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Home My WebLink About1990-04-03 Ethical Standard Res. Legal Opinion • Law Ices of Barry L. Blomquist 726 Elm Street P.O. Box 578 North Branch, MN 55056 Legal A Wants Barry L. Blomquist (612) 674 -8381 Judith mchik Timothy J. Peterson Metro 462 -2121 Nancy chmidt April 3, 1990 Centerville City Council c/o Tamara Miltz - Miller 1694 Sorel St. Centerville, MN 55038 Re: Proposed "Ethical Standards Resolution" Dear Council Members: You have provided me with a copy of and requested my comments upon a proposed resolution entitled "Ethical Standards Resolution" being considered for adoption by the Council. pparently, the incident or situation which prompted this proposal is that cited in the minutes of the March 14, 1990 meeting relating to the recently obtained Affidavit of Publication and the notary backdating the acknowledgment near the date of actual publication. Being unfamiliar with the underlying details, it is inappropriate for me to comment upon that incident. The question that naturally arises is: Will the adoption of the proposed resolution or one similar avoid or minimize such situations in the future, assuming the situation in question raised ethical issues? You should consider the distinction between a resolution and an ordinance should you desire to proceed with such a document. Under the law, a resolution is a formal action by the Council but is usually of short -term duration or merely states a position of the Council on a municipal matter. A resolution is not a law and lacks enforcement authority. On the other hand, an ordinance upon.completion and publication does become a law which may be enforced through a proceeding before the Council and also before a court, either initially or on appeal of the Council decision. If the Council merely wishes to announce to the public, the city officials, employees and independent contractors of its desire to promote ethical considerations in all city business, a resolution will suffice. • However, once passed and disseminated, the resolution will be of nominal benefit, particularly to new officials, employees or contractors. On the other hand, should the Council desire enforceable standards now and in the future, those standards should be incorporated into an ordinance duly adopted. A more intriguing concern is the contents of the document as opposed to its form. I enclose for your review copies of M.S. 358.05 requiring an oath of office by all city officials; a copy of Article 5, Section 6 of the Minnesota Constitution setting forth the contents of that oath; and a copy of M.S. 359.12 setting forth the conditions of continuation of nc'tary publics. I include the latter merely to show as an example that most if not all persons authorized under Minnesota law to engage in public activities are subject to certain standards, the non - compliance of which will result in adverse actions. This is one of many statutes which deprive licensed or regulated persons of their benefits for their failure to uphold the law. In numerous instances, acting contrary to the law will subject a public official to criminal charges. The adoption of ethical standards is further complicated by the fact that many professionals are subject to separate, lengthy and specific codes of ethical behavior not found under Minnesota law. For example, the current Minnesota Rules of Professional Conduct presently consist of 37 pages addressing in detail ethical issues between an attorney and the client(s). Additionally, other professionals are regulated by adopted standards of their own organization. )they professionals such as architects, engineers, surveyors, accountants, electricians, plumbers, etc. are regulated by state law. Their conduct is governed under the state licensing procedures. As for independent contractors, their conduct is generally controlled through performance bonds. Given all of these various and scattered codes and regulations, it is difficult to adopt a city document incorporating each. However, this could be accomplished by general language making any professional or licensed person subject to any standards promulgated by the organization to which they belong or by which they are controlled. However, in addition to the panoply of codes and regulations discussed above and as previously mentioned, the state legislature has adopted a number of criminal provisions applicable specifically to public officers prohibiting bribery, receiving unauthorized compensation, permitting false claims against the city and more specifically prescribing misconduct of a public officer or employee which consists of the failure or refusal to perform a known mandatory duty, does an act knowing it is in excess of lawful authority or knowing it is fo ;bidden by law under pretense or color of official authority, intentionally and unlawfully injures another in the other's person, property or rights, or in the capacity of an officer or employee makes a certificate, official report or other like document having knowledge it is false in any material respect. -2- Given this multitude of presently effective prohibitions and their attending adverse consequences, the Council might seriously question both the difficulty and the need for either a resolution or an ordinance informing those persons associated with or performing for the city of their obligation to meet or comply with those ethical standards which are already in place. Indeed, anyone who works for or with a political unit today cannot help but be aware of the ongoing clamor for responsibility and accountability. In summary, the Council may wish to inquire: What benefit or effect will attend such a resolution /ordinance? Will it not merely repeat that which those who are already accountable already know? If that be the case, have we not added one more document to the reams of dusty documents, many of which go unheeded? Please do not misunderstand. Your quest for ethical behavior is commendable -- indeed, a necessity as witnessed by the frequent and widespread attention it receives. Please consider the possibility that it might be more fruitful to place in practice ethical norms and to hold periodic mini - sessions with all city officials and employees to "knock about" those types of ethical issues to the smaller community. Some differ dramatically from those encountered in larger governmental units. Having said all of this, Rule 1.13 of the Rules of Professional Conduct (regulating attorneys) requires the obvious - -that I recognize the city (through the Council) as my client. Rule 2.1 requires that I render :andid advice. That being the case, I defer to your decision. Should the Council decide that a resolution /ordinance is nevertheless appropriate, if requested I will assist in the adoption of a document to satisfy that need. Si cerely, ,..:,41 /, 1 in-A,A oe. a Barry L. Blomquist njs enc -3- • 358.05. Oath of office The oath of office to be taken by members and officers of either branch of the legislature shall be that prescribed by the Constitution of the State of Minnesota, Article 4, Section 8. Every person elected or appointed to any other public office, including every official commissioner, or member of any public board or body, before transacting any of the business or exercising any privilege of such office, shall take and subscribe the oath defined in the Constitution of the State of Minnesota, Article 5, Section 6. Amended by Laws 1976, c. 2, § 172. 0 4 1 ' i • S § 6. Oath of office of state officers Sec. 6. Each officer created by this article before entering upon his duties shall take an oath or affirmation to support the constitution of the united States and of this state and to dis- charge faithfully the duties of his office to the best of his judg- ment and ability. Constitution of 1857 as Amended For prior provisions relating to the of Const. of 1857 as set forth begin - same subject matter, see Art. 5, § 8, ping on page 241 of volume 1. 359.12 REMOVAL FROM OFFICE. Every notary who shall charge or receive a fee or reward for any act or service done or rendered by him under this chapter greater than the amount allowed by law, or who dishonestly or unfaithfully discharges his duties as notary, shall, on complaint filed and substantiated as in other civil cases in the district court of the county in which he resides, be removed from office by such court. The fact of such removal shall thereupon be certified by the clerk to the governor, and the person so removed shall thereafter be ineligible to such office. . History: RL s 2665 (6950) Statement of Account BARRY L. BLOMQUIST LAW OFFICES P. 0. Box 578 North Branch, MN 55056 (612) 674 -8381 Barry L. Blomquist Timothy J. Peterson April 3, 1990 Centerville City Council c/o Tamara Miltz- Miller 1694 Sorel St. Centerville, MN 55038 re proposed "Ethical Standards Resolution" Letter from client; review proposal; $85.00 letter to client (1.0 hr. @ $85 /hr.)