Ethics Handbook Municiipal League Michigan

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Ethics Handbook for

Michigan Municipalities

Better Communities. Better Michigan.

integrity fair dealing responsibility accountability openness


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Thank you

The Michigan Association of Municipal Attorneys wishes to thank the Michigan MunicipalLeague Foundation for their generous financial support of the Ethics Handbook project.The Foundation contribution has greatly assisted with the publication and distribution ofthe handbook, ensuring that it will be available to local governments and interestedparties throughout Michigan.


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Ethics Handbook For Michigan Municipalities

Presented by

The Ethics Roundtable

of the Michigan Association of Municipal Attorneys

A publication of

Printed May 2008

Copyright 2008 Michigan Municipal League

No portion of this book may be reproduced by any means

without permission of the Michigan Municipal League.

Better Communities. Better Michigan.


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Table of Contents

Dedication.....................................................................................................................................................................1

Foreward ........................... ............................. ............................ ............................ ............................. ......................... 3

Preface........................... ............................. ............................ ............................. ............................ ............................ .. 5

Chapter 1: The Importance of Ethics for a Local GovernmentEthics and Why It Matters ......................... ............................ ............................ ............................. ............................ .. 9

Civility in Local Government: The Civil Society ............................. ............................ ............................ ....................10

Chapter 2: Things to Keep in Mind

Different Forms of Government;Different Routes to Adopting Ethics Standards for Your Community ......................... ............................ ............... 17

Including Ethics Provisions in Charters: Advice for Charter Commissions ..........................................................19

Labor Considerations ....................................................................................................................................................22

Chapter 3: The Substance of a Local Government Ethics OrdinanceDefinitions for an Ethics Ordinance .......................... ............................ ............................. ............................ .............. 27

Fundamental Standards of Conduct for an Ethics Ordinance......................... ............................. ............................ 33

Consequences for Violating the Ethics Ordinance ....................................................................................................41

Enforcement and Administration of an Ethics Ordinance ........................................................................................46

Chapter 4: How to ProceedDeveloping, Adopting, and Implementing an Ethics Ordinance: The Process ......................... ............................ 55

AppendicesAppendix A: The Contributors .................................. ............................ ............................. ............................ .............. 57

Appendix B: Some Ethics-Related Michigan Statutes ...................... ............................. ............................ .............. 59Appendix C: Local Government Ethics Ordinances ...................................................................................................61

Appendix D: An Ethics Bibliography ...................................... ............................ ............................. ............................ 63

Appendix E: Professional Associations Codes of Ethics .......................... ............................ ............................. ....65


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Dedication 1Ethics Handbook

Dedication

This handbook is dedicated to the memory of William L. Steude, general counsel of the MichiganMunicipal League from 1971 to 1997, and past chair of the Ethics Roundtable, a committee ofthe Michigan Association of Municipal Attorneys. Bill was a proponent of ethical conduct andcivility in government at all levels, and this handbook was originally his idea. The essay onCivility in Government is his, and in it he considers the respect that is deserved by and owedto, both the public and its dedicated local government officials and staff. We have all benefitedfrom Bills belief in the necessity of the trustworthiness of government, and with this handbookwe hope to advance that belief.


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Foreward 3Ethics Handbook

The Michigan Municipal League, representing some518 local governments, is proud to join the MichiganAssociation of Municipal Attorneys in presenting

a comprehensive resource for local governmentofficials interested in the topic of ethics as it appliesto municipalities.

One of the hallmarks of municipal governance inMichigan is its strong tradition of ethical conductin the provision of services for local communities.The actions of municipal elected and appointedofficials adhere not only to a statutory framework,but also to professional codes of conduct, localprovisions, local organizational culture and, perhapsmost importantly, a strong sense of personal ethics

borne of the civic pride that leads individuals tobe municipal officials. The Michigan MunicipalLeague has traditionally worked to articulate andsupport the tradition of ethical conduct in Michigansmunicipalities. This handbook represents animportant additional step. It is both a conceptualresource and a how to manual. It is comprehensivein that it addresses numerous facets of ethics. And,it documents the ways numerous municipalitieshave addressed ethics, in a formal sense, byadopting a local ethics ordinance.

One of the great attributes of municipal governmentin Michigan is that the government can be tailored tomeet the needs of a particular community. The bestway to address an issue in one community may bevery different from a neighboring communitythetopic of ethics included. Thus, this handbook doesnot seek to present a model. Rather it discussesthe concept of ethics as it applies to municipalgovernment, highlights particular issues, and thenpresents how several communities have addressed

those issues. It should be pointed out that for manymunicipalities it will be appropriate to adopt onlyselected provisions set forth in the handbook.

In making the choice to adopt an ordinance, acommunity should bear in mind that an ethicsordinance is a tool. While adopted with the intentof improving the government of the municipality,care has to be given to how this tool is used. Thatis, an ethics ordinance can be a shieldto shieldthe community from unethical conductor it canbe used as a sword to unfairly attack municipalofficials, and if so used, it can be a detriment to thecommunity.

Ultimately, this handbook is a powerful resourcefor Michigans municipal leaders to engage incommunity dialogue and deliberation to choose thebest approach locallyfor maintaining high ethicalstandards in Michigan municipalities.

This handbook represents a great deal of devotionto this topic by a number of persons. Without theirselfless contributions, it would not have beenpossible. In particular I would like to recognizeand thank Daniel C. Matson, chair of the EthicsRoundtable whose guidance and persistence made

the handbook a reality. Dennis A. Mazurek, seniorcounsel of Detroits Law Department, who organizedand analyzed the sample ordinance provisions, andMary M. Grover, the editor of the handbook, whomolded its disparate parts into a unified publication.

William C. MathewsonGeneral Counsel, Michigan Municipal League;Secretary/Treasurer, Michigan Association ofMunicipal Attorneys

Foreword


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Preface 5Ethics Handbook

This handbook is offered as a guide for establishingethical standards for the conduct of all personsin service to municipal governments in Michigan.A number of Michigan communities have adopted

some form of statement about ethics which mayappear in the local charter, in an ordinance, orin both. Other communities may be consideringadopting some form of standards of conduct fortheir public officials. This publication is intendedto provide assistance to municipal officials in theirefforts to either create new ethics policies andprocedures, or to update them in keeping withtodays expectations regarding the conduct ofelected officials, employees, and volunteers.

The Home Rule principle allows Michigan

communities to tailor ethics standards to fit localneeds and expectations. Each can adopt provisionsthat are appropriate for a particular community inorder to promote public trust in public officials andin government. Elected and appointed officials, staffand volunteers may rely upon this stated frameworkwithin which they conduct the affairs of government.

The authors and reviewers of this handbookbring considerable experience to the effort asthey have represented the interests of Michiganmunicipalities and have encountered a broad rangeof ethical issues and concerns that confront publicofficials. The publication is the outcome of manysuch experiences as identified by members of theEthics Roundtable, a group formed by the MichiganAssociation of Municipal Attorneys. The Roundtablehas focused on aiding local officials to understandand to resolve ethics problems within establishedlegal and voluntary requirements.

With this reference, municipal officials mayconsider addressing a variety of areas of conduct

that would be appropriate for their organizations.The reader may also examine a variety of optionsthat are currently in use in a number of Michigancommunities. These approaches are the result ofextensive study and discussion, and they reflectlocal concerns and values.

It is strongly recommended that the municipalattorney be involved in each step of the processof developing, proposing, and adopting ethical

standards. Numerous legal issues must beconsidered whenever local law of this nature iscreated, and particularly when enforcement isinvolved.

Ethical administration of government invites thecitizens confidence in, and respect for, government.Good governance is valued by the community. It issustained by those who have dedicated themselvesto public service, and it is reflected in the decisionsmade and the actions taken by that government.To that end, the Ethics Roundtable commends thishandbook to all citizens of Michigan communities,and to those who serve them, in recognition of theneed to promote, and to earn, the public trust.

I wish to acknowledge contributions to this work bymembers of the Ethics Roundtable of the MichiganAssociation of Municipal Attorneys, includingthe following: Dennis A. Mazurek, senior counselof the City of Detroit Law Department, for hiscomprehensive research and analysis in authoringChapter 3, the central chapter of the handbook. JohnJ. Rae, former Midland city attorney, who broughterudite and insightful sharing of the meaning ofethics. Peter A. Letzmann, former Troy city attorneyand foremost seminar organizer and presenterto municipalities on many topics, always withethical concerns in mind. Michael P. McGee, seniorprincipal with Miller, Canfield, Paddock and Stone,PLC, who applies labor law considerations to thebook. William C. Mathewson, general counsel, andSue A. Jeffers, associate general counsel, of theMichigan Municipal League, who continue to fieldnumerous inquiries regarding ethical issues fromconstituent municipalities. Dene Westbrook, JeanetteWesthead, and Breanne Bloomquist at the Leaguefor their design and production expertise. Mary M.Grover, of Traverse City, public sector facilitator,

trainer and presenter of ethics programs on local,state, national and international levels, who servedas editor. Many others have generously served asmembers of the Ethics Roundtable through its yearsof existence, and their meaningful participation inthe ever-current ethics discussion has led to thecompletion of this handbook.

Daniel C. Matson, ChairThe Ethics Roundtable

Preface


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The Importance of Ethics for a Local Government 7Ethics Handbook Chapter 1

Chapter 1: The Importance of Ethicsfor a Local Government

EssaysEthics and Why It Matters ......................................................................9

Civility in Local Government: The Civil Society ..................................10


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Why should a municipal government be concernedabout ethics? At first blush this appears to be a

question, the answer to which is so obvious, thatit need not be asked. As is the case with so manythings, however, things are, more often than not,more complicated than they appear to be.

Aside from the almost automatic response of many,who might say that ethics must mean some sortof standard of good behavior, there appears to belittle agreement about what the word ethics reallymeans. This has led, unfortunately, to the termbecoming so loose in scope and meaning that it is indanger of becoming as floppy as words like liberal,

or conservative, words which often convey whatevermeaning the speaker or writer wants, but to thelistener or the reader, the words may have a verydifferent meaning.

In addition to the immediate barrier to understandingwhich this moveable meaning creates (orperpetuates), the standard of good behavior whichis supposedly being followed is, by this confusion, indanger of becoming nothing more than a belief thatones personal opinion on the subject is no better orworse than the opinion of anyone else. The result isa kind of relativism around the word ethics, whichlogically raises the question of whether there shouldreally be any ethics standards in the first place.

A large part of the problem here is that the termethics has a number of meanings assigned to it byany standard dictionary. For example, one referenceincludes all of the following:

1. the study of the general nature of moralsand of the specific moral choices to be made

by an individual in his relationship withothers; i.e. the philosophy of morals or moralphilosophy;

2. a set of moral principles or values;

3. the moral quality, fitness or propriety of acourse of action; and

4. the rules and standards governing theconduct of a profession.

Also, the historical tension between the religioustraditions in our pluralistic society, and theprotections of individual rights under ourgovernmental system, inevitably lead to even moredisagreement over the subject of ethics.

Given all of the foregoing, then why do we bothertrying to establish any kind of rational system ofethics guidance for municipal government? The

answer is that most people recognize civil societysneed for something which will enable them to livetogether in a peaceful and productive way. Thisrecognition is already reflected in our Constitution,public laws, statutes, ordinances and regulations.What is driving the renewed interest in codes ofethics, however, appears to be an ever-growingbelief that these laws do not go far enough.

What a carefully crafted and defined ethics codeor ordinance can do is to establish behavioralstandards of integrity, fair dealing, responsibility,accountability, and disinterested conduct whichare not specifically covered by existing laws, butwhich are an essential part of the fiduciary duty(the highest standard of conduct) which is almostuniversally recognized in this country as being owedto the public by its public servants and officials.

Ethics and Why it Matters

By John J. Rae


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10 The Importance of Ethics for a Local GovernmentChapter 1 Ethics Handbook

While the subject of civility in governmentis a different concept than that of ethics ingovernment, there can be little doubt that there isa close relationship between the two. It is hard toimagine that true ethical behavior would not becharacterized by civil behavior, even though theopposite might not always be the case. The authorsof this publication believe that these conceptscomplement one another, and for this reason havedecided to include this chapter. We can find no betterexplanation and exposition of the subject than was setforth by our mentor, teacher and friend, Bill Steude, inan article entitled, Civility in Local Government: TheCivil Society, which appeared in the April 2001 issue

of the Michigan Municipal Review. The article follows,in its entirety. Editor

The decline in civil conduct and discourse, publicand private, needs no documentation. But a searchover the Internet under civility produces muchthat supports the case for its sharp decline anda yearning for its restoration. Universities havecommissions to promote civility on campuses.Churches offer civility pledges to candidates forpublic office. Congress even had a civility camp

where members and their families gathered toimprove the courtesy level in the U.S. House ofRepresentatives. The City of Bloomington, Indiana,established a task force for a safe and civil city,promoting discussion of what it means to be acivil participant. Several state jurisdictions havepromulgated civil codes for practicing attorneys.

President George W. Bush, in his 13-minuteinaugural address, referred to civility four times.He said, Civility is not a tactic or a sentiment. It isthe determined choice of trust over cynicism, of

community over chaos.

To be civil, in ordinary understanding, means tobe polite, respectful, decent, tolerant, gracefulin language and gesture, tone, exercisingrestraint toward others, cooling the hot passions

of partisanship, adversarial and personalizedargument, with magnanimity toward others.

The decline in civility in public affairs reflects theoverall decline in American civility in professionalsports, the media, talk shows, politics, academics,interpersonal communication, even road rage. Theloss of civility in our national life betrays morefundamental trends in our society and culture,argues Harvard Law Professor Stephen L. Carter inhis recent book on civility.1 He traces the historic,cultural and religious roots of civility that havewithered or rotted and now account for the seriouslapse in civil social behavior.

Civility probably cannot be codified into standardsof behavior enforceable by penalty. In fact, civilitycodes for public officials may even set a lowerthreshold, and be an incentive for lowering, ratherthan raising standards, by setting what you can getaway with, not how you should be.

There is no constitutional duty of a public officialto be civil. But note Article I, Section 17 of theMichigan Constitution, in the same section in whichthe due process clause appears, which provides:

the right of all individuals, firms,corporations and voluntary associationsto fair and just treatment in the course oflegislative and executive investigations andhearings shall not be infringed.

This fair and just treatment clause does not speakto civility, but civility can help set the tone fordemonstrating fair and just treatment in hearingsand investigations.2

However impossible it may be to mandate, civilitymight be inspired by conscientious attention tothe trappings of a meeting of a public body, by thephysical setting, by the rules of procedure and theconscious example of members of the public body

themselves.

Civility in Local Government: The Civil Society

By William L. Steude


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The trappings of a meeting

Opening ceremonies, such as a prayer by a memberof the clergy in the community, the pledge ofallegiance to the flag led by Girl or Boy Scouts or byveterans, and a formal roll call of the members canset the level of respect with which such formality isusually accorded.

Remember, a city commission or council is anelected legislative body whose members takeexactly the same constitutional oath of office takenby the governor and by every other elected officialin the state. If members and the public have therespect for one another and from one anotherthat reflects that status, a certain formal level ofdiscourse and decorum might maintain a higherlevel of civility.

The physical setting for the meeting, the furnishings

and seating arrangements, and even the councilsattire influence and can elevate expectations aboutpublic deportment at council meetings. A card tableor fold up table with folding chairs for the councilmembers seems to belittle the office and may invitean informality that can slide into uncivil discourse orworse.

Money spent on decent furnishings and the settingis well worth the cost. It reflects the level ofrespect accorded by the community toward its self-government and its elected representatives.

Rules of procedure

No deliberative body can efficiently conduct itsbusiness without rules. A governing body hasa relatively free hand in designing its own rulesof procedure as long as constitutional (FirstAmendment), statutory (Open Meetings Act),and local charter requirements are not violated.Although most municipal governments which have

rules seem to have automatically adopted RobertsRules, Roberts does not necessarily have to be theprimary source for local rules of procedure.

Roberts Rules of Orderare complicated, highlydetailed, and are intended primarily for largelegislative bodies or for meetings of largeassociations whose membership may number

hundreds. Its procedures may be unnecessarilycumbersome for small governing bodies: thefive-to-seven-member councils of most Michiganmunicipalities.3

For example, Roberts requires a second to supportan ordinary motion and put it into debate, but a smallbody which meets weekly, fortnightly or monthlymight opt not to require a second at all, but couldproceed to debate directly if the rules permit it.

The complex details of parliamentary proceduremay also confuse and frustrate elected officialsand the public, particularly if the rules are seenas being manipulated for or against one side of anissue or the other, or are seen as being ignored,misunderstood or wrongly invoked. Such a use ofthe rules of procedure, or the perception of theirmisuse, will counter the very purpose of rules ofprocedure to protect the minority and promote

orderly deliberations and decisions, and will furtherundermine public confidence in government.

Truth in government depends on a set of proceduralrules that are followed consistently, give equalopportunity for every member of the body toparticipate in making the decision, make for themost efficient procedure possible, and result in adecision by a majority of the body on the merits ofthe issue, not on manipulation of procedures.

A governing body ordinarily has the discretion to

adopt its own simplified set of procedural rules,unless Roberts Rules or some other authority hasbeen mandated by the municipal charter.4 Such rulesdo not automatically command civility, but a goodset of rules may minimize the perception that therules are drawn, or bent, to control an outcome. Ifparliamentary maneuvering is seen as manipulatingthe proceedings, a frustrated council member orminority, or the attending public, can erupt in anger.

Civility and decorum is strained by the gadfly, theactivist and the protester, who tend to distrustgovernment and those in government. If they engagein abusive and baseless charges, or monopolize ameeting, the presiding official can rapidly lose theability to maintain order, unless the council backsa zero tolerance policy toward such disruptivebehavior.


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12 The Importance of Ethics for a Local GovernmentChapter 1 Ethics Handbook

Personal attacks generate counter attacks andlead to verbal duels and free-for-alls difficult tobreak, leaving civility and decorum in the dust. Thepresiding officer in that event may have no choiceexcept to declare a brief recess so tempers andrhetoric may cool.

A rule against personal attacks, applicable equally tomembers of the body and the public, can help keepa discussion problem centered and not personcentered. A procedure to enforce a zero tolerancepolicy in progressive steps can be effectuated,

1. By reminding the speaker of the rule if aviolation occurs.

2. If the misconduct persists, by calling thespeaker to order, citing the rulea formalwarning which may cause the speakerto lose the floor, if the rule so provides(although it may also authorize restoring thefloor to the speaker if the abuse ends andthe body formally permits the speaker toresume); or

3. If the abuse still persists after warnings, thechair names the offendera last resortstep which has the effect of preferringcharges. The presiding officer states whatthe offender has done. The body thendecides how to penalize the member, if theoffender is a member of the governing body.The rule could specify a range of penalties

e.g. reprimand, formal censure, or municipalcivil infraction. If the offender is a memberof the public, the presiding officer may orderthe offender to be escorted from the meetingroom.5

A rule limiting the length of council meetings andspeeches by elected officials and the public willcontribute to keeping the deliberations on point. Nogood government is likely to occur in the late nighthours of a meeting when the limits of patiencestrain the limits of civility.

Procedural rules that permit and promote flexibleopportunities for public input may diffuse publicfrustration at being foreclosed from opportunecomment and encourage constructive debate. Forexample,

Schedule public comment time at thebeginning of the meeting (or of a worksession), rather than at the end of themeeting.

Provide a short time for public commentat the first reading of an ordinance, ratherthan, or in addition to, at the second reading;(preliminary public comment may surface

overlooked problems early and minimize anyperception at the second reading that thework has already been done and gone too farto be altered and the issue already decided).

Hold regular meetings explicitly for publicparticipation separate from or in conjunctionwith and preceding the regular councilmeeting.

Titles and debateHow members of a governing body address oneanother and how the public is conditioned toaddress the council can promote the level of civilityif formalities are observed. Using the first namemay be appropriate in a casual street encounteror on the phone with a friend or neighbor who is acolleague on the council or a constituent, but it isnot appropriate in a formal session of the governing

body when addressing one another.

Titles may be a source of sensitivity to genderbiased titles.

Commissioner when the legislative bodyis a commission is an easy gender-freetitle. councilman requires its counterpart,councilwoman, but councilmember fits either,and councilor is a shorter alternative. Trusteewill work for general law villages. Madam ormister mayor, or just plain mayor works forcities. Madam or mister president, or just plainpresident works for a village presiding officer.

If the title is not in the municipal charter, the rulesof procedure can establish the titles, how to addressone another, and the practice that members ofthe public should be requested to follow suit. Forexample, Council members shall be addressed ascouncilor.


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Remember, a local government council is not only alocal elected legislative body with chartered status.A council acquires a quasi-judicial character when itsits as a zoning board of appeals or other appellatehearing body. The decorum should reflect the quasi-

judicial duty to be, and seem, judicious and dignified.

Judge Learned Hand was right: (This) much I thinkI do knowthat a society so driven that the spirit ofmoderation is gone, no court can save; that a societywhere that spirit flourishes, no court need save;that a society which evades its responsibility bythrusting on the courts the nurture of this spirit, thatspirit in the end will perish. The same might be saidof civility.

1. Stephen L. Carter, Civility: Manners, Morals and theEtiquette of Democracy, 1998, Basic Books.

2. Violation of fair and just treatment in a legislativehearing was the basis for a $7.6 million judgmentagainst the Detroit Board of Education in anunpublished opinion of the Michigan Court of Appealsin Jo-Dan Ltd. v. Detroit Board of Education, No. 201406,July 14, 2000.

3. A Michigan Municipal League survey of councilsdisclosed 80 with 5 members; 2 with 6; 420 with 7; 11with 8; 15 with 9; 3 with 10; and 2 with 11 members. Of533 councils, 502, or 94%, had 7 or fewer members.

4. See Suggested Rules of Procedure for Small LocalGovernment Boards, A. Fleming Bell II, Institute ofGovernment, 2nd edition, 1998, presented to the IMLA

65th Annual Conference, 2000.

5. See David M. Grubb, Maintaining Civility at CouncilMeetings, New Jersey Municipalities, March 1995,pp. 24, 47-48 for a good discussion of this. See alsoWebsters New World Roberts Rules of Order, Simplifiedand Applied, 1999, pp. 155-156.


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Things to Keep in Mind 15Ethics Handbook Chapter 2

Chapter 2: Things to Keep in Mind

EssaysDifferent Forms of Government; Different Routes to AdoptingEthics Standards for Your Community ........................................................ 17

Including Ethics Provisions in Charters:Advice for Charter Commissions ................................................................. 19

Labor Considerations .................................................................................... 22


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For most people, using this handbook will be

straight forward. Michigan municipal elected andappointed officials who are giving considerationto adopting ethics standards for their communitycan review the handbook to see how others haveaddressed this issue. Finding the preferred approachfrom the materials presented, an official can offer aroute for adoption of ethics standards in his or hercommunity. However, to enhance the handbook asa resource, especially for persons new to municipalgovernment within Michigan or from outside thestate, it may be helpful to pause for a moment to

review the Michigan local government structure inwhich the adoption of ethics standards fits, once thedecision has been made locally to do so.

This handbook, which is a collection of essays,makes reference to different legal routes for theincorporation of ethics standards in the governanceof a Michigan municipality. Each is accurate but it ishelpful to understand how each fits within the largerpicture.

There are several forms of local government within

Michigan. In addition to Michigans eighty-threecounties, there are home rule cities (HRC), homerule villages (HRV), general law villages (GLV),charter townships (CT) and general law townships(GLT). Michigan cities and villages maintain astrong tradition of home rule. However, with ethicsas with other governmental concerns, the statecan prescribe what will be the law on a particularsubject matter so long as the state statute isconsistent with the state constitution. Some statelaws relate to local ethics provisions. Two examplesare labor law and campaign finance.

But to date, the state Legislature has not chosen toenact a comprehensive statute that would controlthe way local units of government would enforceethical conduct within their jurisdictions. This maynot always be the case, as it has periodically beendiscussed, typically within the context of addressingethics with respect to all governmental jurisdictionswithin the state, including state government. Thus,

at present, local units of government have discretion

in choosing the best approach to take to addressethical conduct within their unit of government.

For cities and villages in Michigan, this means thatthey may proceed in one of two ways. They canadopt an ethics provision in their city or villagecharter (the local equivalent of a constitution)coupled with the subsequent adoption of a localordinance (the local equivalent of a statute) to carryout the intent of the charter provision. They can alsoadopt an ethics ordinance, without direct mention of

the topic in the charter, under the authority grantedin the Home Rule City Act, Home Rule Village Act orGeneral Law Village Act to adopt ordinances to carryout the general grant of authority to these unitsof local government. If this were done, however,some sanction provisions might not be enforceable.(Perhaps a third way would be local guidelines, butthey would not have the force of law and would notbe legally enforceable.)

The essay by Bill Steude that follows this onediscusses in some detail ethics provisions in the

context of a municipal charter commission. Thisroute is applicable to a city or home rule village thatis being incorporated for the first time and thus hasa charter commission to write its initial charter. Or,more likely, this route is one that would be taken byan existing city or home rule village that has chosento convene a charter commission to review andoffer new or revised sections of its existing charterfor presentation to the electoratewhich couldinclude a provision regarding ethics.

Putting an ethics provision in the citys or villageslocal constitution (charter) could also take theform of a charter amendment. An amendment to thecitys or villages existing charter could be offered tothe citizens for their approval without convening acharter revision commission. An ethics amendmentcould stand alone or be one of a few amendmentsplaced on the ballot for the electorate to consider.There are thus two ways to change an existing cityor village charter: in cities or home rule villages

Different Forms of Local Government;Different Routes to Adopting Ethics Standards for Your Community

By William C. Mathewson


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18 Things to Keep in MindChapter 2 Ethics Handbook

through the convening of a charter commissionand presenting the proposed revised charter tothe voters; or in cities and all villages by placingselected amendments on the ballot.

While a city or village charter can speak to or evenrequire, addressing ethics, it need not do so. Acity or village could adopt a binding set of ethicsprovisions in the form of an ordinance without thespecific involvement of the charter. The majorityof this handbook is devoted to setting forth samplesand discussion of ethics provisions in ordinanceform. This is appropriate because regardless ofthe approach taken in a charter, it is presumed thatthe implementation of ethical conduct/standardswill be in the form of an ordinance. In fact, it wouldbe impractical to put in a charter (again, the localequivalent of a constitution) the level of detail that istypical in an ordinance that addresses ethics.

With respect to cities and villages, a logical nextquestion is why involve the charter of a city orvillage if a legally enforceable ethics ordinancecan be adopted on its own, so to speak. There arevarious responses and ultimately the individualcommunity will need to decide what the bestapproach is. That having been said, one reason isthat some sanction provisions in an ordinance, suchas removal from office, would not be enforceableif not authorized in the charter. Another reasonfor a charter provision is that it could be draftedto mandate that there be an ethics ordinance for

the city or village. While it is beyond the scope ofthis publication to discuss the degree to which it isappropriate to require the legislative body (councilor commission) to enact such an ordinance, if thecitizens feel strongly enough about the topic ofethics they can require that the city or village adoptand enforce standards.

But whether a charter requires adoption of anethics ordinance or speaks more generally aboutthe topic, making reference in the charter is a clear

expression of the intent of the electorate and shouldserve to guide the elected and appointed officials.Also, as a practical matter, a charter provision onceadopted by the electorate will stand until changedby that electorate, unless the charter provision isnullified by state or federal law.

Conversely, care should be taken in putting anethics (or any) provision in a charter. For instance,if the issue addressed is too topical, it may loseimportance over time and the city or village willbe saddled with a provision in its charter that isobsolete. The more relevant danger, however,is that the charter provision will be too detailedor too inflexible, thus restricting the appropriateimplementation of the intent of the provision throughthe adoption, and if needed, subsequent revisionof an ordinance. Again, further discussion of thisaspect is beyond the scope of this particular essay.But suffice to say, care should be taken in draftingand adopting an ethics provision in a charter (orfor that matter in ordinance form)if for no otherreason, as even with the best of intentions, suchprovisions may be subject to misuse, to unfairlyattack a local official (sword) rather than protect(shield) the community.1

Each of the sample ordinances presented in thishandbook happen to be from cities. Other localunits of government in Michigan could adoptsimilar provisions. In the case of villages, underthe Home Rule Village or General Law Village Acts,the considerations for doing so are equivalent tocities. With respect to general law villages charterauthority2 while their basic governing document isa state statute (the GLV Act) it is deemed to be theircharter. The Act does not speak to ethics provisionsbut general law villages have the authority to amendtheir charters (via amendment but not revision)

and to adopt local ordinances, including provisionspertaining to ethics.

Charter townships and general law townships do nothave home rule charters, but rather are respectivelygoverned by specific state statutes augmentedby somewhat limited authority to adopt localordinances. Ethics ordinances could be adopted,with the above noted limitation regarding sanctions.

HRC HRV GLV CT GLT

Charter Revision X XCharter Amendment X X X

Ordinance X X X X X

Guidelines X X X X X


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In summary, then, local government officials whoseek to address the topic of ethics within theirlocal governments need to be cognizant of thefact that there are different routes that can betaken. For cities and villages, their respectivecharter may or may not address the topic, in theinitial charter or later by revision (HRC, HRV) oramendment (HRC, HRV, GLV), but to the extent thatenforceable specifics are desired they will be inthe form of a city or village ordinance. And in thecase of local governments without charters, ethicsordinances may be adopted to the extent of theirrespective ordinance adoption authority under statelaw. Finally, the local approach presumes thatthe state does not in the future seek to preemptlocal authority and impose ethics standards ongovernment officials including those at the locallevel.

For a complete discussion of forms of local

government, a good source of information ischapter one of Local Government Law and Practicein Michigan, published by the Michigan MunicipalLeague and the Michigan Association of MunicipalAttorneys. This chapter, by Stratton S. Brown andCynthia B. Faulhaber, outlines each of the forms

of local government and the authority that eachhas. Also, chapter seventeen, by Daniel C. Matson,sets forth the process of charter amendment andrevision. Additional material regarding charterrevision and amendment and other powers of citiesand villages is available through the MunicipalLeagues library. Information with respect toMichigans townships is available from the MichiganTownships Association. Practical expertise oncharter revision and amendment is available frommunicipal attorneys who specialize in that areaof the law. Finally, the city, village, or townshipattorney for each jurisdiction is an essentialresource when consideration is given to adoptingstandards for the local government to govern ethicalconduct by its elected and appointed officials.

1. See the following essay by Bill Steude, IncludingEthics Provisions in Charters: Advice for CharterCommissions

2. There are 211 general law villages; new villageincorporations must be as home rule villages.

Including Ethics Provisions in Local Government Charters:Advice for Charter Commissions

By William L. Steude

[Editors note: In this essay the author primarilyaddresses the incorporation of an ethics provisionthrough the charter revision process that applies toHome Rule cities and villages. See the preceding essay,Different Forms of Local Government; Different

Routes to Adopting Ethics Standards for YourCommunity.]

Revelations in the media about the conduct of somepublic officials have raised the consciousnessof local voters and taxpayers about appropriatestandards of conduct for government officials. In

response, some local governments have voluntarilyadopted ethics codes that focus on various aspectsof the conduct of those entrusted with the publicsbusiness. In 1998 the Michigan Law RevisionCommission published a report1 calling for adoption

of legislation that would provide an ethics code withuniform standards applicable to all public officials inlocal governments statewide. Charter commissions,authorized to draft or to revise the charter of a localgovernment, often wonder whetherto include ethicsprovisions, and how far to go in mandating adoptionof an ethics code or ethical conduct.


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Michigan law

The Home Rule Acts2 neither mandate nor prohibitincluding a provision regarding ethical conduct ora code of ethics, so a charter commission couldchoose not to include ethics. In fact, most HomeRule charters in Michigan address ethics indirectly,or selectively, or not at all.

A Home Rule local government can enact an ethicsordinance without a specific charter provisionauthorizing it to do so. A broad powers provisionin the charter could authorize the adoption of acomprehensive ethics code, as the Home Rule CityAct permits a charter to provide,

. . . for any act to advance the interests ofthe city, the good government and prosperityof the municipality and its inhabitants andthrough its regularly constituted authority

to pass all laws and ordinances relatingto its municipal concerns subject to theconstitution and general laws of this state.3

General approaches andalternatives

A charter is not an ordinance; rather, it is the basiclocal law by which the local government is to begoverned for a period that may be as long as forty

or fifty years. The job of a charter commission is toestablish a prescriptive legislative framework forthe community, a document that isnt caught up inissues that may be currently of public concern. Acharter commission can include a detailed systemof ethical standards and enforcement proceduresin the charter. However, this approach will be timeconsuming, and it carries some risk of making thecharter outdated if some of the details are nullifiedby subsequent preemptive state legislation. Ingeneral, charter commissions are advised to avoidexcessive detail in the charter, and leave the task ofdeveloping the details, by ordinance and policy, tothe local governing body.

One approach would be for the charter to providean alternative to inaction by the governing bodyby authorizing citizen initiatives and referenda.By this means, local voters could initiate an ethicsordinance by petition, or originate or reject localethics legislation through the ballot process.4 The

charter may also be amended by the legislativebody or by initiative of the voters, to address ethicsrequirements.5

If the commission chooses to include an ethicsprovision in the proposed charter, it has a number ofoptions to consider.

1. It can authorize the adoption of an ethicsordinance by the governing body, which thencould enact a detailed code of ethics.

2. It can mandate that an ethics ordinance beadopted within a specific period of time afterthe charter is adopted.6

A charter commission could also:

3. include in the charter a list of generalprinciples or standards of conduct, withoutgoing into specific detail. For example,the list could refer to general standardsof accountability, impartiality, integrity,confidentiality, conflicts of interest, or publictrust. An ordinance could subsequentlydefine these standards in greater detail, andprovide procedures for enforcement.

4. take a traditional approach and addressselective aspects of ethical conduct in thecharter, focusing on particular problems thatmay have triggered community concerns,such as nepotism (the public employment ofrelatives), or specific areas of conflicts ofinterest, and require timely disclosure.7

5. specifically authorize or require in thecharter the governing body to adopt acomprehensive ordinance with specificprovisions governing the receipt ofgifts, disclosure of conflicts of interest,moonlighting (i.e., a local governmentemployee having a second job thatmight create a conflict of interest withthe employees public employment),pre-employment and post-employmentlimitations, and restrictions regardingnepotism, political activity, andrepresentation before local governmentbodies.

6. have the charter authorize or require theestablishment of an enforcement body,such as an ethics commission or board,


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with responsibility to maintain and enforcethe ethical standards of the charter andordinances. Such a board or commissioncould assist local officials in determiningthe appropriate course of action whenthey are faced with uncertainty or conflictbetween ethical obligations. It couldsupport public officials and employeesin situations of unwarranted charges orcriticism by adopting administrative rules,issuing advisory opinions, or recommendingamendments to an ordinance or charter. Itcould also sanction unfounded complaints.

7. include a provision to require the governingbody, and each local government boardand commission established by charter,ordinance or law, to adopt standards ofconduct for their respective members. Thestandards of conduct could be made subjectto periodic review and approval by thegoverning body, or by the ethics board orcommission if one is established.

8. include a provision to require that ethicseducation be included in orientationprograms for newly elected officials, andin the training and continuing education ofpublic employees.

Finally, the Michigan Municipal League maintainsa charter database that is an excellent resourcewith examples of some of the approaches charter

commissions have taken in recent years, to improvethe ethical environment in the local government, andby extension, in the community.

1. Final Report to the Michigan Law Revision Commissionon the Proposed Government Ethics Act of 1999, MichaelA. Lawrence, November 2, 1998; published in the MLRC33rd Annual Report, 1998, p. 13119.

2. The Home Rule City Act 279 of 1909, MCL 117.1 et seq.;the Home Rule Village Act 278 of 1909, MCL 78.1 etseq.

3. MCL 117.4j.

4. State law would remain applicable to local officialsand local governments. It governs conflicts of interestin public contracts, campaign finance, lobbying, theexpenditure of public funds, codes of professionalconduct governing the city manager, city attorney,public accountants, licensed engineers and otheroccupations, personnel policies and collectivebargaining agreements affecting public employees.

5. See MCL 117.21, amendment by initiative for cities;and MCL 78.17, amendment by initiative for Home Rule

villages.

6. One charter commission mandated enactment of acomprehensive ordinance within six months of theadoption of the charter. It was difficult to meet thisdeadline, and a longer period should be considered.A better approach is found in the Charter of the Cityof Jackson, Section 9.13: Within two years after theeffective date of this charter, the council shall adopt byordinance a code of ethics by which all persons in themunicipal service shall abide, whether compensated orvoluntary. The Charter was adopted on November 4,1997; the Ethics Ordinance was adopted November 16,1999.

7. For example, Section 2-106 of the 1997 Detroit CityCharter provides, The use of public office for privategain is prohibited. The city council shall implementthis prohibition by ordinance, consistent with statelaw. . . . The ordinance shall provide for the reasonabledisclosure of substantial financial interests held by anyelective officer, appointee, or employee who regularlyexercises significant authority over the solicitation,negotiation, approval, amendment, performance orrenewal of city contracts, and in real property whichis the subject of a governmental decision by the cityor any agency of the city. The ordinance shall prohibitactions by elective officers, appointees, or employeeswhich create the appearance of impropriety.


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Although a municipal government may haveauthority to adopt an ethics policy or ordinance, thegovernment as a public employer also may have an

affirmative obligation to negotiate over such a policyor ordinance if the public employer is unionized.Specifically, if the policy or ordinance has animpact on or concerns the union members wages,hours, or other employment conditions (mandatorysubjects of bargaining), the public employermust bargain with the union before the policy orordinance may be adopted.

In the seminal case of Detroit Police OfficersAssociation v City of Detroit, 391 Mich 44 (1974), thecity adopted a residency ordinance after reaching

impasse in contract negotiations with the union.The union filed an unfair labor practice charge, andthe case proceeded to the Michigan Supreme Courtwhich held that just because an employer may havea legal right to take such action, it does not mean itmay do so in derogation of its obligation under thePublic Employment Relations Act (PERA):

The enactment of an ordinance, however, despiteits validity and compelling purpose, cannot removethe duty to bargain under PERA if the subject ofthe ordinance concerns the wages, hours or otherterms and conditions of employment of publicemployees. If the residency ordinance were to beread to remove a mandatory subject of bargainingfrom the scope of the collective bargainingnegotiations, the ordinance would be in directconflict with state law and consequently invalid.Const. 1963, art.7, 22. . . . Therefore, if as we willconsider below, residency is a mandatory subjectof bargaining, a city ordinance cannot foreclosecollective bargaining on the subject. Id.

The Court concluded that a residency requirementis a mandatory subject of bargaining, but found thatthe city did not engage in an unfair labor practicebecause it did not adopt the ordinance until after ithad bargained to impasse in good faith. The Courtnoted that [i]n future negotiations, however, the

city will again be required to bargain in good faithon the residency requirement if it is proposed as abargaining issue by the [union]. Id.

Both the Michigan Employment RelationsCommission (MERC) and subsequent appellatedecisions have resulted in similar holdingscircumstances other than residency. For instance,in Pontiac Police Officers Association v City of Pontiac,397 Mich 674 (1976), the city refused to bargainover a union proposal regarding a grievanceprocedure for disciplined police officers. The cityargued that because the city charter provided fora specific means by which discipline was to beimposed upon the officers, the charter provision

controlled and there was nothing to bargain over.MERC disagreed, holding that the city committedan unfair labor practice by refusing to bargainbecause the grievance procedure was a mandatorysubject of bargaining. On appeal, the MichiganSupreme Court affirmed MERCs ruling. See alsoLocal 1383, International Association of Firefighters,AFL-CIO v City of Warren, 411 Mich 642 (1981)(a collective bargaining provision negotiatedunder PERA supersedes both a City Charter andthe Michigan Constitution); Senior Accountants,

Analysts and Appraisers Association, UAW v Cityof Detroit, 218 Mich App 263 (1996) (city cannotunilaterally implement pension provisions for unionmembers without collective bargaining; the citycould, however, through a City Charter RevisionCommission, submit proposed changes to theelectorate prior to collective bargaining as long thecity did not implement or enforce the voter-approvedchanges until the employer satisfied its PERAcollective bargaining obligations).

Neither the courts nor MERC have yet addressed

the question of whether ethics regulation is amandatory subject of bargaining under PERA.Ethics regulation typically does not implicate wagesor hours, and thus the unanswered question iswhether ethics regulation falls within the scopeof other terms and conditions of employment.

Labor Considerations

By Michael P. McGee


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This will depend on the facts and circumstancesof the particular regulatory scheme. It may be,for example, that the standards announced by anethics policy (e.g., disclosure of conflicts of interest,prohibitions for receiving gifts, etc.) may be imposedin the exercise of normal management rights.Consequences for breaching the standards, on theother hand, to the extent they affect discipline orpunishment, may very well fall within the scope ofmandatory bargaining under Detroit Police OfficersAssociation, supra, and its progeny.

Accordingly, before a municipal employer adoptsor implements an ordinance or any type of ethicspolicy or regulation that may affect its unionizedemployees, or refuses to bargain with a union basedon a conflicting governmental policy, the employershould first consult with legal counsel to evaluatecompliance with applicable labor law.


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The Substance of a Local Government Ethics Ordinance 25Ethics Handbook Chapter 3

Chapter 3: The Substance of aLocal Government Ethics Ordinance

EssaysDefinitions for an Ethics Ordinance .............................................................27

Fundamental Standards of Conduct for an Ethics Ordinance ..................33

Consequences for Violating the Ethics Ordinance ...................................41

Enforcement and Administration of an Ethics Ordinance ....................... 46


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Initial drafting considerations

An ethics ordinance should include definitions ofsome of the terms that will be used in its provisions.Many of these words will have a definition thatis specific to the ordinance, rather than a morecommonly understood meaning.

Charter requirements

Before drafting definitions, it must first bedetermined whether the local government charterrequires that an ethics ordinance be organizedaround a central directive, and whether it must

include specific definitions.1

For example, the Detroitethics ordinance was required to define the termprivate gain, and it is organized around the centraltheme of prohibiting the use of public office forprivate gain.

Jurisdiction and scope

As with any ordinance, the drafters must determinethe persons to be regulated by the ethics ordinance,and the scope of the regulation. The definitionswill establish the persons and relationships that

are intended to be regulated. The jurisdiction of anethics ordinance could be extended to,

elected and appointed officials,

full-time and part-time employees,

paid and unpaid members of boards andcommissions,

people who provide services under apersonal services contract, and

the spouses or domestic partners, children,

and other relatives of any or all of the above.

The scope of the ordinance will also be reflected inthe definitions. For example, the definitions couldestablish that the ordinance will regulate,

certain confidential information,

decisions, and

ownership interests.

Universal and comprehensive

It is important that the definitions be universaland comprehensive, and in as clear language aspossible. Universality means the definition could beapplied to most, if not all, Michigan municipalities.Comprehensive means complete definitions thathave a tight interrelationship to one another.

Examples of definitions

Although there are no definitive definitions, thefollowing definitions would be applicable in mostlocal governments. They are both universal andcomprehensive, and the list itself is comprehensive,as well.2

Agency means any department, office, multi-member body, or other organization of the localgovernment.

Appointee means one who holds either acompensated or an uncompensated position,including an individual who is appointed by the

mayor, the legislative body, other elected officials,or a department, division or commission head.

Basic living expenses means shelter, utilities, andall other costs directly related to the maintenanceof the common household of the common residenceof the [spouse or] domestic partners and any othercost, such as medical care, where some or all of thecost is paid as a benefit because a person is anotherpersons [spouse or] domestic partner.

City means the city of ____________. [Alternatively

village, township, or county means the localgovernment of ______________.]

Clerk means the clerk of the local government of___________________.

Definitions for an Ethics Ordinance

By Dennis A. Mazurek


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28 The Substance of a Local Government Ethics OrdinanceChapter 3 Ethics Handbook

City council means the legislative body of the cityof _____________. [Alternatively, commission orboardmeans the legislative body of the jurisdictionof ______________.]

Commercial gain means the use by a public servantof any local government resource including, but notlimited to, the local governments time, equipment,facilities, supplies or staff, which results or isintended to result in unauthorized income or otherbenefit to the public servant.

Confidential information means information thathas been obtained by a public servant in the courseof acting as a public servant, that is not availableto members of the public pursuant to the MichiganFreedom of Information Act, being MCL 15.231 etseq, or pursuant to other law, regulation, policy orprocedure recognized by law, and that the publicservant is unauthorized to disclose, including:

1. any written information, whether indocument or in electronic form, which couldbe exempted from disclosure pursuantto state law or to other pertinent law,regulation, policy or procedure recognized bylaw, unless the public servant disclosing theinformation is permitted by such authority tomake disclosure; and

2. any non-written information which, ifwritten, could be exempted from disclosure

pursuant to state law or to other pertinentlaw, regulation, policy or procedurerecognized by law, unless the public servantdisclosing the information is permitted bysuch authority to make disclosure; and

3. information which was obtained in thecourse of or by means of a written orelectronic record or oral report of a lawfulexecutive or closed session, whether ornot the disclosure of the information wouldviolate state law, unless the public servant

disclosing the information is authorized bystate law to make disclosure, or unless thepublic servant disclosing the information hasbeen properly authorized to make disclosurepursuant to an applicable law, regulation,policy or procedure, except that when suchinformation is available through channels

which are open to the public, this provisiondoes not prohibit public servants fromdisclosing the availability of those channels.

Decision means:

1. a determination, action, vote, or otherdisposition upon a motion, proposal,recommendation, resolution, or ordinance

by members of the governing body, or ofa governing body of a local governmentagency; or

2. a determination, action or other dispositiontaken by an elected official with the authorityto do so, or a local government agency in theperformance of its public duties.

Domestic partner3 means one of two adults who

1. have a common residence; and

2. agree to be jointly responsible for eachothers basic living expenses incurred duringthe domestic partnership; and

3. are not married or are not a member ofanother domestic partnership; and

4. are not related by blood in a way that wouldprevent them from being married to eachother in this state; and

5. are at least eighteen years of age; and

6. have chosen to share one anothers lives inan intimate and committed relationship ofmutual caring; and

7. are capable of consenting to the domesticpartnership.

Exercises significant authority means having theability to influence the outcome of a decision onbehalf of the local government in the course ofthe performance of a public servants duties andresponsibilities.

Extraordinary circumstances means circumstanceswhich, due to the unavailability of information thatis critical to the disposition by the Board of Ethicsof an advisory opinion request or of a complaint,have prevented the board from completing itsinvestigation.


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Have a common residence means that bothdomestic partners share the same residence. Twopeople can have a common residence even if one orboth have additional residences, or if both domesticpartners do not possess legal title to the commonresidence. Domestic partners do not cease to havea common residence if one leaves the commonresidence but intends to return to it.

Immediate family means:

1. a public servants spouse or domesticpartner, or

2. a public servants relative by marriage, linealdescent, or adoption who receives, directlyor indirectly, more than one-half of his orher support from the public servant, or fromwhom the public servant receives, directly orindirectly, more than one-half of his or hersupport; or

3. an individual claimed by a public servant ora public servants spouse as a dependentunder the United States Internal RevenueCode, being 26 USC 1 et seq.

Joint responsibility means that each domesticpartner agrees to provide for the other partnersbasic living expenses if the partner is unable toprovide for himself or herself.

Local government means the governmental

organization of a jurisdiction which is a subdivisionof a major political unit, as a state; the governingorganization of the jurisdiction of ______________.

Mayor means the mayor of the city of________________.

Municipal government means a Michigan city orvillage, for the purposes of this handbook.

Ownership interest means a financial or pecuniaryinterest that a public servant has in the affairs of 1)

any business entity in which the public servant or amember of his or her immediate family is an officer,director, member, or employee; 2) any businessentity in which the public servant or a member ofhis or her immediate family controls, or directly orindirectly owns, in excess of 5% of the total stock oran interest totaling $50,000 or more in value; or 3)any person or business entity with whom the publicservant has a contract.

Personal services contract means a contract forthe retention of an individual to perform services onbehalf of the local government for a fixed period andfor fixed compensation.

President means the president of the village of___________.

Private gain4 means any benefit which is acceptedor received by a public servant, or is perceived by areasonable person to be accepted or received by apublic servant, as remuneration for the purpose ofimproperly influencing an official action in a specificmanner or for refraining from the performanceof an official action in a specific manner, or asinducement for the public servant to act in favor ofsome interest other than in the public interest.

To clarify, unless the above-standard is violated, thefollowing types of benefits, monetary payments or

reimbursements, gifts, awards or emoluments maybe received by a public servant:

1. payment of salaries, compensation oremployee benefits to a public servant by thelocal government, or the payment of salariescompensation or employee benefits to apublic servant by an employer or businessother than the local government pursuant toa contract where the payment is unrelatedto the public servants status as a publicservant;

2. authorized reimbursement by the localgovernment to a public servant of actual andnecessary expenses incurred by the publicservant;

3. fees, expenses or income, including thoseresulting from outside employment, whichare permitted to be earned by, or reimbursedto, a public servant in accordance with theCode, policies, rules and regulations of thelocal government;

4. campaign or political contributions whichare made and reported by a public servant inaccordance with state law;

5. admission or registration fee, travelexpenses, entertainment, meals orrefreshments a) that are furnished to apublic servant by the sponsor(s) of an event,appearance or ceremony which is relatedto official local government business in


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connection with such an event, appearanceor ceremony and to which one or moremembers of the public are invited, or b)that are furnished to a public servant inconnection with a speaking engagement,teaching, or the provision of assistance to anorganization or another governmental entityas long as the local government does notcompensate the public servant for admissionor registration fees, travel expenses,entertainment, meals or refreshments for thesame activity;

6. admission, regardless of value, to acharitable or civic event to which a publicservant is invited in his or her officialrepresentative capacity as a public servantwhere any admission or other fees requiredof all persons attending the event are waivedor paid for the public servant by a partyother than the local government or the publicservant;

7. an award publicly presented to a publicservant by an individual or by a non-governmental entity or organization inrecognition of public service, acts ofheroism, or crime solving;

8. an award, gift or other token of recognitionpresented to a public servant byrepresentatives of a governmental body orpolitical subdivision who are acting in their

official capacities;

9. a gift received from a public servantsrelative or immediate family member,provided that the relative or immediatefamily member is not acting as a third partysintermediary or an agent in an attempt tocircumvent this article;

10. a registration fee for a seminar or otherinformational conference that a publicservant attends in a capacity other than as aspeaker, panelist, or moderator, where suchregistration fee that is charged for the publicservants attendance is waived or paid forthe public servant by a party other than thelocal government or the public servant;

11. expenses or gratuities, including butnot limited to admission fees, lodging,meals or transportation, that are paid fora public servant and are related to the

public servants participation at a seminar,conference, speaking engagement orpresentation in his or her official capacityas a speaker, panelist or moderator wheresuch expenses or gratuities are waivedor paid for, as the case may be, by a partyother than the local government or the publicservant, provided that, within five businessdays after the conclusion of the seminar,conference, speaking engagement orpresentation, such public servant files withthe clerk a statement which contains thefollowing information for each expense thatis paid for or waived or for each gratuity thatis provided: a) a description of the expenseor of the gratuity; b) the amount of theexpense or of the gratuity; c) the date thatthe expense was incurred or that the gratuitywas received; d) the date that the expensewas paid or waived, or that the gratuity was

received; and e) the name and address ofthe party who paid or waived the expense orwho provided the gratuity;

12. meals or beverages provided to the publicservant by an individual or by a non-governmental organization during a meetingrelated to official local government business;

13. anything of value, regardless of the value,presented to or received by a public servanton behalf of the local government where thething of value is offered to, and accepted by,the local government;

14. a gift to a public servant that either isreturned to the donor or is donated tothe local government or to a charitableorganization within thirty days of the publicservants receipt of the gift, provided that thepublic servant does not claim the donationas a charitable contribution for tax purposes;

15. complimentary single copies of tradepublications, books, reports, pamphlets,

calendars, periodicals or other informationalmaterials that are received by a publicservant;

16. compensation paid to a public servant for apublished work which did not involve the useof the local governments time, equipment,facilities, supplies, staff or other resourceswhere the payment is arranged or paid for bythe publisher of the work;


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17. compensation paid to a public servant fora published work which did involve the useof the local governments time, equipment,facilities, supplies, staff or other resourceswhere the payment of the compensation tothe public servant is lawfully authorized bya representative of the local governmentwho is empowered to authorize suchcompensation;

18. receipt by the public servant of anythingof value, where the payment, gift or othertransfer of value is unrelated to, and doesnot arise from, a public servants holding orhaving held a public position, and where theactivity or occasion for which the payment,gift or other transfer of value given does notinvolve the use of the local governmentstime, equipment, facilities, supplies, staff orother resources in any manner or degreethat is not available to the general public;

19. hospitality that is extended to a publicservant by an individual, or by anorganization, for a purpose unrelated to theofficial business of the local government,including a gift of food, beverage, or lodging;and

20. receipt by a public servant of a devise,bequest or inheritance.

Public servant means the elected mayor, president,

members of the legislative body, any member ofany local government agency, board, commission,or other voting body that is established by thelocal government Charter or by the Code, and anyappointee, any employee, or any individual whoprovides services to the local government withinor outside of its offices or facilities pursuant to apersonal services contract.

Relative means a person who is related to a publicservant as spouse or as any of the following,whether by marriage, blood or adoption: parent,

child, brother, sister, uncle, aunt, nephew, niece,grandparent, grandchild, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepfather,stepmother, stepson, stepdaughter, stepbrother,stepsister, half-brother, half-sister, brother-in-law,or sister-in-law.

Voting body means the governing body andany other local government authority, board,commission, committee, council or group, regardlessof whether its function is legislative, administrative,quasi-administrative, or quasi-judicial or anycombination thereof, which, in order to take anyofficial action, even where the action is advisory,must act as a body on the basis of a vote of some orall of its members.

Summary and conclusion

A first step in drafting an ethics ordinance must be aconsideration of and discussion about the followingissues:

1. Does the local government charter requirethat the ethics ordinance be organizedaround a central directive, or contain specificdefinitions?

2. If the charter does not mandate theenactment of an ethics ordinance, and if itdoesnt require that the ethics ordinancebe organized around a central directive ortheme, and if it does not require specificdefinitions, which of the definitions listed inthis chapter should be included?

3. What kinds of ethical issues have occurredin the past, or might arise in the future, with

the elected officials, appointees, employees,volunteers and independent contractorsassociated with the local government?

The answers to these and other policy questionswill ensure that charter-mandated requirements willbe met, and that the definitions will be tailored tothe needs and the concerns of the community. Theanswers will also assist policy makers in building aconsensus with local government elected officials,appointees, employees, volunteers and independentcontractors, as well as with the public, in accepting

and adhering to the ethics ordinance. It is, therefore,recommended that the drafters of the ethicsordinance favorably consider the above definitionsas a starting point for debate.


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1. For example, see the 1997 Detroit City Charter, Section2-106, footnote.

2. The terms and the definitions are adapted from theethics ordinance of the City of Detroit, Section 2-6-3 ofthe 1984 Detroit City Code.

3. The inclusion of domestic partner relationshipsis based on the reality that there are certain close

personal, often intimate relationships involving non-married public servants which are equivalent to thepersonal relationships which exist between legallymarried spouses. The potential for public servantsto be influenced by or on behalf of partners involvedwith them in such domestic partner relationships orarrangements is just as real as the potential for publicservants to be influenced by or on behalf of spouses inlegal marriages or family members. This article doesnot adopt any position regarding the propriety of suchnon-marital relationships among domestic partners.However, for purposes of implementing standards forthe conduct of public servants in the performance oftheir duties for the local government, the article doesattempt to include within its reach all public servants.

The definition of domestic partner included in thissection is modeled on the definition of domesticpartner contained in Division 2.5 of the Family Code,Article 9 of Chapter 1, Part 5 of Division 5 of Title 2 ofthe Government Code, and Section 1261 of the Healthand Safety Code of the State of California.

4. Private Gain: Section 2-106 of the 1997 Detroit CityCharter expressly prohibits the use of public officefor private gain. Accordingly, a major provision inthis article is the prohibition against a public servantsacceptance or receipt of private gain as compensationfor 1) the taking of an official action in a specific

manner by the public servant (for example, a particulardecision or vote in a specific manner), or refrainingfrom the taking of an official action, as the result of animproper influence by another party; or 2) incentive orinducement for the public servant to act in favor of aninterest other than the public interest. In the interestof maintaining honesty, integrity and impartiality ingovernment, the goal of this provision is to ensure thatpublic servants conduct government business in amanner that enhances public confidence and respectfor city government, and places paramount importanceon the public interest, rather than a public servantsown personal interest or the private interest of a third-party.

Improper influence upon a public servants officialactions refers to 1) any action that would constitute aviolation of federal or state laws regulating the conductof public officials, such as state law prohibiting theacceptance by any executive, legislative or judicialofficer of a bribe (Section 118 of the Michigan PenalCode, being MCL 750.118; or 2) facts, events orcircumstances which give rise to an appearanceof impropriety in the taking of an official actionby a public servant, when such facts, events or

circumstances are considered objectively according toa reasonable person standard.

What constitutes private gain to a public servantmay take many shapes and forms and may varydepending upon the facts and circumstances of asituation. Therefore, the above definition of privategain does not attempt to enumerate all forms ortypes of tangible economic gain, or circumstancesor situations from which a public servant may derivetangible economic gain for himself or herself. Ratherthan attempt to list what is private gain that may notbe accepted in all circumstances, the article attemptsto illustrate for public servants the circumstancesor types of remuneration, emoluments, gratuities or

other items that a public servant may accept withoutviolation of this article. The listing set forth in thissection is based on the most typical situations whichconfront city public servants. However, this is notan exhaustive list, and there may be other typesof economic benefit to a public servant that arepermissible under this article.


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Overview

Before deciding upon the standards of conduct toregulate, drafters of the ethics ordinance must firstdetermine whether the local government charterrequires that its ethics ordinance include certainstandards of conduct. For example, the 1997 DetroitCity Charter (Section 2-106) required enactment ofan ethics ordinance which, at a minimum, regulatedspecific areas of conduct: prohibiting the use ofpublic office for private gain; reasonable financialdisclosure for some officers; and the avoidance ofthe appearance of impropriety.

If the charter does not mandate specific provisionsor standards for the ethics ordinance, the drafterscan be guided by the experience of ethics expertsand the ten fundamental standards of conductthat follow. Human nature too often lures publicofficials and public employees into taking advantageof their positions of trust to use these positionsinappropriately and to unfairly benefit themselves,their families or their friends. It is this competitionbetween self-interest and the public interest thatresults in unethical (and sometimes illegal) conduct;it is this conflict that gives rise to formal, codified

statements regarding ethical conduct.

Ethics ordinances from 18 local governmentswere surveyed for this publication: Bay City,Detroit, DeWitt, Farmington Hills, Flushing, HarperWoods, Jackson, Lansing, Livonia, Mason, Midland,Riverview, Rochester Hills, Royal Oak, SterlingHeights, Warren, Wyandotte, and Ypsilanti. Manyof them include some or all of the ten fundamentalstandards. In alphabetical order, the standards are:

1. Conflicts of interest

2. Disclosure

3. Impartiality

4. Improper use of position

5. Incompatible employment

6. Nepotism

7. Personal interests

8. Political activity

9. Public information

10. Public property and personnel

A list of citations to these local governmentscharter and ordinance provisions is in Appendix C.

These are the areas that are most often regulatedbecause these are the areas in which misconduct bypublic officials most often occurs. In order to give

drafters the benefit of learning from the languageand the experience of existing ethics ordinances,excerpts from the ordinances of these communitiesare offered to illustrate different approaches toarticulating the ten basic standards of conduct. Inthe pages that follow, each standard is presentedwith a statement of its purpose, along with acompilation of excerpts from ethics ordinances.In some instances the actual language is used; inothers, the codes were used as references and thelanguage is not verbatim. Variations that are used bydifferent municipalities are noted in footnotes.

Editors note: To aid the reader, ordinance languageoptions are either in brackets within the text, orfootnoted. The excerpts presented here reflect acommunitys thinking at a point in time, althoughthe ethics ordinance may have subsequently beenrevised. Also, some stylistic changes were made forconsistency with the rest of the text, eg. capitalizationof the titles of officials.

Fundamental Standards of Conduct For an Ethics Ordinance

By Dennis A. Mazurek


40/76


1. Conflicts of interest

Purpose: The duty of a public servant is to representthe best interests of the public entity, and to serve theentity with the highest degree of loyalty. This standardis at the heart of any ethics ordinance. The absenceof an easily understood standard regarding conflictsof interest diminishes the effectiveness of an ethicsordinance, and ignores the primary reason for havingone. The fundamental concept is that a public officialis not to exploit this position of power in unjust orinappropriate ways.

A public servant shall not make a loanof public funds, grant a subsidy, fix arate, issue a license, permit or certificate,[participate in the negotiation or execution ofcontracts] or otherwise regulate, superviseor participate in a decision that pertains1to an entity in which the public servant, or

a member of his or her immediate family,has an ownership [or financial or personal]interest.2(Bay City, Detroit, Harper Woods,Lansing, Rochester Hills, Warren)

A public servant [whether paid or unpaid]shall not solicit or accept [or receive,directly or indirectly] a3 gift or loan ofmoney, [compensation], goods, services4

[contribution, reward, employment],5 6 7 orother things of value8 9 which would tend toinfluence10 the manner in which the officer or

employee performs his or her official duties.

11 12 13 14 15 16 17(Bay City, DeWitt, Farmington Hills,Flushing, Harper Woods, Jackson, Lansing,

Livonia, Mason, Midland, Riverview, Rochester

Hills, Warren, Wyandotte, Ypsilanti)

A public servant shall not represent his orher individual [personal] opinion as that ofthe city.18(DeWitt, Harper Woods, Lansing,Warren)

A public servant shall not solicit, demand,accept, or agree to accept from another

person, a gratuity or an offer of employmentin connection with any decision, approval,disapproval, recommendation, or preparationof any part of a program requirement or apurchase request, influencing the content ofany specification or procurement standard,rendering of advice, investigation, auditing,or any other advisory capacity in anyproceeding or application, request for ruling,

determination, claim or controversy, or otherparticular matter, pertaining to any programrequirement or a contract or subcontract, orany solicitation or proposal thereof.(Royal Oak)

A public servant shall not accept anypayment, gratuity, or offer of employment tobe made by or on behalf of a subcontractor

under a contract to the prime contractoror higher tier subcontractor or any personassociated therewith as an inducement forthe award of a contract or order. (Royal Oak)

A public servant shall not retain a personto solicit or secure a contract with thelocal government upon an agreement orunderstanding for a commission, percentage,brokerage, or contingent fee, except for theretention of bona fide employees or bonafide established commercial selling agencies

for the purpose of securing business.(Royal Oak)

A public servant shall not be a party, directlyor indirectly, to any contract with the cityexcept for the renewal or negotiation ofan employment or independent contractorcontract with a city officer or employee, or acollective bargaining agreement or contractswith any bona fide union. (Ypsilanti)

Except for personal employment agreements

authorized by the governing body, apublic servant shall not solicit, negotiate,renegotiate, or approve, directly or indirectly,any contract, or amendment of any contract,with the city and 1) himself or herself, 2)any partnership, limited liability company orunincorporated association, or other legalentity of which the officer or employee isa partner, member, owner or part owneror employee, 3) any corporation in whichthe officer or employee is an owner orstockholder of more than one percent (1%)

of the total outstanding stock of any classwhere the stock is not listed on an exchange,or of value of $25,000 or more wherethe stock is listed on a stock exchange orof which the public servant is a director,officer, or employee, or 4) any trust of whichthe

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Ethics Handbook Municiipal League Michigan

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