(A) For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
COUNSEL. An attorney at law licensed to practice in the state.
PUBLIC CENSURE. An official public condemnation made by resolution at a Common Council meeting denouncing an elected official’s conduct as a violation of this section and the reasons therefor.
PUBLIC REPRIMAND. A public declaration made by resolution at a Common Council meeting announcing that an elected official’s conduct was improper and describing the impropriety under this section.
(B) In order to maintain excellence in government and to facilitate the efficient provision of services to the public, the city adopts this code of conduct for elected officials. This code of conduct is in addition to all other policies of the city.
(1) The city expects each elected official to demonstrate the highest standards of conduct, personal integrity, and honesty in all of his or her activities, in order to inspire public confidence and trust in elected officials.
(2) The city expects each elected official to undertake his or her duties in a fair and impartial manner, refraining at all times from discrimination or the dispensation of special privileges. Therefore, members of the City Council, city boards, committees, and commissions shall conduct themselves in accordance with the following ethical standards:
(a) Act in the public interest. Recognizing that stewardship of the public interest must be their primary concern, members will work for the common good of the people of the city, and not for any private or personal interest, and they will assure fair and equal treatment of all persons, claims, and transactions coming before them;
(b) Comply with both the spirit and the letter of the law and city policy. Members shall comply with the laws of the nation, the state, and the city in the performance of their public duties;
(c) Conduct of members. The professional and personal conduct of members while exercising their office must be above reproach and avoid even the appearance of impropriety. Members shall refrain from abusive conduct, personal charges, or verbal attacks upon the character or motives of other members of the Council, boards, committees, commissions, staff, or public;
(d) Respect for process. Members shall perform their duties in accordance with the processes and rules of order established by the City Council;
(e) Conduct at public meetings. Members shall prepare themselves for public issues, listen courteously and attentively to all public discussions before the body, and focus on the business at hand;
(f) Decisions based on merit. Members shall base their decisions on the merits and substance of the matter at hand, rather than on unrelated considerations. When making adjudicative decisions (those decisions where the member is called upon to determine and apply facts peculiar to an individual case), members shall maintain an open mind until the conclusion of the hearing on the matter, and shall base their decisions on the facts presented at the hearing and the law; and
(g) Communication. For adjudicative matters pending before the body, members shall refrain from receiving information outside of an open public meeting or the agenda materials, except on advice of the City Attorney. Members shall publicly disclose substantive information that is relevant to a matter under consideration by the body which they may have received from sources outside of the public decision-making process.
(3) The city strives to maintain a workplace that facilitates the growth and performance of its employees. To that end, each elected official is charged with the responsibility to insure that the workplace is free from hostility or harassment in any form, and that the workplace is conducive to the provision of services in an efficient and effective manner.
(a) Treat all staff as professionals. Clear, honest communication that respects the abilities, experience, and dignity of each individual is expected. Poor behavior towards staff is not acceptable.
(b) Do not disrupt city staff from their jobs. Elected and appointed officials should not disrupt city staff while they are in meetings, on the phone, or engrossed in performing their job functions in order to have their individual needs met. Do not attend city staff meetings unless requested by staff; even if the elected or appointed official does not say anything, his or her presence implies support, shows partiality, may intimidate staff, and hampers staffs’ ability to do their job objectively.
(c) Never publicly criticize an individual employee. Elected and appointed officials should never express concerns about the performance of a city employee in public, on social media, to the employee directly, or to the employee’s manager. Comments about staff performance should only be made to the City Manager, Finance Officer, or Mayor through private correspondence or conversation. Appointed officials should make their comments regarding staff to the City Manager, Finance Officer, or the Mayor.
(d) Do not set involved in administrative functions. Elected and appointed officials acting in their individual capacity must not attempt to influence city staff on the making of appointments, awarding of contracts, selecting of consultants, processing of development applications, or granting of city licenses and permits.
(e) Do not solicit political support from staff. Elected and appointed officials should not solicit any type of political support (financial contributions, display of posters or lawn signs, name on support list, and the like) from city staff. City staff may, as private citizens with constitutional rights, support political candidates, but all such activities must be done away from the workplace.
(f) No attorney-client relationship. Members shall not seek to establish an attorney-client relationship with the City Attorney, including his or her staff and attorneys contracted to work on behalf of the city. The City Attorney represents the city and not individual members. Members who consult with the City Attorney cannot enjoy or establish an attorney-client relationship with the Attorney.
(4) The provision of governmental service requires elected officials to interact with the public. Given the unique relationship between the government and its citizens, each elected official is expected to treat members of the public with the respect and courtesy due to citizens from public servants. However, no elected official shall be expected to endure personal hostility or abuse, regardless of the source.
(a) Be welcoming to speakers and treat them with care and gentleness. While questions of clarification may be asked, the official’s primary role during public testimony is to listen.
(b) Be fair and equitable in allocating public hearing time to individual speakers. The Chair will determine and announce limits on speakers at the start of the public hearing process.
(c) Practice active listening. It is disconcerting to speakers to have members not look at them when they are speaking. It is fine to look down at documents or to make notes, but reading for a long period of time or gazing around the room gives the appearance of disinterest. Members shall try to be conscious of facial expressions, and avoid those that could be interpreted as “smirking”, disbelief, anger, or boredom.
(d) Maintain an open mind. Members of the public deserve an opportunity to influence the thinking of elected and appointed officials.
(e) Ask for clarification, but avoid debate and argument with the public. Only the Chair, not individual members, can interrupt a speaker during a presentation. However, a member can ask the Chair for a point of order if the speaker is off the topic or exhibiting behavior or language the member finds disturbing.
(C) Except as provided in division (c)(1)(a)1. through (C)(1)(a)3. below, any time a violation of this section is alleged, the affected elected official(s) shall be entitled to notice of the alleged violation(s) and a public hearing on the merits of the allegation.
(1) Any complaint of violation of this subchapter shall be made in writing to the office of the City Attorney. The City Attorney, or his or her designee, shall examine the complaint and shall also review any signed written submissions by the person(s) or entity(ies) that are directly involved. Pursuant to SDCL § 1-25-2(1), the complaint may be heard in executive session, and upon completion of the review, the City Attorney’s office shall submit, in executive session, an unbiased, fact-based investigative report to the Common Council. All laws pertaining to executive session shall apply, and the Common Council shall not take any action regarding any alleged violation of this section in executive session.
(a) At least ten days prior to the scheduled executive session, any affected elected official(s) shall be notified, in writing, of the complaint and the scheduled date of the executive session discussion, and shall be provided copies of the materials reviewed by the office of the City Attorney, along with the report produced by the City Attorney, or his or her designee.
1. This provision of notice, as described in division (C)(1)(a) above, shall be required, except in cases in which the affected elected officials has been accused of criminal wrong doing, or in cases in which notice to the affected elected official(s) would jeopardize an on-going criminal investigation by any local, state, or federal law enforcement agency.
2. The City Attorney shall make the determination as to whether the notice exception applies, as described in divisions (C)(1)(a) and (C)(1)(a)1. above, and shall document the file as to the reason(s) therefor.
3. In cases of alleged criminal wrongdoing or on-going criminal investigation, the subject complaint of violation of this subchapter shall be suspended until such time as the City Attorney deems the criminal allegation and/or criminal investigation has been resolved, either by prosecution, or a determination that no criminal charge(s) are warranted against the affected elected official(s).
(b) In the event the notice exception above does not apply, the matter shall proceed, and any affected elected officials shall have an opportunity to respond and be heard during the scheduled executive session.
(c) The Common Council will utilize the executive session to:
1. Become fully informed;
2. Discuss if there appears to be a violation of this code;
3. Seek resolution without further action;
4. If necessary, discuss scheduling the matter for a public hearing for final determination regarding whether a violation occurred; and
5. If necessary, discuss what sanction, if any, may be most appropriate.
(2) (a) Any elected official(s) affected by a complaint of violation of this code may be represented by counsel of his or her choosing at the scheduled executive session.
(b) Counsel present under this section is allowed to attend only that portion of the scheduled executive session where the complaint at issue under this section is discussed.
(3) Any elected official(s) affected by a complaint of violation of this section may at any time during the process, at his or her option, choose to have the matter heard at a public hearing.
(a) Election of a public hearing must be made in writing to the City Attorney.
(b) The public hearing shall take place at the next regularly scheduled or special Common Council meeting after written notice has been received; provided, however, that written notice is received at least ten days prior to the next regularly scheduled or special Common Council meeting.
(4) Official action by a concurrence of two-thirds of the elected Aldermen shall be required for a determination that a violation of this section has occurred, and likewise, a concurrence of two-thirds of the elected Aldermen shall be required in order to impose sanction.
(D) (1) Neither an alleged nor confirmed violation of this code of conduct by itself provides a basis for challenging the validity of any final action, enactment, ordinance, resolution, decision, determination, or recommendation of the Common Council.
(2) Under SDCL § 9-8-5, the Common Council is the judge of the qualification of its own members; any sanction available under state law, including, but not limited to, public reprimand and public censure, shall be available to the Common Council in judging its members.
(Res. 2019-09, passed 5-6-2019)