[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.
