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2004-12 ORDINANCE NO. 2004-12 AN ORDINANCE OF THE CITY OF A VENTURA, FLORIDA; AMENDING THE CITY CODE BY AMENDING ARTICLE VII "CODE OF ETHICS" OF CHAPTER 2 "ADMINISTRATION", BY AMENDING SECTION 2-394 "PENALTY", TO ENUMERATE ADDITIONAL SECTIONS OF THIS ARTICLE VII AS BEING UNDER THE PRIMARY JURISDICTION OF THE MIAMI-DADE COUNTY ETHICS COMMISSION FOR ENFORCEMENT; AMENDING SECTION 2-395 "DISCLOSURE OF BUSINESS RELATIONSHIPS AND GIFTS" BY CLARIFYING THE METHOD OF DISCLOSURE AND ENFORCEMENT REQUIREMENTS AND EXTENDING THE TIME PERIOD FOR WHICH NEW BUSINESS RELATIONSHIPS MUST BE DISCLOSED BY CITY COMMISSIONERS AND CITY ADVISORY BOARD MEMBERS; CREATING SECTION 2-396 "FURTHER ETHICS STANDARDS; PROHIBITIONS AND RESTRICTIONS", TO PROVIDE FOR THE ENACTMENT OF ADDITIONAL PROHIBITIONS AND RESTRICTIONS AND ETHICS STANDARDS BEYOND THOSE CURRENTLY PROVIDED BY APPLICABLE STATE, COUNTY AND CITY ETHICS PROVISIONS, INCLUDING PROVISIONS CONCERNING THE PROHIBITION OF CERTAIN APPEARANCES, WORK OR PAYMENT, CONTINUED RESTRICTIONS AFTER COMPLETION OF CITY SERVICE; FURTHER RESTRICTIONS ON TRANSACTIONS; PROVIDING FOR SUCH PROHIBITIONS AND RESTRICTIONS TO ALSO BE APPLICABLE TO FIRMS, BUSINESS ENTITIES AND BUSINESS ASSOCIATES OF CITY COMMISSION MEMBERS; PROVIDING FOR DEFINITIONS; PROVIDING FOR THE STRICTER ETHICS PROVISIONS TO PREVAIL; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION IN CODE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of A ventura desires to further strengthen and enhance the ethics standards which are applicable to all elected officers of the City of Ordinance No. 2004-12 Page 2 Aventura, beyond those standards currently provided by existing City Code provisions, Miami- Dade County ethics code provisions, State of Florida ethics code provisions, and applicable provisions of federal law; and WHEREAS, the City Commission finds that the enactment of the additional ethics standards which are provided for in this ordinance shall further the continued integrity and excellence of government provided by the City of A ventura; and WHEREAS, the City Commission finds that the enactment of this ordinance will further promote the establishment and adherence to the highest ethics standards and will thereby facilitate continued confidence of the citizenry in the government ofthe City. NOW, THEREFORE, IT IS HEREBY ORDAINED BY THE CITY COMMISSION OF THE CITY OF A VENTURA, FLORIDA, AS FOLLOWS:! Section 1. Recitals Adopted. That each of the above stated recitals is hereby adopted and confirmed. Section 2. City Code Amended. That Article VII "Code of Ethics" of Chapter 2 "Administration" of the City Code of the City of Aventura is hereby amended by amending Section 2-392 "Code of Ethics Generally", Section 2-394 "Penalty," and by amending Section 2-395 "Disclosure of Business Relationships and Gifts" at paragraph (c) "Restrictions" by amending subparagraphs (I) and (3) of said paragraph, and by creating a new section, Section 2-396 "Further Ethics Standards; Prohibitions and Restrictions," to read as follows: Section 2-391. Lel!:islative intent. (a) It is essential to the proper conduct and operation of government that '; Proposed additions to existing City Code text are indicated by underline; proposed deletions from existing City Code text are indicated by slriketàre..gh; presently existing text is indicated by the absence of any underlinin~ or slFiketbreeghs. 2 Ordinance No. 2004-12 Page 3 (b) public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law. The public interest, therefore, requires that the law protect against any conflict of interest and establish standards for the conduct of elected officials and government employees in situations where conflicts may exist. It is the policy of the City that no officer or employee of the City, shall have any interest, financial or otherwise, direct or indirect; engage in any business transaction or professional activity; or incur any obligation of any nature which is in substantial conflict with the proper discharge of his or her duties in the public interest. To implement this policy and strengthen the faith and confidence of the City's residents in their government, the City will enact a Code of Ethics setting forth standards of conduct required of the City's public officers and employees, in the performance of their official duties. It is the intent of the City that this code shall serve as a guide for the official conduct of the public officers and employees ofthe City. Section 2-392. Code of Ethics I!:enerallv. The conduct of the public officers and employees of the City shall be governed by the Code of Ethics of the City which shall include: (I) (2) (3) The state "Code of Ethics for Public Officers and Employees", codified in F.S. Chapter 112, as may be amended from time to time, and The "Miami-Dade County Conflict ofInterest and Code of Ethics Ordinance," codified at Section 2-11.1 et. seq., Miami-Dade County Code, as may be amended from time to time, and Any provisions that the City Commission may adopt from time to time in addition to those set forth in subsections (I) and (2) above. Section 2-393. Additional conflict of interest restriction concerninl!: advisory board members (a) No member of any City Advisory Board shall vote on or participate in any way in any matter presented to the Board if said person is an officer, board member, or director of an organization which would be or might be indirectly or directly affected by any action of the Board or, if in any instance, the matter would affect the member in a manner distinct from the manner in which it would affect the public generally. (b) Any Board Member who has any of the above relationships or who would or might, directly or indirectly, profit or be enhanced by the action of the Board shall 3 Ordinance No. 2004-12 Page 4 absent himself or herself ITom the Board meeting during the discussion of the subject item and shall not vote on or participate in any way in said matter. (c) Whenever any Board Member is in doubt as to the interpretation or application ofthis section to hislher particular situation, the Board member may submit to the City Attorney a written request for an opinion. The City Attorney shall review the facts of the particular matter and shall provide an opinion to the Board Member. (d) For purposes of this section, the term "Advisory Board" shall refer to the members of those City Advisory Boards whose primary responsibility is to provide recommendations or advice to the City Commission. (e) For purposes of this section, the term "organization" means a corporation for profit or not-for-profit, and includes a political committee or committee of continuous existence as defined in F.S. Chapter 106. Section 2-394. Penalty. The Ethics Commission created pursuant to Miami-Dade County Ordinance 97-105 shall have primary jurisdiction for enforcement of Sections 2- 392, and 2-393, and 2-396. A finding by the Ethics Commission that a person has violated Sections 2-392,and 2-393 and 2-396 shall subject said person to an admonition or public reprimand and/or a fine of $250.00 for the first such violation and $500.00 for each subsequent violation. Section 2-395. Disclosure of business relationships and eifts. (a) Definitions. (I) Applicant. As used herein, the term "applicant" means any individual or entity requesting action of the City Commission or a City Advisory Board upon an application and all persons or entities representing such individual or entity (including, but not limited to, all attorneys, architects, landscape architects, engineers and lobbyists) (the "representatives"), and any individual who holds directly or indirectly, a five percent or more ownership interest in the total assets or capital stock of such applicant entity. (2) Business relationship: As used herein the term "business relationship" means that a member of the City Commission or a City Advisory Board has a business relationship with a person or an entity if any of the following exist: a. The member of the City Commission or City Advisory Board holds an ownership interest, directly or indirectly, in excess of one percent of the total assets or capital stock of the applicant, representative or interested person entity; or b. The member of the City Commission or City Advisory Board is a partner, co-shareholder (as to the shares of a corporation which are not listed on any national or 4 Ordinance No. 2004-12 Page 5 regional stock exchange) or joint venturer with the applicant, representative or interested person in any business venture; c. The application, representative or interested person is a client of the member of the City Commission or City Advisory Board, or a client of another professional working from the same office or for the same employer as the member of the City Commission or City Advisory Board; d. The member of the City Commission or City Advisory Board is a client of the applicant, representative or interested person. e. The applicant, representative or interested person is a customer of the member of the City Commission or City Advisory Board (or of his/her employer) and transacts more than $10,000.00 of the business of the member of the City Commission or City Advisory Board (or of his /her employer) in a given calendar year; or f. The member of the City Commission or City Advisory Board is a customer of the applicant, representative or interested person and transacts more than $25,000.00 of the business of the applicant, representative or interested person in a given calendar year. (3) Client. As used herein, the term "client" means a person or entity who obtains the services of another for compensation. (4) Customer. As used herein the term "customer" means a person or entity who purchases or leases materials, equipment or property from another. (5) Gift. As used herein, the term "gift" means any gift required to be reported by quarterly disclosure pursuant to F.S. § 112.3148, or Section 2-1 1.1 (e) of the Miami-Dade County Code. (6) Interested person. As used herein, the term "interested person" means any person who speaks for or against any resolution or ordinance before the City Commission or for or against any matter before any City Advisory Board and who has a direct financial interest in the action (including, but not limited to vendors, bidders and proposers), except that owner occupied residential property owners shall not be deemed to have a direct financial interest in land use decisions that may affect the value of their property, and accordingly shall not be within the definition of the term "interested person," as used herein. (b) Application of definitions. (I) Notwithstanding the provisions of subsection (a)(2)a.-f. above, a business relationship shall not be construed to exist hereunder by virtue of the circumstance that a member of the City Commission or City Advisory Board executed or authorized a contract with an applicant, representative or interested person solely in such 5 Ordinance No. 2004-12 Page 6 City Commission or City Advisory Board member's capacity as an officer or director ofa homeowner association, condominium association, cooperative association or master association. (2) For the purpose of applying the 24-month period restriction provided in subsection( c)( I) below, a business relationship commences pursuant to subsection (a)(2)c.-f. (client/customer) above, when materials, equipment, property or services are ordered, sought, contracted for or obtained. (3) For the purpose of applying the 24-month period restriction provided in subsection (c)(I) below, a business relationship ends pursuant to subsection (a)(2)c.-f. (client/customer) above: a. Once the sale of materials, equipment or property is completed and no payment remains due; or b. Once the lease of materials, equipment or property expires or is terminated and no payment remains due; or c. Once the provision of services is fully performed and no payment for services remains due. (c) Restrictions. (I) Except as prohibited by law or regulatory standards, each member of the City Commission or any City Advisory Board shall disclose by public announcement or written filing with the City Clerk the existence of any business relationship of which he/she is aware that he/she has, or has had within the prior 24-month period, with any applicant, representative or interested person, at the time that the applicant, representative or interested person appears before the City Commission or City Advisory Board on which the member sits. (2) Except as prohibited by law or regulatory standards, if a member of the City Commission or any City Advisory Board learns, or with the exercise of due diligence, should have learned, at any time after an action is taken by the City Commission or the City Advisory Board on which the member sits, that he/she had a business relationship with any applicant, representative or interested person who appeared before the City Commission or the City Advisory Board, he/she shall within ten days of so learning, disclose any such business relationship in writing to the City Clerk that was not disclosed at the initial meeting. (3) Except as prohibited by law or regulatory standards, if a member of the City Commission or any City Advisory Board establishes a business relationship with any applicant, representative or interested person within ~ 24 months after the applicant, representative or interested person appears before the City Commission or the City Advisory Board on which the member sits, the member of the City Commission or the 6 Ordinance No. 2004-12 Page 7 City Advisory Board shall disclose any such business relationship in writing to the City Clerk within 15 days after the business relationship is established. (4) F.S. § 286.012 prohibits a member of the City Commission or any City Advisory Board from abstaining from voting unless there is, or appears to be, a possible conflict of interest under F.S. §§ 112.311, 112.313, and 112.3143. Accordingly, in any situation where a member of the City Commission or a City Advisory Board discloses a business relationship under this section, the member may abstain from voting, since such disclosure shall qualify as constituting the appearance of a possible conflict of interest. This paragraph shall not be construed to make abstention discretionary under situations in which abstention or non-participation is mandated by F.s. § 112.3143, Section 2-1 1.1 (d) of the Miami-Dade County Code as adopted by City Code Section 2-392(2), or (as to Advisory Board Members) as provided by City Code Section 2-393. (5) Members of the City Commission or City Advisory Boards shall disclose gifts from applicants, representatives and interested persons in the same manner as provided for the disclosure of business relationships under subsection (c)(I H3) above. (6) If any member of the City Commission or City Advisory Board believes that another member of the same body has willfully failed to make a disclosure required under this section, he/she may submit evidence supporting the alleged failure to disclose to the City Manager who shall place the item on the next available City Commission Agenda. The allegation and supporting evidence shall be presented by the member of the City Commission or City Advisory Board who raised the issue for consideration by the City Commission. The member of the City Commission or City Advisory Board against whom the allegation is made may present evidence refuting the allegations. If four or more members of the City Commission determine that an accused City Commissioner has willfully failed to make a required disclosure, the accused City Commissioner shall be deemed to be censured. If four or more members of the City Commission determine that an accused member of a City Advisory Board has willfully failed to make a required disclosure, the accused Advisory Board Member shall be removed from the Advisory Board. This provision shall not be construed to require any City Commission or Citv Advisory Board member to report anv suspected failure of another Citv Commission or City Advisory Board member to make a disclosure which may be required pursuant to this section. Section 2-396 - Further Ethics Standards: Prohibitions and Restrictions ill Certain appearances. work or payment prohibited. Pursuant to Section 2-ll.J(m) of the Miami-Dade County Code and as further specified herein: ill No member of the City Commission shall appear before any Citv department. board or agency and make a presentation on behalf of a third person with respect to anv application. license. contract. certificate. ruling. 7 Ordinance No. 2004-12 Page 8 @ iliil fu} ili} decision. opinion. rate schedule. franchise. or other benefit sought bv the third person. No member of the City Commission shall contact or direct another person to contact for the Commission member. the Citv Manager or anv department personnel concerning the status of any pending application or matter on behalf of any third person who has retained or employed the Commission member or who has retained or emploved the firm or business entity in which the Commission member has an employment. contractual or financial interest. No member of the City Commission shall receive compensation. directly or indirectly or in any form. for services rendered to a third person. who has applied for or is seeking some benefit from the Citv or from a Citv department. board or agencv. in connection with the particular benefit sought by the third person. Further. no member of the City Commission shall receive anv portion of or share any fee with any other person in connection with any such matter. No member of the Citv Commission shall appear in anv court or before anv administrative tribunal as counselor legal advisor to a party who seeks legal relief from the City or from a City department. board or agency through the litigation or proceeding in Question. Continued Restrictions after City Service. Pursuant to Section 2-l1.1(Q) of the Miami-Dade County Code and as further specified herein. no member of the Citv Commission shall. for a period of two (2) years after his or her Citv service has ceased. lobby the City Commission or anv Citv Officer. department personnel or emplovee in connection with any Quasi judicial. judicial or other proceeding. application. purchasing RFP. RFO or Bid. request for ruling. or other determination. contract. claim. controversy. charge. accusation. municipal ordinance violation. arrest or other particular subject matter in which the City or one of City's agencies. boards or instrumentalities is a party or has any interest. whether direct or indirect. However. nothing contained in this paragraph (b) shall prohibit any individual included within the provisions of this paragraph (b) from submitting a routine administrative request or application to a City department or agencv during the two (2) years after his or her City service has ceased. The term "routine administrative request or application". as used herein. means an application for a building permit. occupational license. regular city recreation facility or park public use permit request. under those circumstances where no variance. waiver or special privilege is requested. 8 Ordinance No. 2004-12 Page 9 w ill @ iliil @ Further Restriction on Transactions. In the event that during the term of office of a member of the City Commission. the Citv Commission grants an application (the "Citv Approval") for a rezoning, variance. conditional use. or zoning code or comprehensive plan amendment. upon the application of a person or entity (the "Zoning Applicant"), no person then serving as a member of the City Commission at the time of the Citv Approval shall then and for a period of two years after the issuance of the City Approval. regardless of whether still serving on the City Commission. perform any services for or directly or indirectlv accept anv financial remuneration. anv financial interest in or any special private gain from the Zoning Applicant or from any successor or assignee of the Zoning Applicant. as a result of or in relation to anv development which is enabled to occur as a direct consequence of such City Approval. Notwithstanding any provision of this paragraph (c)(i). the restrictions and prohibitions of this paragraph (c)(i) shall not applv to a member of the Citv Commission who has recused himself or herself from participating in or voting upon the item of City Approval and has absented himself or herself from the Commission meeting pertaining to such item. This paragraph (c) shall not preclude the provision of services or the sale or lease of goods by a member of the City Commission to persons who subsequently. independently enter into a transaction with the developer. owner or operator of the proDertv developed as a result of the Citv Approval solelv bv such person's purchasing or obtaining a lease for a unit in a building which was enabled to be built or redeveloped as a result of a Citv Approval. The prohibitions of this paragraph (c) mav be waived for a specific transaction bv Resolution of the Citv Commission which is adopted following a public hearing by a five-seventh (5/7) (five member affirmative vote) of the City Commission. if not contrary to other applicable ethics provisions. upon a finding that: ill The proposed transaction is consistent with the purposes of Article VII of Chapter 2 of the City Code: and ill The transaction will not create or tend to create even the appearance of any impropriety. Applicability to Firms. Business Entities. Business Associates. The restrictions and prohibitions which are imposed bv paragraphs (a), (b) and (c) of this section upon any person. bv virtue of that person's service (or former service) as a member of the City Commission. shall also be applicable to anv firm or business entity in which such member of the Citv 9 Ordinance No. 2004-12 Page 10 Commission has an employment. independent contractor or material interest and to anv business associate of such member of the Citv Commission. The terms "material interest" and "business associate" have the meaning indicated by Section 112.312. Florida Statutes. ill- Definitions. Except as otherwise indicated herein or required by the context used herein. the terms utilized herein which are defined in Section 112.312. Florida Statutes. or in Section 2-11.1 of the Miami-Dade County Code. shall have the meanings provided in such state statute and countv code provisions. ill Stricter provisions prevail. Nothing in this section shall be construed to impair or diminish any stricter ethical standards which are provided by Section 112.313. et. seQ. of the Florida Statutes. Section 2-11.1 of the Miami-Dade County Code or by the provisions of the Charter and Ordinances of the Citv or bv anv applicable federal law. Section 3. Severability. That the provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall for any reason be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses, and phrases of this Ordinance but they shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. Section 4. Inclusion in the Code. That it is the intention of the City Commission, and it is hereby ordained that the provisions of this Ordinance shall become and be made a part of the Code of the City of Aventura; that the sections of this Ordinance may be renumbered or relettered to accomplish such intentions; and that the word "Ordinance" shall be changed to "Section" or other appropriate word. Section 5. Effective Date. That upon adoption on second reading this Ordinance shall be effective immediately and shall be applied prospectively only. 10 Ordinance No. 2004-12 Page 11 The foregoing Ordinance was offered by Commissioner Cohen, who moved its adoption on first reading. This motion was seconded by Vice Mayor Diamond, and upon being put to a vote, the vote was as follows: Commissioner Zev Auerbach Commissioner Jay R. Beskin Commissioner Ken Cohen Commissioner Manny Grossman Commissioner Harry H01zberg Vice Mayor Bob Diamond Mayor Jeffrey M. Perlow yes yes yes yes yes yes yes The foregoing Ordinance was offered by Commissioner Beskin, who moved its adoption on second reading. This motion was seconded by Commissioner Cohen and upon being put to a vote, the vote was as foJlows: Commissioner Zev Auerbach Commissioner Jay R. Beskin Commissioner Ken Cohen Commissioner Manny Grossman Commissioner Harry Ho1zberg Vice Mayor Bob Diamond Mayor Jeffrey M. Perlow yes yes yes yes yes yes yes PASSED AND ADOPTED on first reading this 4th day of May, 2004. 11 Ordinance No. 2004-.12 Page 12 PASSED AND ADOPTED on second reading this 1st June, 2004. APPROVED AS TO LEGAL SUFFICIENCY: ~~V~ CITY ATTORNEY 12