for-profit and the member and his immediate family has no personal interest in the entity. 2. An officer, employee, or elected member of a local governing body is appointed by such local governing body to serve on a governmental agency and the personal interest in the transaction is the result of benefits provided to the member or his immediate family. Transaction. In the context of a city or town council, a transaction is defined as any matter considered by the council, a council committee or subcommittee, or any department, agency, or board of the locality, if any official action is taken or is being contemplated. §2.2-3101. B. Application: The Virginia Conflict of Interests Act regulates the financial relationship of council members and mayors with their city, town and with any other governmental agency that is related to the local government. The Act focuses on preventing situations where public officials and their immediate family members stand to improperly receive financial benefits from acts taken through or by virtue of their official public capacity. Members are required to comply with all aspects of the Virginia Conflict of Interests Act in instances of a conflict of interest. C. Prohibition: Except as expressly excluded herein or by statute, where a matter comes before Council or a council committee or involves any department of the locality, Council appointed board or commission, and a council member has a personal interest in the subject matter or represents the business involved, the council member must: 1. Disclose the personal interest by identifying the interest, including the name and address of the business or property. This disclosure is required whether or not the law requires disqualification of the Council member or the council member disqualifies himself out of an abundance of caution. This disclosure may be: Page 35 of 39  i. Delivered to the Clerk by a signed writing containing the elements above in advance of the matter being presented in the public meeting; or ii. Recorded in the minutes of the public meeting where the matter is being presented. iii. The disclosure must be kept for a minimum of five years in the records of Council 2. Except as otherwise provided herein, the Council Member may not vote or participate in any discussion on the transaction. 3. The member may not attend the portion of a closed meeting at which the transaction is discussed. 4. The member may not discuss the matter with anyone in the government who is involved in the transaction. D. Exceptions: 1. A personal interest in a transaction does not exist if the council member serves on a not- for-profit board without pay and neither the council member nor his immediate family has a personal interest in the not-for-profit organization. (Definition of personal interest in §2.2-3101.) 2. No conflict exists if an employee or council member of a locality is appointed by his locality to an ex-officio role in a governmental agency and the conflict exists solely due to the employment with the locality or the employment by the locality is of his or her spouse. See the definition of “personal interest in a transaction” in § 2.2-3101. 3. In order for a council to sell or lease land, state law requires a three-fourths vote of all people elected to council. § 15.2-2100. Section 2.2-3112(D) of the COI act allows a council member to participate in a discussion and vote on a proposed sale, lease, or similar conveyance of land if the council member’s only personal interest in that sale is that he or she is employed by the business that is subject to the contract for the deal. E. Savings Clause - Where the disqualification of a Member results in the lack of a quorum, Council may act by a vote of the majority of the members who are not disqualified. Even if the law requires a unanimous vote, it only has to be by a unanimous vote of the remaining members. F. Disclosures – These requirements are in addition to Annual Statement of Economic Interests required by 2.2- 3115 of the Code of Virginia. If a transaction affects a group, business, or profession as set forth in § 2.2-3112(B)(1), the council member may participate if he or she certifies in good faith that he or she can represent the public fairly in the transaction. The certification requires the following elements to be identified - § 2.2-3115(H): • The transaction; • The nature of the personal interest; • The fact that the council member is a member of a business, profession, occupation, or group that will be affected by the transaction; Page 36 of 39  • A statement that the council member is able to participate fairly, objectively, and in the public interest. If the transaction affects a party that the council member’s firm represents but the council member is not involved on behalf of the firm, the disclosure requires the following elements to be identified. § 2.2-3115(I): • The transaction involved; • The fact that a party to the transaction is a client of the council member’s firm; • A statement that the council member does not personally represent the client; • A statement that the council member is able to participate fairly, objectively, and in the public interest. If either of the disclosures is required, the council member must either state it at the meeting or file it in writing with the clerk of the council or the manager. A written disclosure should be filed before the meeting or, if that is impracticable, by the end of the following business day. § 2.2- 3115(H), (I). In both cases, the disclosure is public. It is recommended that the Member make the disclosure at the meeting, orally, when the transaction is on the floor. It is also recommended that the person sit in the audience for the discussion and vote. This conveys a clearer message of self- disqualification than simply handing the clerk a written statement. If the disqualification is handed in with no announcement, the public will wonder why the council member is not participating. SECTION 3 – PROHIBITED CONTRACTS A. Definitions: a. “personal interest” - a financial benefit or liability accruing to an officer or employee or to a member of his immediate family. Such interest shall exist by reason of i. ownership in a business if the ownership interest exceeds three percent of the total equity of the business; ii. annual income that exceeds, or may reasonably be anticipated to exceed, $5,000 from ownership in real or personal property or a business; iii. salary, other compensation, fringe benefits, or benefits from the use of property, or any combination thereof, paid or provided by a business or governmental agency that exceeds, or may reasonably be anticipated to exceed, $5,000 annually; iv. ownership of real or personal property if the interest exceeds $5,000 in value and excluding ownership in a business, income, or salary, other compensation, fringe benefits or benefits from the use of property; v. personal liability incurred or assumed on behalf of a business if the liability exceeds three percent of the asset value of the business; or Page 37 of 39  vi. an option for ownership of a business or real or personal property if the ownership interest will consist of clause (i) or (iv). b. “immediate family” - "means(i) a spouse and (ii) any other person who resides in the same household as the officer or employee and who is a dependent of the officer or employee." Virginia Code Sec. 2.2-3101 Definitions (Virginia Statutes (2022 Edition)) B. Prohibition - Except as described in subparagraph (C), a Council Member may not participate in a contract with the City or any of its agencies where he or member of his immediate family has a personal interest in the contract as defined herein. C. Exceptions – a. A council member may buy goods or services the City and its agencies as long as they are made available to the public at uniform prices. b. A council member may sell goods to the City and its agencies if the following conditions are met, pursuant to § 2.2-3107(B)(3) of the Code of Virginia: i. The purchase must be made by competitive sealed bidding. ii. The contract must be for goods, not services, and the need for the goods must have been established prior to the person’s coming on council. An example is if the city needs a tractor, if a council member has a tractor dealership, and if the city had bought tractors prior to the council member’s election, the dealership could continue to bid on the contract. c. The council member who wants to sell to the locality must play no role in preparing the specifications for the purchase. d. The remaining members of council must pass a Resolution in writing that the council member’s bidding on the contract is in the public interest. Note: this exception does not apply to providing services, rather only goods. For example, a council member who is an accountant cannot provide auditing services to his or her town or city. The following eight exceptions to the prohibition on having a personal interest in a contract apply not only to council members, but to all other local government officials and employees as well. § 2.2- 3110(A). 1. A council member may be an employee of the locality as long as the employment predates his appointment or election to council. § 2.2-3107(B)(1). This section of the law also allows employment and service on council if the person was an employee prior to July 1, 1983, whether or not he or she was elected to council after that date. 2. Any sale, lease, or exchange of real property between a council member and his or her locality is allowed as long as the council member doesn’t participate in the deal on behalf of council, and the fact that the member wasn’t involved is recorded in the public record of the government involved in the transaction. The reason for this exception is that each parcel of real estate is deemed to be unique. If a city needs a certain lot or parcel, the fact that a council member owns it should not prohibit the purchase by the city. § 2.2- 3110(A)(1). 3. The prohibition does not apply to contracts for the publication of official notices, presumably so that the local newspaper may be used for ads required by state law even when a council member is an owner or employee of that paper. This is a balancing of needs: the state code requires many notices to be run in the local paper. Without this exception, those requirements could not be met. § 2.2-3110(A)(2) Page 38 of 39  4. If the sole personal interest the council member has in the contract is his or her employment by the contracting business and the council member’s annual salary exceeds $5,000, the business may contract with the locality. For this exception to apply, the council member and members of his or her immediate family must have no authority to participate in the deal, and must not participate in the deal. Further, the council member must not participate in the deal on behalf of the locality. A typical example is a contract with a large engineering firm that is the council member’s employer. § 2.2-3110(A)(4). 5. If the council member is employed by a public service corporation, a bank, a savings and loan association, or a public utility, and if he or she disqualifies himself from participating on behalf of the city or town and does not participate for his or her locality, then the utility, bank, etc., may contract with the locality. § 2.2-3110(A)(6). 6. The prohibition does not apply to contracts for goods or services below $500. 7. Program grants made to a council member are allowed if the rates or amounts paid to all qualified applicants are uniform and are established solely by the agency administering the grants. § 2.2-3110(A)(8). 8. If the spouse of a council member is employed by the locality, the personal interest prohibition does not apply if the spouse was employed by the agency five or more years prior to marrying the council member. § 2.2-3110(A)(9). If one spouse is the supervisor of the other spouse, the conflict does not exist if the subordinate spouse earns less than $35,000 per year. § 2.2-3110(B). Any questions or concerns regarding requirements or compliance with the Virginia Conflicts of Interest Act may be submitted to the City Attorney as a request for an Informal Opinion or Formal Written Advisory Opinion in accordance with §2.2-3121(c) of the Code of Virginia. Members may also request advisory opinions from the Commonwealth’s Attorney or the Virginia Conflict of Interests Advisory Council in accordance with the provisions of the Code of Virginia. Page 39 of 39