[Ord. No. 133, 7-7-1993]
The following terms, whenever used or referred to in this division,
shall have the following respective meanings set out in this section,
unless a different meaning clearly appears from the context:
Includes any authority, district corporation and public benefit
corporation for which a City employee or board appoints the members
or to which City officers or employees are ex officio members. This
includes, for example, the Utica Planning Board, the Zoning Board
of Appeals, Utica Golf Commission, Utica Auditorium Commission, Board
of Assessment and Review and Civil Service Commission. It also includes
agencies that are normally considered to be separate from City government
such as: the Utica Parking Authority, the Utica Transit Authority,
the Utica Urban Renewal Agency, the Downtown Utica Development Association,
the Municipal Housing Authority and the Utica Industrial Development
Agency.
Any son, daughter, stepson or stepdaughter who is under the
age of 18, unmarried and living in the household of the reporting
individual.
A direct or indirect pecuniary or material benefit accruing
to the reporting individual as a result of a contract with the City
or City agency in which the reporting individual serves. For the purpose
of this form, the reporting individual shall be deemed to have an
interest in the contract of:
His spouse, minor children and dependents, except a contract
of employment with the City of Utica or a City agency;
A firm, partnership or association of which such officer or
employee is a member or employee;
A corporation, of which such officer or employee is an officer,
director or employee; and
A corporation, any stock of which is owned or controlled directly
or indirectly by such officer or employee.
Includes the situation such as: the business regulated or
licensed by the City; does business with the City or a City agency;
has applied for or there is outstanding a loan or some form of financial
assistance from the City or City agency and the like.
An elected official of the City except judges or justices
of the unified court system.
Such individual's spouse, child, stepchild, stepparent, aunt
or uncle, brother or sister or first cousin of the reporting individual
or of the reporting individual's spouse.
The heads (other than local elected officials) of any agency,
department, division, council, board, commission or bureau of the
City of Utica and their deputies and assistants, and the officers
and employees of the City, departments, divisions, boards, bureaus,
commissions or councils who hold policy-making positions, as determined
by the common council and set forth in Appendix A attached to this
ordinance;[1] except that the term "local officer or employee" shall
not mean a judge, justice, officer or employee of the unified court
system.
The husband or wife of the reporting individual unless living
separate and apart from the reporting individual with the intention
of terminating the marriage or providing for permanent separation
or unless separated pursuant to:
[1]
Editor's Note: Appendix A is on file in the City offices.
[Ord. No. 133, 7-7-1993]
(a)Â
A board of ethics is established and shall be known as the "City
of Utica Board of Ethics".
(b)Â
The Board of Ethics shall consist of six members each of whom shall
serve a five-year term of office. Three members shall be appointed
by the Common Council and three members shall be appointed by the
Mayor. The Common Council shall designate one member to serve for
a one-year term, one member to serve for a three-year term and one
member to serve for a five-year term. In making appointments, the
Mayor shall designate one member to be appointed for a two-year term,
one member to be appointed for a four-year term and one member to
be appointed for a term that shall expire on December 31, 2023 . Upon
the expiration of these initial terms. each successor shall be appointed
to fill a five-year term commencing with the expiration of the initial
term. In the event a vacancy occurs prior to the expiration of a term,
such vacancy shall be filled for the balance of such term in the same
manner as members are appointed to full terms. At least one member
of the Board of Ethics shall be an elected official or an appointed
City of Utica officer or employee. No member of the Board of Ethics
shall be employed as a member of the Office of the Corporation Counsel.
[Amended 9-4-2019 by Ord.
No. 100]
(c)Â
No more than three members of the Board may be affiliated with the
same political party. No member of the Board of Ethics may hold an
officers position in any political party except such person may be
a member of a county committee or City committee of a political party.
For purposes of this section, "political party" shall mean any political
party which appeared on the ballot in the last biennial Common Council
election.
(d)Â
All members shall serve without compensation. A Board of Ethics member
may be removed by the appointing authority only after a finding of
substantial neglect of duty, misconduct in office, inability to discharge
the powers of duties of the office or violation this act after a written
notice of charges and an opportunity for reply. Members of the Board
of Ethics shall be required to file the annual statement of financial
disclosure.
(e)Â
The members shall elect a Chairman from among themselves and such
other officers as may deem necessary from time to time.
[Ord. No. 133, 7-7-1993]
The Board of Ethics shall have the power to:
(a)Â
Adopt, amend and rescind rules and regulations to govern procedures
of the Board of Ethics. The Board of Ethics may utilize or modify
such rules and regulations or adopt separate rules and regulations
for the purposes of Paragraph (d) of Subdivision 1 of Section 811
of the General Municipal Law.
(b)Â
Promulgate guidelines to assist the Common Council determining which
persons hold policy-making positions for purposes of Sections 811
and 812(3) of the General Municipal Law and this law.
(c)Â
Make available forms for annual statements of financial disclosure
required to be filed pursuant to this division.
(d)Â
Review completed financial disclosure statements in accordance with
the provisions of this law, the rules and regulations of the Board
of Ethics and any local law, ordinance, Code of Ethics established
by the Common Council of the City of Utica.
(e)Â
Receive complaints alleging a violation of this division or a violation
of the criteria for reporting requirements established by this division,
any Code of Ethics of the City, or local law, ordinance or resolution
regarding the filing of completed statements with the Board of Ethics.
(f)Â
Permit any person required to file a financial disclosure statement
to request the Board of Ethics to delete from the copy thereof, made
available for public inspection, one or more items of information,
which may be deleted by the Board of Ethics, upon a finding that the
information which would otherwise be required to be disclosed will
have no material bearing on the discharge or the reporting person's
official duties. If such request for deletion is denied, the Board
of Ethics, in its notification of denial, shall inform the person
of his right or her right to appeal the Board's determination pursuant
to the rules governing adjudicator proceedings and appeals adopted
pursuant to this law and any applicable section of the General Municipal
Law. The Board of Ethics shall promulgate rules and regulations governing
the issuance of written decisions in connection with appeals.
(g)Â
Permit any person required to file a financial disclosure statement
to request an exemption to any requirement to report one or more items
of information which pertain to such person's spouse or emancipated
children which item or items may be exempted by the Board of Ethics
upon a finding by the majority of the total members of the Board of
Ethics without vacancy that the reporting individual spouse, on his
or her own behalf or on behalf of a dependent child, objects to providing
the information necessary to make such disclosure and that the information
which would otherwise be required to be reported will have material
bearing on the discharge of the reporting person's official duties.
(h)Â
Advise and assist any local official in establishing rules and regulations
relating to possible conflicts between private interests and official
duties of present or former elected officials, local party officials
and local officers and employees.
(i)Â
Permit any person who has not been determined by the Common Council
to hold a policy-making position but who is otherwise required to
file a financial disclosure statement to request an exemption from
such requirement in accordance with the rules and regulations governing
such exemptions. Such rules and regulations shall provide for exemptions
to be granted either on the application of the individual or on behalf
of persons who share the same job title or employment classification
which the Board of Ethics deems to be comparable for purposes of this
section. Such rules and regulations may permit the granting of an
exemption where, in the discretion of the Board of Ethics, the public
interest does not require disclosure and the applicant's duties do
not involve the negotiation, authorization or approval of:
(1)Â
Contracts, leases, franchises, revocable consents, concessions,
variances, special permits or licenses as defined in Section 73 of
the Public Officers Law;
(2)Â
The purchase, sale, rental or lease of real property, goods
or services or a contract therefor;
(3)Â
The obtaining of grants of money or loans; or
(4)Â
The adoption or repeal of any rules or regulation having the
force and effect of law.
(j)Â
Prepare an annual report to the Mayor and the Common Council summarizing
the activities of the Board of Ethics and recommending changes in
the laws governing the conduct of local elected officials and officers
and employees of the City covered by this act.
(k)Â
Act as a repository for completed financial disclosure forms filed
pursuant to this division.
(l)Â
Upon certification of a question by the Common Council to the Ethics
Board, the Board may determine a question common to a class or defined
category of persons or items of information required to be disclosed,
where determination of the question will prevent undue repetition
of requests for exemption or deletion or prevent undue complication
in complying with the requirements of this division.
(m)Â
The Corporation Counsel shall act as legal counsel to advise the
Board on any matter arising under this law.
(n)Â
Upon written request from any person who is subject to the jurisdiction
of the Board of Ethics, the Board of Ethics shall render advisory
opinions on the requirements of said provisions. An opinion rendered
by the Board of Ethics, until and unless amended or revoked, shall
be binding on the Board of Ethics in any subsequent proceeding concerning
the person who has requested the opinion and who acted in good faith,
unless material facts were omitted or misstated by the person in the
request for an opinion. Such opinion may also be relied upon by any
such person, and may be introduced and shall be a defense, in a criminal
or civil action. Such requests shall be confidential, but the Board
of Ethics may publish such opinions, provided that the name of the
requesting person and any other identifying details shall not be included
in the publication.
(o)Â
The Board of Ethics shall be empowered to request support staff,
assistance from the Common Council or Mayor in furtherance of its
duties and responsibilities.
(p)Â
The City may appropriate moneys from the general City funds for maintenance
of and for personal services to the Board of Ethics established hereunder,
but such Board of Ethics may not commit expenditures of City funds
except within the appropriations provided therein.
(q)Â
In the performance of its duties above, the Board of Ethics may,
with the approval of the Common Council, subpoena witnesses, compel
their attendance and require the production of any books or records
which it may deem relevant or material.
(r)Â
The ministerial duties of the Board of Ethics, including, but not limited to, the duties set forth in Subsections (c), (d), (k) shall, in the first instance, be performed by the Corporation Counsel. In addition, the Corporation Counsel shall be responsible, as agent to the Board, for the notifications for failure to file report or filing incomplete reports provided for in Section 2-2-85 below, and regarding requests for public disclosure. In addition, the Corporation Counsel shall act as agent of the Board for the purpose of receiving any applications or notices to the Board. Upon receipt of such notice, the Corporation Counsel shall immediately forward same to the Chairman of the Board, and if requested by the Chairman, the other Board members. The Board of Ethics may, at any reasonable time, review the procedures and records of the Corporation Counsel related to the performance of these functions.
[Ord. No. 133, 7-7-1993]
If a person required to timely file a financial disclosure statement
with the Board of Ethics has failed to file a disclosure statement
or has filed a deficient statement, the Corporation Counsel shall
notify the reporting person in writing, state the failure to file
or detail the deficiency, provide the person with a fifteen-day period
to cure the deficiency, and advise the person of the penalties for
failure to comply with the reporting requirements. Such notice shall
be confidential. If the person fails to make such filing or fails
to cure the deficiency within the specified time period, the Corporation
Counsel shall send a notice of delinquency:
[Ord. No. 133, 7-7-1993]
(a)Â
Attached hereto as Appendix A,[1] which is fully incorporated into this division by reference,
is a listing of all positions for which financial disclosure is required
of the persons holding one or more positions contained therein. Said
Appendix A may be amended by adoption of a resolution of the Common
Council as needed, subject to the provisions of this division and
New York State's statutes. Any such amendments shall be effective
immediately, and a certified copy thereof should be filed with the
Board of Ethics within five business days of its adoption. The elected
officials, or officers, and employees whose titles are listed in Appendix
A, as same may be amended, shall file with the Corporation Counsel,
annually, on or before May 15th of each year, during the term of their
office, an annual statement of financial disclosure on the form as
set forth below. The time for filing such statement may be extended,
pursuant to the rules of the Board of Ethics, for justifiable cause
and undue hardship upon application to the Board of Ethics pursuant
to the rules and regulations set forth in this division and, if applicable,
to Sections 811, 812 and 813 of the General Municipal Law of the State
of New York. Each City agency which is not a part of City government
shall file with the Corporation Counsel on or before January 31 of
each year, a list of its officers and employees who are required to
file the annual statement of financial disclosure.
[1]
Editor's Note: Appendix A is on file in the City offices.
(b)Â
Financial disclosure shall be accomplished by the completion of a
copy of the annual statement of financial disclosure attached to this
law as Appendix B,[2] which is fully incorporated into this law by reference.
This form shall be completed and returned to the Corporation Counsel
on or before May 15th of each year for which the employment is in
effect.
[2]
Editor's Note: Appendix B is on file in the City offices.
(c)Â
A person who is subject to the financial disclosure filing requirements
for more than one municipality or governmental agency may satisfy
the requirements of this division by filing only one annual statement
of financial disclosure with one municipality or agency and filing
a notice with the appropriate officials of the other(s) that such
filing has been made. Such notice shall include the date and place
of the filing and a copy of the financial disclosure forms so filed.
(d)Â
Any person who is subject to the reporting requirements of this division
and who shall timely file with the Internal Revenue Service an application
for automatic extension of time in which to file his/her individual
income tax return for the immediately preceding calendar year or fiscal
year, which would extend filing with the IRS beyond May 15th of the
reporting year should be required to submit a notice of said application
on or before April 15th of the reporting year to the Ethics Board.
Such persons shall file a disclosure form, complete except for those
portions stated to be within the application to IRS for automatic
extension, on or before May 15th of the reporting year. A supplementary
statement, containing all items as were incomplete on the annual statement
of financial disclosure, shall be filed within 15 days of the expiration
of the automatic IRS extension.
(e)Â
Any person who is required to file an annual statement of financial
disclosure may request, prior to May 1st of a year for which the employment
is in effect, an extension of time to file for an additional period.
Such request should be made in writing to the Ethics Board with approval
based upon substantiation of justifiable cause or undue hardship.
The Ethics Board may grant or deny the request, by majority vote of
the entire membership. An extension can be for no longer than the
specific period of additional time requested.
(f)Â
Any person required to file an annual statement of financial disclosure
who becomes so required, experiences a change in reporting levels,
becomes a candidate for City elected office, or is appointed to an
office or employment within the City after April 15th, shall file
the appropriate annual statement within 30 days of the date upon which
the changes become effective, the candidacy becomes official or the
office of employment commences. The Ethics Board may grant, upon request,
an extension of no more than 30 additional days to a person filing
pursuant to this paragraph when it finds additional time is needed.
Further extensions may only be granted for cause upon a request for
an extension received at least 10 days prior to the filing deadline
as previously extended.
(g)Â
Any person required by this law to file an annual statement of financial
disclosure may request an exemption from any requirement to report
one or more items of information which pertain to a person's spouse
or children. Such requests shall be made to the Ethics Board with
appropriate supporting documentation for consideration according to
the Ethic Board's rules concerning same. No exemption may be granted
except upon a finding by at least a majority of the total number of
members of the Ethics Board without vacancies that: i) the reporting
individual's spouse, on his or her own behalf or on behalf of an unemancipated
child, objects to providing the information necessary to make such
disclosure, and ii) that the information which would otherwise be
required to be reported will have no material bearing on the discharge
of the reporting person's official duties. If such request for exemption
is denied in whole or in part, the Ethics Board, in its written decision,
shall inform the person of his or her right to appeal the determination
pursuant to Article 78 of the Civil Practice Law and Rules. The Ethics
Board shall adopt rules and regulations governing the procedure for
submission of such requests and issuance of its decisions.
[Ord. No. 133, 7-7-1993]
(a)Â
If a reporting person has filed a statement which reveals a possible
violation of the duly adopted Code of Ethics of the City, local law,
ordinance or resolution, or the Board of Ethics receives a sworn complaint
alleging such a violation, or if the Board of Ethics determines on
its own initiative to investigate a possible violation, the Board
of Ethics shall notify the reporting person in writing, describe the
possible or alleged violation of such Code of Ethics, local law, ordinance
or resolution or this division, and provide the person with a fifteen-day
period in which to submit a written response setting forth information
relating to the activities cited as a possible or alleged violation
of law. If the Board of Ethics thereafter makes a determination that
further inquiry is justified, it shall give the reporting person an
opportunity to be heard. The Board shall also inform the reporting
individual of its rules regarding the conduct of adjudicatory proceedings
and appeals and the due process procedural mechanisms available to
such individual. If the Board determines at any stage of the proceeding,
that there is no violation or potential conflict of interest or that
any potential conflict of interest or violation has been rectified,
it shall so advise the reporting person and the complainant, if any.
All of the foregoing proceedings shall be confidential.
(b)Â
If the Board determines that there is reasonable cause to believe
that a violation has occurred, it shall send a notice of reasonable
cause: i) to the reporting person, ii) to the complainant if any,
and iii) to the Mayor and Common Council.
(c)Â
A copy of any notice of delinquency or notice of reasonable cause
sent pursuant to this division shall be included in the reporting
persons's file and be available for public inspection.
[Ord. No. 133, 7-7-1993]
A reporting individual who knowingly and willfully fails to
file an annual statement of financial disclosure or who knowingly
and willfully with intent to deceive makes a false statement or gives
information which such individual knows to be false on such statement
of financial disclosure filed pursuant to this division shall be assessed
a civil penalty in an amount not to exceed $10,000. Assessment of
a civil penalty hereunder shall be made by the Board of Ethics with
respect to the persons subject to its jurisdiction. For a violation
of this subdivision, other than for conduct which constitutes a violation
of Subdivision 12 of Section 73 of the Public Officers Law, the Board
of Ethics may, in lieu of a civil penalty, refer a violation to the
appropriate prosecutor and upon such conviction, such violation shall
be punishable as a Class A misdemeanor. A civil penalty for false
filing may not be imposed hereunder in the event a category of value
or amount reported hereunder is incorrect unless such reported information
is falsely understood. Notwithstanding any other provision of law
to the contrary, no other penalty, civil or criminal may be imposed
for a failure to file, or for a false filing, of such statement, except
that the appointing authority of the violator may impose disciplinary
action as otherwise provided by law. The Board of Ethics shall be
deemed to be an agency within the meaning of Article 3 of the State
Administrative Procedure Act and shall adopt rules governing the conduct
of adjudicatory proceedings and appeals relating to the assessment
of civil penalties herein authorized. Such rules, which shall not
be subject to the approval requirements of the State Administrative
Procedure Act, shall provide for a due process procedural mechanism
substantially similar to those set forth in such Article 3, but such
mechanisms need to be identical in terms or scope. Assessment of a
civil penalty shall be final unless modified, suspended or vacated
within 30 days of imposition, with respect to the assessment of such
penalty, and upon becoming final shall be subject to review at the
instance of the affected reporting individuals in a proceeding commenced
against the Board of Ethics pursuant to Article 78 of the Civil Practice
Law and Rules.
[Ord. No. 133, 7-7-1993]
(a)Â
Notwithstanding the provisions of Article 6 of the Public Officers
Law, the only records of the Board of Ethics which shall be available
for public inspection are:
(b)Â
Notwithstanding the provisions of Article 7 of the Public Officers
Law, no meeting or proceeding of the Board of Ethics shall be open
to the public, except if expressly provided otherwise by the Board
of Ethics.
[Ord. No. 133, 7-7-1993]
Upon the adoption of this division, the Mayor shall cause a
copy thereof to be distributed to every person required to file an
annual statement of financial disclosure. Failure to distribute such
copy or failure of any City employee to receive such copy shall have
no effect on the duty of compliance with this Code, nor the enforcement
of the provisions hereof. The Mayor shall further cause a copy of
this ordinance to be kept posted conspicuously in each public building
under the jurisdiction of the City. Failure to so post this ordinance
shall have no effect on the duty of compliance herewith, nor the enforcement
provisions hereof.
