The Derry Town Council will continue to review a draft Code of Conduct for town officials, board members and employees, in order to have a frame of reference for dealing with potential ethical issues.
The Council has been discussing ethics, in particular conflicts of interest, for about a year. Member Mark Osborne asked the Council to request that Acting Town Administrator Susan Hickey draw up a draft. Hickey did so, and the first reading was held at the Nov. 3 Town Council meeting.
Two Councilors, Osborne and Richard Tripp, will explore the ramifications of the draft in a subcommittee.
The draft ordinance has several definitions, including:
• Community officials: an elected town official, a volunteer appointed by the Town Council, a person who is an employee of the town who is paid for their service, but not an independent contractor;
• Conflict of interest: when a community official votes or acts on a matter in which he or she has a direct, immediate and definite personal and/or pecuniary interest that can be demonstrated;
• Immediate family, including spouse, civil union partner, children, parents, stepparents, stepchildren, brothers, sisters, half-brothers or half-sisters, in- laws, grandparents, grandchildren or anyone living in the household of the prospective employee or board member.
The first section covers definitions and the second section is devoted to nepotism, including these provisions:
• No person serving as an elected official or on an elected or appointed board will participate in, appoint or vote on the appointment of any person in his or her immediate family to a position as a town employee, with compliance a condition of holding office;
• Any job applicant or applicant for an appointed position on a town board must disclose any family relationships;
• No town employee can take part in the hiring of any immediate family member, or evaluate, supervise or discipline a family member;
• No person serving as Town Councilor or Town Administrator will take part in negotiations or vote on any contract or agreement between the town and any individual or entity in which their immediate family has any direct or indirect financial or gainful interest.
The second section mandates that “Community Officials” avoid conflicts of interest and states that they or their family members having professions outside their relationship with the town that routinely do business with the Town of Derry will not be awarded any work of any value unless it is done through a complete and open competitive procurement process.
The third section mandates that a board member or employee with a potential conflict of interest recuse him or herself from any quasi-judicial action, such as rulings by the Planning Board and Zoning Board of Adjustment, if a conflict exists or if he or she thinks they cannot be fair and impartial.
The third section also requires “Community Officials” to disclose any financial interest, direct or indirect, in a contract, job, work or service to be performed for the town or a voluntary sale to the town of land, materials, supplies, equipment or other property,
The code calls for no misuse of confidential information, no personal use of town property and no “improper gifts” from any entity likely to have a matter pending before the board, committee or commission on which the official serves.
The draft ordinance also spells out a reporting process, including a complaint form.
In reviewing the draft, Councilor Richard Tripp had several questions. “What is this? An ordinance? A policy?” he asked.
Osborne reviewed the history of the draft and said, “We did not want to do this in the abstract. We wanted to have an idea of what it would look like, have examples we could talk about.”
Tripp expressed concern about the first line, in which it states, “The purpose of this code is to provide an educational tool and to establish guidelines and community expectations for the ethical standards of conduct for town officials, board members and employees.”
“I don’t think of an ordinance as an ‘educational tool,’” he said.
He pointed out inconsistencies in language, where one paragraph said “members of families” and another said “Immediate family.”
“Most of my comments are wordsmithing,” Tripp said.
Councilor David Fischer reminded his colleagues that while in many places “it is the norm to hire friends, relatives and neighbors,” he wanted to see a process to assure that the best candidate be hired. “It should be what you know, not who you know,” Fischer said. “We need to look at our interviewing process, our hiring process.”
Osborne said, “If it’s an elected or appointed body and everyone has the same rules, it’s fair.”
Councilor Joshua Bourdon said he thought the draft was worth discussing. “Whatever the outcome, I’m pretty sure there will still be situations that will come up,” he said. “We’ll never find the magic bullet. At the end of the day, the individual officials are morally responsible to recuse themselves.”
“I would like to spend more time on this and go through it page by page,” Councilor Phyllis Katsakiores said.
“It would be easier to form a subcommittee and refine it,” Tripp pointed out, “than to have the seven of us discuss it in public.”
“Easier on the audience,” Bourdon quipped.
Osborne noted that adherence to ethical principles “should be a given. But it can’t be a given unless we have a solid understanding of those principles.”