Chapter 2.50
STANDARDS OF CONDUCT
Sections:
2.50.050 Conflict of interest.
2.50.070 Ex parte communication.
2.50.080 Other provisions applicable.
2.50.090 Penalty for violation.
2.50.010 Definitions.
For the purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them below:
A “conflict of interest” exists when:
(a) A quasi-judicial official has a direct or indirect financial interest which will be or is reasonably likely to be affected by the outcome of the matter currently pending before the official; or
(b) Resolution of the matter before the official will or is reasonably likely to create a material personal gain or provide a gain or advantage to relatives, friends, agents, business associates, or to groups and associations which hold some share of the official’s loyalty. Membership in a group or association alone shall not be considered a conflict of interest with respect to any matter affecting such group or association unless a reasonable and informed person would conclude that such membership in itself would prevent an objective quasi-judicial consideration of the matter.
“Ex parte contact or communication” means contact by an interested party in a matter before an individual, board, commission, or council when said individual, board, commission, or council is acting in a quasi-judicial capacity and the contact is outside of the hearing or official proceedings in the matter.
“Interested party” in a quasi-judicial proceeding means any applicant, party, representative or agent of an applicant or party, any person or entity who may claim to be adversely affected by the resolution of a matter or any issues of fact or law related to a matter, and any person or entity who claims a substantial property interest which could be adversely affected by the resolution of a matter or an issue of fact or law related to a matter.
“Legislative capacity” means activity by a board, commission, or council when involved with the framing and enactment of ordinances and policies for the city. Included without limitation in such category is the adoption of or amendment to the Naples City Code, policies and procedures, the personnel policies and procedures, the planning and zoning general plan, specific zoning ordinances and the rezoning of individual properties, and rules or policies adopted by any board, committee, commission or council of Naples City authorized by law to engage in legislative activities.
“Litigant” means one engaged in litigation.
“Litigation” means a judicial controversy or dispute, either civil or criminal, involving Naples City as a party thereto, including disputes where Naples City employees have been named as defendants in a civil suit, disputes where a claimant has served a notice of claim on Naples City, disputes where individuals or entities have filed an application before the board of adjustment, or are appealing a decision of the board of adjustment, or matters where Naples City has filed a civil complaint or criminal action against an individual or entity for violation of provisions of the Utah Code Annotated, Naples City zoning ordinance, or the health code.
“Quasi-judicial capacity” means the role of an individual board, commission, or council acting to investigate facts and draw conclusions therefrom as a basis for its official actions and the exercise of discretion of a judicial nature in a matter which is currently before the individual, board, commission, or council, or which would come under the individual’s, board’s, commission’s, or council’s jurisdiction pursuant to an appeal of an administrative determination. Quasi-judicial officials or bodies may include the city council, the mayor or designee, any hearing officer employed by Naples City, the city planning and zoning commission, the board of adjustment, the redevelopment agency, and any other individual, hearing board, commission, committee, council or board of the city when acting in a quasi-judicial capacity. In determining whether the individual or entity is quasi-judicial in nature, the nature of the activity engaged in shall have control over the title of the individual or entity or the other duties assigned to or otherwise engaged in by the individual or entity. [Ord. 05-99, 2005.]
2.50.020 Goals.
(1) To permit contact between individual council members, commissioners, board members, and constituents in matters in which the board, commission, or council is acting in its legislative capacity.
(2) To prohibit contact between individual board members, commissioners, council members, and litigants in litigation by or against Naples City.
(3) To prohibit ex parte contact between individual commissioners, board members, council members, and proponents or opponents in matters in which the Naples City boards, commissions, or council are acting in their quasi-judicial capacity. [Ord. 05-99, 2005.]
2.50.030 Permitted contact between individual board members, commissioners, council members, and constituents outside regularly scheduled board, commission, and council meetings.
(1) Legislative Capacity Matters. Contact between individual board members, commissioners, council members, and a constituent is permitted when the contact regards matters involving the legislative capacity for the board, commission, and council members. [Ord. 05-99, 2005.]
2.50.040 Prohibited contact between individual board members, commissioners, council members, and others outside regularly scheduled board, council, and commission meetings.
(1) Litigation Matters. Contact between individual board members, commissioners, council members, and litigants, counsel for litigants, any representative of litigants, or other implied representative of litigants involved in litigation with Naples City shall be prohibited outside regularly scheduled meetings. Individual board, council, and commission members are prohibited from participating in site or office visits, written communication, electronic communications, or conversations either face-to-face or over the telephone, with any interested party, counsel for interested party, any representative of interested party, or other implied representative of interested party involved in litigation with Naples City. In actions filed by Naples City, such as violation of the Naples City Code, the zoning ordinance, or the health code, this prohibition shall begin when the matter is referred to the city attorney’s office. In actions against Naples City, this prohibition shall begin when it becomes apparent that litigation is imminent against Naples City, when a notice of claim is served, or when a complaint is filed, whichever occurs first. In matters before the board of adjustment, this prohibition shall begin when an application is filed with the board of adjustment.
If a litigant, counsel for a litigant, representative of a litigant, or other implied representative of a litigant initiates contact with an individual board member, council member, or commissioner, the board member, commissioner, or council member shall immediately inform the initiator of the contact of the prohibition of such contact and shall immediately terminate the contact. The board member, commissioner, or council member shall inform of attempted contact at the next meeting, or shall document such contact in a written memorandum to the other board members, council members, commissioners, and the city attorney’s office in a timely fashion.
(2) Quasi-Judicial Capacity Matters. Contact between individual board members, commissioners, council members, and others outside a regularly scheduled judicial capacity shall be considered ex parte contact and shall be prohibited. Individual board members, commissioners, and council members are prohibited from participating in site or office visits, written communication, electronic communication, or conversation face-to-face or over the telephone, with any interested party, counsel for interested party, any representative of interested party, or other implied representative of interested party involved in litigation with Naples City or entity when such contact involves the quasi-judicial capacity of Naples City. In matters involving a large scale development approval request, conditional use permit request, or an exception to the zoning ordinance requiring approval, this prohibition shall begin when an application is filed with the planning and zoning department. This prohibition shall apply to both proponents and opponents of a matter involving the quasi-judicial capacity of the board members, commissioners, and council members.
(a) If an individual involved in a quasi-judicial capacity matter initiates contact with an individual commissioner, board member, or council member, the member shall immediately inform the initiator of the contact of the prohibition of such contact and shall terminate the contact. The member shall inform the city attorney’s office of such contact by memorandum in a timely fashion.
(b) Written material provided by one side in a quasi-judicial capacity matter should be made a part of the record of the boards, commissioners, councils and be provided to all participants. [Ord. 05-99, 2005.]
2.50.050 Conflict of interest.
(1) Any official acting in a quasi-judicial capacity with or reasonably likely to have a conflict of interest with regard to an applicant or its agent who has a matter before the official must declare his or her conflict of interest and the nature of the interest giving rise to the conflict publicly prior to discussion of the matter and enter the same upon the record of the proceeding. The official must abstain from deliberating or voting on the matter and may not discuss the matter either publicly or privately with any other official participating in the proceeding. The vote of an official experiencing a conflict of interest who fails to disqualify himself shall be disallowed.
(2) A conflict of interest may exist under this chapter although an official may not believe that an actual conflict exists. Therefore, any official who has a question as to whether a conflict of interest exists under this chapter with respect to his or her participation or the participation of another official participating in the proceeding should raise the matter with the other officials participating in the proceeding at a public meeting and with the city attorney’s office in order that a determination may be made as to whether a conflict of interest exists. [Ord. 05-99, 2005.]
2.50.060 Gifts and favors.
No quasi-judicial official, relative or agent of a quasi-judicial official shall accept any gift, favor, or advantage from any party, individual, or from their agents or representatives if the party or individual has a matter currently before the quasi-judicial body or in circumstances when the quasi-judicial official has knowledge that said party or individual intends to or commonly brings matters before the quasi-judicial official for adjudication. Gifts, favors, or advantages shall not include a meal with a value of less than $25.00 provided in conjunction with a meeting at which the subject of a quasi-judicial proceeding is discussed. The meal and the communication shall be disclosed. Campaign contributions shall be subject to all other provisions of applicable law. [Ord. 05-99, 2005.]
2.50.070 Ex parte communication.
(1) No quasi-judicial official shall initiate contact or initiate discussion with any party of the representative or agent of any party or a person who may claim to be adversely affected by the resolution of the matter with respect to an issue of law or fact in issue on a matter which is either currently before the quasi-judicial official for adjudication or which is reasonably likely to come before the quasi-judicial official unless the official provides notice to all parties and an opportunity to participate. Any such discussion, after notice and with an opportunity for participation by the public or other affected parties, shall occur in a meeting duly convened and noticed pursuant to the Utah Open Meetings Act and shall be made a matter of the official record of the proceeding.
(2) Any quasi-judicial official who receives an ex parte communication with respect to a matter which is either currently before the official or reasonably likely to come before the official shall, at the next public meeting following the communication, place into the official minutes or record the following:
(a) The name of the party making the communication.
(b) If the communication was in writing, a copy of the communication.
(c) If the communication was oral, a summary of the communication.
(d) The date of the communication.
Following disclosure of the communication at the hearing on the matter, the public and opposing parties shall be given an opportunity to submit written responses to the communication prior to the quasi-judicial official or entity closing the evidentiary phase of the proceedings. All ex parte communication, with the exception of discussions of procedural matters such as the dates and times of hearings, is prohibited after the conclusion of the evidentiary phase of the proceedings.
Engaging in prohibited ex parte communications or the failure of a quasi-judicial official to disclose a communication and place the communication or a summary of it in the public record shall be grounds for voiding the official’s vote on the matter.
(3) An ex parte contact or communication does not include:
(a) Discussions of procedural matters such as the dates and times of hearings which are unrelated to the merits of the appeal, proceeding or motion.
(b) Communications by the quasi-judicial official, whether in person or otherwise, with city administrative staff who do not constitute representatives of a party to the proceeding, city attorney staff not representing a party to the proceeding. [Ord. 05-99, 2005.]
2.50.080 Other provisions applicable.
The standards of conduct provided for by this chapter are in addition to other legal requirements imposed on quasi-judicial officials and bodies of Naples City including the Government Records Access and Management Act, and other Naples City ordinances and policies applicable specifically to the quasi-judicial body. [Ord. 05-99, 2005.]
2.50.090 Penalty for violation.
A board member, commissioner, or council member in violation of this chapter or any part thereof shall be guilty of an infraction and upon conviction thereof may be sentenced to pay a fine not to exceed $250.00. [Ord. 05-99, 2005.]