HB-6499, As Passed House, November 13, 2008
September 24, 2008, Introduced by Reps. Corriveau, Bieda, Tobocman, Melton, Byrum, Bauer and Ward and referred to the Committee on Ethics and Elections.
A bill to amend 1973 PA 196, entitled
"An act to prescribe standards of conduct for public officers and
employees; to create a state board of ethics and prescribe its
powers and duties; and to prescribe remedies and penalties,"
by amending the title and sections 1, 2, 2b, 3, 4, 5, and 6 (MCL
15.341, 15.342, 15.342b, 15.343, 15.344, 15.345, and 15.346), the
title and sections 1 and 2b as amended by 1980 PA 481 and section 2
as amended by 1984 PA 53, and by adding section 6a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
TITLE
An act to prescribe standards of conduct for public officers
and employees; to create a state board of ethics and prescribe its
powers and duties; to provide for the creation of local boards of
ethics and prescribe their powers and duties; and to prescribe
remedies and penalties.
Sec. 1. As used in this act:
(a)
"Board" means the board of ethics.
(a) (b)
"Employee" means an
employee, classified or
unclassified,
of the executive branch of this state
. For the
purpose
of section 2b, employee shall include an employee of this
state
or and, as provided in
section 2(8), includes an employee of
a political subdivision of this state.
(b) "Local board" means a board of ethics of a political
subdivision of this state created pursuant to section 6a.
(c)
"Public officer" means a person appointed by the governor
or
another executive department official. For the purpose of
section
2b, public officer shall include an
elected or appointed
official
in the executive branch of this state or and, except as
provided in section 2, includes an elected or appointed official of
a political subdivision of this state.
(d) "State board" means the state board of ethics created in
section 3.
(e) (d)
"Unethical conduct" means
a violation of the standards
in section 2 or the standards of a local ethics code.
Sec. 2. (1) A public officer or employee shall not divulge to
an unauthorized person, confidential information acquired in the
course of employment in advance of the time prescribed for its
authorized release to the public.
(2) A public officer or employee shall not represent his or
her personal opinion as that of an agency.
(3) A public officer or employee shall use personnel
resources, property, and funds under the officer or employee's
official care and control judiciously and solely in accordance with
House Bill No. 6499 as amended November 13, 2008
prescribed constitutional, statutory, and regulatory procedures and
not for personal gain or benefit.
(4) A public officer or employee shall not solicit or accept a
gift or loan of money, goods, services, or other thing of value for
the benefit of a person or organization, other than the state [or a
political subdivision of this state],
which tends to influence the manner in which the public officer or
employee or another public officer or employee performs official
duties.
(5) A public officer or employee shall not engage in a
business transaction in which the public officer or employee may
profit from his or her official position or authority or benefit
financially from confidential information which the public officer
or employee has obtained or may obtain by reason of that position
or authority. Instruction which is not done during regularly
scheduled working hours except for annual leave or vacation time
shall not be considered a business transaction pursuant to this
subsection if the instructor does not have any direct dealing with
or influence on the employing or contracting facility associated
with his or her course of employment with this state [or a political
subdivision of this state].
(6) Except as provided in section 2a, a public officer or
employee shall not engage in or accept employment or render
services for a private or public interest when that employment or
service is incompatible or in conflict with the discharge of the
officer or employee's official duties or when that employment may
tend to impair his or her independence of judgment or action in the
performance of official duties.
(7) Except as provided in section 2a, a public officer or
employee shall not participate in the negotiation or execution of
contracts, making of loans, granting of subsidies, fixing of rates,
issuance of permits or certificates, or other regulation or
supervision relating to a business entity in which the public
officer or employee has a financial or personal interest.
(8) The requirements of this section and section 2a apply to
an officer or employee of a political subdivision of this state if
the political subdivision has not adopted a local code of ethics.
Sec. 2b. (1) A public officer or employee who has knowledge
that
another public officer or employee has violated section 2
engaged in unethical conduct may report the existence of the
violation to a supervisor, person, agency, or organization. A
public
officer or employee who reports or is about to report a
violation
of section 2 shall unethical
conduct is not be subject to
any of the following sanctions because they reported or were about
to
report a violation of section 2. unethical conduct:
(a) Dismissal from employment or office.
(b) Withholding of salary increases that are ordinarily
forthcoming to the employee.
(c) Withholding of promotions that are ordinarily forthcoming
to the employee.
(d) Demotion in employment status.
(e) Transfer of employment location.
(2) Whenever a public officer or employee who has reported or
who
intends to report a violation of section 2 may unethical
conduct might be subject to any of the sanctions under this section
for reasons other than the public officer's or employee's actions
in
reporting or intending to report a violation of section 2
unethical conduct, the appointing or supervisory authority before
the imposition of a sanction shall establish by a preponderance of
evidence that the sanction to be imposed is not imposed because the
public
officer or employee reported or intended to report a
violation
of section 2 unethical
conduct.
(3)
A person who violates this section is liable responsible
for a civil infraction and may be ordered to pay a civil fine of
not more than $500.00.
(4) A civil fine recovered under this section from a state
officer or employee shall be submitted to the state treasurer for
deposit in the general fund of this state. A civil fine recovered
under this section from an officer or employee of a political
subdivision of this state shall be deposited into the general fund
of the political subdivision.
Sec. 3. (1) There is hereby created within the executive
office of the governor a state board of ethics.
(2) The function of the state board shall be advisory and
investigatory and the state board is not empowered to take direct
action against any person or agency.
Sec. 4. (1) The state board of ethics shall consist of 7
members appointed by the governor, with the advice and consent of
the senate, 1 of whom shall be designated as chairman and all of
whom
shall be residents of the this
state and not associated with
public employment. Not more than 4 members of the state board shall
be members of the same political party. Initial appointments shall
be made for terms commencing 30 days after the effective date of
this act. Of those first appointed 2 shall serve for 1 year, 2
shall serve for 2 years, and 3 shall serve for 3 years. For the 1
year, 2 year and 3 year terms, at least 1 member for each such term
shall be of the same political party. In the event of a vacancy,
the governor shall fill the vacancy for the remainder of the term.
Subsequent to the initial appointments, members shall be appointed
for terms of 4 years.
(2) The attorney general and the state personnel director
shall serve ex officio without the right to vote.
(3) Four members of the state board shall constitute a quorum
and the affirmative vote of 4 members shall be necessary for any
action. Members of the state board shall serve without compensation
but shall be reimbursed for their actual and necessary expenses
incurred in the performance of their duties. With the consent of
the civil service commission, the state personnel director shall
designate an employee of the department of civil service,
acceptable to the state board, to act as executive secretary of the
state board and shall provide clerical or administrative assistance
from the department of civil service as the state board may, from
time to time, request.
Sec. 5. (1) The state board shall:
(a) Receive complaints concerning alleged unethical conduct by
a public officer or employee from any person or entity, inquire
into the circumstances surrounding the alleged unethical conduct,
and make recommendations concerning individual cases to the
appointing authority with supervisory responsibility for the person
whose activities have been investigated. All departments of state
government shall cooperate with the board of ethics in the conduct
of its investigations.
(b) Initiate investigations of practices that could affect
ethical conduct of a public officer or employee.
(c) Hold public hearings.
(d) Administer oaths and receive sworn testimony.
(e) Issue and publish advisory opinions upon request from a
public officer or employee or their appointing or supervisory
authority relating to matters affecting ethical conduct of a public
officer or employee.
(2) In the issuance of investigative reports and
recommendations and advisory opinions, the state board shall be
advised as to legal matters by the attorney general.
(3) When a recommendation to an appointing authority is made
by
the state board which that affects a classified
employee, the
appointing authority shall initiate appropriate proceedings in
accordance
with such the recommendation and pursuant to the rules
of the civil service commission.
(4) When a recommendation to an appointing authority is made
by the state board concerning an unclassified employee or
appointee, the appointing authority shall take appropriate
disciplinary action, which may include dismissal.
Sec. 6. The state board may promulgate rules governing its own
procedures
pursuant to Act No. 306 of the Public Acts of 1969, as
amended,
being sections 24.201 to 24.315 of the Michigan Compiled
Laws
the administrative procedures
act of 1969, 1969 PA 306, MCL
24.201
to 24.328. For a period of 1 year
following the effective
date
of this act the board shall have full authority to exercise
all
of its functions in accordance with temporary rules of
procedure
promulgated by the board. Both the temporary and
permanent
rules Rules of the state
board shall provide that all of
the following:
(a) The state board may request the attendance of any witness
whose testimony, in the judgment of the state board, will aid in
the conduct of its investigations.
(b) A person appearing before the state board shall submit
either sworn or unsworn testimony as the state board may decide and
may at all times be represented and accompanied by counsel.
(c) A record of testimony taken before the state board or a
hearing officer designated by it shall be made in the manner
prescribed by the state board.
(d) The state board may, when it appears necessary for the
protection of individual rights, hold its meetings and hearings in
private. All other meetings and hearings shall be open to the
public.
Sec. 6a. (1) A political subdivision of this state shall
establish a local board as provided in this section. Except as
otherwise provided by local charter or ordinance, the local board
shall be established as follows:
(a) A local board shall consist of 4 to 9 members appointed by
the political subdivision's chief elected official with the
approval of its legislative body. The members first appointed shall
be appointed within 90 days of the effective date of the amendatory
act that added this section.
(b) The members shall serve for terms of 4 years or until a
successor is appointed, whichever is later, except that of the
members first appointed, at least 1 shall serve for 1 year, at
least 1 shall serve for 2 years, at least 1 shall serve for 3
years, and at least 1 shall serve for 4 years.
(c) A vacancy in the local board shall be filled for the
remainder of the term in the same manner as the initial
appointment.
(d) The first meeting shall be called by the political
subdivision's chief elected official within 60 days after the local
board members are appointed. At the first meeting, the members
shall elect a chairperson and other officers that it considers
necessary or appropriate. After the first meeting, the local board
shall meet as necessary at the call of the chairperson.
(e) A majority of the members of the local board constitute a
quorum for the transaction of business. A majority of the members
present and serving are required for official action of the local
board.
(2) A local board shall apply the local ethics standards that
the political subdivision has adopted by charter or ordinance. If
no local ethics policy has been adopted by 1 year after the
effective date of the amendatory act that added this section, a
local board shall apply the standards in sections 2 and 2a.
(3) A local board shall receive complaints concerning alleged
unethical conduct by a public officer or employee in the political
subdivision from any person or entity, inquire into the
circumstances surrounding the alleged unethical conduct, and make
recommendations concerning individual cases to the appointing or
supervisory authority of the person whose activities have been
investigated.
(4) A local board may do any of the following:
(a) Initiate investigations of practices that could affect
ethical conduct of a public officer or employee of the political
subdivision.
(b) Hold public hearings.
(c) Administer oaths and receive sworn testimony.
(d) Issue and publish advisory opinions upon request from a
public officer or employee of the political subdivision or the
officer's or employee's appointing or supervisory authority
relating to matters affecting ethical conduct of a public officer
or employee of the political subdivision.
(e) Request the attendance of any witness whose testimony, in
the judgment of the local board, will aid in the conduct of its
investigations, but the local board shall not deny the person the
option of being accompanied and represented by counsel at all
times.
(f) At the option of the local board, accept either sworn or
unsworn testimony from a person appearing before it.
(5) A record of testimony taken before the local board or a
hearing officer designated by it shall be made in the manner
prescribed by the board.
(6) The local board may, when it appears necessary for the
protection of individual rights, hold its meetings and hearings in
private. All other meetings and hearings shall be open to the
public.
(7) In issuing investigative reports and recommendations and
advisory opinions, the local board may be advised as to legal
matters by the legal counsel for the political subdivision.
(8) When the local board makes a recommendation to an
appointing or supervisory authority that affects an employee who is
employed under a merit system adopted by the political subdivision,
the authority shall initiate appropriate proceedings in accordance
with the recommendation and pursuant to the rules of that merit
system.
(9) When the local board makes a recommendation to an
appointing or supervisory authority concerning an employee or
appointee who is not employed under a merit system adopted by the
political subdivision, the authority shall take appropriate
disciplinary action, which may include dismissal.
(10) A local ethics board shall not apply a local ethics code
or an amendment of a local ethics code to change or supplement the
terms of a bargaining agreement for employees subject to compulsory
arbitration of labor disputes under 1969 PA 312, MCL 423.231 to
423.247, if the agreement is in effect on the date of adoption of
the local ethics code or amendment. A local ethics board shall
apply the local ethics code and any amendment to the local ethics
code to any renewal or renegotiation of that bargaining agreement.