Town of Bar Harbor, ME
Hancock County
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[Amended 9-4-2007 by Ord. No. 2007-04; 9-2-2008 by Ord. No. 2008-02]
A. 
Ethics Commission creation; membership; terms of office. There is hereby created a Town of Bar Harbor Ethics Commission, the voting membership of which shall include the current Chair and Vice Chair of the Town Council, Superintending School Committee and Warrant Committee, as well as the Secretary of the Warrant Committee. Should any of the above individuals be unwilling or unable to serve on the Ethics Commission, a replacement shall be appointed by their respective board (i.e., Council, School Committee or Warrant Committee) from within the board’s membership. In the event that the Commission is processing an ethics complaint at the end of a member’s elected term of office, either on their respective board or as an officer of their respective board, their term on the Ethics Commission shall continue until the Commission has filed its final report regarding the complaint.
[Amended 8-17-2010 by Ord. No. 2010-03]
B. 
Procedures not mandatory. The ethics enforcement procedures contained in this article shall be construed as directory rather than mandatory. The Ethics Commission shall have the authority and discretion to modify these procedures as it deems necessary on a case-by-case basis, or by the adoption of a rule which implements a modification having general applicability. Any such modification by the Commission shall take precedence over the language contained herein without need for an amendment to this article.
[Amended 8-17-2010 by Ord. No. 2010-03]
C. 
Organization. The Chair of the Town Council shall serve as the Ethics Commission Chair. The Chair of the Superintending School Committee shall serve as the Ethics Commission Vice Chair. In the absence of both, the Commission members shall elect a Chair Pro Tem and a Vice Chair Pro Tem from its remaining membership. The Town Clerk shall serve as Secretary to the Ethics Commission. The Town Manager shall process complaints and otherwise assist the Commission as needed.
[Amended 8-17-2010 by Ord. No. 2010-03]
D. 
Meetings. Meetings of the Ethics Commission shall be held on the call of the Chair or as otherwise provided by the Commission or this chapter.
[Amended 8-17-2010 by Ord. No. 2010-03]
E. 
Quorum. No meeting of the Ethics Commission shall be held without a quorum of four members. The Committee shall act by majority vote of the members present and voting.
[Amended 8-17-2010 by Ord. No. 2010-03]
F. 
Commission's duty. The Commission shall make findings of fact, recommend appropriate discipline to the Town Council and render opinions concerning application of the provisions of the Town Code of Ethics to any particular situation.
G. 
Investigations. The Commission may investigate upon its own volition any ethical matter that may come to the attention of its members.
H. 
Findings. Upon conclusion of its fact-finding and deliberations, the Commission shall issue written findings with respect to each matter and question referred to it.
I. 
Advisory opinions. Upon the request of any agency member, the Commission shall issue ethics advisory opinions to the requesting party.
(1) 
Advisory opinions rendered by the Commission, until amended or revoked, shall be binding on the Commission and shall be deemed to be final decisions of the Commission.
(2) 
Any advisory opinion concerning the person who requested the opinion and who acted in reliance thereon, in good faith, shall be an absolute defense in any matter brought under the provisions of the Code of Ethics.
J. 
Recordkeeping. The Town Clerk shall compile and maintain a record of all reports, advisory opinions, statements and memoranda created by or filed with the Commission and facilitate public access to said records as appropriate under state law.
K. 
Rules and regulations. The Commission may adopt, after a public hearing, rules and regulations not inconsistent with Town Code Chapter 78, Ethics, for the administration and implementation of the Code of Ethics.
L. 
Executive sessions. The Commission may conduct fact-finding and deliberations in executive session to the extent permitted by the Maine Freedom of Access Act, 1 M.R.S.A. § 405, Subsection 6A, and shall conduct fact-finding and deliberations in executive session as necessary to protect the confidentiality of certain records under the Municipal Personnel Records Law, 30-A M.R.S.A. § 2702(1)B(5).
M. 
Complaint procedures.
(1) 
Purpose. It is the purpose and intent of these complaint procedures to provide a mechanism by which complaints may be handled in an orderly and impartial fashion to protect the best interests of the citizens of the Town of Bar Harbor.
(2) 
Statute of limitations. No ethics complaint may be filed with the Commission unless it is alleged that the violation has occurred within five years of filing with the Commission.
(3) 
Whistleblower rights. No person shall take or threaten to take official action against an individual for such individual's disclosure of information to the Commission under the provisions of the Code of Ethics.
(4) 
Confidentiality. During the filing of a complaint, preliminary review, investigation and hearing, no allegation, complaint, report, or information supplied to, generated by or received from the Commission shall be disclosed to any third party by a complainant, accused, witness, designated party, employee, member or Commissioner, except upon the written request of the accused or as needed by the Town Manager and Clerk to administer the intent of this section.
(5) 
Filing a complaint.
(a) 
The Commission shall provide a form to be used by all those filing a complaint. Said form shall include a statement to be signed by the complainant attesting that the facts recited thereon are true and correct in all regards. The complaint must contain, within space provided on the form or on a separate sheet of paper attached to the complaint, a description of the conduct which is the subject of the complaint, a reference to the section of the ordinance which is alleged to have been violated and an explanation as to why the conduct violates the referenced section. A mere reference to § 78-1 (Declaration of policy) shall be deemed an insufficient basis for the prosecution of a complaint.
(b) 
The Commission may investigate upon its own volition and in accordance with this section any ethical matter which may come to the attention of its members, but a Commissioner shall first complete and sign a complaint form.
(c) 
The complaint form shall be filed with the Town Clerk.
(d) 
Within 10 days of filing, the Town Clerk shall either accept the complaint or find it incomplete, improperly completed or alleging of an offense occurring more than five years prior to the date of filing:
[1] 
If the complaint is incomplete, improperly completed or alleges an offense occurring more than five years prior to the date of filing, the Town Clerk shall retain a copy of the complaint and return the original complaint by certified mail, return receipt requested to the complainant, together with a letter explaining the reason for the rejection of the complaint.
[2] 
If the complaint is accepted by the Town Clerk, he/she shall provide a notice of acceptance to the complainant by certified mail, return receipt requested.
(6) 
Preliminary review. Within 30 days of the Town Clerk’s acceptance of a complaint, the Commission shall review the complaint in executive session as permitted by 1 M.R.S.A. § 405 et seq. (the Freedom of Access Law) to determine whether or not the allegations contained therein would constitute a violation of any provision of the Code of Ethics, should they prove true. Neither the complainant nor the accused shall be permitted to attend the Executive Session. Notwithstanding the foregoing, if the complainant is an Ethics Commission member, they shall be allowed to attend the Executive Session. The accused shall not be advised of the complaint since the accused is not being "charged or investigated" within the meaning of 1 M.R.S.A. § 405.6.A(2).
(a) 
If the Commission determines that the complaint does not allege sufficient acts to constitute a violation or has not been timely filed, the Commission shall dismiss the complaint and duly notify the complainant.
(b) 
If the Commission makes a preliminary determination that the complaint alleges sufficient acts to constitute a violation, then Commission shall determine that, if proven true, the violation would constitute a minor or a major violation.
[1] 
If the Commission determines that a minor violation may have occurred:
[a] 
The Town Manager shall contact the accused, review the complainant's accusation and concerns, obtain the accused's side of the story and take whatever action the Manager feels appropriate, up to an oral counseling.
[b] 
The Town Manager shall issue a written report to the Town Council and the Ethics Commission which outlines the accused's side of the story and what, if any, action the Manager has taken or would recommend to the Council.
[c] 
The Manager shall report to the complainant only that the matter was reviewed with the accused and appropriate action was taken. Notwithstanding the foregoing, if the complainant is a member of the Town Council or Ethics Commission, the Town Manager shall provide a copy of the report as provided in Subsection M(6)(b)[1] immediately above.
[2] 
If the Commission determines that a major violation may have occurred:
[a] 
Within five days thereafter, the Town Manager shall notify both parties of the Commission's preliminary determination.
[b] 
Within 15 days thereafter, the Town Clerk, in consultation with the Commissioners, complainant and accused, shall fix a date for the commencement of the hearing on the allegation. Said hearing date shall be not less than 30, nor more than 45 days after the preliminary determination unless the parties agree in writing.
N. 
Conduct of investigation.
(1) 
Commission powers. In the conduct of its investigation of an alleged violation of the Code of Ethics, the Commission shall have the power to hold hearings, administer oaths, examine witnesses, receive oral and documentary evidence, and request witnesses and the production for examination by the Commission of any books and papers which the Commission deems relevant in any matter under investigation or in question. The Town Manager and Town Clerk shall assist the Commission as requested.
(2) 
Hearing.
(a) 
Due process. The accused shall have the right to appear and to be represented by legal counsel, to examine and cross-examine witnesses, and to review and copy all materials relating to the accusations against them, including, by way of example but without limitation, complaints, reports, notes and minutes.
(b) 
Hearing procedure. The Commission shall hear the case as follows:
[1] 
The complainant shall present his/her allegations.
[2] 
Town staff shall present any additional allegations.
[3] 
The accused shall be allowed to present his/her defense.
[4] 
Town staff shall present any additional evidence or relevant information.
[5] 
The Commission shall close the hearing and consider the evidence presented and any additional information a majority consider relevant.
[6] 
Upon conclusion of its fact-finding and deliberations, the Commission shall issue written findings as provided below with respect to each matter and question referred to it.
[7] 
The hearing may be continued to a later time or date, at the discretion of the Commission.
O. 
Findings. Not later than three business days after termination of the hearing, the Town Clerk shall provide a copy of the Commission's findings to the complainant and the accused either in person or by certified mail, return receipt requested.
(1) 
No violation. If the Commission makes a finding of no violation, the complaint and the record of its investigation shall remain confidential, except upon the request of the accused. No complainant, witness, designated party, employee, member or Commissioner shall disclose to any third party any information learned from the investigation, including knowledge of the existence of a complaint, which the disclosing party would not otherwise have known.
(2) 
Violation. If the Commission makes a finding of violation:
(a) 
The Town Manager or his/her designee shall report the Commission's finding to the Town Council within 10 days.
(b) 
The Town Council may take appropriate disciplinary action up to and including removal from office.
(c) 
The Town Clerk or his/her designee shall make public any final notice of disciplinary action not later than five business days after the termination of the hearing.
P. 
Appeal. Any person aggrieved by a decision of the Town Council or Ethics Commission may take an appeal to the State Superior Court pursuant to Rule 80B of the Maine Rules of Civil Procedure.
Q. 
Records. All records relating to the complaint and subsequent procedures shall be maintained as required by the Maine Rules for Disposition of Local Government Records.