Chapter 39 CODE OF CONDUCT

The City of Rio Rancho seeks to foster and maintain transparency while conducting city business, creating policy and undertaking the day to day operation of the city. This chapter establishes minimum standards of ethical behavior and sets forth explicit standards of conduct by requiring elected officials, appointed officials, and employees to disclose personal interests, financial or otherwise, in matters of the city and to remove themselves from decision making when such interests exist.

(Ord. 16-19)

39.03 RESPONSIBILITY OF PUBLIC OFFICE AND EMPLOYMENT.

Elected officials, appointed officials, and employees of the city are bound to uphold the Constitution of the United States, the New Mexico Constitution, and federal, state and local laws; to adhere to the highest standards in the exercise of powers and duties of office or employment; to impartially carry out their duties; to discharge their duties of office regardless of personal considerations; and to recognize that public interest must be the prime objective.

(Ord. 16-19)

39.04 DEFINITIONS.

(A) ADMINISTRATIVE ACTION. Action based upon the application or interpretation of a city ordinance or state statute, or a proceeding involving a license permit, franchise or development use.

(B) ANYTHING OF VALUE, BENEFIT, OR THING OF VALUE. Includes all matters, whether tangible or intangible, that could reasonably be considered to be of advantage or worth, use or service to the person to whom they are conferred. This includes: money; products or merchandise; works of art or collectibles; stocks, bonds, notes or options; real property or an interest in real property; contracts or a promise of future interest in a contract; an interest or a promise of a future interest in a business; non-alcoholic beverages; a meal with a total value exceeding $50 or meals from a single person or entity with a cumulative total value exceeding $500 annually; excluding meals provided in connection with an event produced by a non-profit charitable organization, government entity, public school or a public event where the person attending is serving in an official capacity; transportation and related travel expenses not to exceed $75 per trip or transportation and related travel expenses from a single person or entity for trips with a cumulative total value exceeding $500 annually; lodging; services including loaned employees; loans, loan guarantees or cosigning; loans at below market interest; forgiveness of a debt; discounts or rebates not extended to the public generally, and this does not include general discounts that are offered to all government employees at all levels of government; preferential treatment; tickets of admission; excluding tickets or admission provided in connection with an event produced by a non-profit charitable organization, government entity, public school or a public event where the person attending is serving in an official capacity; paid compensation not commensurate with fair and reasonable value of services rendered; free or discounted use of office equipment and facilities; intentional overpayment or knowing duplicate payments for expenses or costs; radio or television time which is not paid at fair market value; promise or offer of present or future employment; use of autos, boats, apartments, or other recreational or lodging facilities; intangible rights such as a cause of action; licenses, patents, intellectual property, copyrights, or an interest in them; and any other item, tangible or intangible, having economic value. “Anything of value,” “benefit,” or “thing of value” does not include political endorsements, support in a political campaign or a promise of an endorsement, political activities, or political support. Nothing in this section shall be construed to prohibit an occasional, non-pecuniary gift, insignificant in value, or an award publicly presented in recognition of public service.

(C) APPOINTED OFFICIAL. A person who is not an elected official or city employee and has been appointed by the Governing Body to serve on a city board, commission, committee, or other body established by the Governing Body, or to perform other functions at the request of the Governing Body.

(D) GOVERNING BODY OR CITY COUNCIL. The Governing Body of the City of Rio Rancho.

(E) CONFIDENTIAL INFORMATION. Information that has been classified as confidential by law and/or information contained on city owned and/or operated equipment, including but not limited to electronic correspondence, diagrams, charts, all components of electronic files, data, records, pictures, documents; visual, voice and electronic recordings; and any other data or information stored or maintained on computer memory or device.

(F) CONFLICT OF INTEREST. A situation in which a person exercising a duty has an interest, financial or otherwise, that potentially conflicts with the exercise of the duty or that may be perceived as conflicting with the exercise of the duty.

(G) CONTRACT. An agreement between two or more parties, whether express or arising by operation of law.

(H) CONTRACT ETHICS OFFICIAL. An attorney contracted by the city who will perform independent reviews of complaints, conduct investigations, gather information, draft reports and make recommendations in accordance with this chapter. The Official will be contracted through the City Attorney’s office through normal process, in agreement with the City Manager.

(I) EMPLOYEE. A non-elected person who is employed, in any capacity, by the City of Rio Rancho.

(J) ELECTED OFFICIAL. A member of the Governing Body, including City Councilor, Mayor, and the Municipal Court Judge.

(K) EX PARTE COMMUNICATION. A direct or indirect communication with a party or the party’s representative outside the presence of the other parties concerning a pending adjudication that deals with substantive matters or issues on the merits of the proceedings. Ex parte communications do not include statements that are limited to providing publicly available information about a pending adjudication or solely related to the status of the proceeding.

(L) FAMILY. An individual’s spouse, domestic partner, parent, child, sibling, and like in-laws, by consanguinity or affinity, and persons, related or unrelated, living within the household.

(M) FINANCIAL INTEREST. Any interest of an elected official, an employee, or an appointed official that is: (1) an ownership interest or other interest in any contract or prospective contract with the city; (2) an interest in the sale of real or personal property to or from the city; (3) a financial relationship with a person or business whose interests may be affected by the city; (4) any employment or prospective employment for which negotiations have already begun where the prospective employer has an interest in the sale of real or personal property from the city; or (5) any other interest that may be affected by the city. For the purposes of this chapter, an interest shall be one either as owner, part owner, partner, or shareholder, in which such individual owns more than two percent of the outstanding stock or more than two percent of the ownership interest of any other business that is doing business with the city in an amount in excess of $7,500 annually. An interest held by the elected official’s spouse or minor children shall be considered an interest of the elected official, appointed official, or employee for the purposes of this chapter.

(N) FRIVOLOUS. A determination made by the Ethics Panel when two or more complaints made by an individual or entity have been determined to be unsubstantiated and contain allegations that are found to have no factual basis.

(O) HARASSMENT. Harassment consists of knowingly pursuing a pattern of conduct that is intended to annoy, alarm, bully or intimidate another person and that serves no lawful purpose. The conduct must be such that it would cause a reasonable person to suffer substantial emotional distress.

(P) IMMEDIATE FAMILY. A spouse, domestic partner, child, child of a sibling, a parent, a grandparent, a grandchild, like in-laws, and like step-children.

(Q) NON-PUBLIC INFORMATION. Information that is obtained in the course of an elected official’s, appointed official’s, or employee’s duties and is subject to public inspection under state law, but that, because of its nature, is not readily accessible to the public; and if used or disclosed, a personal benefit or advantage is likely to result.

(R) PARTY. A person who has submitted to the city an application seeking affirmative relief; a person who has filed a formal complaint or protest; a person who is the subject of a formal complaint or investigation; and members of the general public who participate in a pending adjudication.

(S) PENDING ADJUDICATION. Any application, petition, complaint, protest, investigation, or other administrative adjudicatory proceeding requiring decision or action by the Governing Body, the Planning and Zoning Board, the Utilities Commission, Development Services Department, or any other board or commission established by the Governing Body.

(T) PERSONAL BENEFIT. The obtaining or promise of obtaining anything of value.

(U) POLITICAL ACTION. Conduct in which elected officials or appointed officials use their official positions to exercise influence on city employees, elected officials or appointed officials; the phrase includes intervention on behalf of constituents with a governmental agency, and endorsement, pledging support, or actively supporting a city governmental matter, a nominee or a candidate for public office.

(V) SUBSTANTIATED CLAIM. A violation of this chapter verified by competent facts and that substantial evidence exists to support.

(W) UNSUBSTANTIATED CLAIM. A claim that is not supported by competent facts or substantial evidence or existent of facts and/or an allegation that is not a per se violation of this chapter.

(Ord. 16-19)

39.05 NON-PARTISANSHIP.

All actions, decisions and votes on matters relating to city government shall be on the merits. Decisions shall be made objectively, without party or partisanship considerations, and without facts which are not directly and properly related to the matter requiring action.

(Ord. 16-19)

39.06 PUBLIC TRUST.

(A) Elected officials, appointed officials, and employees shall act according to the highest principles of representative democracy to ensure that city government is worthy of public respect, trust and support.

(B) Elected officials, appointed officials, and employees shall not engage in conduct that they know or reasonably should know is likely to create in the minds of reasonable, objective, fair-minded observers the perception that they have used their public positions improperly, unethically or otherwise have not conducted themselves in accordance with the standards of conduct of this chapter.

(C) Elected officials, appointed officials, and employees shall not provide or disseminate to the public any information or data which they should reasonably know to be untrue, inaccurate or misleading. It is incumbent upon elected officials, appointed officials, and employees to correct such information as quickly as reasonably possible.

(D) It is a violation of this chapter for elected officials and appointed officials to knowingly violate their own rules of procedure or any other law or ordinance.

(Ord. 16-19)

39.07 CONDUCT AVOIDING IMPROPRIETY.

(A) Elected officials, appointed officials, and employees shall avoid conduct that creates the appearance of impropriety or that is otherwise unbefitting a public official. An impropriety can mean misconduct or behavior that demonstrates an unethical process or improper influence.

(B) Elected officials, appointed officials, and employees shall not knowingly engage in conduct that violates the rights of others to be treated fairly.

(C) Elected officials, appointed officials, and employees shall refrain from engaging in conduct, even if lawful, where personal gain or advantage is involved in a way that creates a reasonable inference that such office has been used for private benefit.

(Ord. 16-19)

39.08 PROHIBITED FINANCIAL INTEREST IN CITY BUSINESS.

(A) No elected officials, appointed officials, or employees may have a financial interest if the elected official, appointed official, or employee is in a decision making capacity with respect to the financial interest.

(B) Elected officials, appointed officials, and employees who have any financial interest shall disclose such interest by filing a disclosure of interest and recording the same with the City Clerk and by disclosing the interest as otherwise provided in this chapter or by law, and shall thereafter be disqualified from participating in any debate, decision or vote relating thereto.

(Ord. 16-19)

39.09 CONFLICT OF INTEREST, DISCLOSURE.

(A) Elected officials, appointed officials, and employees shall strictly avoid transactions and relationships that create a conflict of interest. Where a conflict of interest is unavoidable, the elected official, appointed official, or employee shall disclose the conflict of interest and shall subordinate the conflicting interest to the public interest, and the disclosure shall be recorded by the Clerk as part of the minutes of the meeting at which the disclosure is made.

(B) Elected officials, appointed officials, and employees shall exercise their duties, powers and prerogatives without prejudice or favoritism to hire, promote, or simply to reward family members, relatives, friends, or political supporters, or to hinder or punish enemies and opponents.

(C) Elected officials, appointed officials, and employees shall assure that constituents and others who may be affected by decisions of the city have a fair and reasonable opportunity to express their concerns, grievances, and ideas without regard to their willingness or ability to provide benefits or political support to the elected official, appointed official, or employee.

(D) Elected officials, appointed officials, and employees shall not engage in any conduct that could create in the mind of a reasonable observer the belief that persons will receive better or different services if gifts, personal benefits or political or charitable contributions are provided.

(E) Elected officials, appointed officials, and employees shall not solicit or receive gifts, personal benefits, favors, gratuities or political or charitable contributions, or anything of value under circumstances that create a reasonable belief that special access, services, favors, or official or unofficial actions will be provided as a result. Nor may anything of value be solicited or received from a person or business doing business with the city, contracting with the city, regulated by the city, has an application pending before the city, or whose interests may be affected by the city.

(F) Elected officials, appointed officials, and employees shall not accept anything of value from a person, business, or other entity when the elected official, appointed official, or employee knows or reasonably should know that said person, business, or entity does any business with the city, desires to do business with the city, contracts with the city, is regulated by the city, has an application pending before the city, or whose interests may be affected by the city.

(Ord. 16-19)

39.10 CONFIDENTIAL INFORMATION AND MISUSE OF NON-PUBLIC CONFIDENTIAL INFORMATION.

No elected official, appointed official, or employee shall disclose or use confidential information maintained by the city without proper authorization, and such information shall not be used to advance the financial or other private interests of said person. No elected official, appointed official, or employee shall use confidential information for personal benefit.

(Ord. 16-19)

39.11 USE OF POSITION TO OBTAIN INFORMATION.

No elected official, appointed official, or employee shall use their position to obtain information from another entity or individual for their personal benefit. Neither shall an elected official, appointed official, or employee obtain, or attempt to obtain, information from an individual or entity on behalf of the city when the information will be used for their personal interest or benefit.

(Ord. 16-19)

39.12 MISUSE OF CITY PROPERTY AND RESOURCES FOR PRIVATE GAIN OR PERSONAL ADVANTAGE.

(A) An elected official, appointed official, or employee shall not use public property for any private purpose or nongovernmental purpose except as specifically provided by law. Public property includes public funds, time, facilities, property, equipment, mailing lists, computer data, services or any other governmental asset or resource. This section does not prohibit the reserving or renting of city property which is designated as either public space or public meeting space and otherwise made available to all members of the public, nor the occasional and limited use of city property and resources for personal purposes if:

(1) The use does not interfere with the municipal activities duties, or operations;

(2) The cost or value related to the use is of such nominal value that reimbursement procedures would not be reasonable or justified; and

(3) The use does not create the appearance of improper influence.

(B) No elected official, appointed official, or employee shall seek, accept, use, allocate, grant or award public funds for a purpose other than that authorized by law or make a false statement in connection with a claim, request or application for compensation, reimbursement or travel allowances from public funds.

(C) Unless authorized by the City of Rio Rancho Personnel Policies and Work Rules, no city employee shall be asked or permitted to perform personal services for an elected official or appointed official. An elected official or appointed official shall not require a city employee to perform personal services or assist in a private activity except in unusual and infrequent situations where the person’s service is reasonably necessary to permit the elected official or appointed official to perform official duties.

(Ord. 16-19; Am. Ord. 19-39)

39.13 MISUSE OF CITY PROPERTY OR RESOURCES FOR POLITICAL PURPOSES.

(A) No municipal resources, including funds, facilities and personnel, may be used for political campaign purposes or to influence an election; provided, that this shall not prohibit the use of public resources proposed for the limited purpose of educating voters about the details of a ballot question placed on the ballot as authorized by the City of Rio Rancho Governing Body pursuant to Section 1-16-3 NMSA 1978 (as amended). An elected official shall not use or authorize the use of municipal funds, time, facilities, equipment, mailing lists, computer data or resources, services or other government assets for the purpose of political fundraising, campaigning, or influencing an election. This prohibition includes the use of municipal communication technologies, including but not limited to municipal websites, mailers, signage, or public service announcements, regardless of the transmission method, within 60 days of the date of the election, when the elected official is on the ballot. Nothing in this section shall be construed to prohibit the use of:

(1) Mailing lists, computer data or other public information lawfully obtained from a government agency and available to the general public for nongovernmental purposes; or

(2) City property or facilities designated as public space or public meeting space which are otherwise made available to the public; provided however:

(a) All applicable reservation or rental policies of the city are observed; and

(b) Any city property or facility designated as an early voting or election day polling place for a statewide or municipal election shall not be eligible for reservation or rental within 30 days of the date of the election, when the purpose is to discuss, inform, debate or confer, in any manner, about a candidate or ballot question, or engage in any activity which may influence an election outcome regarding any candidate or ballot question.

(B) A candidate, elected official, campaign committee or another person on behalf of a candidate, elected official, or campaign committee shall not solicit, accept or authorize the solicitation or acceptance of a campaign contribution in a facility or office ordinarily used to conduct city government business. This provision applies to telephone conversations, personal meetings, and solicitations by mail. If such a contribution is offered, it shall be refused or returned promptly. If an unsolicited contribution is received in the mail, or a lawfully solicited contribution is misdirected to an office ordinarily used to conduct city business, if otherwise lawful, it may be accepted, but it may not be processed in that office, and it shall be delivered promptly to an appropriate location.

(C) Campaign material, literature, placards, posters, or any other communications intended to influence an election shall not be distributed or posted in a city facility or office ordinarily used to conduct city government business or services.

(D) Nothing in this section shall preclude the placement or distribution of a nonpartisan voter guide intended as education, which contains candidate questionnaires or ballot question information that does not advocate for or against a candidate or ballot question.

(Ord. 16-19; Am. Ord. 19-39)

39.14 USE OF CONFIDENTIAL INFORMATION FOR PRIVATE GAIN.

An elected official, appointed official, or employee or a former elected official, appointed official, or employee who terminated city service within one year shall not use or disclose confidential information to obtain a benefit for the elected official, appointed official, employee, or former elected official, appointed official, employee or another person, including a person with whom the elected official, appointed official, or employee or former elected official, appointed official, or employee is associated or has negotiated prospective employment. This section does not allow the disclosure of information made confidential by law.

(Ord. 16-19; Am. Ord. 19-39)

39.15 MISUSE OF TITLE OR PRESTIGE OF OFFICE FOR PRIVATE GAIN OR PERSONAL ADVANTAGE.

(A) An elected official, appointed official, or employee shall not use, induce, cause, or encourage others to use the authority, title, official letterhead or prestige of the elected official’s, appointed official’s, or employee’s office or service for his or her own private gain or personal advantage.

(B) An elected official, appointed official, or employee shall not solicit or accept anything of value under terms and conditions where the compensation is not commensurate with the services performed or where a reasonable person would believe that the authority, title or prestige of office had been exploited. Nothing in this section prohibits the use of the official title of an elected official, appointed official, or employee as part of a political campaign or political endorsement.

(Ord. 16-19; Am. Ord. 19-39)

39.16 POLITICAL ACTIVITY.

(A) No elected official, appointed official, or employee shall compel, coerce or intimidate any elected official, appointed official, or employee to make, or refrain from making, any political contribution. No elected official, appointed official, or employee shall solicit or obtain by coercion any political contribution from employees. Nothing in this subsection shall be interpreted to provide that an elected official, appointed official, or employee is precluded from voluntarily making a contribution or receiving a voluntary contribution.

(B) No employee with contract management authority, property management authority or land use authority shall serve as a paid political consultant, a campaign treasurer, or as a member of the political fundraising campaign committee of any candidate for federal, state, city or county office, or elected office.

(C) No elected officer of the city shall hold any other city office or be employed by the city during the term for which the member was elected.

(D) Nothing in this section shall be construed to prohibit the Governing Body from selecting any current or former mayor or city councilor to represent the city before any other governmental entity.

(E) Employees shall not perform any political activity when on duty. This does not include time used while on paid vacation in accordance with City Personnel Policy and Work Rules.

(F) An elected official, appointed official, or employee shall not require an employee to perform political activity: (1) as part of the employee’s duties; (2) as a condition of city employment; or (3) during any time off that is compensated by the city.

(G) An employee shall not be required to participate in any political activity.

(H) An employee shall not be awarded additional compensation or employment benefit in any form to engage in as a part of the employee’s official city employment duties or activities that are undertaken by an employee on a voluntary basis as permitted by law.

(I) Nothing in this section prohibits an employee from engaging in political activity on behalf of the city, pursuant to Section 39.13(A), or engaging in voluntary political activities of the employee’s choosing when not on duty.

(J) No elected official or appointed official shall engage in any conduct that would, to an objective third party, constitute an undue threat to an employee’s continued employment.

(K) Employees that receive compensation or reimbursement from an elected official or political campaign on behalf of an elected official in excess of $250 shall be required to report such compensation or reimbursement to the City Manager, which shall include disclosure of the nature of the compensation or reimbursement on a form prescribed by the city.

(L) Any city employee who becomes a certified candidate for municipal elective office of the City of Rio Rancho shall, upon the certification of a declaration of candidacy, take a leave of absence without pay, use accrued vacation time, or both, not later than 35 days prior to the date of the municipal election. If a leave of absence is requested, it shall be granted.

(M) No former mayor or city councilor shall be employed by the city until one year after the expiration of the term for which the member was elected.

(Ord. 16-19; Am. Ord. 19-39)

39.17 DISCLOSURE.

(A) All elected or appointed officials shall be required to file a statement of economic interest with the City Clerk on a form provided by the city, as follows:

(1) Elected officials shall file a statement of economic interest no later than the last Tuesday in January of each year;

(2) Candidates for a City of Rio Rancho municipal office who have not already filed a statement of economic interest in the same calendar year shall file such statement upon submission of a declaration of candidacy for the municipal election; and

(3) Appointed officials shall file a statement of economic interest at the time of filing an application for consideration of appointment and no later than the last Tuesday in January of each year.

(B) Statements of economic interest shall include the following information:

(1) A description of all parcels of real estate within the city in which the person owns any interest including an option to purchase;

(2) All interests in any business organization, either as owner, part owner, partner, or shareholder, in which such individual owns more than two percent of the outstanding stock or more than two percent of the ownership interest of any other business that is doing business with the city in an amount in excess of $7,500 annually.

(C) Any person required to file a statement herein shall be required to file an amended statement whenever a change in that person’s economic interests would require disclosure pursuant to this section. Such persons shall file the amended statement in the manner prescribed above within 30 days of the date of any change in circumstances requiring filing thereof.

(D) All persons required to file a statement hereunder shall comply with the provisions of this section as both a condition to serving in the capacity of an elected or appointed official and to remain eligible to serve in such capacity for the duration of the person’s term of office or appointment.

(Ord. 16-19; Am. Ord. 19-39)

39.18 COERCION.

(A) An elected official shall not, directly or by authorizing another to act on his or her behalf, state or imply that the elected official’s willingness to meet with a person or organization is dependent on the person or organization making a campaign contribution, donating to a cause favored by the elected official or providing a thing of value to the elected official.

(B) An elected official shall not directly, or by authorizing another to act on the elected official’s behalf:

(1) Agree or threaten to take or withhold any city governmental action, as a result of a person’s decision to provide or not provide a political contribution; or

(2) State or imply that the elected official will perform or refrain from performing a lawful constituent service as a result of a person’s decision to provide or not provide a political contribution; or

(3) Agree to or participate in a scheme or plan intended to evade the requirements of any applicable state ethics statutes, this chapter, or another financial disclosure provision of state or city law; or

(4) Knowingly accept a contribution given or offered in violation of any applicable state ethics statutes or this chapter.

(Ord. 16-19)

39.19 REPORTING, INVESTIGATING, AND MAKING DETERMINATIONS PERTAINING TO VIOLATIONS OF THIS CHAPTER.

(A) Any elected official, appointed official, employee, entity, or member of the public, may submit a complaint of unethical conduct to the City Ethics Panel by delivering to the City Attorney’s office a sworn complaint alleging facts which, if true, would constitute a violation of this chapter. The City Attorney’s office will forward all such sworn complaints to the city’s Contract Ethics Official (Ethics Official). The Ethics Official shall refer all matters regarding employees to the city’s Human Resources Department.

(B) The Ethics Official shall investigate all applicable sworn complaints forwarded to them and make one of the following recommendations regarding the complaint:

(1) Unsubstantiated claim under this chapter; or

(2) Substantiated claim under this chapter.

(C) If unsubstantiated claim is the recommendation made by the Ethics Official, he or she shall produce a report reflecting their findings and details of the investigation. An unsubstantiated claim shall not be forwarded to the Ethics Panel unless necessary for the determination of a frivolous claim.

(D) Upon the completion of an investigation, the Ethics Official may determine that a claim is substantiated. At such time, the Ethics Official will produce a report which contains his or her findings and recommendations. The Ethics Panel shall conduct a public hearing of all substantiated claims and shall decide, by majority vote, if a provision(s) under this chapter has been violated. Penalties shall be determined pursuant to Section 39.20. The Ethics Official shall be present at the public hearing in order to respond to questions from the Ethics Panel regarding his or her findings and recommendations. The complaining party and the respondent to the complaint shall be provided notice via certified mail, to any and all hearings. The respondent and/or a legal representative shall be afforded the opportunity to respond to the complaint at public hearing.

(E) If an individual or entity files two or more unsubstantiated complaints directed at the same individual for the purpose of harassment or to otherwise cause the individual public shame or embarrassment, the Ethics Official may make a recommendation to the Ethics Panel. If the Ethics Official recommends a public hearing, notice shall be provided to the complaining party no later than 14 calendar days prior to the scheduled public hearing. The Ethics Panel shall conduct the public hearing in order to determine if the complaints are frivolous and if the complaints were intended to annoy, harass or otherwise cause the targeted individual public shame or embarrassment. If the Ethics Panel determines by majority vote that the complaints are frivolous and intended to annoy, harass or otherwise cause the targeted individual shame or embarrassment, they may prescribe a penalty in accordance with Section 39.20 that may be appealed to the Thirteenth Judicial District Court.

(Ord. 16-19)

39.20 CITY ETHICS PANEL.

(A) There shall be created a City of Rio Rancho Ethics Panel that shall consist of three members plus one alternate. It is desired that two Panel members (excluding alternate) will be licensed attorneys. At a minimum one member of the Panel (excluding alternate) shall be a licensed attorney. The members of the Panel shall be appointed by the City Manager subject to confirmation by the Governing Body. The members of the Panel shall not be affiliated with city government in any capacity, including, but not limited to, employment (including employment for which the salary is in any way funded by or through the city), appointment, or election. The members of the Ethics Panel may not hold elected public office or office with any political party within the city. Each member shall serve a term of three years, subject to reappointment thereafter.

(B) The Ethics Panel shall annually elect its own chair. If any member of the Ethics Panel petitions the Panel for a hearing and advice regarding his or her own conduct or the conduct of others, such member shall not be eligible to sit in such cases, and the alternate member shall be seated when the need arises.

(C) The jurisdiction of the Ethics Panel is limited to acting within the scope of matters covered by this chapter, but may periodically review and recommend amendments to this chapter.

(D) The Ethics Panel shall adopt rules of procedure for conducting hearings pursuant to this chapter. The rules of procedure shall be consistent with the rules for conducting administrative hearings in Rio Rancho and shall be reviewed by the City Attorney.

(E) The Ethics Panel shall have the power to issue administrative subpoenas compelling attendance of witnesses at hearings and the production of documents, and the authority to seek enforcement of those subpoenas by the Thirteenth Judicial District Court.

(F) If the Ethics Panel finds, by a preponderance of evidence and upon a majority vote, that an elected official or appointed official has violated this chapter, the Ethics Panel may impose any of the following penalties after the written findings of fact and conclusions of law:

(1) A civil fine not to exceed $500; or

(2) A written finding of censure; or

(3) A referral to the District Attorney or appropriate governmental office for commencement of criminal or other proceedings; or

(4) A recommendation to the District Attorney that proceedings to remove the person from elected office be commenced pursuant to NMSA 1978 § 10-4-1 et seq. (as amended).

(G) No action may be taken by the Ethics Official or Ethics Panel on any complaint that is filed later than one year after violation of this chapter is alleged to have occurred or that is filed more than six months from the date of the discovery of the alleged violation, upon due diligence by the complaining party, of facts constituting a violation, whichever event occurs later.

(H) No sworn complaints can be submitted, or will be accepted by the City Attorney’s office, between the fifty-sixth day preceding the city’s March regular election and the date of the March regular election or, in case of a required run-off election, the date of the corresponding run-off election.

(I) The Ethics Panel may also provide advisory opinions regarding the applicability or interpretation of the provisions of this chapter upon the request of any elected official, appointed official, or city employee, and may confer or request legal interpretation from the City Attorney. The City Attorney may refer such requests to the Ethics Official.

(J) On an annual basis the Governing Body shall be provided with a report stating the number and type of complaints that were submitted alleging a violation of this chapter, as well as the number of hearings and their outcomes.

(K) A member of the Ethics Panel may be removed by the Governing Body at any time.

(L) A vacancy on the Ethics Panel shall be filled in the same manner as the initial appointment and the appointment shall continue for the remainder of the unexpired term of the departing Panel member.

(M) Members of the Ethics Panel shall not receive any salary or compensation for services.

(Ord. 16-19)

39.21 RIGHT OF APPEAL.

Any decision of the Ethics Panel finding a violation of this chapter may be appealed to the Thirteenth Judicial District Court pursuant to NMSA 1978 § 39-3-1.1 (1998, as amended).

(Ord. 16-19)

39.22 NON-RETALIATION.

The Governing Body does not tolerate retaliation, workforce discrimination or harassment of any kind against any person who has reported a violation of this chapter. This non-retaliation provision applies whether the complaint is ultimately determined to be unsubstantiated or substantiated. All elected officials, appointed officials, or employees are specifically prohibited from taking any adverse employment action, engaging in workplace discrimination or harassment of any kind, or other retaliatory action against anyone for reporting a claim of violation. Anyone who believes that they have been subject to workplace discrimination or harassment of any kind or that has been retaliated against in violation of this chapter should submit a complaint of unethical conduct to the Ethics Panel by delivering to the City Attorney’s office a sworn complaint.

(Ord. 16-19)

39.23 EX PARTE COMMUNICATIONS.

(A) Ex parte communications prohibited.

(1) An elected official or appointed official designated to hear an administrative adjudicatory matter pursuant to the city’s Development Code, Zoning Code, Building Code, or any other city ordinance shall not initiate, permit or consider a communication directly or indirectly with a party or the party’s representative outside of the hearing and outside of the presence of all other interested parties concerning the pending matter. A pending matter does not include an ordinance on first or second reading.

(2) An administrative adjudicatory matter is one that involves the use of a discretionary standard, as specified in the Development Code or other city ordinance, to an application for discretionary approval.

(3) Notwithstanding the provisions of subsection (A)(1) of this section, ex parte communications for procedural or administrative purposes, during emergencies, or that do not deal with the merits of the application, shall not be prohibited if the elected official or appointed official reasonably believes that no party will gain an advantage as a result of the ex parte communication and promptly notifies all other parties of the substance of the ex parte communication.

(4) An elected official or appointed official who receives or who makes or knowingly causes to make a communication prohibited by this chapter shall disclose the communication to all parties and give other parties an opportunity to respond.

(B) Recusal.

(1) An elected official or appointed official shall recuse himself or herself in any pending administrative adjudicatory matter in which the official is unable to make a fair and impartial decision or in which there is a reasonable doubt about whether the official can make a fair and impartial decision, including:

(a) When the official has a personal bias or prejudice concerning a party or its representative or has prejudged a disputed evidentiary fact. For the purposes of this paragraph, “personal bias or prejudice” means the predisposition toward a person based on a previous or ongoing relationship, including a professional, personal, familial or other intimate relationship, that renders the official unable to exercise his or her functions impartially; or

(b) When the official has a pecuniary or financial interest in the outcome of the proceeding; or

(c) When, during the previous employment, the official served as an attorney, advisor, consultant or witness in the matter of controversy (previous employment is employment during the previous 12 months); or

(d) When the official announced how he or she would rule on the adjudicatory proceeding or a factual issue in the adjudicatory proceeding.

(2) An elected official or appointed official shall not be required to recuse herself or himself in any pending administrative adjudicatory matter merely because the official possesses and discusses general viewpoints on public policy that an application may raise. Similarly, an elected official shall not be required to recuse herself or himself in any pending administrative adjudicatory matter merely because the elected official made representations during a political campaign on viewpoints on public policy that an application may raise.

(3) The elected official or appointed official recusing himself or herself shall disclose the specific reason for a recusal contemporaneous with the recusal.

(4) If, prior to the hearing, an elected official or appointed official fails to recuse herself or himself when it appears that grounds exist, a party shall promptly notify the elected official or appointed official of the grounds for recusal. If the elected official or appointed official declines to recuse himself or herself upon request of a party, the official shall provide a full explanation in support of his refusal to recuse himself or herself.

(5) If, during the hearing, an elected official or appointed official fails to recuse himself or herself when it appears that grounds exist, a party shall promptly notify the Chair of the grounds for recusal. If the elected official or appointed official declines to recuse herself or himself, the Chair may entertain a motion to excuse the official from further participation in the matter. If the motion is successful, the official shall be excused from further participation in the matter.

(Ord. 16-19)

39.24 RESTRICTIONS ON THE GOVERNING BODY; ADMINISTRATION OF THE PERSONNEL SYSTEM, MANAGEMENT.

The Governing Body shall not perform, collectively or individually, general executive management functions in the administration of city government; these functions shall be delegated to the City Manager including administration of the personnel system. This paragraph shall not apply to matters of policy, the responsibility and authority of the Governing Body to approve budgets and expenditures, contracts outside the signature authority of the City Manager, and matters that, in the discretion of the Governing Body, while they may involve management issues, are of citywide importance.

(Ord. 16-19)