[HISTORY: Adopted by the Mayor and Council of the City of
Española 12-12-2017 by Ord. No. 2017-06.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance repealed former Ch. 40, Ethics,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.
A concept integrally related to and a part of separation
of powers and shall be respected by elected officials and employees.
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:
The rendition of services, including professional services;
The furnishing of any material, supplies or equipment;
The construction, alteration or repair of any public building
or public work;
The acquisition, sale or lease of any land or building;
A licensing arrangement;
A loan or loan guarantee; or
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.
An interest held by an individual or the individual's
family that is:
The Mayor and the City Council.
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.
All persons whose primary residence is in the individual's
home, including non-relatives, who are not rent-payers or employees.
An official decision, recommendation, approval, disapproval
or other action that involves the use of discretionary authority.
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.
The City Manager, the City Attorney, the City Clerk and any
member of a governmental body, including the governing body.
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.
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.
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.
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.
B.
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.
C.
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.
D.
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.
E.
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:
(1)
Use of disrespectful and devaluing language;
(2)
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;
(3)
Behavior or language that frightens, humiliates, belittles or degrades,
including criticism that is delivered with yelling and screaming;
(4)
Threats and intimidation, including threats to discipline or terminate
a public employee.
F.
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.
A.
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.
B.
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.
C.
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:
A.
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;
B.
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
C.
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.
A.
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.
B.
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.
C.
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.
A.
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.
B.
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.
A.
The City shall not enter into a contract with, or take any action
favorably affecting, any person or business that is:
(1)
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
(2)
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.
B.
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.
C.
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.
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.
B.
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.
C.
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.
D.
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.
E.
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.
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.
B.
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.
C.
For the purposes of this section:
(1)
"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;
(2)
"Contribution" means a donation or transfer to a recipient for the
personal use of the recipient, without commensurate consideration.
A.
The Mayor or a majority of councilors may refer suspected violations
of this chapter to the City Attorney for enforcement.
B.
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.
C.
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.
A.
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:
(2)
Receive and hear complaints of violations of the standards set by
this chapter.
(3)
Hold a hearing within 60 days after notice of appointment.
(4)
Make such investigation and response to a complaint as it deems necessary
to determine whether any person has violated any provision of this
chapter.
(5)
Hold such hearings and make such inquiries as deemed necessary to
investigate and rule upon complaints.
(6)
Report its findings to the governing body for such action as the
governing body deems appropriate.
B.
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.
