§ 2-03-052. Code of conduct.
(a)
Overview of roles and responsibilities of the governing body.
(1)
Mayor (City Charter, article VIII, § 2).
a.
Presides at all meetings of the commission.
b.
Perform such duties as are imposed by the commission.
c.
Has the same speaking and voting rights as any other commissioner.
d.
Is the official head of the city for all ceremonial and military purposes.
e.
With the advice and approval of the commission, appoints and removes members to boards, commissions and committees.
f.
Leads the commission and management in developing short and long range plans and goals relating to city growth and development.
g.
Required to present an annual state of the city message or report.
(2)
Mayor pro-tem (City Charter, article VIII, §§ 1 and 3).
a.
Elected by the commission.
b.
Performs the duties of the mayor if the mayor is absent.
(3)
Commission members.
a.
All members of the city commission, including the mayor and mayor pro-tem, have equal votes. No member has more power than any other member, and all should be treated with equal respect (City Charter, article VII, § 1).
b.
Responsible to pass ordinances and other measures conducive to the welfare of the city, and to do all acts required for the general welfare of the city, except as are delegated to the city manager or other city officials (Alamogordo Municipal Code § 2-02-040).
c.
Creates all necessary administrative offices (Alamogordo Municipal Code § 2-02-040).
(b)
Code of conduct.
(1)
Application. This code of conduct applies to all members of city commission (including the mayor).
(2)
Definitions. When used in section 2-03-051, the following words, terms and phrases shall have the following meanings, unless expressly stated otherwise or unless the context indicates otherwise:
City commission means the legislative and governing body of the city, consisting of the mayor and city commission members.
City shall mean the City of Alamogordo, Otero County, New Mexico.
Confidential information means any information to which an official has access in such person's official capacity which may not be disclosed to the public except pursuant to state and/ or federal law and which is not otherwise a matter of public record or public knowledge.
Elected official means the mayor and all other city commissioners.
Employee means any person employed by the city, including those individuals on a full-time, part-time or internship basis, but does not include independent contractors.
Intentionally means a person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.
Knowingly means a person acts knowingly, or with knowledge, with respect to the nature of the person's conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of the person's conduct whether the person is aware that the conduct is reasonably certain to cause the result. Employee means any person employed by the city, including those individuals on a full-time, part-time or internship basis, but does not include independent contractors.
Official action means any vote, decision, recommendation, approval, disapproval or other action, including inaction, which includes use of discretionary authority of any city official.
Public employee or city staff means any non-appointed person holding any paid position of employment with the city.
(3)
Code of conduct. Each member of the city commission has a duty to:
a.
Act in the public interest. Recognizing that stewardship of the public interest must be their primary concern, the commissioners will work for the common good of the people of Alamogordo and not for any private or personal interest, and they will endeavor to treat all persons, claims and transactions in a fair and equitable manner.
b.
Comply with the law. Commissioners shall comply with the laws of the federal government, the state and the city in the performance of their public duties. These laws include, but are not limited to: the United States and New Mexico constitutions; the New Mexico Governmental Conduct, Inspection of Public Records, and Open Meetings Acts; and the City of Alamogordo Charter, Municipal Code, resolutions and policies.
c.
Conduct of members. The professional and personal conduct of commissioners must be above reproach and avoid even the appearance of impropriety. Commissioners shall refrain from abusive conduct, personal charges or verbal attacks upon the character or motives of other members of the commission, city staff or the public.
d.
Respect for process. Commissioners shall perform their duties in accordance with the processes and rules of order established by the city commission governing the deliberation of public policy issues, the involvement of the public, and the implementation of policy decisions of the city commission by city staff.
e.
Conduct at public meetings. Members shall prepare themselves for public issues; listen courteously and attentively to all public discussions before the body; and focus on the business at hand. They shall refrain from interrupting other speakers; making personal comments not germane to the business of the body; or otherwise interfering with the orderly conduct of the meetings. Members shall commit to practice civility and decorum in discussions and debates. Members shall commit to honoring the role of the chair person in maintaining order, keeping discussion on track, and focusing discussion on agenda items at hand. Commissioners shall avoid debate and argument with the public. Commissioners shall not engage in personal attacks of any kind under any circumstance.
f.
Communication. Commissioners shall publicly share substantive information that is relevant to a matter under consideration by the commission which they have received from sources outside of the public decision-making process.
g.
Confidential information. Commissioners shall respect the confidentiality of information concerning the property, personnel or affairs of the city. They shall neither disclose confidential information without proper legal authorization, nor use such information to advance their personal, financial or other private interests.
h.
Representing an official city position. Commissioners may use their title only when conducting official city business, for information purposes, or as an indication of background and expertise, carefully considering whether they are exceeding or appearing to exceed their authority. Once the commission has taken a position on an issue, all official city correspondence regarding that issue will reflect the commission's adopted position. If a member of the commission appears before another governmental agency organization to give a statement on an issue affecting the city, the commissioner should indicate the majority position and opinion of the commission. Personal opinions and comments may be expressed only if the commissioner clarifies that these statements do not reflect the official position of the city commission. Personal opinions and comments may be expressed only if the commissioner clarifies that these statements do not reflect the official position of the city commission.
i.
Improper influence. Commissioner shall not attempt to pressure or influence the decisions, recommendations or priorities of advisory boards absent the approval of the majority of the commission.
j.
Policy role of members. Commissioners shall respect and adhere to the commission-manager structure of city government as provided by state law, City Charter and City Code. In this structure, the commission determines the policies of the city with the advice, information and analysis provided by the public, advisory boards, and city staff. Commissioners therefore shall not interfere with the administrative functions of the city or the professional duties of city staff; nor shall they impair the ability of staff to implement commission policy decisions. Commissioners should never express concerns about the performance of a city employee in public, to the employee directly, or to the employee's director. Comments about staff performance should be made only to the city manager through private correspondence or conversation.
k.
Other public agencies. If a commission member appears before another governmental agency or organization to give a statement on an issue, the commissioner must clearly state if his or her statement reflects personal opinion or is the official stance of the city. Even if the commissioner is representing his or her own personal opinions, remember that this still may reflect upon the city as an organization. If the commissioner is representing the city, the commissioner must support and advocate the official city position on an issue, not a personal viewpoint. If the commissioner is representing another organization whose position is different from the city, the commissioner should withdraw from voting on the issue if it significantly impacts or is detrimental to the city's interest. Commissioners should be clear about which organizations they represent and inform the mayor and commission of their involvement. City letterhead may be used only when the commissioner is representing the city and the city's official position. A copy of official correspondence should be given to the city clerk to be filed as part of the permanent public record.
(2)
Violations.
a.
For the purpose of this section, the following words shall be interpreted as follows:
1.
Warning. This is the least severe form of action. Warning warns the commissioner that his or her conduct violated the code of conduct. The warning cautions the commissioner that further violations could lead to a more severe action.
2.
Sanction. This is the next most severe form of action. Sanction should be directed to a particular member of the city commission based on a particular action (or set of actions) that is determined to be in violation of the code of conduct, but is considered by the commission to be not sufficiently serious to require censure. A sanction is distinguished from censure in that it is not a punishment.
3.
Censure. Censure is the most severe form of action contemplated in this policy. Censure is a formal statement of the city commission officially reprimanding one (1) of its members. It is a punitive action, which serves as a penalty imposed for wrongdoing. Censure should be used for cases in which the commission determines that the violation of the code of conduct is a serious offense. In order to protect the overriding principle of freedom of speech, the city commission shall not impose censure on any of its members for the exercise of his or her First Amendment rights, no matter how distasteful the expression was to the commission and the city. However, nothing herein shall be construed to prohibit the city commission from collectively condemning and expressing their strong disapprobation of such remarks.
4.
Cause. More than mere suspicion. There must be facts and circumstances within the preliminary review committee members' knowledge, and of which they have trustworthy information, sufficient to justify the belief of a reasonable person that a violation of the code of conduct has occurred.
5.
Complainant. Complainant means a person or entity that makes a complaint alleging a violation of the code of conduct.
b.
Preliminary review committee established. There is hereby created a city preliminary review committee consisting of the three (3) most senior members of the commission. Seniority will be determined using the length of a commissioner's continuous service as a commissioner. Length of service will be calculated from the date that the commissioner took the oath of office. In the event two (2) or more commissioner began their service at the same time, prior service on the commission shall be used to determined seniority. For commissioners who are elected or appointed to fill a vacancy, the commissioner's time in office commences after he/she is sworn into office. Any commissioner who is the subject of the complaint shall be disqualified from serving on the committee.
c.
Complaints against commissioner. Any person who believes a commissioner in her or his official capacity has violated the code of conduct may file a sworn written complaint with the city attorney identifying:
1.
The complainant's name, address, and telephone number;
2.
The name of the commissioner who is the subject of the complaint;
3.
The nature of the alleged violation, including the specific provision of the code of conduct allegedly violated;
4.
A statement of facts constituting the alleged violation and the dates on which or period of time in which the alleged violation occurred;
5.
All documents or other material in the complainant's possession that are relevant to the allegation, a list of all documents or other material relevant to the allegation that are available to the complainant but not in the complainant's possession, and a list of all other documents or other material relevant to the allegations but unavailable to the complainant, including the location of the documents, if known;
6.
A list of witnesses, what they may know, and their contact information, if known; and
7.
If the alleged violation occurred more than ninety (90) days before the sworn complaint is filed with the city attorney, then the complaint must identify the date the complainant learned of the alleged violation and provide a statement of the facts surrounding the discovery of the violation, a list of the persons with knowledge about the date the violation was discovered, and a summary of the information they possess about the discovery.
The complaint shall include an affidavit stating that the information contained in the complaint is true and correct, or that the complainant has good reason to believe and does believe that the facts alleged constitute a violation of the code of conduct. If the complaint is based on information and belief, the complaint shall identify the basis of the information and belief, including all sources, contact information for those sources, and how and when the information and/or belief was conveyed to the complainant by those sources. The complainant shall swear to the facts by oath before a notary public or other person authorized by law to administer oaths under penalty of perjury.
d.
Time for filing. A complaint must be filed on or before the ninetieth day after the violation is alleged to have occurred. All complaints will be time barred after the lapse of ninety (90) days from the date of the alleged incident.
e.
Procedures. The city attorney will develop written rules of procedure to govern the review process, including the right of a city commissioner against whom the complaint has been lodged to respond to the complaint, attend any hearing, and present witnesses and other evidence on her or his own behalf.
f.
Initial screening of complaints. Upon receipt of a complaint, the city attorney shall notify in writing the city commissioner who is the subject of the complaint. The commissioner who is the subject of the complaint shall have the right to respond to the complaint. Any such response shall be provided to the city attorney in writing within fourteen (14) days of the commissioner being provided with notification and a copy of the complaint. The city attorney shall review each complaint filed alleging a violation of the code of conduct by a member of the city commission within twenty-one (21) days and either:
1.
Return it for being incomplete;
2.
Dismiss it for being untimely;
3.
Refer alleged violations of state or federal laws to an appropriate law enforcement agency if the complaint states on its face allegations that, if true, would constitute a violation of state or federal law; or
4.
If the city attorney determines that the complaint complies with the requirements of subsection (4)c. above, forward a copy to the preliminary review committee along with any response submitted by the commissioner who is the subject of the complaint.
When the city attorney receives a vague complaint or one lacking in detail, the city attorney shall contact the complainant to request written clarification. If the complainant fails to provide the city attorney with written clarification, a written report to that effect shall be submitted to the preliminary review committee.
g.
Committee review. The members of the preliminary review committee shall individually review the complaint and all other documents or other material submitted including any response submitted by the commissioner who is alleged to have violated the code of conduct. Members of the committee shall not communicate or cause another to communicate with another member of the committee, the person who submitted the complaint, the commissioner who is the subject of the complaint, or any other member of the city commission during their period of review regarding the allegations contained in the complaint. Based on a review of the material provided to them, each individual member of the preliminary review committee shall determine whether there is cause to believe that the commissioner violated the code of conduct. Each committee member shall, within twenty-one (21) calendar days of receipt of the material, return their finding of cause or no-cause to the city attorney.
h.
Commission consideration.
1.
Review of committee's findings. After receiving the finding of cause or no-cause from the preliminary review committee, the city attorney shall place the matter on the next regularly scheduled city commission meeting for review by the full commission.
2.
Presumptions. A finding of cause by two (2) or more members of the preliminary review committee does not mean that any of the complaint's allegations are true or that the commissioner has violated this code of conduct.
3.
No-cause finding. If two (2) or more members of the preliminary review committee make a finding of no-cause, a vote of at least five (5) commissioners shall be required in order for the commissioner to take any further action on the complaint.
4.
Cause finding. If two (2) or more members of the preliminary review committee make a finding of cause, the city commission shall consider the complaint.
(i)
If the commission determines there is no cause to believe that the commissioner violated the code of conduct, then the commission shall take no further action in the matter.
(ii)
If the commission determines there is cause to believe that the commissioner violated the code of conduct, but decides not to conduct a formal hearing on the matter, the commission shall take no further action in the matter, except that the commission may issue a warning to the commissioner. Notwithstanding a decision not to conduct a formal hearing, the affected commissioner shall have the right to request a full and complete hearing before the city commission if the commission issues a warning.
(iii)
If the commission determines there is cause to believe that the commissioner violated the code of conduct, and also decides to pursue action more severe than a warning, the commission shall order that a formal hearing be conducted. If deemed necessary, the city commission may direct the city manager with the concurrence of the city attorney to appoint a special legal counsel to conduct a further investigation and to provide a written report to the commission. The commission shall make reasonable attempts to conduct a formal hearing into the allegations contained in the complaint within ninety (90) calendar days of the commission's decision to conduct a hearing. The city clerk shall give notice of the hearing at least fourteen (14) days prior to the date set for the hearing. The affected commissioner shall have the right to file a written answer to the charge and to appear at the hearing with or without legal counsel, submit testimony, be fully heard, and to examine and cross examine witnesses.
i.
Commission action.
1.
It is the intent of the city commission to educate, and where necessary, discipline commissioners who violate the code of conduct. Discipline shall be progressive, from the least punitive to the most punitive measures, unless the commission believes progressive discipline does not provide the appropriate sanction because of the gravity of the offense, or because the commission does not believe the sanction would deter future misconduct. In all instances, the totality of the circumstances shall be taken into consideration in resolving a matter, including the intent of the one accused of wrongdoing.
2.
Based on a review of the evidence presented, the commission shall, by a concurring vote of at least four (4) members, determine whether there is cause to believe that the respondent violated the code of conduct; and, if so, whether to impose any sanctions against the commissioner. In making a determination, the commission should determine if taking all the facts and evidence into consideration, there are reasonable grounds to believe or not believe that the commissioner violated the code of conduct. Any commission member found in violation of the code of conduct may face the following:
(i)
Warning;
(ii)
Sanction;
(iii)
Censure by the commission, which may include:
A.
Loss of city-related travel privileges for a specified time period;
B.
A civil fine;
C.
A demand for non-monetary restitution (e.g., a public apology, the return of gifts); and/or
D.
A demand for reimbursement of administrative, legal, and/or investigation costs and expenses incurred in investigating and prosecuting the violation of the code of conduct.
3.
The amount of any civil fine imposed by the commission for a violation of this code of conduct shall not exceed the fine which may be imposed for a municipal code violation.
4.
In determining whether to impose a civil fine and the amount of the civil fine, the commission shall consider the totality of the circumstances, including, but not limited to:
(i)
The nature and seriousness of the violation;
(ii)
The duration of the violation;
(iii)
The effort taken by the commissioner to correct the violation;
(iv)
The presence or absence of any intention to conceal, deceive or mislead;
(v)
Whether the violation was negligent or intentional;
(vi)
Whether the commissioner demonstrated good faith by consulting staff or another government agency or an attorney;
(vii)
Whether the commissioner had prior notice that his or her conduct was prohibited;
(viii)
The amount, if any, of the financial or other loss to the city as a result of the violation;
(ix)
The value of anything received or sought in the violation;
(x)
Whether the officer was truthful and cooperative in the investigation; and
(xi)
Any other relevant circumstance.
5.
Any civil fines imposed pursuant to this section may be set off against the expense reimbursement funds received by the commissioner.
All action or decisions with regard to the complaint shall be made during a regularly scheduled meeting which is open to the public.
(Ord. No. 1478 , 12-16-14)