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HomeMy WebLinkAboutMinutes - City Council - 12/03/2018 CITY COUNCIL 3 DECEMBER 2018 The South Burlington City Council held a regular meeting on Monday, 3 December 2018, at 6:30 p.m., in the Conference Room, City Hall, 575 Dorset Street. Members Present: H. Riehle, Chair; M. Emery, T. Barritt, T. Chittenden, D. Kaufman Also Present: T. Hubbard, Deputy City Manager; A. Lafferty, Deputy City Attorney; P. Conner, Director of Planning & Zoning; S. Dooley, M. Simoneau, J. Simson, E. Simindinger, B. Sirvis, S. Dopp, A. & A. Chalnick, D. Murdoch, J. Kochman, Library Board of Trustees Members 1. Possibly enter into executive sessions for purpose of discussing: a. Community Center contracts with the Library Board of Trustees b. Discussion of collective bargaining of labor relations agreements with employees; and c. Attorney-client communications with City Attorneys related to adopted interim bylaws Mr. Barritt moved that the Council make a specific finding that premature general public knowledge of: a. Contracts & contract terms between the city and third party’s related to the new community center b. Labor relations agreements with employees, collective bargaining; and, c. Confidential attorney-client communications made for the purpose of providing professional legal services to the Council Would clearly place the Council and the city at a substantial disadvantage. Mr. Chittenden seconded. Motion passed unanimously Mr. Barritt then moved that having so found, the Council enter into executive sessions for the purpose of discussing: a. Contracts and contract terms related to the community center with the Library Board of Trustees; b. Labor relations agreements with employees with the city’s management team; and c. Confidential attorney‐client communications related to the newly adopted interim bylaw with the city’s attorneys And to include in the executive session the Deputy City Attorney, City Attorneys, and members of the Library Board of Trustees. Mr. Chittenden seconded. Motion passed unanimously The Council entered executive session at 6:32 p.m. and resumed open session at 7:35 p.m. 2. Instructions on exiting building in case of emergency: Mr. Hubbard provided instructions on emergency evacuation of the building. 3. Agenda Review: Additions, deletions or changes in order of agenda items: Ms. Riehle suggested members add reports from committees on which they serve as part of their announcements. 4. Comments and Questions from the public not related to the agenda: Mr. Simindinger noted that he had spoken with Mr. Conner regarding 5G legislation and that Mr. Conner said it would be addressed in a month or so. 5. Announcements and City Manager’s Report: Council members reported on meetings and events they had attended in recent weeks. Mr. Chittenden reported on the most recent Green Mountain Transit meeting at which a new traffic management plan was approved as well as the purchase of 2 electric buses in the fall. There was also some budget work and the start of the General Manager’s contract review. Ms. Emery reported that at the CCRPC meeting, members reviewed the very positive audit report. There was also an update on e-bikes/bike share programs which CCRPC is looking to expand. Ms. Riehle reported on the Airport Commission meeting as follows: a. Heritage received their V-Corp certification b. Some Airport construction work will be accelerated. c. A new chart is being developed regarding Airport financing d. Master planning has begun. This will include a public survey. It is hoped that community members will attend the meetings. e. Four homes for demolition with 2 to be scheduled shortly. f. Management of the new hotel was explained. The Airport will continue to own the land under the hotel which will be managed by DEW LLC. Rooms and Meals Taxes and Sales Taxes will come to South Burlington. Mr. Hubbard: Noted the presence of some staff members at the formal dedication of Allard Square. Budget work continues with Department Managers. There should be an overview for the Council at its next meeting. The parking ban is in effect from Midnight to 8 a.m. The audit is being finalized. At the next meeting, there will be a presentation by Tim Barden regarding the potential performing arts center as well as a presentation on the proposed indoor recreation center. Tony Cairns will describe the planned central entrance to the ice arenas. 6. Consent Agenda: a. Approve and Sign Disbursement b. Approve Minutes for 15 October, 13 and 19 November 2018 c. Approve Pension amendment d. Resolution Establishing the South Burlington Public Safety Management Group for Enrollment in the Vermont Municipal Employees’ Retirement System Ms. Emery asked to add the following sentence to the second paragraph on p. 7 of the 13 November minutes: “Ms. Emery moved to add the Auclair lands within the City of South Burlington to the lands exempt from Interim Zoning. These lands include the parcels that were part of the conservation land deal with the City, commonly known as parcels A, B and C. Mr. Kaufman seconded. Motion passed unanimously. Ms. Emery then moved to approve the Consent Agenda with the amendment. Mr. Barritt seconded. Motion passed unanimously. 7. Interview Candidates for Natural Resources Committee: The Council interviewed Alyson Chalnick and Duncan Murdoch for appointment to the Natural Resources Committee. Following the interviews, Mr. Kaufman moved to appoint Allison Chalnick and Duncan Murdoch to the Natural Resources Committee, terms of service to be determined. Ms. Emery seconded. Motion passed unanimously. 8. Discussion and possible action on matters related to studies and work plan conducted during interim zoning particularly to advance inclusionary zoning: Ms. Riehle noted that what got lost in the interim zoning discussions was the request from the Affordable Housing Committee to ask the Planning Commission to move quickly on Inclusionary Zoning in the areas of the city that are not part of interim zoning. The question is whether the Council wants to task the Planning Commission to address this soon. Mr. Conner noted that the PUD work the Commission is doing covers a wide range of issues including how a PUD works, site plan rules, what is reviewed in a PUD application, etc. Ms. Riehle asked how would it work if inclusionary zoning is added to this. Mr. Conner said the structure of PUDs will have a lot of parts, and anything the city decided to do could fit into those parts. Time-wise, the question is what the Council wants the Planning Commission to focus on. He estimated it would take 6-8 hours of Planning Commission time to cover all the steps and 60-80 hours of staff time. He added that at present, the PUD work is the top priority. After that it is the Interface of TDRs and Open Space with the interim zoning committees and what comes from those 2 groups. That would be followed by inclusionary zoning. Mr. Simson said it is a matter of priorities. The Comprehensive Plan sets affordable housing as a goal. The Council has now “tilted over” to stop development; however, it is important to have some development in order to get affordable housing. Ms. Dooley stressed that there is an impact to interim zoning; it is not a neutral action. Ms. Emery noted that CCRPC anticipates a 25% population increase for the County in its 2050 transportation plan. They will be holding a session in December regarding housing trust funds and inclusionary zoning. Mr. Chittenden asked if there are other people the city can contract with to do more in the 9-month interim zoning timeframe. Mr. Conner said there could be some help from CCRPC. He was willing to have that conversation with them. Ms. Riehle noted that inclusionary zoning is included in the Form Based Code district and asked how difficult it would be to expand that. Mr. Conner said a draft has been initially reviewed by the Planning Commission. The question is how inclusionary zoning interplays with other regulations. In City Center, Form Based Code and Inclusionary Zoning came in together. Mr. Conner noted that when two other communities adopted Inclusionary Zoning, there was significant community feedback. He also noted that in the past, affordable housing has been part of projects managed by groups such as Cathedral Square. The question is how affordable housing would be managed by those who are not affordable housing managers. Ms. Dooley noted that Fair Housing Project has applied for a grant that would be for a person to do the managing. Mr. Simson stressed that the housing they are discussing is for people at 80 to 100% of median income, people such as nurses, firefighters, teachers, etc., who work in the community. This is not a charitable thing. Ms. Emery did not feel it would contradict what is being worked on in interim zoning and felt the city should seriously consider Charlie Baker’s offer of help. Mr. Kaufman said if there weren’t interim zoning, inclusionary zoning would be the priority. It needs to get started and see if it can be done at the same time. Members of the Affordable Housing Committee expressed willingness to go the extra mile to make this less burdensome. Ms. Emery asked Mr. Conner about the schedule regarding sustainability efforts and asked whether these efforts will have to wait due to time constraints. Mr. Conner said he and Ilona Blanchard attended an Energy Committee meeting and have set up time for regular meetings to start to develop some of the sustainability items. He added that realistically having a plan for the next Council meeting would be “pushing it.” 9. Resolution establishing the Recreation Foundation Reserve Fund: Mr. Hubbard said there was a meeting with the Recreation & Parks Foundation people at which there was discussion as to whether to file with the State or to set up a separate reserve fund. People felt the simplest way would be set up a Reserve Fund. It would still be tax deductible for those who contribute to it. Mr. Kaufman explained the aim is to raise money for indoor recreation space of which the city has virtually none. This would allow the city to raise money privately. Plans for design in conjunction with the skating facilities are moving ahead. Ms. Kochman noted they had been told it would take $3000 just to apply through the State. She noted the proposed process would separate the funds from the city budget. She also noted a typo on the third “whereas” paragraph which should read “Recreation and Parks Department.” Mr. Barritt also noted a spelling typo. Mr. Kaufman moved to approve the Resolution establishing the Recreation Foundation Reserve Fund with the amended typo changes. Mr. Chittenden seconded. Motion passed unanimously. Mr. Simoneau said this action will also facilitate motivating people to support other city assets. 10. Discussion and possibly action related to the distribution of social services funding: Mr. Kaufman felt the money should be designated for organization specific to South Burlington as much as possible. After discussion, Members agreed to include funding for Howard Mental Health, scholarships for families that can’t afford Recreation Department activities, Common Roots, COTS, South Burlington food shelf, Domestic Violence, Age Well, and up to a $2500 match for the employees United Way campaign. Mr. Kaufman then moved to allocate social services funding as follows: $2500 match for the city employees’ United Way campaign $2000 for Howard Mental Health $2000 for scholarships for families that can’t afford Recreation Department activities $2000 for Common Roots $2000 for the South Burlington Food Shelf $1000 for COTS $2000 STEPS to End Domestic Violence $1500 for Age Well Ms. Emery seconded. Motion passed unanimously. 11. Consider and possibly approve an update to the South Burlington Conflict of Interest and Ethics Policy as required by Statute: Mr. Chittenden raised the possibility of having a committee to which issues could be referred. Some other communities have this process. Mr. Barritt moved to approve the update to the Conflict of Interest and Ethics Policy as presented. Mr. Chittenden seconded. Motion passed unanimously. 12. Other Business: a. Items Held from Consent Agenda b. Other Mr. Chittenden asked if the Council should be planning something for staff between Christmas and the New Year. Ms. Riehle suggested something following the New Year when things are not so hectic for people. This will be discussed at the next Council meeting. As there was no further business to come before the Council, Mr. Barritt moved to adjourn. Mr. Chittenden seconded. Motion passed unanimously. The meeting was adjourned at 9:02 p.m. Published by ClerkBase ©2019 by Clerkbase. No Claim to Original Government Works. South Burlington Water Dept. Accounts Payable Check Register Date: 12/04/18 Date Check No. Paid To Memo Amount Paid 12/4/2018 3481 Bevins & Son Inc. 7,095.00 Date Voucher Number Reference Voucher Total Amount Paid 11/16/2018 VI-14692 18247 7,095.00 7,095.00 12/4/2018 3482 Santos A. De Guillen 379.17 Date Voucher Number Reference Voucher Total Amount Paid 11/27/2018 VI-14693 REFUND 379.17 379.17 12/4/2018 3483 FirstLight Fiber 40.36 Date Voucher Number Reference Voucher Total Amount Paid 11/15/2018 VI-14691 4593021 40.36 40.36 12/4/2018 3484 James Metropoulos Trust 50.00 Date Voucher Number Reference Voucher Total Amount Paid 11/27/2018 VI-14694 REFUND 50.00 50.00 Total Amount Paid: 7,564.53 SOUTH BURLINGTON CITY COUNCIL _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________ Printed: November 29, 2018 Page 1 of 1 CITY OF SOUTH BURLINGTON RETIREMENT INCOME PLAN WHEREAS the undersigned Employer has adopted the City of South Burlington Retirement Income Plan, effective December 1, 1972, and subsequently amended and restated in its entirety on January 26, 2011 and December 18, 2017, to provide retirement and pre-retirement benefits to its eligible employees; NOW THEREFORE, pursuant to Article 18.2, the Employer hereby amends the following section of the Plan Document, effective upon adoption: The following paragraph shall be added after Section 5.5. Section 5.6 – Contractual Retirement Benefit. One employee enrolled in the pension program, through terms of a specific separate employment agreement, shall receive the annual 3% increase in benefit consistent with Section 5.1(a)(2) until they begin taking Social Security. Upon employee’s commencement of Social Security retirement benefits, the 3% increase shall cease and the Normal Retirement Benefit shall continue without offset. IN WITNESS WHEREOF, the Employer hereby causes this Agreement to be executed effective the ________ day of ______________, 2018. City of South Burlington _____________________________________ Signature of Authorized Representative _____________________________________ Attest _______________________ Date 1 MEMORANDUM TO: South Burlington City Council FROM: Andrew Bolduc, Esq., South Burlington City Attorney DATE: 12/3/18 RE: Resolution related to public safety management enrollment into the Vermont Municipal Employees’ Retirement System (VMERS) Background In order for public safety non-union management staff to enroll into VMERS in lieu of the City’s current pension plan, state statute requires the following attached group classification and council resolution. 24 V.S.A. § 5053(c). Recommended Action After review, to take action through a motion adopting the resolution as part of the consent agenda. RESOLUTION A RESOLUTION ESTABLISHING THE SOUTH BURLINGTON PUBLIC SAFETY MANAGEMENT GROUP FOR ENROLLEMENT IN THE VERMONT MUNICIPAL EMPLOYEES’ RETIREMENT SYSTEM WHEREAS, the City of South Burlington (the “City”) employs a group of non-union public safety employees (“Employees”) that work in supervisory roles which have a similarity of interests, needs and general conditions of employment; and, WHEREAS, it is in the best interest of the City and the desire of the Employees to participate in the Vermont Municipal Employees’ Retirement System (“VMERS”) in lieu of the City’s current pension plan; NOW THEREFORE, BE IT RESOLVED, that, pursuant to 24 V.S.A. § 5053(c), the South Burlington City Council hereby establishes the South Burlington Public Safety Management Group and elects for this group to participate in VMERS Class D, effective January 1, 2019. APPROVED at South Burlington, Vermont this _____ day of December, 2018. SOUTH BURLINGTON CITY COUNCIL _________________________________ Helen Riehle, Chair _________________________________ Meaghan Emery, Vice-Chair _________________________________ Tim Barritt, Clerk _________________________________ Thomas Chittenden _________________________________ David Kaufman Resolution to Create a Recreation and Parks Foundation Reserve Fund Whereas, the City Charter, section 13-310 (7) states, “The city council and the school board, by their own actions, may establish reserve funds to pay for public improvements, replacement of equipment, and planned or unplanned operating expenditures. Monies to be deposited in any fund shall be included in a city or school district budget and shall not be excluded in calculating the net cost of operation pursuant to subsection 1309(a) of this chapter. Reserve funds shall be kept in separate accounts and invested in the same manner as other public funds. The city council and the school board may, from time to time, expend monies in those funds for purposes for which they were established without voter approval.”; and, Whereas, the City of South Burlington has supported the fundraising efforts of the South Burlington Recreation and Parks Department in the past to include Reserve Funds for the Senior Citizens Organization, PACT, Bandshell, Dog Park, Community Chorus, and the Veterans Memorial; and, Whereas, the South Burlington Recreation and Parks Foundation has been formed to specifically raise funds for the Recreation Department, to include funding for a new indoor recreation center; and, Whereas, there are no outstanding debts, fees, or financial obligations to be paid by the Foundation; and, Whereas, it is the desire of the South Burlington Recreation and Parks Foundation to donate said funds to the City to be placed in the City Reserve Fund; and, Whereas, the Recreation and Parks Department will be charged as the custodian of the money and ensure its appropriate use and disbursement and present financial reports to the Recreation and Parks Foundation; and, Whereas, all expenditures will be made in consultation with the Recreation and Parks Foundation; and, Whereas, it is the intention of the City to continue to support the programs and activities of the Recreation & Parks Department; and, Now, Therefore, Be it Resolved, that the City Council hereby creates a Reserve Fund whose purpose is to secure and disburse these funds as deemed appropriate by the Recreation and Parks Department, with due diligence and oversight by the City: and, Furthermore, Be It Resolved, that all money placed is this Reserve Fund shall only be disbursed for the uses identified in this Resolution. Dated the 3rd day of December, 2018 SOUTH BURLINGTON CITY COUNCIL ________________________ ________________________ Helen Riehle, Chair Tom Chittenden ________________________ ________________________ Meaghan Emery, Vice Chair David Kaufman ________________________ Tim Barritt, Clerk 1 MEMORANDUM TO: South Burlington City Council FROM: Andrew Bolduc, Esq., South Burlington City Attorney DATE: 12/3/18 RE: Mandatory update of city’s conflict and ethics policy for elected and appointed officials Background Recent state legislation requires all Vermont municipalities to adopt a conflict of interest policy by July 1, 2019 that complies with certain elements defined by statute at 24 V.S.A. § 1984. The policy is intended to apply to elected and appointed officials and not municipal employees. Municipal employees, including council appointed officials under the charter who work as employees, will continue to be subject to the prior conflict policy as well as others such as the city’s personnel rules and regulations and purchasing policy. In your packets is a draft of a new policy for adoption. The policy was adopted from the model policy issued earlier this year by the Vermont League of Cities and Towns and specifically tailored by staff for South Burlington. In your packets is also the guidance document from VLCT for additional reference. Recommended Action After review and consideration of the draft policy, to take action by motion adopting the policy with or without amendment. CITY OF SOUTH BURLINGTON CONFLICT OF INTEREST AND ETHICS POLICY FOR ELECTED AND APPOINTED OFFICIALS Article 1. Authority. Under the authority granted in 24 V.S.A. § 2291(20) and pursuant to 24 V.S.A. § 1984, the City of South Burlington hereby adopts the following policy concerning conflicts of interest and ethical conduct. Article 2. Purpose. The purpose of this policy is to ensure that the business of this municipality will be conducted in such a way that no public officer of the municipality will gain a personal or financial advantage from his or her work for the municipality and so that the public trust in its officers will be preserved. It is also the intent of this policy to ensure that all decisions made by public officers are based on the best interests of the municipality. Article 3. Application. This policy applies to all individuals elected or statutorily-appointed to perform executive, administrative, legislative, or quasi-judicial functions of the City of South Burlington. This includes City Council members and all appointed committee members or trustees. As of the date of adoption of this policy, the City’s public bodies are: City Council Housing Trust Fund Committee Affordable Housing Committee Library Board of Trustees Board of Abatement Natural Resources Committee Board of Civil Authority (BCA) Pension Advisory Committee (PAC) Economic Development Committee Planning Commission City Charter Committee Public Art Selection Committee Dog Park Committee Recreation & Parks Committee Development Review Board (DRB) Energy Committee Article 4. Definitions. For the purposes of this policy, the following definitions shall apply: A. Conflict of interest means any of the following: 1. A real or seeming incompatibility between a public officer’s private interests and his or her public or fiduciary interests to the municipality he or she serves. A conflict of interest arises when there is a direct or indirect personal or financial interest of a public officer or a person or group closely tied with the officer including his or her spouse, household member, child, stepchild, parent, grandparent, grandchild, sibling, aunt or uncle, brother- or sister-in-law, business associate, or employer or employee in the outcome of an official act or action, or any other matter pending before the officer or before the public body in which the public officer holds office. A conflict of interest may take any of the four following forms: a. A direct financial conflict of interest arises when a public officer acts on a matter that has a direct financial impact on that officer. b. An indirect financial conflict of interest arises when a public officer acts on a matter that has a financial impact on a person or group closely tied to the officer. 2 c. A direct personal conflict of interest arises when a public officer acts on a matter that has a direct impact on the officer in a non-financial way but is of significant importance to the officer. d. An indirect personal conflict of interest arises when a public officer acts on a matter in which the officer’s judgment may be affected because of a familial or personal relationship or membership in some organization and a desire to help that person or organization further its own interests. 2. A situation where a public officer has publicly displayed a prejudgment of the merits of a particular quasi-judicial proceeding. This shall not apply to a member’s particular political views or general opinion on a given issue. 3. A situation where a public officer has not disclosed ex parte communication(s) related to a quasi-judicial proceeding that is before the body to which that officer belongs. A "conflict of interest" does not arise in the case of an official act or action in which the public officer has a personal or financial interest in the outcome, such as in the establishment of a tax rate, that is no greater than that of other persons generally affected by the decision. B. Emergency means an imminent threat or peril to the public health, safety, or welfare. C. Ex Parte Communication means direct or indirect communication between a member of a public body and any party, party’s representative, party’s counsel or any person interested in the outcome of a quasi-judicial proceeding, that occurs outside the proceeding and concerns the substance or merits of the proceeding. D. Official act or action means any legislative, administrative or quasi-judicial act performed by any public officer while acting on behalf of the municipality. This term does not apply to ministerial acts or actions wherein no discretionary judgment is exercised. E. Public body means any board, council, commission, or committee of the municipality. F. Public interest means an interest of the municipality, conferred generally upon all residents of the municipality. G. Public officer means a person elected or statutorily-appointed to perform executive, administrative, legislative, or quasi-judicial functions for the municipality. Public officer does not mean municipal employees covered under the city’s personnel rules and regulations. H. Quasi-judicial proceeding means a case in which the legal rights of one or more persons who are granted party status are adjudicated, which is conducted in such a way that all parties have opportunities to present evidence and to cross-examine witnesses presented by other parties, and which results in a written decision, the result of which is appealable by a party to a higher authority. 3 Article 5. Prohibited Conduct. A. A public officer shall not participate in any official act or action if he or she has a conflict of interest, whether real or perceived, in the matter under consideration. B. A public officer shall not personally – or through any member of his or her household, business associate, employer or employee – represent, appear for, or negotiate in a private capacity on behalf of any person or organization that has an interest in an official act or action pending before the public body in which the public officer holds office. C. A public officer shall not accept gifts or other offerings for personal gain by virtue of his or her public office that are not available to the public in general. D. A public officer will not request or accept any reward, gift, or favor for taking an official act or action or advocating for or against an official act or action. E. A public officer shall not use resources unavailable to the general public – including but not limited to municipal staff time, equipment, supplies, or facilities – for private gain or personal purposes. F. A public officer who is a member of a public body shall not give the impression that he or she has the authority to make decisions or take actions on behalf of that body. Article 6. Disclosure. A public officer who, while serving on a public body, may have a conflict of interest, whether real or perceived, in a matter under consideration by that public body shall, prior to taking an official act or action or participating in any official act or action on the matter, publicly disclose at a public meeting or public hearing that he or she has an actual or perceived conflict of interest in the matter under consideration and disclose the nature of the actual or perceived conflict of interest. Alternatively, a public officer may request that another public officer recuse him or herself from a matter due to a conflict of interest, whether real or perceived.1 Article 7. Consideration of Recusal. Once there has been a disclosure of an actual or perceived conflict of interest, other public officers shall be afforded an opportunity to ask questions or make comments about the situation. If a previously unknown conflict is discovered during a meeting or hearing conducted by a public body of the municipality, the public body shall take evidence pertaining to the conflict and, if appropriate, adjourn to an executive session to address the conflict. Article 8. Recusal. A. Recusal of Appointed and Elected Officers. After taking the actions listed in Articles 6 and 7, a public officer, whether appointed or elected, shall declare whether he or she will recuse him or herself and explain the basis for that decision. If the public officer has an actual or 1 Such request shall not be considered an order for the officer to recuse him or herself. 4 perceived conflict of interest but believes that he or she is able to act fairly, objectively, and in the public interest, in spite of the conflict, he or she shall state why he or she believes that he or she is able to act in the matter fairly, objectively, and in the public interest.2 Otherwise, the public officer shall recuse him or herself from the matter under consideration. A public officer that recuses him or herself may, but not must, explain the basis for that decision. B. Recusal of Appointed Officers. The failure of an appointed public officer to recuse himself or herself in spite of a conflict of interest, whether real or perceived, may be grounds for discipline or removal from office.3 Article 9. Recording. The minutes of the meeting or the written decision / minutes from the meeting / hearing shall document the actions taken in Articles 6 through 8. Article 10. Post-Recusal Procedure. A. A public officer who has recused himself or herself from participating in an official act or action by a public body shall not sit with the public body, deliberate with the public body, or participate in the discussions about that official act or action in any manner in his or her capacity as a public officer, though such member may still participate as a member of the public or private party, if applicable. B. The public body may adjourn the proceedings to a time, date, and place certain if, after a recusal, it may not be possible to take action through the concurrence of a majority of the total membership of the public body. The public body may then resume the proceeding with sufficient members present. Article 11. Enforcement. A. Enforcement Against Elected Officers; Consequences for Failure to Follow the Conflict of Interest Procedures. In cases in which an elected public officer has engaged in any of the prohibited conduct listed in Article 5, or has not followed the conflict of interest procedures in Articles 6 through 10, the City of South Burlington City Council may, in its discretion, take any of the following disciplinary actions against such elected officer as it deems appropriate: 2 Each member of an elected public body is independently elected and answers only to the voters. Therefore, unless there is a local ordinance or charter provision that states otherwise, the remaining members of the body may not force recusal. They may only express their opinion about the subject and/or privately or publicly admonish a fellow member who fails to handle conflicts appropriately. 3 Certain appointed public officers such as members of the Development Review Board may only be removed for cause and after being afforded with procedural due process protections including notice and a reasonable opportunity to be heard. 5 1. The chair of the City of South Burlington City Council may meet informally with the public officer to discuss the possible conflict of interest violation. This shall not take place in situations where the chair and the public officer together constitute a quorum of a public body. 2. The City of South Burlington City Council may meet to discuss the conduct of the public officer. Executive session may be used for such discussion in accordance with 1 V.S.A. § 313(a)(4). The public officer may request that this meeting occur in public. If appropriate, the City of South Burlington City Council may admonish the offending public officer in private. 3. The City of South Burlington City Council may admonish the offending public officer at an open meeting and reflect this action in the minutes of the meeting. The public officer shall be given the opportunity to respond to the admonishment. 4. Upon majority vote in an open meeting, the City of South Burlington City Council may request (but not order) that the offending public officer resign from his or her office. B. Enforcement Against Appointed Officers. The City of South Burlington City Council may choose to follow any of the steps articulated in Article 11A. In addition to or in lieu of any of those steps, the City of South Burlington City Council may choose to remove an appointed officer from office, subject to state law. Article 12. Exception. The recusal provisions of Article 8 shall not apply if the City of South Burlington City Council determines that an emergency exists or that actions of a quasi-judicial public body otherwise could not take place. In such a case, a public officer who has reason to believe he or she has a conflict of interest shall only be required to disclose such conflict as provided in Article 6. Article 13. Effective Date. This policy shall become effective immediately upon its adoption by the City of South Burlington City Council. _____________________ Date _________________________ __________________________ Helen Riehle Meaghan Emery _________________________ ___________________________ Tom Chittenden Tim Barritt _________________________ David Kaufman January, 2018 1 Sponsor of: VLCT Employment Resource and Benefits Trust, Inc. VLCT Municipal Assistance Center VLCT Property and Casualty Intermunicipal Fund, Inc. GUIDANCE DOCUMENT For the VLCT Model Policy Regarding Conflicts of Interest and Ethical Conduct Every municipality in Vermont is required to adopt a conflict of interest prohibition by July 1, 2019. Such prohibition must contain at least the following elements, which are found in 24 V.S.A. § 1984:  a definition of "conflict of interest";  a list of the elected and appointed officials covered by such prohibition;  a method to determine whether a conflict of interest exists;  actions that must be taken if a conflict of interest is determined to exist; and  a method of enforcement against individuals violating such prohibition. In general terms, a conflict of interest is an incompatibility between the private and public interests of a public official. It is up to each municipality to specifically articulate the types of conduct that constitute a conflict of interest. A municipality may also set certain behavioral standards for its public officials by broadening a conflict of interest prohibition to address ethical behavior. 24 V.S.A. § 2291(20). This Model Policy Regarding Conflicts of Interest and Ethical Conduct was issued in 2018 by the VLCT Municipal Assistance Center (MAC) to help municipalities comply with the conflict of interest mandate in 24 V.S.A. § 1984 and take advantage of the authority granted in 24 V.S.A. § 2291 to regulate ethical conduct by public officials. It is up to each municipal legislative body to modify and adopt this model policy to suit local preferences. This model must be customized by replacing the italicized text. Why is it important to address conflicts of interest? In addition to the statutory requirements mentioned above, there are also political, legal, and reputational interests at stake. Failure to manage ethical dilemmas appropriately can significantly damage the reputation of a local official, an entire public body, or the municipality as a whole. Within the context of local government, a perceived conflict of interest can be just as problematic as a real conflict. Fortunately, the Vermont Legislature has provided broad enabling authority to create and adopt conflict of interest provisions for resolving local conflicts of interest. It is therefore up to every individual municipality to articulate standards for identifying and managing conflicts of interest. The structure of Vermont local government, the breadth of local government’s responsibilities, and the often-contentious nature of local issues increase the likelihood that allegations of conflicts of interest will be leveled against even the most conscientious municipal official. A municipal conflict of interest policy can help guide elected and appointed officials through situations that present actual or perceived conflicts of interest. The adoption of a conflict of interest policy sets shared expectations about how conflicts and perceived conflicts will be handled by municipal officials. How is a conflict of interest policy adopted and to whom does it apply? A conflict of interest policy is adopted by vote of the legislative body within the context of a duly-warned public meeting and is effective as soon as it is adopted or at any later Guidance Document for the VLCT Model Policy Regarding Conflicts of Interest and Ethical Conduct January, 2018 Page 2 date specified by the legislative body. Such a policy will apply to all elected and appointed municipal officials. 24 V.S.A. § 2291(20). However, a conflict of interest policy is not meant to govern the behavior of employees which should be addressed separately in the context of a personnel policy and/or purchasing policy. The adoption of a conflict of interest policy by the legislative body does not preclude any other public body in the municipality from adopting its own conflict of interest policy (especially an appropriate municipal panel such as a development review board, which is required by 24 V.S.A. § 4461 to adopt rules governing conflicts of interest). However, doing so will mean that the members of that public body will have to abide by both policies. What should be done when a conflict is identified? Conflicts of interest inevitably arise in the workings of small town government, and they should be avoided whenever possible. However, the presence of a conflict does not necessarily mean that a municipal official may not continue to act in a particular situation. The deciding factor should be whether the official is able to act impartially despite the presence of a conflict. One important caveat to the above: A higher conflict of interest standard applies in the context of quasi-judicial decision-making. Quasi-judicial decisions are rendered in situations where the rights of a particular individual are at stake (e.g., tax appeals, vicious dog hearings, land use decisions). In those situations the affected individual has the right to receive constitutional due process protections, which include the right to an impartial decision maker. If a municipal official with a conflict of interest participates in a quasi-judicial process, a court may determine that the official was not an impartial decision maker and may vacate the decision and order the matter be reconsidered without the participation of the conflicted member. See e.g. Appeal of Janet Cote, 257-11-02 Vtec (2003). Therefore, municipal officials should be more inclined to recuse themselves when they are participating in a quasi-judicial process. If an actual or perceived conflict arises or is identified, and the individual is a member of a public body (such as a board, committee, or commission) MAC recommends taking the following steps, which have been incorporated into this model policy: 1. The actual or perceived conflict shall be disclosed at an open meeting or hearing. 2. The public body shall discuss the situation at that meeting or hearing. 3. The individual with the actual or perceived conflict shall consider recusal. 4. The individual with the actual or perceived conflict shall decide whether to recuse him or herself and explain why. 5. The minutes of the meeting or the written decision from the hearing shall document the above process. What if a municipal official has a conflict but does not recuse himself or herself? Unless there is a local ordinance or charter provision that states otherwise, an elected official may not be forced to recuse himself or herself or to resign if requested, even if a clear conflict of interest has been identified. Other individuals may express their opinions about the subject, and may privately or publicly admonish the elected official who fails to handle a conflict appropriately, but such is the extent of their power over the situation. Each elected official within a municipality is independent from the other elected officials and answers only to the voters. The situation is different for an appointed official who Guidance Document for the VLCT Model Policy Regarding Conflicts of Interest and Ethical Conduct January, 2018 Page 3 may be instructed to recuse himself or herself or may be removed from office by the official or public body that appointed him or her.1 This model policy has been developed for illustrative purposes only. VLCT makes no express or implied endorsement or recommendation of any policy or any express or implied guarantee of legal enforceability or legal compliance. VLCT also does not represent that any policy is appropriate for any particular municipality. Please seek legal counsel to review any proposed policy before adoption. If you have specific questions about this policy please contact the VLCT Municipal Assistance Center at (800) 649-7915 or info@vlct.org. 1 Certain appointed officials such as a Zoning Administrator and members of the Zoning Board of Adjustment or Development Review Board may only be removed for cause and after being afforded with procedural due process protections including notice and a reasonable opportunity to be heard.