REPORT TO THE CITY COUNCIL. The Mayor and Members of the City Council. Proposed Anti-Nepotism and Anti-Cronyism Ordinance

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2 REPORT TO THE CITY COUNCIL DATE: Regular Meeting of November 25, 2014 TO: SUBMITTED BY: SUBJECT: The Mayor and Members of the City Council J. Patrick Tang, City Attorney Proposed Anti-Nepotism and Anti-Cronyism Ordinance RECOMMENDED ACTION: Hold a public hearing and waive the first reading of an ordinance to establish policies to prevent nepotism and cronyism in City employment and contracting. COMMISSION/SUBCOMMITTEE ACTION AND RECOMMENDATION: The Citizen s Legal Advisory Committee (formerly Legal Ad Hoc Committee) put forth the original draft that was passed by resolution of the City Council on June 19, FISCAL IMPACT OF RECOMMENDATION: There is no fiscal impact associated with this recommendation. BACKGROUND: This matter last came before the Council for discussion and direction at the meeting of September 23, A copy of the staff report from the September 23 meeting is attached. Resolution or Ordinance. Having previously adopted an anti-nepotism and anti-cronyism policy by resolution in June 2012, the issue for the City Council is whether to adopt the policy as a more permanent regulation, in ordinance form. The merits of adopting the policy as a more permanent regulation have been the subject of considerable discussion. In sum, the primary advantage to an ordinance is that it would be easier for members of the public to find the policy, and harder for future public officials to ignore the policy. The disadvantage is that even a minor clarification of terms, or a minor change in the policy, would require an amending ordinance, which unlike a resolution, would require two readings. November 25, 2014 Page 1

3 At the September 23 meeting, by a unanimous vote of the Council, staff was directed to prepare the legislation in ordinance form for a public hearing and first reading in October. Codify or Stand-alone. While not specifically stated in the motion directing staff to draft an ordinance, there was discussion among the Council at the September 23 meeting whether the ordinance should be codified in the Hercules Municipal Code, which would allow anyone who wanted to review the law to find it on the City s website, or in the alternative, adopt the ordinance as a stand-alone provision. During the discussion at least two councilmembers supported having the ordinance codified, and none expressed opposition. The version attached for your consideration is thus drafted for insertion into the Hercules Municipal Code, and if adopted would create a new Title 2, Chapter 3, Article 4, entitled, Prevention of Nepotism and Cronyism in Employment and Contracting. DISCUSSION: At the September 23 meeting, the Council requested a minimal number of changes to the draft ordinance as it was presented: In the definitions section, expressly include commissioners in the definition of city official. Refer to the ordinance as the Anti-Nepotism and Anti-Cronyism Ordinance, rather than the Nepotism and Cronyism Ordinance. The change is reflected in the Subject line of this Report. However, the title to the Ordinance was not changed, since it is already worded specifically to address the prevention of nepotism and cronyism. Other Changes. In order to codify the policy, a number of non-substantive changes to the numbering and lettering of the document needed to be made. This was necessary in order to conform it to the existing format of the Hercules Municipal Code. Placing the regulations within Title 2, Administration appears to be the most logical location for the new regulation, since that section of the Code deals with the responsibilities of various elected and appointed Public Officials. Both a clean and redline version of the proposed Ordinance are provided, for your consideration. ATTACHMENTS: Attachment 1 Prior staff report from the Council meeting of September 23, 2014 Attachment 2 Draft anti-nepotism and anti-cronyism Ordinance; Redline Version Attachment 3 Draft anti-nepotism and anti-cronyism Ordinance; Clean Version November 25, 2014 Page 2

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5 STAFF REPORT TO THE CITY COUNCIL DATE: Regular Meeting of September 23, 2014 TO: SUBMITTED BY: SUBJECT: The Mayor and Members of the City Council J. Patrick Tang, City Attorney Proposed Nepotism and Cronyism Ordinance RECOMMENDED ACTION: Receive and discuss report and draft Nepotism and Cronyism ordinance, provide input and direction to Staff and the City Attorney, and schedule a first reading of the final ordinance for a future Council agenda. COMMISSION/SUBCOMMITTEE ACTION AND RECOMMENDATION: The Citizen s Legal Advisory Committee (formerly Legal Ad Hoc Committee) put forth the original draft that was passed by resolution of the City Council on June 19, FISCAL IMPACT OF RECOMMENDATION: There is no fiscal impact for this item. BACKGROUND: This matter came before the Council for discussion and direction at the meeting of April 8, A copy of the staff report from that meeting is attached. The regulations were originally passed as a resolution of the Council on June 19, 2012, with the Council deferring action on an ordinance until the regulations could be implemented, assessed, and modified as necessary. At the April 8, 2014 Council meeting, staff reported that there have been no issues with the policy as implemented, and no known cases involving a violation of the limitations set forth in the policy. Other than converting the resolution to ordinance form, staff made no additional recommendations regarding the substantive provisions of the law. The Council made a number of comments to the draft. The City Attorney was directed to consider the various recommendations from the September 23, 2014 Page 1

6 councilmembers, and return to Council with a revised draft reflecting Council comments and suggestions. DISCUSSION: At the April 8, 2014 meeting, Councilman Kelly commented in reference to the definition of Family Relationship that it should be made clear that foster care and cohabitation are distinct terms. The change is reflected in the attached revised draft ordinance. Councilman Kelly also commented in reference to the requirement in Section III(C)(2), that any consensual relationship must be reported. He stated his view that the requirement is too broad, and based on privacy concerns, recommended that the reporting requirement be narrowed to apply only when a city official has or develops a family or consensual and/or sexual relationship with another City official, and when the individual involved occupies a position in his or her direct supervisory chain of command. The change is reflected in the attached revised draft ordinance. Vice Mayor McCoy asked whether the ordinance would require that, if two persons are employed and develop a consensual romantic and/or sexual relationship, whether one or the other must terminate their employment with the City. I responded that termination would only be required when one of the parties supervises the other, and that the parties would have six months to resolve the matter voluntarily either by changing assignments, or leaving City employment. See Section III(B). This was a clarifying question; no change to the draft language has been made. Vice Mayor McCoy asked why the term knows or should know is included in the Penalty provision of the draft, Section III(D). This provision would allow for discipline of an employee when the employee knows or should know that a violation exists and fails to report the violation. I explained that the knew or should have known standard is commonly used in both civil and criminal statutes as a means to avoid a defendant claiming he or she did not have knowledge of the law. This was a clarifying question; no change to the draft language has been made. Councilman Romero and Mayor de Vera expressed concern regarding the lack of uniform enforcement of the nepotism and cronyism reporting requirements for contractors and consultants. Staff responded that, while enforcement had not been uniform since the original resolution was passed, the process has been routinized, and all contracts for goods and services must now provide the signed Contractor s Acknowledgment prior to final approval. This was a clarifying question; no change to the draft language has been made. A small number of other non-substantive formatting and grammatical edits have been made to the draft; all changes are indicated in the redlined version provided. ATTACHMENTS: Attachment 1 Prior staff report from April 8, 2014 and Resolution A Attachment 2 Draft Nepotism and Cronyism Ordinance in Redline September 23, 2014 Page 2

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8 STAFF REPORT TO THE CITY COUNCIL DATE: Regular Meeting of April 8, 2014 TO: SUBMITTED BY: SUBJECT: The Mayor and Members of the City Council Patrick Tang, City Attorney Proposed Nepotism and Cronyism Ordinance RECOMMENDED ACTION: Receive and discuss report and draft ordinance, provide input and direction to Staff and the City Attorney, and schedule a first reading of the final ordinance for a future Council agenda. BACKGROUND: The Citizen s Legal Advisory Committee, composed of volunteers from the community with Mayor de Vera and Councilmember Delgado serving as Council liaisons, worked with the City Attorney to draft a proposed measure that would prohibit nepotism and cronyism in public contracting and employment. The Committee s final draft recommendation came before the Council for discussion several times, and was eventually passed by resolution of the Council at the meeting of June 19, In recognition of the fact that this law is a novel approach to addressing nepotism and cronyism in contracting and employment, the Council specifically directed that the measure initially be adopted by resolution, rather than in ordinance form. Upon passage by a 5-0 vote, the Council further directed that the policy be brought back to the Council after one year, to allow discussion whether there have been any issues with its implementation, to make any necessary changes, and to consider adopting the provisions in ordinance form. DISCUSSION: Issues with the Resolution: There have been no issues with the policy as adopted. Since its adoption, there have been no known cases involving a violation of the limitations set forth in the policy. April 8, 2014 Page 1

9 Recommended amendments: Other than converting the resolution to ordinance form, staff makes no additional recommendations regarding the substantive provisions of the law. Ordinance Format: The Resolution s initial implementation phase has passed with no reported problems and no concerns from staff. Staff considers that it would be appropriate for the Council to formalize the law by adopting it in ordinance form. While legislative action may be taken by either resolution or ordinance, an ordinance ranks highest in authority of all actions a local governing body may take. An ordinance is more formal and authoritative than a resolution, has the force of law within the municipality, and may be enforced in court if it contains a penalty clause. An ordinance usually regulates persons or property and usually relates to a matter of an ongoing and permanent nature. As a general rule, any council enactment that regulates persons or property and imposes a fine or penalty for violations should be in the form of an ordinance. This requirement is based on the principle that there should be a printed law, and persons must have some notice that it is in effect, before they can be subjected to a fine or a penalty. A resolution is much less formal, and generally addresses administrative and other similar types of matters, or states a position or policy of a city, or enacts measures of limited or short term duration. Stand-alone or Codified Ordinance: Should the Council approve passage of these provisions in ordinance form, the question remains whether the ordinance should be codified within the Hercules Municipal Code, or adopted as a stand-alone ordinance. The main benefit to codifying a local law as part of the Municipal Code is to make sure that it is compiled in a location where it can be easily found by the public. The downside to codifying a law or regulation is that if it is regularly amended, it would also require amending the Municipal Code, and re-printing the revised code sections, to the extent hard copies of the Municipal Code are maintained. If the law is passed as a stand-alone ordinance, it can still be made available on line, by providing a link to the ordinance on the City s website. ATTACHMENTS: Attachment 1 Prior staff report(s) and Resolution A Attachment 2 Draft Nepotism and Cronyism Ordinance April 8, 2014 Page 2

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17 Attachment 2 ORDINANCE NO. AN ORDINANCE OF THE CITY OF HERCULES ESTABLISHING POLICIES TO ADDRESS AND PREVENT NEPOTISM AND CRONYISM IN CITY EMPLOYMENT AND CONTRACTING WHEREAS, in order to maintain confidence in City government, it is imperative that City employment and contracting are free from nepotism, cronyism, patronage, and favoritism; and WHEREAS, it is imperative that City employment and City contracts be based on merit, so that citizens are assured that City employees will be providing the highest quality service to those deserving citizens; and WHEREAS, nepotism, cronyism, patronage, and favoritism are demoralizing and dispiriting to the dedicated, hard-working employees of the City; and WHEREAS, the hiring of city officials, contractors and consultants who have a family, business, or consensual romantic and/or sexual relationship with a City official creates the appearance of impropriety and should be discouraged. NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Hercules as follows: PREVENTION OF NEPOTISM AND CRONYISM IN EMPLOYMENT AND CONTRACTING I. PURPOSE In adopting this Ordinance, it is the intent of the City Council to prohibit the contracting with, and employment of, relatives and friends of City officials, to ensure that no conflict of interest, favoritism, preferential treatment, or discrimination enters into the hiring, promotion, contracting and/or transfer practices of the City. The regulations established by this Ordinance shall apply to all City officials, as defined herein, and to all individuals or firms who provide services to the City as independent contractors or paid consultants. II. DEFINITIONS City as used herein shall mean the City of Hercules, California. City Official means City Elected Officials, City Appointed Officials, appointees to City ad hoc or standing committees, and City Employees, including all individuals who are employed by the City Manager, City Attorney, and City Clerk, as well as all employees of City Agencies and Departments. 1

18 Attachment 2 Contractor means any individual or firm providing material, equipment, or services to the City pursuant to a written or oral agreement with the City as an independent contractor or consultant, and not as an employee. "Family Relationship" means a relationship by blood, adoption, marriage, domestic partnership, foster care, and cohabitation, and includes parents, grandparents, great-grandparents, grandchildren, great-grandchildren, children, foster children, uncles, aunts, nephews, nieces, first cousins, second cousins, siblings, and the spouses or domestic partners of each of these relatives and cohabitants. This definition includes any relationship that exists by virtue of marriage or domestic partnership, such as in-law and step relationships, which are covered to the same extent as blood relationships. "Consensual Romantic and/or Sexual Relationship" means any consensual romantic and/or sexual relationship between a City official or Contractor and any City official who may supervise him or her directly or indirectly, or who may influence the terms and conditions of his or her employment or contract with the City. Cronyism means making an employment or contracting decision based upon personal, political, financial, or commercial relationships instead of merit when the person or entity benefitting from the employment, promotion, supervision or contract does not have the qualifications for the position or contract, or is being compensated at a rate that is more than the rate that would be paid other employees or contractors performing the same or similar functions. Nepotism means employing, promoting, supervising or contracting with a person or persons who have a family relationship or a consensual romantic and/or sexual relationship with athe City official. III. RESTRICTING NEPOTISM AND CRONYISM IN PUBLIC EMPLOYMENT A. Statement of Policy. It is the policy of the City of Hercules to hire, promote, and transfer employees on the basis of individual merit and to avoid favoritism or discrimination in making such decisions. The employment of relatives of City officials, in positions where one might have influence over the other s status or job security, is regarded as a violation of this Section. Nepotism and cronyism, as defined in Section II, are prohibited from City employment decisions to the full extent permitted by law. It is therefore the City s policy to prohibit nepotism and cronyism in public employment according to the guidelines below: 2

19 Attachment 2 1) An individual will not be hired, promoted, transferred, or otherwise placed into a position when a person with whom the individual has a family relationship or consensual romantic and/or sexual relationship occupies a position in his or her direct supervisory chain of command. 2) Individuals will not be hired, promoted, transferred, or otherwise placed into a position when to do so would constitute cronyism as defined in Section II. 3) Department Heads are prohibited from employing or supervising any person with whom the Department Head has a family relationship or consensual romantic and/or sexual relationship within his/her department in any capacity in which that person may receive compensation. 4) Department Heads are prohibited from employing or supervising any individual, when to do so would constitute cronyism as defined in Section II. 5) City positions should be advertised to the public and filled pursuant to an objective selection process based upon qualification. B. Resolving a Violation. In the event nepotism or cronyism arises due to circumstances such as through promotion, transfer, the development of a consensual romantic and/or sexual relationship or marriage, the involved individuals have six (6) months in which to settle the issue voluntarily (i.e. by having one of them change assignment or leave City employment.) If the affected parties are unable to resolve the situation within the time provided, their immediate supervisors will review the case at the end of the six-month period. The supervisor s decision concerning which employee must change assignment, made after consultation with the Director of Human Resources, will be binding. C. Responsibility to Report. It is the responsibility of a City official to report a violation of this Section. A City employee must notify his/her supervisor, and it is the responsibility of an elected or appointed official to notify the City Manager, or the City Attorney in the case of a violation by the City Manager, when any of the following situations occur: 1) When a person who is hired or appointed, or is being considered to be hired or appointed, has a family relationship or consensual romantic and/or sexual relationship with a City official, and/or 2) When a City official has or develops a family relationship or consensual romantic and/or sexual relationship with another City official who occupies a position in his or her direct supervisory chain of command, and/or 3

20 Attachment 2 3) When hiring, promotion, appointment or supervision of a City official constitutes cronyism as defined in Section II. The intent of this Section is to ensure that no conflict of interest, favoritism, preferential treatment, or discrimination enters into the hiring, promotion, and/or transfer practices of the City. D. Penalty for Failure to Report. A City official, other than an elected official, who knows or should know that a person with whom he or she has a family relationship or consensual romantic and/or sexual relationship is employed by the City, or who knows or should know of any employment decision that fits within the definition of nepotism or cronyism in Section II, and fails to report the violation pursuant to this Section, is subject to discipline, including but not limited to suspension or termination. An elected official who knows or should know that a person with whom he or she has a family relationship or consensual romantic and/or sexual relationship is employed by the City, or who knows or should know of an employment decision that fits within the definition of nepotism or cronyism in Section II, and fails to report the violation pursuant to this Section, is subject to censure. IV. RESTRICTING NEPOTISM AND CRONYISM IN PUBLIC CONTRACTING. A. Statement of Policy. It is the policy of the City of Hercules to avoid favoritism or discrimination in making decisions to award contracts for supplies, construction, maintenance, professional or other services. The awarding of a contract or the approval of payments or expenses under a contract by a City official, to a person with whom she or he has a family relationship or a consensual romantic and/or sexual relationship, is regarded as a violation of this Section. Nepotism and cronyism as defined in Section II are hereby prohibited from City contracting decisions to the full extent permitted by law. It is therefore the City s policy to prohibit nepotism and cronyism in City contracts, according to the guidelines below: 1. An individual Contractor shall not be awarded a contract with the City when the Contractor has a family relationship or consensual romantic and / or sexual relationship with a City official who may have some influence over the award or management of the contract, or when the award of a contract to that individual Contractor would constitute nepotism or cronyism as defined in Section II. 2. Firms shall not be awarded contracts with the City when an owner, manager, senior member, principal, officer, or partner of the firm has a family relationship or consensual romantic and/or sexual relationship with a City official who may have 4

21 Attachment 2 some influence over the award or management of the contract, or when the award of a contract to a firm would constitute nepotism or cronyism as defined in Section II. 3. A City official is prohibited from awarding contracts to any individual with whom he or she has a family relationship or consensual romantic and/or sexual relationship, or to any firm when an owner, manager, senior member, principal, officer, or partner of the firm has a family relationship or consensual romantic and / or sexual relationship with the employee or official, or when to do so would constitute nepotism or cronyism as defined in Section II. The intent of this Section is to ensure that no conflict of interest, favoritism, or discrimination enters into the contracting practices of the City. B. Responsibility to Report a Violation of Regulations Against Contracting with Relatives or Contracts that Constitute Cronyism. It is the responsibility of a City official to report a violation of this Section. A City employee must notify his or her supervisor, and an elected or appointed official must notify the City Manager, or in the case of a violation by the City Manager the City Attorney, when he or she is aware of any of the following situations: 1) When a person who has a family relationship or consensual romantic and/or sexual relationship with a City official is being considered for the award of a contract to provide services to the City, and/or 2) When a City official has or develops a family relationship or a romantic and / or consensual sexual relationship with a person who has an existing contract to provide services to the City, and/or 3) When the award of a contract would constitute nepotism or cronyism as defined in Section II. C. Penalty for Failure to Report. A City official, other than an elected city official, who knows or should know that a person with whom he or she has a family relationship or consensual romantic and/or sexual relationship is being considered for or has been awarded a contract with the City in violation of this Section, and fails to report the violation, is subject to discipline, including, but not limited to, suspension or termination. An elected official who knows or should know that a person with whom he or she has a family relationship or consensual romantic and/or sexual relationship is being considered for or has been awarded a contract with the City in violation of this Section and fails to report the violation, is subject to censure. 5

22 Attachment 2 A Contractor who has a contract with the City or who seeks a contract with the City and fails to report that a person with whom she or he has a family relationship or consensual romantic and/or sexual relationship is employed by the City or is a City official, or that the award of the contract constitutes cronyism in violation of this Section, may have his or her contract terminated and may be precluded from being awarded any future contracts with the City. V. OTHER PROVISIONS. A. Penalties Not Exclusive. The penalties provided under this policy are not exclusive, and do not preclude punishment under any other applicable provision of law. B. Notice and Acknowledgment. The requirements of this policy shall be acknowledged annually by all City officials who are required to comply with State of California financial disclosure requirements, on a form developed by the City Attorney and provided by the City Clerk. The written acknowledgment must be submitted at the time such financial disclosures are required to be submitted. All contractors and prospective contractors shall be notified in writing of the requirements of this policy at the time the City issues a request for proposals or qualifications, and prior to entering into a sole source agreement. C. Severability. In the event that any one or more of the provisions of this policy are for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any of the other provisions of this policy, and this policy shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. The foregoing Ordinance was duly and regularly adopted at a regular meeting of the City Council of the City of Hercules held on the th day of, 2014 by the following vote of the Council: AYES: NOES: ABSTAIN: ABSENT: Myrna L. de Vera, Mayor 6

23 Attachment 2 ATTEST: Margaret S. Roberts, MMC Administrative Services Director/City Clerk 7

24 Anti-nepotism and anti-cronyism Ordinance Clean AN ORDINANCE OF THE CITY OF HERCULES ESTABLISHING POLICIES TO ADDRESS AND PREVENT NEPOTISM AND CRONYISM IN CITY EMPLOYMENT AND CONTRACTING WHEREAS, to promote and maintain confidence in City government, it is imperative that City employment and contracting are free from nepotism, cronyism, patronage, and favoritism; and WHEREAS, it is imperative that City employment and City contracts be based on merit, so that citizens are assured that City employees will be providing the highest quality service to those deserving citizens; and WHEREAS, nepotism, cronyism, patronage, and favoritism are demoralizing and dispiriting to the dedicated, hard-working employees of the City; and WHEREAS, the hiring of city officials, contractors and consultants who have a family, business, or consensual romantic and/or sexual relationship with a City official creates the appearance of impropriety and should be discouraged. NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Hercules as follows: 1. The Hercules Municipal Code is hereby amended to include Title 2, Chapter 3, Article 4, to read as follows: Article 4. PREVENTION OF NEPOTISM AND CRONYISM IN EMPLOYMENT AND CONTRACTING Sec Purpose In adopting this ArticleOrdinance, it is the intent of the City Council to prohibit the contracting with, and employment of, relatives and friends of City Officials, to ensure that no conflict of interest, favoritism, preferential treatment, or discrimination enters into the hiring, promotion, contracting and/or transfer practices of the City. The regulations established by this Ordinance Article shall apply to all City officials, as defined herein, and to all individuals or firms who provide services to the City as independent contractors or paid consultants. Sec II. Definitions Formatted: Centered, Indent: Left: 0.5" Formatted: Font: Bold, Don't adjust space between Latin and Asian text Formatted: Indent: Left: 1" Formatted: Indent: Left: 1" City as used herein shall mean the City of Hercules, California. 1

25 Anti-nepotism and anti-cronyism Ordinance Clean City Officials for the purposes of this Article means City Elected Officials, City Appointed Officials, appointees to City ad hoc or standing committees, appointees to City Commissions, and City Employees, including all individuals who are employed by the City Manager, City Attorney, and City Clerk, as well as all employees of City Agencies and Departments. Contractor means any individual or firm providing material, equipment, or services to the City pursuant to a written or oral agreement with the City as an independent contractor or consultant, and not as an employee. "Family Relationship" means a relationship by blood, adoption, marriage, domestic partnership, foster care, and cohabitation, and includes parents, grandparents, greatgrandparents, grandchildren, great-grandchildren, children, foster children, uncles, aunts, nephews, nieces, first cousins, second cousins, siblings, and the spouses or domestic partners of each of these relatives and cohabitants. This definition includes any relationship that exists by virtue of marriage or domestic partnership, such as in-law and step relationships, which are covered to the same extent as blood relationships. "Consensual Romantic and/or Sexual Relationship" means any consensual romantic and/or sexual relationship between a City official or Contractor and any City official who may supervise him or her directly or indirectly, or who may influence the terms and conditions of his or her employment or contract with the City. Cronyism means making an employment or contracting decision based upon personal, political, financial, or commercial relationships instead of merit when the person or entity benefitting from the employment, promotion, supervision or contract does not have the qualifications for the position or contract, or is being compensated at a rate that is more than the rate that would be paid other employees or contractors performing the same or similar functions. Nepotism means employing, promoting, supervising or contracting with a person or persons who have a family relationship or a consensual romantic and/or sexual relationship with a City official. Sec III. Restricting Nepotism and Cronyism in Public Employment. (a)a. Statement of Policy. It is the policy of the City of Hercules to hire, promote, and transfer employees on the basis of individual merit and to avoid favoritism or discrimination in making such decisions. The employment of relatives of City officials, in positions where one might have influence over the other s status or job security, is regarded as a violation of this Section. Nepotism and cronyism, as defined in Section II in Section , are prohibited from City employment decisions to the full extent permitted by law. 2

26 Anti-nepotism and anti-cronyism Ordinance Clean It is therefore the City s policy to prohibit nepotism and cronyism in public employment according to the guidelines below: (1) An individual will not be hired, promoted, transferred, or otherwise placed into a position when a person with whom the individual has a family relationship or consensual romantic and/or sexual relationship occupies a position in his or her direct supervisory chain of command. (2) Individuals will not be hired, promoted, transferred, or otherwise placed into a position when to do so would constitute cronyism as defined in Section II. (3) Department Heads are prohibited from employing or supervising any person with whom the Department Head has a family relationship or consensual romantic and/or sexual relationship within his/her department in any capacity in which that person may receive compensation. (4) Department Heads are prohibited from employing or supervising any individual, when to do so would constitute cronyism as defined in Section II. (5) City positions should be advertised to the public and filled pursuant to an objective selection process based upon qualification., No bullets or numbering, Don't keep with next, Don't keep lines together Formatted: Indent: Left: 1", No bullets or numbering, Don't keep with next, Don't keep lines together Formatted: Indent: Left: 1" Formatted: Indent: Left: 1", No bullets or numbering, Don't keep with next, Don't keep lines together Formatted: Indent: Left: 1.75" Formatted: Indent: Left: 1", No bullets or numbering, Don't keep with next, Don't keep lines together Formatted: Indent: Left: 1.75" Formatted: Indent: Left: 1" Formatted: Indent: Left: 1", First line: 0", Don't keep with next, Don't keep lines together 3

27 Anti-nepotism and anti-cronyism Ordinance Clean (b)b. Resolving a Violation. In the event nepotism or cronyism arises due to circumstances such as through promotion, transfer, the development of a consensual romantic and/or sexual relationship or marriage, the involved individuals have six (6) months in which to settle the issue voluntarily (i.e. by having one of them change assignment or leave City employment.) If the affected parties are unable to resolve the situation within the time provided, their immediate supervisors will review the case at the end of the six-month period. The supervisor s decision concerning which employee must change assignment, made after consultation with the Director of Human Resources, will be binding. (c)c. Responsibility to Report. It is the responsibility of a City Official to report a violation of this Section. A City employee must notify his/her supervisor, and it is the responsibility of an elected or appointed official to notify the City Manager, or the City Attorney in the case of a violation by the City Manager, when any of the following situations occur: (1) When a person who is hired or appointed, or is being considered to be hired or appointed, has a family relationship or consensual romantic and/or sexual relationship with a City Official, and/or Formatted: Indent: Left: 1", Don't adjust space between Latin and Asian text Formatted: Indent: Left: 1" Formatted: Indent: Left: 1.5" (2) When a City Official has or develops a family relationship or consensual romantic and/or sexual relationship with another City Official who occupies a position in his or her direct supervisory chain of command, and/or (3) When hiring, promotion, appointment or supervision of a City Official constitutes cronyism as defined in Section II. The intent of this Section is to ensure that no conflict of interest, favoritism, preferential treatment, or discrimination enters into the hiring, promotion, and/or transfer practices of the City. (d)d. Penalty for Failure to Report. A City Official, other than an elected official, who knows or should know that a person with whom he or she has a family relationship or consensual romantic and/or sexual relationship is employed by the City, or who knows or should know of any employment decision that fits within the definition of constitutes nepotism or cronyism in Section II, and fails to report the violation pursuant to this Section, is subject to discipline, including but not limited to suspension or termination. Formatted: Indent: Left: 1", Don't adjust space between Latin and Asian text Formatted: Underline An elected official who knows or should know that a person with whom he or she has a family relationship or consensual romantic and/or sexual relationship is employed by the 4

28 Anti-nepotism and anti-cronyism Ordinance Clean City, or who knows or should know of an employment decision that constitutes fits within the definition of nepotism or cronyism in Section II, and fails to report the violation pursuant to this Section, is subject to censure. Sec IV. Restricting Nepotism and Cronyism in Public Contracting. (a)a. Statement of Policy. It is the policy of the City of Hercules to avoid favoritism or discrimination in making decisions to award contracts for supplies, construction, maintenance, professional or other services. The awarding of a contract or the approval of payments or expenses under a contract by a City Official, to a person with whom she or he has a family relationship or a consensual romantic and/or sexual relationship, is regarded as a violation of this Section. Nepotism and cronyism as defined in Section Section II are hereby prohibited from City contracting decisions to the full extent permitted by law., Don't adjust space between Latin and Asian text It is therefore the City s policy to prohibit nepotism and cronyism in City contracts, according to the guidelines below: 1. (1) An individual Contractor shall not be awarded a contract with the City when the Contractor has a family relationship or consensual romantic and/or sexual relationship with a City Official who may have some influence over the award or management of the contract, or when the award of a contract to that individual Contractor would constitute nepotism or cronyism as defined in Section II. 2. (2) Firms shall not be awarded contracts with the City when an owner, manager, senior member, principal, officer, or partner of the firm has a family relationship or consensual romantic and/or sexual relationship with a City Official who may have some influence over the award or management of the contract, or when the award of a contract to a firm would constitute nepotism or cronyism as defined in Section II. 3. (3) A City Official is prohibited from awarding contracts to any individual with whom he or she has a family relationship or consensual romantic and/or sexual relationship, or to any firm when an owner, manager, senior member, principal, officer, or partner of the firm has a family relationship or consensual romantic and/or sexual relationship with the employee or official, or when to do so would constitute nepotism or cronyism as defined in Section II. The intent of this Section is to ensure that no conflict of interest, favoritism, or discrimination enters into the contracting practices of the City. Formatted: Indent: Left: 0.75", No bullets or numbering Formatted: Indent: Left: 1.25" Formatted: Indent: Left: 0.75", No bullets or numbering Formatted: Indent: Left: 1.25" Formatted: Indent: Left: 0.75", No bullets or numbering Formatted: Indent: Left: 1.25" (b)b. Responsibility to Report a Violation of Regulations Against Contracting with Relatives or Contracts that Constitute Cronyism., Don't adjust space between Latin and Asian text 5

29 Anti-nepotism and anti-cronyism Ordinance Clean It is the responsibility of a City Official to report a violation of this Section. A City employee must notify his or her supervisor, and an elected or appointed official must notify the City Manager, or the City Attorney in the case of a violation by the City Manager the City Attorney, when he or she is aware of any of the following situations: (1) When a person who has a family relationship or consensual romantic and/or sexual relationship with a City Official is being considered for the award of a contract to provide services to the City, and/or Formatted: Indent: Left: 1" (2) When a City Official has or develops a family relationship or a romantic and/or consensual sexual relationship with a person who has an existing contract to provide services to the City, and/or (3) When the award of a contract would constitute nepotism or cronyism as defined in Section II. (c)c. Penalty for Failure to Report. A City Official, other than an elected city official, who knows or should know that a person with whom he or she has a family relationship or consensual romantic and/or sexual relationship is being considered for or has been awarded a contract with the City in violation of this Section, and fails to report the violation, is subject to discipline, including, but not limited to, suspension or termination., Don't adjust space between Latin and Asian text An elected official who knows or should know that a person with whom he or she has a family relationship or consensual romantic and/or sexual relationship is being considered for or has been awarded a contract with the City in violation of this Section and fails to report the violation, is subject to censure. A Contractor who has a contract with the City or who seeks a contract with the City and fails to report that a person with whom she or he has a family relationship or consensual romantic and/or sexual relationship is employed by the City or is a City Official, or that the award of the contract constitutes cronyism in violation of this Section, may have his or her contract terminated and may be precluded from being awarded any future contracts with the City. 6

30 Anti-nepotism and anti-cronyism Ordinance Clean Sec V. OTHER PROVISIONS. A. Penalties Not Exclusive. The penalties provided under this Articlepolicy are not exclusive, and do not preclude punishment under any other applicable provision of law. Sec Notice and Acknowledgment. (a) The requirements of this Articlepolicy shall be acknowledged annually by all City Officials who are required to comply with State of California financial disclosure requirements, on a form developed by the City Attorney and provided by the City Clerk. The written acknowledgment must be submitted at the time such financial disclosures are required to be submitted., Don't adjust space between Latin and Asian text, Don't adjust space between Latin and Asian text, Tab stops: Not at 0.25", Don't adjust space between Latin and Asian text (b) All contractors and prospective contractors shall be notified in writing of the requirements of this Articlepolicy at the time the City issues a request for proposals or qualifications, and prior to entering into a sole source agreement. 2C. Severability. In the event that any one or more of the provisions of this Ordinancepolicy are for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any of the other provisions of this Ordinancepolicy, and this Ordinancepolicy shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. 3. The foregoing Ordinance was duly and regularly adopted at a regular meeting of the City Council of the City of Hercules held on the th day of, 2014 by the following vote of the Council: AYES: NOES: ABSENT: ATTEST: Myrna L. de Vera, Mayor Margaret Roberts, Administrative Services Director/City Clerk 7

31 Anti-nepotism and anti-cronyism Ordinance Redline AN ORDINANCE OF THE CITY OF HERCULES ESTABLISHING POLICIES TO ADDRESS AND PREVENT NEPOTISM AND CRONYISM IN CITY EMPLOYMENT AND CONTRACTING WHEREAS, to promote and maintain confidence in City government, it is imperative that City employment and contracting are free from nepotism, cronyism, patronage, and favoritism; and WHEREAS, it is imperative that City employment and City contracts be based on merit, so that citizens are assured that City employees will be providing the highest quality service to those deserving citizens; and WHEREAS, nepotism, cronyism, patronage, and favoritism are demoralizing and dispiriting to the dedicated, hard-working employees of the City; and WHEREAS, the hiring of city officials, contractors and consultants who have a family, business, or consensual romantic and/or sexual relationship with a City official creates the appearance of impropriety and should be discouraged. NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Hercules as follows: 1. The Hercules Municipal Code is hereby amended to include Title 2, Chapter 3, Article 4, to read as follows: Article 4. PREVENTION OF NEPOTISM AND CRONYISM IN EMPLOYMENT AND CONTRACTING Sec Purpose In adopting this ArticleOrdinance, it is the intent of the City Council to prohibit the contracting with, and employment of, relatives and friends of City Officials, to ensure that no conflict of interest, favoritism, preferential treatment, or discrimination enters into the hiring, promotion, contracting and/or transfer practices of the City. The regulations established by this Ordinance Article shall apply to all City officials, as defined herein, and to all individuals or firms who provide services to the City as independent contractors or paid consultants. Sec II. Definitions Formatted: Centered, Indent: Left: 0.5" Formatted: Font: Bold, Don't adjust space between Latin and Asian text Formatted: Indent: Left: 1" Formatted: Indent: Left: 1" City as used herein shall mean the City of Hercules, California. 1

32 Anti-nepotism and anti-cronyism Ordinance Redline City Officials for the purposes of this Article means City Elected Officials, City Appointed Officials, appointees to City ad hoc or standing committees, appointees to City Commissions, and City Employees, including all individuals who are employed by the City Manager, City Attorney, and City Clerk, as well as all employees of City Agencies and Departments. Contractor means any individual or firm providing material, equipment, or services to the City pursuant to a written or oral agreement with the City as an independent contractor or consultant, and not as an employee. "Family Relationship" means a relationship by blood, adoption, marriage, domestic partnership, foster care, and cohabitation, and includes parents, grandparents, greatgrandparents, grandchildren, great-grandchildren, children, foster children, uncles, aunts, nephews, nieces, first cousins, second cousins, siblings, and the spouses or domestic partners of each of these relatives and cohabitants. This definition includes any relationship that exists by virtue of marriage or domestic partnership, such as in-law and step relationships, which are covered to the same extent as blood relationships. "Consensual Romantic and/or Sexual Relationship" means any consensual romantic and/or sexual relationship between a City official or Contractor and any City official who may supervise him or her directly or indirectly, or who may influence the terms and conditions of his or her employment or contract with the City. Cronyism means making an employment or contracting decision based upon personal, political, financial, or commercial relationships instead of merit when the person or entity benefitting from the employment, promotion, supervision or contract does not have the qualifications for the position or contract, or is being compensated at a rate that is more than the rate that would be paid other employees or contractors performing the same or similar functions. Nepotism means employing, promoting, supervising or contracting with a person or persons who have a family relationship or a consensual romantic and/or sexual relationship with a City official. Sec III. Restricting Nepotism and Cronyism in Public Employment. (a)a. Statement of Policy. It is the policy of the City of Hercules to hire, promote, and transfer employees on the basis of individual merit and to avoid favoritism or discrimination in making such decisions. The employment of relatives of City officials, in positions where one might have influence over the other s status or job security, is regarded as a violation of this Section. Nepotism and cronyism, as defined in Section II in Section , are prohibited from City employment decisions to the full extent permitted by law. 2

33 Anti-nepotism and anti-cronyism Ordinance Redline It is therefore the City s policy to prohibit nepotism and cronyism in public employment according to the guidelines below: (1) An individual will not be hired, promoted, transferred, or otherwise placed into a position when a person with whom the individual has a family relationship or consensual romantic and/or sexual relationship occupies a position in his or her direct supervisory chain of command. (2) Individuals will not be hired, promoted, transferred, or otherwise placed into a position when to do so would constitute cronyism as defined in Section II. (3) Department Heads are prohibited from employing or supervising any person with whom the Department Head has a family relationship or consensual romantic and/or sexual relationship within his/her department in any capacity in which that person may receive compensation. (4) Department Heads are prohibited from employing or supervising any individual, when to do so would constitute cronyism as defined in Section II. (5) City positions should be advertised to the public and filled pursuant to an objective selection process based upon qualification., No bullets or numbering, Don't keep with next, Don't keep lines together Formatted: Indent: Left: 1", No bullets or numbering, Don't keep with next, Don't keep lines together Formatted: Indent: Left: 1" Formatted: Indent: Left: 1", No bullets or numbering, Don't keep with next, Don't keep lines together Formatted: Indent: Left: 1.75" Formatted: Indent: Left: 1", No bullets or numbering, Don't keep with next, Don't keep lines together Formatted: Indent: Left: 1.75" Formatted: Indent: Left: 1" Formatted: Indent: Left: 1", First line: 0", Don't keep with next, Don't keep lines together 3