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HomeMy WebLinkAboutItem 1: Complaint Ordinance on Council Employees ECC UGENE ITY OUNCIL AIS GENDA TEM UMMARY Public Hearing: An Ordinance Concerning a Council Employee Complaint Process; Adding Sections 2.400, 2.402, 2.404, 2.406, 2.408 2.410 and 2.412 to the Eugene Code, 1971; and Amending Section 2.486 of that Code Meeting Date: September 15, 2008 Agenda Item Number: 1 Department: City Attorney’s Office Staff Contact: Glenn Klein www.eugene-or.gov Contact Telephone Number: 682-5080 ISSUE STATEMENT The City Manager, Municipal Court Judge, and Police Auditor are employees of the City Council. There is no established process for resolving complaints filed against those employees. BACKGROUND The City Council determined that there should be a formal process for handling complaints filed against employees hired and supervised by the council, and requested that the Council Officers develop a proposal for its review. The Council Officers did so, and that proposed ordinance (attached) was reviewed by the council and direction was given to schedule a public hearing before the council. The ordinance would amend the Eugene Code to provide the purpose, scope, and procedures for filing, processing, investigating, and making final determinations on complaints alleging one or more violations of law by a City Council employee. The ordinance also would amend the Public Official Code of Ethics – Complaint Process (EC 2.486) so that complaints alleging violations by City Council employees of the Public Official Code of Ethics provisions will also be processed under these new provisions. RELATED CITY POLICIES There are no relevant City policies other than the Public Official Code of Ethics provisions contained in Sections 2.480 – 2.488 of the Eugene Code, 1971. COUNCIL OPTIONS This is a public hearing only. CITY MANAGER’S RECOMMENDATION Not applicable. Z:\CMO\2008 Council Agendas\M080915\S0809151.DOC SUGGESTED MOTION None; this is a public hearing only. ATTACHMENTS A. Proposed Ordinance FOR MORE INFORMATION Staff Contact: Glenn Klein Telephone: 682-5080 Staff E-Mail: glenn.klein@harrang.com Z:\CMO\2008 Council Agendas\M080915\S0809151.DOC ATTACHMENT A ORDINANCE NO. ___________ AN ORDINANCE CONCERNING A COUNCIL EMPLOYEE COMPLAINT PROCESS; ADDING SECTIONS 2.400, 2.402, 2.404, 2.406, 2.408, 2.410, AND 2.412 TO THE EUGENE CODE, 1971; AND AMENDING SECTION 2.486 OF THAT CODE. THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS: Section 1. Sections 2.400, 2.402, 2.404, 2.406, 2.408, 2.410, and 2.412 are added to the Eugene Code, 1971, to provide as follows: 2.400 Council Employee Complaint Process – Purpose. (1) Sections 2.400 through 2.412 of this code provide a process for the review of complaints against employees hired and supervised by the city council (the city manager, municipal court judge, and police auditor). (2) Complaints that are subject to sections 2.400 through 2.412 of this code are those that allege one or more violations of law. Any complaints that do not allege a violation of law shall not be considered by the council as part of this process, but may be presented by the complainant to the city council at a public forum or via e-mail or letter, or directly to the complainant’s city councilor. 2.402 Council Employee Complaint Process - Scope. Complaints subject to sections 2.400 through 2.412 of this code are those that allege that a council employee has violated federal, state or local law, whether criminal or civil. Except for good cause shown, a complaint subject to sections 2.400 through 2.412 of this code must be filed within six months of the incident giving rise to the complaint. 2.404 Council Employee Complaint Process – Filing of Complaint. (1) A complaint shall be made in writing on a form provided by the city and shall be signed by the complainant. Anonymous complaints shall not be accepted. (2) A complainant may request that his or her name be kept confidential. If such a request is made, the name shall not be released to anyone except: Ordinance - 1 (a) To a city councilor upon the councilor’s request. The councilor shall maintain the confidentiality of the complainant’s name; (b) To the city council if requested by the council. The council shall maintain the confidentiality of the complainant’s name; (c) To another individual if approved by the council. The individual shall maintain the confidentiality of the complainant’s name; or (d) If required by the Oregon Public Records Law (ORS 192.410 through ORS 192.505). (3) The complaint shall state the complainant’s reason for believing that a violation occurred and include any evidence available to the complainant related to the alleged violation. Unless adequate substantiation is included, the complaint shall be returned and the complainant informed that he or she can resubmit the complaint with adequate substantiation. “Adequate substantiation” means evidence that would cause a reasonable person to conclude that a violation occurred. (4) Complaints shall be filed with the city attorney’s office, or with the city recorder’s office, which shall be forwarded immediately to the city attorney’s office. (5) Within 24 hours of the receipt of a complaint, the city attorney’s office shall provide a copy of the complaint to each city councilor and the mayor. In addition, upon receipt of a complaint, the city attorney’s office shall attempt to immediately contact by telephone each elected official to alert them that a complaint has been filed. (6) Immediately after the council has been informed that a complaint has been filed and has been provided with a copy of the complaint, the city attorney’s office shall provide a copy of the complaint to the council employee who is the subject of the complaint and request the employee to provide a written response to the complaint. Once the response is received from the employee, the city attorney shall forward a copy of the response to the council. (7) If the complainant requests that his or her name be kept confidential, the city attorney’s office shall redact the complainant’s name from the complaint form and other investigative material before providing copies to the council and council employee. In instances where the identity of the complainant has been requested by a councilor or the council, that information shall be provided separately. 2.406 Council Employee - Complaint Process – Initial Determination. (1) The city attorney shall make an initial determination whether: (a) A complaint falls within the scope of section 2.402 of this code; and (b) The allegations contained in the complaint are supported by adequate substantiation. The city attorney shall notify the council of those conclusions. Ordinance - 2 (2) Unless three or more members of the council notify the council within seven days that the councilors disagree with one or both of the city attorney’s conclusions, the city attorney shall take one of the following actions: (a) If the city attorney concludes that the complaint is within the scope of section 2.402 of this code and the complaint form included adequate substantiation, the Preliminary Review pursuant to section 2.408 of this code shall be added to the council agenda as soon as practicable; (b) If the city attorney concludes that the complaint falls outside the scope of section 2.402 of this code, the city attorney shall inform the complainant that the complaint is not within the scope of the complaint process; or (c) If the city attorney concludes that the complaint is within the scope of section 2.402 of this code but that the complaint form lacks adequate substantiation, the city attorney shall return the complaint form to the complainant with a request that the complainant provide additional substantiation and resubmit the form. (3) If three or more councilors notify the council within the seven day period that they disagree with one or both of the city attorney’s conclusions, the council shall meet as soon as practicable to discuss whether to seek a second legal opinion. (a) If the council decides not to obtain a second opinion, then based on the city attorney’s initial determination, either: 1. The city attorney shall inform the complainant that the complaint is not within the scope of section 2.402 of this code and/or that the form lacked adequate substantiation, whichever is applicable, or 2. The Preliminary Review shall be added to the council agenda as soon as practicable. (b) If the council decides to obtain the second legal opinion, the council shall select an attorney whose office is located outside of Lane County, who has not been employed by or had family members employed by the city of Eugene, and who has experience providing legal counsel to one or more governmental entities in Oregon. If an attorney has undertaken any work on the city’s behalf (for example, conflict counsel), the council shall be informed of that information before the council selects an attorney for the second opinion. 1. If the second opinion concludes that the complaint falls outside the scope of section 2.402 of this code and/or that the complaint form lacked adequate substantiation, the city attorney shall inform the complainant. 2. If the second opinion concludes that the complaint is within the scope of section 2.402 of this code and that the form contains adequate substantiation, the Ordinance - 3 Preliminary Review shall be added to the council agenda as soon as practicable. 2.408 Council Employee Complaint Process – Preliminary Review. (1) If it is determined that the complaint falls within the scope of section 2.402 of this code and that the complaint contains adequate substantiation, the council shall meet to consider whether the council should place the employee on administrative leave with pay pending resolution of the complaint. (2) In addition: (a) If the complaint alleges one or more violations of criminal statutes, the city attorney shall refer such allegations to the district attorney. Following completion of the district attorney’s investigation, the council shall determine the next steps. (b) If the complaint alleges one or more violations of ORS chapter 244, the city attorney shall refer such allegations to the Oregon Government Ethics Commission (OGEC) for review and investigation. Following completion of the OGEC’s investigation, the council shall determine the next steps. (c) For any alleged violations not referred to the district attorney or the OGEC, the council shall determine whether additional information is needed to act on the complaint. If the council determines that additional information is needed, then the council shall proceed to the Full Investigation pursuant to section 2.410 of this code. Otherwise, the council shall determine whether the complaint is sustained and if so, whether the complaint merits imposition of any discipline. (d) If the complaint includes multiple types of allegations (for example, a criminal violation and a violation of city code), any alleged violations of criminal laws shall be referred to the district attorney, any alleged violations of ORS chapter 244 shall be referred to the OGEC, and any alleged violations of federal laws, other state civil laws or the city code shall be considered by the council. 2.410 Council Employee Complaint Process – Full Investigation. (1) If the council chooses to proceed to a Full Investigation, the council shall choose an outside investigator to perform the investigation. The investigator shall be someone whose office is located outside Lane County, who has not been employed by or had family members employed by the city of Eugene, and who: (a) Has sufficient knowledge and expertise to conduct the particular investigation; (b) Will be fair and impartial; and (c) Can complete the investigation in a timely fashion. Ordinance - 4 (2) Following completion of the investigation, the outside investigator shall provide a report of the investigation to the council. (3) After reviewing the report from the investigator, the council shall determine whether the complaint is sustained and, if so, whether the complaint merits imposition of any discipline. 2.412 Council Employee Complaint Process – Meetings of City Council to Discuss Complaint. (1) To the extent authorized by the Oregon Public Meetings law, the council shall meet in executive session to consider the complaint unless the council employee that is the subject of the complaint requests that the meeting be held in open session. (2) The council’s final resolution of the complaint shall be made in open session. Section 2. Subsection (2) of Section 2.486 of the Eugene Code, 1971, is amended to provide as follows: 2.486 Public Official Code of Ethics - Complaint Process. (1) Complaints Against Executive Manager. When a written complaint is made against an executive manager alleging a violation of section 2.482 or 2.484 of this code, and the complainant has affirmed the truthfulness of the allegation(s), the complaint shall be reviewed and investigated by the city attorney. The city attorney shall make an initial determination as to the merits of the complaint. (a) If the city attorney finds that the complaint is without merit, the city attorney shall notify the city manager in writing of the allegation and the finding. The city manager shall direct the city attorney to investigate the matter further or direct the city attorney to dismiss the matter. (b) If the city attorney finds that the complaint has merit, the city attorney shall provide an investigative report to the city manager who shall handle the situation in the same manner as other city employee matters. (2) Complaints Against Elected or Council Appointed [Official, City Manager, or Municipal Court Judge]Committee or Commission Member. When a written complaint is made against an elected official, or a committee or commission member appointed by the council, [the city manager or a municipal court judge] alleging a violation of section 2.482 or 2.484 of this code, and the complainant has affirmed the truthfulness of the allegation(s), the complaint shall be reviewed and investigated by the city attorney. The city attorney shall make an initial determination as to the merits of the complaint. (a) If the city attorney finds that the complaint is without merit, the city attorney shall notify the city council in writing of the allegation and the finding. Unless the city council directs the city attorney to Ordinance - 5 investigate the matter further, the city attorney will dismiss the matter. (b) If the city attorney finds that the complaint has merit, the city attorney shall prepare an investigative report and forward the report to the Oregon Government [Standards and Practices] Ethics Commission. A copy of the city attorneys report also = shall be forwarded to the city council. Section 3. The City Recorder, at the request of, or with the concurrence of the City Attorney, may administratively correct any reference errors contained herein, or in other provisions of the Eugene Code, 1971, to the provisions added, amended or repealed herein. Passed by the City Council this Approved by the Mayor this ____ day of ____________, 2008 ____ day of ______________, 2008 ___________________________ _____________________________ City Recorder Mayor Ordinance - 6