1 CITY OF SANTA FE, NEW MEXICO

2 BILL NO. 2010-____

3 INTRODUCED BY:

4 Councilor Romero

5 Councilor Bushee

6 Mayor Coss

7 Councilor Calvert

10 AN ORDINANCE

11 AMENDING SECTIONS 6-16.1 AND 6-16.2 SFCC 1987 REGARDING THE ETHICS

12 AND CAMPAIGN REVIEW BOARD AND THE BOARD’S POWERS AND DUTIES;

13 AND AMENDING SECTION 6-16.4, SFCC 1987 REGARDING COMPLAINT AND

14 HEARING PROCEDURES RELATING TO THE CODE OF ETHICS, CAMPAIGN

15 CODE OR PUBLIC CAMPAIGN FINANCE CODE.

16

17 BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF SANTA FE:

18 Section 1. Section 6-16.1 SFCC 1987 (being Ord. # 2005-14, §17 as amended) is

19 amended to read:

20 6-16.1 Ethics and Campaign Review Board.

21 A. Creation. There is created an "ethics and campaign review board" ("the board").

22 B. Appointment.

23 (1) The board shall consist of nine (9) members appointed by the Mayor

24 with the advice and consent of the City Council. [Each member of the governing body

25 shall appoint one (1) member in the month of January following the governing body

1
 1 member's election.]

2 (2) Members shall be qualified by training and experience and have the ability to

3 exercise sound and practical judgment regarding those powers and duties of the committee.

4 (3) Due to the legal aspects of the boards' work, at all times at least two (2)

5 of the nine (9) members shall be attorneys licensed to practice in the state of New Mexico

6 for no less than five (5) years. [If the nominations of the governing body do not include at

7 least two (2) attorneys, the mayor shall ask the members to resubmit nominations until at

8 least two (2) attorneys are nominated.]

9 (4) Each member of the board shall be a resident of the city.

10 (5) [No member shall be an elected public official] Members of the

11 governing body, municipal judges, the city manager, the city clerk, the city attorney or a

12 public employee as defined in subsection 1-7.5 SFCC 1987 or the spouse, parent or child

13 of such person shall not eligible to be a member of the Board.

14 (6) At all times, one of the attorney members of the board shall serve as

15 parliamentarian to promote compliance with the Open Meetings Act, due process of law,

16 and other legal requirements.

17 C. Chair and Subcommittees. The board shall elect a chair, vice-chair and

18 parliamentarian from among its members, and may organize subcommittees or panels to conduct

19 hearings, recommend advisory opinions or perform other delegated tasks. The board may at any

20 time act directly on any pending matter without subcommittee action or recommendations.

21 D. Term. Members shall serve terms of four (4) years and shall be eligible for

22 reappointment for additional terms. Terms shall be staggered and shall continue with the same

23 term cycle as currently exists.

24 E. Removal for Just Cause. During a member’s term, he or she may be removed

25 only for just cause by a majority vote of the governing body.

2
 1 F. Vacancies. Vacancies shall be filled in the same manner as the initial

2 appointments and shall continue for the remainder of the unexpired term.

3 G. Compensation. Members of the board shall not receive any salary or

4 compensation for services.

5 H. Meetings and Records. The board shall meet at least four (4) times yearly and on

6 an as-needed basis.

7 Section 2. Section 6-16.2 SFCC 1987 (being Ord. # 2005-14, §18 as amended) is

8 amended to read:

9 6-16.2 Powers and Duties.

10 A. The board shall enforce the provisions of the Code of Ethics (Article 1-7 SFCC

11 1987), the Campaign Code (Article 9-2 SFCC 1987) and the Public Campaign Finance Code

12 (Article 9-3 SFCC 1987) in accordance with the procedures prescribed in this section and such

13 rules as the board may adopt.

14 B. The board shall establish reasonable rules of practice and procedure which are

15 not in conflict with the provisions of city code or other city rules of practice and procedure,

16 timetables and explanatory materials designed to educate the public, to encourage voluntary

17 compliance and to ensure fair and prompt disposition of alleged violations.

18 C. The board may give advisory opinions to any person requesting an opinion as to

19 whether his or her own future conduct would violate [regarding matters related to] the Code of

20 Ethics, the Campaign Code or the Public Campaign Finance Code.

21 [E.]D. In the exercise of its responsibilities, the board may audit campaign or other

22 records. After each election campaign the board may contract for professional reviews or audits

23 of randomly selected finance statements and shall file their results with the city clerk's office.

24 E. The board shall review and make recommendations to the governing body

25 regarding the Code of Ethics on an annual basis pursuant to Section 1-7.11 SFCC 1987.

3
 1 [D.]F. The board shall periodically review and recommend changes to the governing

2 body for improving the [Code of Ethics,] Election Code, the Campaign Code or the Public

3 Campaign Finance Code, particularly following a municipal election.

4 G. The board shall review and make recommendations to the governing body

5 regarding districting.

6 H. The board shall review and make recommendations to the governing body

7 regarding the governing body procedural rules and other procedural matters including, but not

8 limited to, the city’s annual open meetings act compliance resolution.

9 Section 3. Section 6-16.4 SFCC 1987 (Ord. #2005-14, §20 as amended) is

10 amended to read:

11 6-16.4 Determination of Legal Sufficiency; Setting a Hearing.

12 A. Upon receipt of the complaint, the board shall determine the following:

13 (1) If the face of the complaint sets forth legally sufficient facts which, if

14 true, show probable cause to believe that there was a violation;

15 (2) If the complaint was filed within one (1) year after the complainant first

16 discovered or reasonably should have discovered the facts on which the complaint is based;

17 (3) If the complaint is frivolous or intended solely to harass or intimidate; and

18 (4) If the board lacks jurisdiction to adjudicate the complaint.

19 B. The city attorney, or a qualified attorney designated by the city attorney, may file

20 a complaint with the board on the basis of information referred by the board or obtained

21 otherwise, upon their independent determination that probable cause exists of a violation of the

22 Code of Ethics, the Campaign Code or the Public Campaign Finance Code.

23 C. To promote public participation, and to preserve the board's transparency,

24 credibility, and stature, all final board determinations, including board decisions on complaints,

25 advisory opinions, and settlements, shall be made during public meetings in compliance with the

4
 1 Open Meetings Act. No complaint shall be dismissed without a prior evidentiary hearing or prior

2 board discussion in a public meeting of the reasons for the determination.

3 D. If the board determines that the complaint is legally sufficient, was filed timely

4 and is not frivolous, and that the board has jurisdiction to adjudicate the complaint, the board

5 shall at the same meeting set a schedule for hearing the complaint. The board shall conduct a

6 public hearing regarding the complaint in accordance with due process of law. The chair of the

7 board has authority to order appropriate discovery and issue subpoenas for the attendance of

8 witnesses or the production of documents. Any decision of the chair with respect to discovery or

9 with respect to the issuance of subpoenas shall be reviewable by the board upon request of any

10 affected person. The board may seek enforcement of administrative subpoenas or discovery

11 requests in district court.

12 E. A board member who has participated in any hearing on a case concerning a

13 complaint alleging a violation of the Code of Ethics, Campaign Code or the Public Campaign

14 Finance Code shall continue to serve as a board member on such case until the completion of the

15 case, regardless of the expiration of that board member's term, but only when the board has voted

16 on a matter concerning the case. A replacement board member shall not serve on such cases.

17 [E.]F. The city clerk may require electronic posting of all documents generated

18 pursuant to the Code of Ethics [Code], the Campaign Code or the Public Campaign Finance

19 Code, in an accessible and searchable format, including the proceedings of the ethics and

20 campaign review board.

21 APPROVED AS TO FORM:

22

23 _________________________________

24 GENO ZAMORA, CITY ATTORNEY

25 Jp/ca/jpmb/2010 bills/ethics and campaign review board revisions 2

5
 1 CITY OF SANTA FE, NEW MEXICO

2 BILL NO. 2010-_____

3 INTRODUCED BY:

4 Councilor Romero

5 Councilor Bushee

6 Mayor Coss

7 Councilor Calvert

10 AN ORDINANCE

11 AMENDING SECTIONS 1-7.3, 1-7.5 AND 1-7.7 SFCC 1987 OF THE CITY OF SANTA FE

12 CODE OF ETHICS; AND REPEALING SECTION 1-7.8 SFCC 1987 OF THE CODE OF

13 ETHICS.

14

15 BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF SANTA FE:

16 Section 1. Section 1-7.3 SFCC 1987 (being Ord. No. 2005-14 §3) is amended to

17 read:

18 1-7.3. Purpose and Intent.

19 The purpose of the Code of Ethics is:

20 A. To fulfill the obligation imposed on the governing body by Section 2.01 of the city of

21 Santa Fe Municipal Charter to adopt an ordinance establishing standards for the ethical conduct of all

22 elected and appointed officials and all employees of the city, and to provide consequences for

23 violating such ethical standards;

24 B. To exercise to the fullest extent the legislative powers granted to the governing body

25 by Article X, Section 6, of the New Mexico Constitution and the New Mexico Municipal Charter Act

1
 1 (§§3-15-1 et seq. NMSA 1978) and to adopt a code of ethics which particularly suits the local

2 concerns and needs of the city of Santa Fe without regard to any provisions of state law that may be

3 inconsistent therewith;

4 [A.]C. To adopt a standard of behavior for public officials and employees of the city of

5 Santa Fe to insure that decisions are made without consideration of personal benefit[,] to the decision-

6 maker;

7 [B.]D. To require public officials to recuse themselves from participation in or voting on any

8 matter in which he or she has a conflict of interest; and

9 [C.]E. To advance openness in city government by requiring disclosure by public officials or

10 public employees and establishing a process for reviewing and resolving alleged violations of this

11 section.

12 Section 2. Section 1-7.5 SFCC 1987 (being Ord. No. 2005-14, §5) is amended to

13 read:

14 Conflict of interest means a specific and identifiable prospect of pecuniary gain or loss to any

15 of the individuals or entities here listed from an official act of any public official or employee: (1) the

16 public official or public employee who is to perform the official act; (2) any member of his or her

17 immediate family; (3) any business in which he or she or any member of his or her immediate family

18 has an interest; or (4) any employer, client or customer from which the public official or public em-

19 ployee or any member of his or her immediate family or any business in which he or she has an inter-

20 est has received remuneration of more than five hundred dollars ($500.) during the year preceding the

21 official act.

22 [Elected public official means all members of the governing body whether elected or ap-

23 pointed and the municipal court judge whether elected or appointed.]

24 Financial interest means knowingly having any interest in a business or a contractual, con-

25 sulting or employment relationship. For a public official or public employee this means an interest

2
 1 held by the individual, his or her spouse, or minor children.

2 Governing body means the mayor and the city council.

3 Governmental body means the governing body or a board, commission or committee that in-

4 cludes members appointed by the governing body.

5 Official act means an official decision, vote, recommendation, approval, disapproval or other

6 action which involves the use of discretionary authority.

7 Public employee means any exempt, classified, probationary, temporary, term or part-time

8 employee of the city of Santa Fe as set forth in the city’s rules and regulations; however, for the pur-

9 poses of the code of ethics it does not mean the governing body or the city manager, city clerk or city

10 attorney.

11 Public official means [an elected public official,] members of the governing body or munici-

12 pal court judges, the city manager, the city attorney, the city clerk and any member of a city of Santa

13 Fe board, commission, agency or committee.

14 Section 3. Section 1-7.7 SFCC 1987 (being Ord. No. 2005-14 §7) is amended to

15 read:

16 1-7.7. Prohibitions; Private Benefits or Gifts; Personal Representation; Use of City

17 Services; Acquiring Financial Interest.

18 A. [No elected] A public official or public employee shall not accept anything of value

19 to be used in the performance of official duties without disclosing in a public document, filed with the

20 city clerk, within seven (7) days of receipt, the source and nature of that which is accepted. This

21 applies to things of value subsequently given away by the [elected] public official or public

22 employee. This does not apply to things of value received from the city of Santa Fe for the

23 performance of official duties.

24 B. [No] A public official or public employee shall not [knowingly] request or receive,

25 directly or indirectly, a gift or loan or any other [financial benefit] thing of pecuniary value from any

3
 1 person or entity which, to the knowledge of the public official or public employee[,]:

2 (1) Has any prospect of direct or indirect pecuniary gain or loss from any official

3 act to be performed by the public official or public employee, other than a financial gain or

4 loss common to members of the general public; [or does business with the city of Santa Fe;]

5 or

6 (2) [which] Is seeking or intends to seek from the city of Santa Fe any permit,

7 approval or license the issuance of which requires an official act by the public official or

8 public employee.

9 C. [No] A [elected] public official[, the city manager, the city attorney or the city clerk]

10 [n]or any member of their immediate family or significant other accompanying that elected public

11 official, city manager, city attorney or city clerk shall not accept any trip with a value exceeding fifty

12 dollars ($50.00) except from members of their immediate family or significant other without

13 disclosing it in a public document, to be filed with the city clerk within seven (7) days of the end of

14 the trip. This document shall list the source of funding and the nature and value of the trip. This does

15 not apply to trips of value received from the elected public official's, city manager's, city attorney's or

16 city clerk's employer for the performance of duties related to that employment or to trips funded by

17 the city of Santa Fe for the performance of official duties or trips associated with their obligations

18 related to their professional or non-profit affiliations.

19 D. Provided, however, that nothing in the preceding paragraphs shall prohibit any of the

20 following:

21 (1) An occasional nonpecuniary gift of insignificant value, not to exceed fifty

22 dollars ($50.00);

23 (2) An award having a market value of less than fifty dollars ($50.00) publicly

24 presented in recognition of public service;

25 (3) A commercially reasonable loan made in the ordinary course of business by

4
 1 an institution authorized by the laws of the state to engage in the business of making loans;

2 (4) Compensation for services rendered or capital invested or payment for a sale

3 of property which is:

4 (a) Normal and reasonable in amount;

5 (b) Commensurate with the value of the property sold or services

6 rendered or the magnitude of the risk undertaken on the investment;

7 (c) In no way increased or enhanced by reason of the recipient's position

8 as a public official or public employee; and

9 (d) Not otherwise prohibited by law.

10 E. A public official may request or receive a political campaign contribution, provided

11 that such contribution is properly received and reported as is required by Section 9-2 SFCC 1987.

12 [F. No public official shall personally represent private interests before a governmental

13 body of which the official is a member and directly or indirectly receive compensation for that

14 representation.]

15 [G]F. [No elected] A public official or public employee shall not, during his or her term of

16 office or employment or within one year after the termination thereof, [personally represent private

17 interests before a governmental body of the city of Santa Fe and directly or indirectly receive

18 compensation for that representation] accept pecuniary compensation from a third party for

19 consulting with, representing or advising that party regarding any contract, transaction, permit or

20 license with or from the city.

21 [H]G. [No] A public official or public employee shall not use or disclose confidential

22 information acquired by virtue of his or her public office or employment, except as required in his or

23 her official capacity or as authorized by city officials. No public official or public employee shall use

24 confidential information acquired by virtue of his or her public office or employment for private gain.

25 [I]H. [No] A public official or public employee shall not use city services, personnel or

5
 1 equipment for personal benefit, convenience or profit, except when such use is generally available to

2 the public and when consistent with policies of the governing body.

3 [J]I. [No elected] A public official or public employee shall not enter into a contract or

4 transaction with the city of Santa Fe during his or her term of office or employment or for a period of

5 one (1) year following the leaving of public office or public employment when the contract or

6 transaction is a [direct] result of an official act by that public official [, unless the contract or

7 transaction is made as a result of competitive bidding with the city of Santa Fe] or public employee.

8 This paragraph shall not prohibit a present or former public official or public employee from seeking

9 or obtaining, on his or her own behalf, a city permit, license or service that is available on the same

10 terms and conditions to any member of the public.

11 [K]J. [No] A public official or public employee [may] shall not request or receive an

12 honorarium for a speech or service rendered in the performance of public duties. For the purposes of

13 this section, "honorarium" means payment of money, or any other thing of value in excess of one

14 hundred dollars ($100.), but does not include reasonable reimbursement for meals, lodging or actual

15 travel expenses incurred in making the speech or rendering the service except as set forth in

16 paragraph (C) above.

17 [L]K. A public official or public employee who files an ethics complaint [may] shall not be

18 dismissed, threatened with dismissal, or otherwise singled out for retaliation for the reason that the

19 person filed an ethics complaint. Any act in violation of this subsection shall be deemed a violation of

20 the Code of Ethics and subject the violator to the penalties contained in this section. The outcome of

21 the original ethics complaint shall not be deemed relevant to the complaint of retaliation itself.

22 [M]L. The following shall govern conflicts of interest:

23 (1) Any [public official or] public employee having a conflict of interest or

24 potential conflict shall immediately disclose the conflict to his or her immediate supervisor

25 [and to each of the other members of the governmental body of which he or she is a member.

6
 1 The disclosure shall be recorded in the minute book of the governmental body to which it is

2 made].

3 (2) Any public official having a conflict of interest or a potential conflict of

4 interest shall disclose the conflicts and shall recuse himself or herself from participation in

5 [or] and voting on any matter in which he or she has a conflict of interest prior to discussion

6 of the matter or action thereon at a meeting; provided, however, that a public official who

7 recused himself or herself shall not be required to leave or otherwise depart from the premises

8 or location of the discussion. An affirmative statement of recusal by a public official that he

9 or she is unable to participate in any action or discussion related to the matter for which a

10 conflict of interest exists shall either be:

11 (a) In writing, addressed to the city clerk or the staff liaison to the

12 governmental body, after the agenda is posted; or

13 (b) Orally at the meeting,

14 If the statement is in writing, the city clerk or staff liaison shall disclose the recusal at

15 the meeting. A public official shall not be required to make any disclosure of the nature or

16 extent of the conflict of interest for which a recusal has been announced other than those

17 required by this paragraph L.

18 (3) No public official or public employee shall perform any official act with re-

19 spect to which he or she has a conflict of interest unless:

20 (a) The interest of the public official or public employee which gives

21 rise to the conflict of interest is de minimis in amount or shared with the members of

22 the general public, or is an interest in close corporation stock worth less than one

23 thousand dollars ($1,000.) at fair market value or which represents less than a five

24 percent (5%) equity interest, or is an interest in publicly traded stock which is worth

25 less than twenty-five thousand dollars ($25,000.) at fair market value or which repre-

7
 1 sents less than two percent (2%) equity interest, or is an interest in publicly traded

2 stock under a trading account which is disclosed under the name and address of the

3 stockholder; or

4 (b) In the case of a public employee, no other public official or public

5 employee has the ability and authority to perform the official act and the public em-

6 ployee having the conflict of interest has obtained express permission, in writing,

7 from his or her immediate supervisor to perform the official act notwithstanding the

8 conflict of interest.

9 ([3]4) If the public official with a conflict of interest fails to recuse himself or

10 herself, any member of the governmental body of which the official is a member may move

11 to disqualify that public official from participation or voting on any matter in which the

12 member has a conflict of interest. Such motion shall not be acted upon until the public official

13 in question has been given an opportunity to respond to the motion. Such a motion requires a

14 majority of the members of the governmental body present to pass.

15 (5) Nothing in the preceding paragraph (4) or in any other law governing

16 conflicts of interest on the part of public officials or public employees shall be construed to

17 preclude or limit the authority or jurisdiction of the ethics and campaign review board to

18 entertain and adjudicate a complaint of violation of this paragraph L., pursuant to the

19 procedures prescribed by Article 6-16 SFCC 1987; and no such complaint shall be deemed

20 barred by any action or inaction of any governmental body on a motion authorized by the

21 preceding paragraph (4) or by the failure of any member of a governmental body to make

22 such a motion; provided, however, that if a motion is made in a meeting of the governing

23 body to disqualify a member of the governing body from voting on a pending matter on the

24 ground that the member has a conflict of interest with respect to such matter, and if the

25 motion is seconded, discussed and fails on a roll-call vote, the failure of such motion shall be

8
 1 deemed to preclude subsequent prosecution of the member before the ethics and campaign

2 review board for a violation of this paragraph L., based on the member's vote on such matter.

3 (6) No decision, finding or action of the ethics and campaign review board on a

4 complaint of violation of this paragraph L. shall, in itself, have the effect of rescinding or

5 nullifying any official act of a public official or public employee or any vote of a

6 governmental body on the ground that such act or vote was influenced or affected by an

7 alleged conflict of interest.

8 [N. No present or former public official or public employee shall at any time accept

9 financial compensation for consulting, representing, or advising as to any city matter on which he or

10 she has substantially acted.]

11 Section 4. [REPEAL[ Section 1-7.8 SFCC 1987 (being Ord. No. 2005-14 §10) is

12 repealed.

13 [1-7.8 Disclosure of Alleged Conflict of Interest.

14 A. Any public official, public employee or member of the public, who believes that any

15 other public official or public employee has a conflict of interest in any agenda item before a govern-

16 mental body or in any official act to be performed by the public official or public employee, shall dis-

17 close such interest to the city clerk. The city clerk shall forward copies of such disclosure to the per-

18 son who is alleged to have a conflict of interest, the ethics and campaign review board and the city

19 attorney.

20 B. A failure to file the above disclosure shall not bar or limit the right of any person to

21 file or prosecute a subsequent complaint based upon an allegation that a public official or public em-

22 ployee has performed an official act with respect to which he or she had a conflict of interest in viola-

23 tion of Section 1-7.7L SFCC 1987.]

24

25

9
 1 APPROVED AS TO FORM:

3 _________________________________

4 GENO ZAMORA, CITY ATTORNEY

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24
25 Mdb/jep&mdb/Bills 2010/Code of Ethics Amendments (Combo)4

10