§ 2-10-10. Board of ethics.

A.

Creation, organization, and membership.

1.

There is created the board of ethics of the city. The ethics board shall consist of eight members, seven of whom shall be selected as now provided with one member from each council district; these members shall each have a vote. The eighth member shall be a retired judge, who shall not have a vote, but who shall be the chairman and presiding officer. The members of the board of ethics shall have resided in the City of Memphis for five years and be selected from each of the seven city council districts of Memphis, with one member being selected from each district. Each member shall be a resident of the district he or she represents.

2.

The members of the board of ethics shall be appointed by the mayor of the city, from a slate of candidates proposed by the city council member who represents the district from which the board member is to be selected, and approved by the city council, provided that a city council member may decline to provide a slate of candidates, in which case the mayor may appoint a member of the board of ethics in his or her discretion, with approval of the city council.

3.

Any vacancy due to any cause shall be filled for the unexpired term in the same manner as the original appointment. A vacancy shall be deemed to exist upon the occurrence of any one or more of the following conditions:

a.

Upon the expiration of a term;

b.

Upon the death or disability or incapacity for more than 90 days of a member;

c.

Upon the written resignation of a member, when accepted by the nominating committee. A resignation tendered but unaccepted for more than 30 days shall be deemed accepted;

d.

Upon a member's candidacy for, election to, or appointment to public office.

4.

Members shall serve without compensation.

5.

Members shall not:

a.

Engage or participate in city election political activities;

b.

Make campaign contributions to candidates in city elections during their terms as board members;

c.

Hold elective office of the state or the city;

d.

Be an employee of the city;

e.

Be an officer of any political party;

f.

Lobby or employ a lobbyist; or

g.

Be employed by any elected officer in the state.

6.

Members shall serve terms of six years; provided, however, that the initial terms of the members shall be staggered as follows:

a.

The initial term of members of the board of ethics representing Districts 1, 4, and 7 shall be two years.

b.

The initial term of members of the board of ethics representing Districts 2 and 5 shall be four years.

c.

The initial term of members of the board of ethics representing Districts 3 and 6 shall be six years.

7.

Chairperson.

a.

The retired judge shall be nominated by the chairperson of the city council and approved by a majority vote of the membership of the council. The retired judge shall be elected to a term of six years and shall serve until his successor has been nominated and approved. The retired judge may reside in any council district.

b.

The retired judge may be compensated for service as chairperson and presiding officer of the ethics board at an amount to be determined by the city council.

8.

The board of ethics may, in its sole discretion, but subject to the limitations of its budget, hire legal counsel.

9.

The board of ethics shall hold a regularly scheduled meeting once per month, and may hold special meetings when the board determines the need for such meetings.

B.

Duties of the board of ethics. The board of ethics shall have the following duties and responsibilities:

1.

To establish and publish the procedures and rules governing its internal organization and the conduct of its affairs;

2.

To conduct or oversee investigations and to make recommendations about conduct as provided herein;

3.

To maintain records of its investigations, inquiries, and proceedings, and to make such records available for public access on the board of ethics website;

4.

To issue formal ethics opinions as provided in subsection C of this section;

5.

To supervise training of all officers and employees concerning their duties and obligations under this chapter;

6.

From time to time, to produce such reports as it may deem appropriate from the disclosures made under sections 2-10-3 and 2-10-4;

7.

On an annual basis, provide a report of its expenditures to the audit committee of the city council; and

8.

To perform such other duties as herein provided.

C.

Ethics opinions.

1.

Upon request by a city officer or employee, the board of ethics may issue formal ethics opinions that shall bind the board of ethics and the person requesting the opinion, and shall constitute a body of principles upon which officers, employees, and others may rely for guidance in specific situations.

2.

Requests for formal ethics opinions shall be addressed to the board of ethics in writing, stating the factual situation in appropriate detail, and may be accompanied by a short brief or memorandum citing the provisions of this chapter involved and any other pertinent authorities.

3.

The chief ethics officer may issue advisory ethics opinions when there is readily available precedent. Any such opinions shall not bind the board of ethics.

4.

Any officer or employee subject to this chapter may request a formal ethics opinion or an advisory ethics opinion; provided, however, that the board of ethics and the chief ethics officer, respectively, shall retain sole discretion concerning whether such an opinion should be issued.

5.

The chief ethics officer shall place and publish formal ethics opinions and advisory ethics opinions, as well as any requests for them, on the board of ethics' website for public access. The chief ethics officer may annotate or otherwise organize the opinions and requests for opinions, so that they are easily searchable.

D.

Procedures for evaluations and hearing of complaints regarding conduct.

1.

Complaint procedures.

a.

Any citizen of the city, including but not limited to the chief ethics officer or any member of the board of ethics, may submit a complaint in writing and under oath, alleging that one or more officers or employees have violated or may have violated any provision of this chapter within one month of the alleged violation.

b.

The complaint must be signed by the complainant and notarized, and must contain the following:

(i)

The complainant's legal name and current mailing address;

(ii)

The name or names of any officers or employees who committed or may have committed the alleged violation;

(iii)

A summary of the facts giving rise to the complaint; and

(iv)

Some explanation of why those facts constitute or may constitute a violation of this chapter.

c.

Anyone filing a false complaint will be subject to the penalty(s) for perjury.

d.

The chief ethics officer, or his or her designee, may assist complainants in completing the form of a complaint.

e.

The complaint must be filed with the chief ethics officer. Upon receipt, the chief ethics officer shall promptly provide a copy of the complaint to the officer or employee named therein and to the board of ethics. As used in this section, unless otherwise noted, the term "provide" means to send by U.S. mail or to hand deliver.

f.

During years in which the city holds municipal elections, the chief ethics officer shall not accept any complaints during a period from the last day on which a person may qualify as a candidate until after 11:59 p.m. of the following election day. If a special election is called, the chief ethics officer shall not accept any complaints relating to the office subject to the special election during a period from the last day on which a person may qualify as a candidate for the special election until after 11:59 p.m. of the date of the special election.

g.

The chief ethics officer will evaluate the complaint, applying the law of the standards of conduct to the facts alleged in the complaint.

h.

Within 14 days from receipt of the complaint, the chief ethics officer shall:

(i)

Issue a report including a copy of the complaint, concluding whether the facts alleged in the complaint, if true, would give rise to a violation of the code of ethics, and recommending that a hearing be held on the complaint; or

(ii)

Dismiss the complaint, subject to the approval of the board of ethics.

i.

The city ethics officer shall promptly provide a report or a dismissal of complaint to the chair of the board of ethics.

j.

If the chief ethics officer dismisses a complaint, the board of ethics shall at its next meeting vote on whether to approve the dismissal. If the board of ethics, by a majority vote, approves the chief ethics officer's dismissal of the complaint, then the complaining party may, within 30 calendar days, request in writing that the board reconsider its decision. If the board of ethics fails to approve the chief ethics officer's dismissal, or if the board of ethics, by a majority vote, agrees to reconsider a complaint, then the chief ethics officer shall issue a report on the facts and circumstances of the complaint.

k.

After receiving the chief ethics officer's report, the chair of the board of ethics shall call a public meeting of the board, including appropriate notice to the public. The chief ethics officer shall also provide notice of the meeting to the complainant and to the officer or employee named in the complaint.

l.

At the board of ethics meeting, the board shall evaluate the chief ethics officer's report, and may accept or reject the chief ethics officer's recommendation. The board may decide to dismiss the complaint or call for a hearing on the complaint.

m.

Whether or not the board of ethics holds a hearing on the complaint or dismisses the complaint, it shall issue a decision in writing. Any decision shall require the affirmative concurring vote of at least four members of the board. If a hearing is to be held, no final decision shall be made or issued until after the hearing is held. The decision shall be filed with the chief ethics officer, who shall promptly place all such decisions on the board of ethics' website for public access, and provided to the complainant and to the officer or employee named in the complaint.

n.

From the time a complaint has been received by the members of the board of ethics, until a written decision has been issued by the board, no member of the board shall participate in any communication regarding the allegations or merits of the complaint, outside of the board's public meetings or hearings, except as contemplated by these procedures.

o.

If a complaint is filed against a member of the board of ethics, the city council will sit in designation as the board of ethics for any hearing contemplated by this chapter pursuant to the process outlined in article 27, section 185 of the Memphis City Charter.

2.

Hearing procedures.

a.

If the board of ethics calls for a hearing on a complaint, the hearing shall be conducted as follows:

(i)

The hearing shall be noticed to and open to the public, in accordance with state law and these procedures.

(ii)

Notice of hearing shall be provided to the complainant and to the person or persons named as respondents in the complaint. The hearing shall be held no less than 30 days after notice of hearing is provided to the respondent.

(iii)

A hearing panel consisting of the chairperson and two members of the board of ethics selected at random shall hear the complaint.

(iv)

The complaint shall be prosecuted in a hearing before the hearing panel by the chief ethics officer or, with the approval of the board of ethics, by counsel designated and hired for that purpose by the chief ethics officer.

(v)

The complainant shall not be considered a party to any proceeding before the board of ethics, but to the extent possible, the complainant shall be kept apprised of the progress of the proceeding by the chief ethics officer.

(vi)

The hearing need not be conducted in accordance with technical rules relating to evidence and witnesses, but the hearing shall be conducted in a manner most conducive to determination of the truth. Any relevant evidence may be admitted if it is the sort of evidence which responsible persons are accustomed to rely on in the conduct of serious affairs, regardless of the existence of common law or statutory rules which might make improper the admission of such evidence in civil actions. Either party may impeach any witness regardless of which party called the witness. No still or moving photography shall be allowed in the hearing room during the hearing. The hearing shall be recorded by court reporter or some other form of stenographic transcription or recording.

(vii)

The respondent and the chief ethics officer may, but are not required to, submit material to the hearing panel. If either does wish to submit such material to the board, the party must file the material with the board of ethics, and provide a copy of the same to the other party and the board of ethics, at least seven calendar days prior to the hearing.

(viii)

The parties shall have a full and fair opportunity to present their positions and facts to the hearing panel at the hearing. Each party has the right to the assistance of legal counsel at its own expense. Each party shall be allotted a reasonable amount of time to make its presentation to the hearing panel.

(ix)

The parties may each call witnesses to give testimony at the hearing, which testimony shall be given under oath, with the witnesses stating their legal names. All witnesses will be subject to cross-examination. Each party must file with the hearing panel a list of the witnesses that the party intends to call at the hearing, and provide a copy of the same to the other parties, at least seven calendar days prior to the hearing. At the hearing, no party shall be permitted to call upon any person to give testimony if that person's name was not included on such list; however, the hearing panel may permit such an unnamed witness to be called by a party if, in the panel's judgment, there was good cause for not timely naming the witness, and the other parties would not be unduly prejudiced.

(x)

Should the hearing panel determine that justice requires that further witnesses be called, it may call witnesses to give testimony at the hearing, which testimony shall be given under oath, with the witnesses stating their legal names.

(xi)

If any witness refuses to appear before the hearing panel, the board of ethics may request that the city council subpoena the witness to appear before the hearing panel. Any party may request that the board do so.

(xii)

The members of the hearing panel may ask questions of any party, counsel, or witness at any time during the hearing.

(xiii)

The hearing panel may, in the exercise of its discretion, permit interested persons present at the hearing to offer testimony under oath, even if those persons were not called as witnesses by any party.

(xiv)

The hearing panel may continue a hearing to a later date.

(xv)

All findings of fact by the hearing panel shall be rendered upon a showing of the preponderance of the evidence.

(xvi)

Upon the conclusion of the hearing, the hearing panel shall deliberate toward a decision on the matter in public session, shall render written findings and conclusions of law in the matter, and shall arrive at a decision on such findings and conclusions by majority vote.

(xvii)

All decisions of the board of ethics shall be placed and published within 30 days on the board of ethics' website for public access. The chief ethics officer may annotate or otherwise organize the decisions so that they are easily searchable.

3.

If, after a hearing, a hearing panel of the board of ethics decides that an officer or employee violated any provision of the code of ethics, then the board may take one or more of the actions listed in section 2-10-13, as decided by affirmative concurring vote of at least two members of the hearing panel.

E.

Reporting; whistleblower protection; abuse of process; complicity.

1.

Officers and employees are encouraged to report suspected ethical violations to the board of ethics.

2.

No officer or employee shall use or threaten to use any officer authority or influence to discourage, restrain or interfere with any other person for the purpose of preventing such person from acting in good faith to report or otherwise bring to the attention of the board of ethics information relating to an ethics violation or investigation.

3.

No officer or employee shall use or threaten to use any officer authority or influence to effect any action to retaliate against any person who reports, initiates a complaint, or otherwise brings to the attention of the board of ethics information relating to a board investigation or an ethics violation.

4.

No officer or employee shall file a complaint with the board of ethics absent a good-faith basis for their allegations.

5.

An officer or employee shall not falsely accuse another officer or employee of failing to comply with this chapter.

6.

No officer or employee may knowingly induce, encourage, or aid anyone to violate any provision of this chapter.

7.

Any violation of this subsection shall be subject to investigation and action by the board of ethics.

F.

Accessibility. Because the purpose of the board of ethics can only be fulfilled if it furthers the goal of accountability, responsibility, and transparency in the ethical conduct of municipal government, the board of ethics shall operate, to the greatest extent possible, in a manner that is open and accessible to the public. Thus, the board of ethics shall establish and maintain policies and procedures, including an internet website that is searchable to the greatest extent possible, that will promote the widest possible dissemination of information about its activities and operations, including any hearings, decisions, and opinions of the board of ethics and the chief ethics officer. Further, the city acknowledges and affirms that the board of ethics is, in all respects, subject to the access requirements of the Tennessee Public Records Act, T.C.A. § 10-7-503, and the Tennessee Open Meetings Act, T.C.A. § 8-44-101 et seq.

G.

Hearings may be closed. The hearing shall be closed upon the request of the officer who is prosecuting an indictment or in the discretion of the board when to do otherwise would jeopardize the proceedings on an indictment in a court of law.

(Ord. No. 5206, § 10, 7-1-2007; Ord. No. 5327, §§ 1, 2, 9-15-2009; Ord. No. 5343, 1-26-2010)