OLR Research Report


December 5, 2008

 

2008-R-0677

MUNICIPAL ETHICS LEGISLATION

By: Sandra Norman-Eady, Chief Attorney

You asked several questions on the allowable contents of municipal ethics legislation. We address each of your questions separately below.

Can Municipal Ethics Legislation Establish Different Ethics Codes For Municipalities Based Solely On Population?

Yes. In fact, under current law municipalities may adopt their own codes of ethics. These codes vary by municipality. It is conceivable that these codes could differ based on population.

The law currently makes numerous distinctions between municipalities based on population. For example, state reimbursed property tax for enterprise zones (CGS 32-70 (c); grants to public libraries (CGS 11-24b); and duties of municipalities to appoint school medical advisors (CGS 10-205), hold voter registration sessions (CGS 9-17), and post voter registry lists (CGS 9-36).

In another example, HB 5894 authorized municipalities with populations of 100,000 or less to recall municipal elected officials serving four-year terms under certain circumstances. Under the bill, municipalities with populations in excess of 100,000 could not recall their elected officials. HB 5894 died in the Appropriations Committee after a House referral.

Can Municipal Ethics Legislation Provide For Stiffer Penalties Than Municipal Ethics Agencies May Currently Impose?

Yes. Under current law, municipalities may adopt a code of ethical conduct and establish a board, commission, council, committee, or other agency to investigate complaints. Municipal agencies can impose fines of up to $250 for ethical violations. “Municipalities” are towns, cities, boroughs, consolidated towns and cities, and consolidated towns and boroughs (CGS 7-148 (a); 7-148 (c) (10) (A) and (B); and 7-148h).

To increase the cap on penalties and impose other stiffer penalties, any proposed municipal ethics legislation would amend CGS 7-148 (c) (10) (A), which imposes the cap, by increasing the cap (or eliminating it) and adding the other penalties.

Past municipal ethics bills included stiffer penalties. For example, in 2005 HB 6616 authorized local ethics agencies to censure violators, or order them to (1) cease and desist the violation; (2) file any required information, including any report or statement; and (3) pay a fine of up to $2,000. The agency could have also reported its determination to the chief state's attorney. In 2006, HB 5055 permitted municipal ethics agencies to impose the same nonfinancial penalties as HB 6616. With respect to financial penalties, it authorized local agencies to require violators to pay a civil fine in accordance with a penalty structure that the Office of State Ethics (OSE) was required to prescribe. The bill required OSE to adopt regulations establishing a penalty structure but did not specify a deadline for it to do so.

Neither HB 6616 nor HB 5055 became law.

Can a State Agency Review Municipal or Regional Ethics Determinations?

Yes. There are several examples of state agencies reviewing determinations by local agencies. For example, the State Commission on Human Rights and Opportunities (CHRO) hears appeals from people aggrieved by a local order regarding discriminatory practices. By law, towns, cities, and boroughs may establish or designate a board, commission, council, committee, or other agency to investigate allegations of discriminatory practices. Among other things, these entities have the power to hold hearings, make probable cause determinations, and issue appropriate orders, including cease and desist orders and orders to take affirmative action to effectuate the purpose of state anti-discrimination statutes.

People aggrieved by a local order may appeal to CHRO within 30 days after the date the local order was mailed. Any action taken by CHRO on the appeal supersedes the action brought by the local agency, except CHRO may admit into evidence the results of the local investigation or the local agency's decision and weigh it appropriately under the facts and circumstances of the case (CGS 7-148i through 7-148n).

Past municipal ethics bills have sometimes provided for appeals from local ethics agencies to the state ethics agency.

2007 Municipal Ethics Bill

HB 7000 permitted any person aggrieved by a decision of a local ethics board, commission, council, committee or other agency to file an appeal with OSE. It required the OSE to conduct an investigation and review in the same way as it does complaints against state public officials and employees. However, OSE could refuse to investigate or review any matter that failed to adequately allege an ethics violation as provided in the bill. HB 7000 did not become law.

2006 Municipal Ethics Bill

HB 5055 permitted people aggrieved by a municipal ethics agency's final decision to appeal to OSE. It required OSE to adopt regulations that set forth appeal procedures. However, the procedures could not permit OSE to substitute its judgment for that of the agency regarding the weight of the evidence on questions of fact. OSE had to also limit its review to the record that was before the municipal agency.

The bill required OSE to affirm a municipal ethics agency's determination unless OSE found that the substantive rights of the appellant were prejudiced because the local agency's finding, inference, conclusion, or decision (1) violated the constitution, state statutes, or the local code of ethics; (2) exceeded the body's statutory authority; (3) was made based on an unlawful procedure; (4) was affected by another error of law; (5) was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; (6) was arbitrary or capricious; or (7) was an abuse, or a clearly unwarranted exercise, of discretion.

If OSE found such prejudice, it was required to sustain the appeal and, if appropriate, modify the local agency's decision or remand the matter for further proceedings. OSE was required to award a respondent reasonable attorney's fees if it found that the appeal was frivolous.

2005 Municipal Ethics Bill

HB 6616 permitted people to appeal to the State Ethics Commission (which was later reconstituted as the Office of State Ethics) if they were aggrieved by, or disagreed with, (1) a final determination by a local ethics agency, (2) the agency's failure to make a final determination within 90 days after any allegation of unethical conduct is made, or (3) a municipality's or district's failure to designate or establish an ethics agency by July 1, 2006. The bill required the state commission to adopt regulations setting forth appeal procedures.

When deciding an appeal, the bill required the State Ethics Commission to uphold a local ethics agency's determination unless the commission found that the agency's finding, inference, conclusion, or decision, or the municipality's or district's ethics code: (1) violated the constitution, state statutes, or the local code of ethics; (2) exceeded the body's statutory authority; (3) was made based on an unlawful procedure; (4) was affected by another error of law; (5) was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; (6) was inadequate to, or in excess of, the “purpose of an ethics code”; (7) was arbitrary or capricious; or (8) was an abuse, or a clearly unwarranted exercise, of discretion.

If the commission found that the (1) local agency's determination was flawed, (2) agency failed to make a final determination on an allegation of unethical conduct within 90 days after it was made, or (3) municipality or district failed to designate or establish an ethics agency by July 1, 2006, the commission had to sustain the appeal and, if appropriate, enter a judgment modifying the agency determination, substitute its own determination, or remand the matter for further proceedings.

What Designation Does the Law Give Special Taxing Districts, Fire Districts, Water Authorities, and Other Specialized Political Subdivisions?

There is no general “designation” for these entities in law. “Municipalities” and “political subdivisions” are defined differently for different purposes, sometimes including these entities and other times not. For example, the law on municipal powers defines “municipality” as any town, city, borough, consolidated town and city, and consolidated town and borough (CGS 7-148 (a)). In the Municipal Bond Refunding Trust Act, “municipality” means any political subdivision of the state having the power to make appropriations or to levy taxes, including any town, city or borough, whether consolidated or unconsolidated, any village, school, sewer, fire or lighting, metropolitan district, beach or improvement association, and any other metropolitan tax district or association, or other municipal corporation having the power to issue bonds (CGS 3-76c (c)). Under the municipal indemnity statute (CGS 7-101a), “municipality” means any town, city, borough, consolidated town and city, consolidated town and borough, district, district department of health, or authority established by the general statutes, a special act or local law, ordinance, or charter or any public agency.

In 2006 and 2007, proposed municipal ethics legislation was applicable to towns, cities, boroughs, and any fire district; sewer district; fire and sewer district; lighting district; village, beach, or improvement association; and any other district or association, except a school district, wholly within a town and having the power to make appropriations or to levy taxes (see HB 5055 in 2006 and HB 7000 in 2007).

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