[HISTORY: Adopted by the Mayor and Council of the City of Española 12-12-2017 by Ord. No. 2017-06. Amendments noted where applicable.]
Editor's Note: This ordinance repealed former Ch. 40, Ethics, Code of, adopted 3-12-2007 by Ord. No. 2007-02.
It is recognized that public officials and public employees, including volunteers on City boards or commissions, are frequently called upon to participate in adjudicatory ("quasi-judicial") proceedings. This chapter applies to public officials, employees and volunteers of the City acting in a quasi-judicial capacity. There are, however, additional standards of conduct that are required of public officials, employees and volunteers when acting in a quasi-judicial capacity which standards are imposed by the New Mexico and United States Constitutions and which are not set out in this chapter. Under the United States and New Mexico Constitutions those standards prohibit official actions tainted by a decisionmaker's conflict of interest, bias and prejudice, prejudgment, or other conduct creating the actuality or the appearance of impropriety.
As used in the Code of Ethics, the following terms shall have the meanings indicated:
- A Governmental Conduct Board composed of five resident qualified electors of the City (none of whom are family or have a financial interest or a substantial interest in a complainant's or respondent's business), appointed by the Mayor with the advice and consent of the City Council.
- A corporation, partnership, sole proprietorship, firm, organization or individual carrying on a business.
- CHAIN OF COMMAND
- A concept integrally related to and a part of separation of powers and shall be respected by elected officials and employees.
- CONFIDENTIAL INFORMATION
- Information that by law or practice is not available to the public.
- An agreement or transaction with the City having a value of more than $1,000 for:
- A. The rendition of services, including professional services;
- B. The furnishing of any material, supplies or equipment;
- C. The construction, alteration or repair of any public building or public work;
- D. The acquisition, sale or lease of any land or building;
- E. A licensing arrangement;
- F. A loan or loan guarantee; or
- G. The purchase of financial securities or instruments.
- Rendering of services for compensation in the form of salary as an employee or in the form of compensation for personal services as a contractor.
- An individual's spouse, parents, children or siblings, by consanguinity or affinity.
- FINANCIAL INTEREST
- An interest held by an individual or the individual's family that is:
- GOVERNING BODY
- The Mayor and the City Council.
- GOVERNMENTAL BODY
- The governing body and any board, commission or committee appointed by the governing body or by the Mayor with the advice and consent of the governing body.
- HOUSEHOLD OF AN INDIVIDUAL
- All persons whose primary residence is in the individual's home, including non-relatives, who are not rent-payers or employees.
- OFFICIAL ACT
- An official decision, recommendation, approval, disapproval or other action that involves the use of discretionary authority.
- PUBLIC EMPLOYEE
- Any exempt, classified, probationary, temporary, term or part-time employee of the City of Española except the Municipal Judge, the City Manager, the City Clerk, the City Attorney and the members of the governing body.
- PUBLIC OFFICIAL
- The City Manager, the City Attorney, the City Clerk and any member of a governmental body, including the governing body.
- SEXUAL HARASSMENT
- A form of sex discrimination that occurs in the workplace and includes not only unconsented to touching but also unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature that tends to create a hostile or offensive work environment.
- The conduct required by this chapter.
- SUBORDINATE OF A PUBLIC OFFICIAL OR PUBLIC EMPLOYEE
- A public employee over whose work for the City the public official or public employee has direction, supervision or control. All public officials and public employees except other members of the governing body are deemed to be subordinates of each member of the governing body.
- SUBSTANTIAL INTEREST
- An ownership interest that is greater than 20%.
- A person appointed by the Mayor with the advice and consent of the Council while acting within the scope and course of their volunteer activity in service to the City.
A public officer or employee of the City shall treat the office or employment as a public trust. The public officer or employee shall use the powers and resources of public office or employment only to advance the public interest and not to obtain personal benefits or pursue private interests.
Public officers and employees shall conduct themselves in a manner that justifies the confidence placed in them by the people, at all times maintaining the integrity and discharging ethically the high responsibilities of public service.
Full disclosure of real or potential conflicts of interest shall be a guiding principle for determining appropriate conduct. At all times, reasonable efforts shall be made to avoid undue influence and abuse of office in public service.
No public officer or employee may request or receive, and no person may offer a public officer or employee, any money, thing of value or promise thereof that is conditioned upon or given in exchange for promised performance of an official act.
Public officers or employees shall not intentionally bully any public employee, including the City Manager, City Attorney or City Clerk. For purposes of this subsection, workplace bullying means intentional behavior intended to create an abusive work environment for a public officer or employee. Bullying behavior is behavior in the workplace that a reasonable person would find hostile, offensive, and not obviously related to the City of Española's legitimate business interests. Workplace bullying includes, but is not limited to the following:
Use of disrespectful and devaluing language;
Persistent or constant criticism in front of other persons (including coworkers, vendors, contractors or members of the public) for the purpose of humiliating an employee;
Behavior or language that frightens, humiliates, belittles or degrades, including criticism that is delivered with yelling and screaming;
Threats and intimidation, including threats to discipline or terminate a public employee.
Public officers and employees are prohibited from engaging in sexual harassment. Victims of sexual harassment are encouraged to report such to the City Human Resources Director or City Manager, whichever the victim is most comfortable with. Such reports are completely confidential.
Public officers and employees are prohibited from violating chain of command except of course as common sense may dictate in emergency or special situations. Citizen complaints and complaints with regard to City employees or City operations must be referred to the City Manager for appropriate action, in turn the City Manager must be held responsible for the outcome of the efforts by City staff and shall report on the public meeting agenda with respect to complaints referred to that office and efforts to resolve them.
Respect for chain of command by both elected or appointed public officers and employees is required in order to accomplish the goal of provision of public services in the most effective, efficient and productive manner. Except in pursuit of information generally available to the public, elected officials shall refrain from going directly to City employees. They shall refrain from strongly suggesting or ordering a City employee to take action or refrain from taking action. If an elected official receives credible complaints about or believes that a City employee(s) should or should not engage in certain actions or should follow a different procedure in carrying out their duties, the elected official is required to take that up with the City Manager not with the employee.
Nothing in this provision shall be construed to prevent or obstruct an employee's right to seek assistance of their union representative as appropriate under an existing collective bargaining agreement, however, employees going around their superiors to the Mayor or members of the governing body, unless through the applicable grievance procedure, is strictly prohibited.
A public officer or employee shall disclose in writing to the office of City Clerk all employment engaged in by the officer or employee other than the employment with or service to the City.
A public officer or employee is prohibited from:
Directly or indirectly coercing or attempting to coerce another public officer or employee to pay, lend or contribute anything of value to a party, committee, organization, agency or person for a political purpose;
Threatening to deny a promotion or pay increase to an employee who does or does not vote certain candidates, requiring an employee to contribute a percentage of the employee's pay to a political fund, influencing a subordinate employee to purchase a ticket to a political activity or similar activities; or
Violating the officer's or employee's duty not to use property belonging to the government, or allow its use, for other than authorized purposes.
It is unlawful for a public officer or employee to take an official act for the primary purpose of directly enhancing the public officer's or employee's financial interest or financial position.
A public officer or employee shall be disqualified from engaging in any official act directly affecting the public officer's or employee's financial interest, except a public officer or employee shall not be disqualified from engaging in an official act if the financial benefit of the financial interest to the public officer or employee is proportionately less than the benefit to the general public.
No public officer during the term for which elected and no public employee during the period of employment shall acquire a financial interest when the public officer or employee believes or should have reason to believe that the new financial interest will be directly affected by the officer's or employee's official act.
No public officer or employee may request or receive an honorarium for a speech or service rendered that relates to the performance of public duties. For the purposes of this section, "honorarium" means payment of money, or any other thing of value in excess of $300, but does not include reasonable reimbursement for meals, lodging or actual travel expenses incurred in making the speech or rendering the service, or payment of compensation for services rendered in the normal course of a private business pursuit.
An officer or employee who participates directly or indirectly in the contracting process shall not be employed by or contract with such a City contractor.
No public officer or employee shall disclose confidential information acquired by virtue of the public officer's or employee's position or use such for his or another's private gain.
The City shall not enter into a contract with a public officer or employee of the City, with the family of the public officer or employee of the City, or with a business in which the public officer or employee or family of the public officer or employee has a substantial interest unless the public officer or employee has disclosed through public notice the public officer's or employee's substantial interest and unless the contract is awarded pursuant to a competitive process; provided that this section does not apply to a contract of official employment with the City. A person negotiating or executing a contract on behalf of the City shall exercise due diligence to ensure compliance with the provisions of this section.
Unless a public officer or employee has disclosed the public officer's or employee's substantial interest through public notice and unless a contract is awarded pursuant to a competitive process, the City shall not enter into a contract with a public officer or employee of the City with the family of the public officer or employee or with a business in which the public officer or employee or the family of the public officer or employee has a substantial interest. A person negotiating or executing a contract on behalf of the City shall exercise due diligence to ensure compliance with the provisions in this section.
The City shall not enter into a contract with, or take any action favorably affecting, any person or business that is:
Represented personally in the matter by a person who has been a public officer or employee of the City within the preceding year if the value of the contract or action is in excess of $1,000 and the contract is a direct result of an official act by the public officer or employee; or
Assisted in the transaction by a former public officer or employee of the City whose official act, while in the City employment, directly resulted in the City's making that contract or taking that action.
A former public officer or employee shall not represent a person in the person's dealings with the City on a matter in which the former public officer or employee participated personally and substantially while a public officer or employee.
For a period of one year after leaving government service or employment, a former City public officer or employee shall not represent for pay a person before the City or any department at which the former public officer or employee served or worked.
A public officer or employee shall not sell, offer to sell, coerce the sale of or be a party to a transaction to sell goods, services, construction or items of tangible personal property directly or indirectly through the public officer's or employee's family or a business in which the public officer or employee has substantial interests, to an employee supervised by the public officer or employee. A public officer or employee shall not receive a commission or shall not profit from the sale or transaction to sell goods, services, construction or items of tangible personal property to an employee supervised by the public officer or employee. The provisions of this subsection shall not apply if the supervised employee initiates the sale. It is not a violation of this subsection if a public officer or employee, in good faith, is not aware that the employee to whom the goods, services, construction or items of tangible personal property are being sold is under the supervision of the public officer or employee.
A public officer or employee shall not sell, offer to sell, coerce the sale of or be a party to a transaction to sell goods, services, construction or items of tangible personal property, directly or indirectly through the public officer's or employee's family or business in which the public officer or employee has a substantial interest, to a person over whom the public officer or employee has regulatory authority.
A public officer or employee shall not receive a commission or profit from the sale or a transaction to sell goods, services, construction or items of tangible personal property to a person over whom the public officer or employee has regulatory authority.
A public officer or employee shall not accept from a person over whom the public officer or employee has regulatory authority an offer of employment or an offer of a contract in which the public officer or employee provides goods, services, construction, items of tangible personal property or other things of value to the person over whom the public officer or employee has regulatory authority.
The City shall not accept a bid or proposal from a person who directly participated in the preparation of specification, qualification or evaluation criteria on which the specific competitive bid or proposal was based. A person accepting a bid or proposal on behalf of the City shall exercise due diligence to ensure compliance with this section.
A business that contracts with the City to provide financial services involving the investment of public money or issuance of bonds for public projects shall not knowingly contribute anything of value to a public officer or employee of the City who has authority over the investment of public money or issuance of bonds, the revenue of which is used for public projects in the state.
A public officer or employee of the City that has authority over the investment of public money or issuance of bonds, the revenue of which is used for City public projects, shall not knowingly accept a contribution of anything of value from a business that contracts with the City to provide financial services involving the investment of public money or issuance of bonds from public projects.
For the purposes of this section:
"Anything of value" means any money, property, service, loan or promise, but does not include food and refreshments with a value of less than $300 consumed in a day;
"Contribution" means a donation or transfer to a recipient for the personal use of the recipient, without commensurate consideration.
The Mayor or a majority of councilors may refer suspected violations of this chapter to the City Attorney for enforcement.
Violation of the provisions of this chapter by an elected public official or employee is grounds for discipline by the Council. An employee appointed by the Mayor violating the provisions of this chapter shall be disciplined by the Mayor. Employees under the authority of the City Manager violating the provisions of this chapter shall be disciplined by the City Manager.
The City attorney may institute a civil action in district court if a violation of this chapter has occurred or to prevent a violation of any provision of this chapter. Relief may include a permanent or temporary injunction, a restraining order or any other appropriate order, including an order for a civil penalty of $250 for each violation not to exceed $5,000.
Any person who knowingly and willfully violates any of the provisions of this chapter is guilty of a misdemeanor and in addition to being subjected to removal from office or employment shall be punished by a fine of not more than $500 or by imprisonment for not more than 90 days or both. Nothing in this chapter shall preclude criminal prosecution for bribery or other provisions of law set forth in the constitution of New Mexico or by statute.
Upon receipt of a verified complaint alleging facts that if proved would constitute a violation of this chapter, City Clerk shall date, time stamp and forward a copy to the Mayor and Council notifying them that a Board must be appointed and convened. Any officer or employee against which a complaint is filed shall automatically be disqualified from any discussion or information or participation in the processing of the complaint and will not serve on or have any ex parte communications with the Board. No person shall serve as a member of the Board if the person has, or has had within the preceding one-year period, any personal interest in any contract, transaction, or official action of the City.
The Board shall serve without compensation and will be provided meeting space, supplies and equipment as may be reasonably necessary for it to perform its duties and responsibilities and shall:
Receive and hear complaints of violations of the standards set by this chapter.
Hold a hearing within 60 days after notice of appointment.
Make such investigation and response to a complaint as it deems necessary to determine whether any person has violated any provision of this chapter.
Hold such hearings and make such inquiries as deemed necessary to investigate and rule upon complaints.
Report its findings to the governing body for such action as the governing body deems appropriate.
The Office of the City Clerk shall record and transcribe all Board meetings and if the complainant desires a court reporter, he may utilize such at his expense.
Chapter 40, of the Code of Ordinances of the City of Española, New Mexico, is repealed.
The Code of Ethics should be reviewed by the governing body on an annual basis not later than June 30 of each year.