[HISTORY: Adopted by the Mayor and Council of the City of
Española 3-12-2007 by Ord. No. 2007-02. Amendments noted
where applicable.]
It is essential to the proper administration and operation of
the City of Española that the members of its governing body
be, and give the appearance of being, independent and impartial; that
public office not be used for private gain; and that there be public
confidence in the integrity of the governing body. The governing body
finds that the public interest requires that it protect against such
conflicts of interest by establishing appropriate ethical standards
with respect to the conduct of the members of the governing body in
situations where a conflict may exist.
As used in this chapter, the following terms shall have the
meanings indicated:
- COMPLAINT
- A written sworn statement filed with the City Clerk containing specific allegations of misconduct by a member; provided, however, such allegations must be filed within six months of discovery of the alleged misconduct.
- GOVERNING BODY or MEMBER OF THE GOVERNING BODY
- The Mayor or any Council member of the City and any member appointed to any board or commission of the City.
- INTEREST
- Any direct pecuniary benefit, which is not a remote interest held by or accruing to a member of the governing body as a result of a contract or transaction that is or may be the subject of an official act or action by or with the City. A member of the governing body shall be deemed to have an interest in transactions involving:
- A. Any person in the member's immediate family;
- B. Any person with whom a contractual relationship exists whereby the member may receive any payment or other benefits unless the member is receiving a benefit for goods or services in the normal course of business for which the member has paid a commercially reasonable rate;
- C. Any business in which the member is a director, officer, employee, agent, or shareholder, except as otherwise provided herein; or
- D. Any person of whom the member is a creditor, whether secured or unsecured.
A.
No member
of the governing body shall:
(1)
By conduct, give reasonable basis for the impression that any person
can improperly influence him/her or unduly enjoy his/her favor in
the performance of official acts.
(2)
Directly or indirectly request, exact, receive, or agree to receive
a gift, loan, favor, promise, or thing of value for himself/herself
or another person if it could reasonably be considered to influence
the member in the discharge of official duties.
(3)
Disclose or otherwise use confidential information acquired by virtue
of his/her official position for his/her or another person's
private gain.
(4)
Use his/her official position to attempt to secure privileges that
are not available to the general public.
(5)
Engage in, accept employment with, or render services for any private
business or professional activity when such employment or rendering
of services is adverse to and incompatible with the proper discharge
of official duties.
(6)
Engage in any activity or transaction that is prohibited by law now
existing or hereafter enacted which is applicable to him/her by virtue
of being a member of the governing body.
(7)
Use his/her position to request or require an employee to:
(a)
Do clerical work on behalf of the member's family, business,
social, church or fraternal interest when such work is not furthering
a City interest;
(b)
Perform any work outside the employee's normal course of
municipal employment;
(c)
Purchase goods or services to be used for personal, business,
or political purposes; and
(d)
Work for the member personally without paying the employee just
compensation.
(8)
Use government property of any kind for other than officially approved
activities, nor shall he/she direct employees to use such property
for any purposes other than those officially approved.
(9)
Use his/her position in any way to coerce, or give the appearance
of coercing, another person to provide any financial benefit to himself/herself
or persons having an interest.
B.
The prohibition in Subsection A(2) of this section shall not apply in the case of:
(1)
An occasional nonpecuniary gift in the amount of $50 or less.
(2)
An award publicly presented in recognition of public service.
(3)
A commercially reasonable loan or other financial transaction made
in the ordinary course of business by an institution or individual
authorized by the laws of New Mexico to engage in the making of such
a loan or financial transaction.
(4)
Campaign contributions made and reported in accordance with New Mexico
law and the Española City Code.
C.
The prohibition in Subsection A(5) of this section shall not apply to a member of the governing body who is a licensed professional and appears on behalf of any applicant in such professional capacity so long as disclosures required by Section 2-5-4 et seq. are made to the board or commission Chairperson 30 days prior to any action being taken, and the member is associated with the project at the time the initial application is filed.
An appointed member of the governing body who has an interest
that he/she has reason to believe may be affected by his/her official
acts or actions or by the official acts or actions of the governing
body shall disclose the precise nature of such interest by written
or verbal statement three days prior to the governing body's
taking official action on a matter affecting such interest and abstain
from discussion and voting. An elected member of the governing body
shall disclose the nature of any interest he/she has at the time such
matter is presented to Mayor and Council for discussion. Such written
or verbal statements shall be recorded into the minutes of the meeting
and thus become part of the public record. Following any disclosure
made pursuant to this section, the member shall refrain from all ex-parte
communications with other members regarding the application in which
he/she has an interest.
A member of the governing body shall disqualify himself/herself
from participating in any official act or action of the City that
results in a pecuniary benefit to the member or a business or activity
in which he/she has an interest, when such benefit is not available
to the public at large.
A.
The City shall not enter into any contract involving services or
property with a member of the governing body or with a business in
which a member of the governing body has an interest. This subsection
shall not apply in the case of the designation of a bank or trust
company as a depository for City funds.
B.
(1)
The
borrowing of funds from any bank or lending institution or organization
which offers the lowest available rate of interest in the community
for such loan.
(3)
Contracts entered into under circumstances that constitute an emergency
situation, provided that the Mayor prepares a written record explaining
the emergency.
(4)
Contracts entered into with a member of the governing body, or with
a business in which a member of the governing body has an interest,
provided that such contract is the result of a competitive bid, disclosure
of the nature of such member's interest is made prior to the
time any bid is submitted, and a waiver of the prohibition contemplated
by this section is issued by the City Manager following disclosure.
The City shall not enter into any contract with any person or
business represented by such person who has been, within the preceding
twelve-month period, a member of the governing body, unless a competitive
bid or a committee selection process awards the contract.
Any person having a complaint against any member of the governing
body for an alleged ethics violation shall file in writing a complaint
setting forth the particular facts and circumstances which constitute
the alleged violation against the governing body. The complaint shall
be filed with the City Clerk. Upon notification of a complaint, the
Mayor or, in the event the complaint regards the Mayor, the Mayor
Pro Tem, shall appoint three members of Council, who, along with the
City Attorney, shall constitute an investigating committee to determine
whether the complaint sets forth significant facts and circumstances
so as to warrant a hearing before the Board of Ethics. The committee
shall make a determination, within 10 days of receiving the complaint,
whether to forward the complaint to the Ethics Board or dismiss the
complaint for failure to substantiate a claim. In the event the complaint
does not set forth sufficient facts to constitute an alleged violation
and is found unjustified, frivolous or patently unfounded, it shall
be dismissed and the complainant notified immediately. In the event
the complaint is found to state sufficient facts to warrant a hearing
before the Board of Ethics, the Board shall be appointed as provided
herein. All complaints are subject to the New Mexico Public Records
Act,[1] as applicable.
[1]
Editor's Note: See NMSA 1978 § 14-3-1 et seq.
A.
Composition of the Board of Ethics.
(1)
The Board of Ethics of the City shall be composed of five residents of the City to be appointed as provided in Subsection A(2) and (3) of this section. Each member of the Board of Ethics shall have been a resident of the City for at least one-year immediately preceding the date of taking office and shall remain a resident of the City while serving as a member of the Board of Ethics. No person shall serve as a member of the Board of Ethics if the person has, or has had within the preceding one-year period, any interest in any contract, transaction, or official action of the City.
(2)
The Mayor and Councilors shall each designate two qualified citizens
to provide a pool of 18 individuals who have consented to serve as
a member of such Board of Ethics and who will be available for a period
of two years to be called upon to serve in the event a Board of Ethics
is appointed.
(3)
The City Manager shall maintain a listing of these 18 qualified citizens.
Should the investigating committee determine a complaint warrants
a hearing before the Board of Ethics, the Mayor and Council shall
direct the City Manager, at the first public meeting after such determination,
to draw names randomly from the listing of qualified citizens until
the specified five members of the Board of Ethics have been appointed.
Such Board will elect one of its members to serve as Chairman.
(4)
The members of the Board of Ethics shall serve without compensation.
The governing body of the City shall provide meeting space for the
Board of Ethics. Subject to budgetary procedures and requirements
of the City, the City shall provide the Board of Ethics with such
supplies and equipment as may be reasonably necessary for it to perform
its duties and responsibilities.
B.
The constituted Board of Ethics shall have the following duties and
powers:
(1)
To establish procedures, rules and regulations governing its internal
organization and conduct of its affairs.
(2)
To hold a hearing within 60 days after the receipt of complaint.
(3)
To prescribe forms, approved by the City Attorney, for the disclosure
required in this chapter and to make available to the public information
disclosed as provided in this section.
(4)
To receive and hear complaints of violations of the standards required
by this chapter.
(5)
To make such investigation and response to a complaint as it deems
necessary to determine whether any person has violated any provisions
of this chapter.
(6)
To hold such hearings and make such inquiries as deemed necessary
to investigate and rule upon complaints.
(7)
To report its findings to the governing body for such action as the
governing body deems appropriate.
C.
The Board of Ethics members shall be appointed by the governing body
within 60 days of the enactment of this chapter.
The Board of Ethics as appointed herein shall cause the complaint
to be served on the member of the governing body charged as soon as
practicable. Service may be by personal service or by certified mail,
return receipt requested. A hearing shall be held within 60 days after
filing of the complaint. The Board of Ethics shall conduct the hearing
in accordance with the procedures and regulations it establishes but,
in all circumstances, the hearing shall include the taking of sworn
testimony and the cross-examination of witnesses. The decision of
the Board of Ethics shall be rendered to the Mayor and Council, City
Manager and City Attorney within five days after completion of the
hearing.
A.
Any member of the governing body who knowingly violates any provision
of the Code of Ethics provided in this chapter may be subject to public
reprimand or censure by the governing body of the City.
B.
At any hearing held by the Board of Ethics, the member of the governing
body who is the subject of inquiry shall have the right to written
notice of the allegations at least 10 business days before a hearing,
to be represented by counsel, to hear and examine the evidence and
witnesses and to present evidence and witnesses in opposition or in
extenuation.
A.
Any member of the governing body or the complainant adversely affected
by these findings of the Board of Ethics may obtain judicial review
of such decision as provided in this section.
B.
An action for judicial review may be commenced by filing an application
for a writ of certiorari in the First Judicial District Court within
30 days after the decision of the Board of Ethics. The filing of such
application shall act as supersedes.
