SENATE BILL No. 1217

 

 

April 20, 2006, Introduced by Senators WHITMER, SCHAUER, OLSHOVE, CHERRY, JACOBS, BASHAM, BARCIA and BRATER and referred to the Committee on Government Operations.

 

 

 

     A bill to establish standards of ethical conduct for employees

 

and officials in the executive branch of state government; to

 

impose certain conditions on employees and officials in the

 

executive branch of state government and enhance accountability; to

 

require public disclosure by employees and officials in the

 

executive branch of state government of certain transactions and to

 

require the filing of a transactional disclosure statement; to

 

create a board of ethics; to provide for enforcement; to prescribe

 

penalties and provide remedies; and to repeal acts and parts of

 

acts.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

             CHAPTER 1. DEFINITIONS; GENERAL PROVISIONS.

 


     Sec. 101. This act shall be known and may be cited as the

 

"ethics act for executive branch officials and employees".

 

     Sec. 103. This act is intended to implement section 10 of

 

article IV of the state constitution of 1963. It is the intent of

 

the legislature that this act shall be taken into consideration in

 

determining the construction and effect of section 10 of article IV

 

of the state constitution of 1963.

 

     Sec. 105. For the purposes of this act:

 

     (a) "Anything of value" means a tangible or intangible item

 

that has economic value and that could reasonably be considered to

 

be an advantage or of worth, use, or service to the person upon

 

whom it is conferred. Anything of value does not include any of the

 

following:

 

     (i) An unsolicited token or award with a value of less than

 

$150.00.

 

     (ii) An unsolicited advertising item with a value of less than

 

$50.00.

 

     (iii) An unsolicited publication with a market value of less

 

than $50.00 on an annual basis.

 

     (iv) A discount afforded to the general public or a specified

 

group or occupation under normal business conditions. However, the

 

discount may not be based on the fact of public service unless it

 

is a discount program approved by the board.

 

     (v) A contribution to a bona fide charity, made in response to

 

a direct solicitation from an executive official or employee or a

 

person acting at his or her direction.

 

     (vi) An unsolicited benefit conferred by a person or business

 


if the economic value totals less than $100.00 per calendar year

 

and if there is no express or implied understanding or agreement

 

that a vote, official action, or decision of an executive official

 

or employee will be influenced.

 

     (vii) A tangible or intangible item for a legitimate

 

educational purpose or benefit.

 

     (viii) Campaign contributions that are made and reported under

 

the Michigan campaign finance act, 1976 PA 388, MCL 169.201 to

 

169.282.

 

     (ix) Compensation or reimbursement of expenses from the state

 

for duties of the office or position.

 

     (b) "Board" means the state board of ethics created under

 

section 401, except where the context clearly requires a different

 

definition.

 

     (c) "Confidential information" means information made

 

confidential by law or information that is conveyed or accepted

 

with the understanding that the information will be used for

 

official purposes only.

 

     (d) "Conflict of interest" means a close economic association

 

or personal relationship between an executive official or employee

 

and a person that is likely to be substantially affected by an

 

official action or decision of an executive official or employee

 

that a reasonable person would believe conflicts with the public

 

duty or obligation of the executive official or employee to

 

exercise objective independent judgment or that a reasonable person

 

would believe creates the appearance that the person may have undue

 

access to confidential information or may otherwise receive favored

 


treatment regarding a public action. Conflict of interest does not

 

include a contract arising out of the status of being a student at

 

a state institution of higher education authorized by section 5 or

 

6 of article VIII of the state constitution of 1963 if the student

 

is elected or appointed to the governing board of the institution.

 

     (e) "Employee" means an employee, classified or unclassified,

 

of the executive branch of state government.

 

     (f) "Executive official" means any of the following

 

individuals within the executive branch of state government:

 

     (i) An individual appointed by the governor.

 

     (ii) An individual appointed by an official or body within the

 

executive branch other than the governor who is not a member of the

 

state classified service.

 

     (iii) A member of a board of control of an institution of higher

 

education authorized by section 6 of article VIII of the state

 

constitution of 1963.

 

     (iv) A president of an institution of higher education

 

authorized by section 5 or 6 of article VIII of the state

 

constitution of 1963 or a deputy of the president when exercising a

 

power vested in the president.

 

     (v) An elected official in the executive branch of state

 

government, including the following:

 

     (A) The governor.

 

     (B) The lieutenant governor.

 

     (C) The attorney general.

 

     (D) The secretary of state.

 

     (E) A member of the state board of education.

 


     (F) A regent of the university of Michigan.

 

     (G) A member of the board of trustees of Michigan state

 

university.

 

     (H) A member of the board of governors of Wayne state

 

university.

 

     (g) "Governmental decision" means a determination, action,

 

vote, or disposition upon a motion, proposal, recommendation,

 

resolution, ordinance, or measure on which a vote by the members of

 

a governmental entity is required and by which a governmental

 

entity formulates or effectuates public policy.

 

     (h) "Immediate family" means a child residing in the

 

individual's household, a spouse of the individual, or a person

 

claimed by that individual or that individual's spouse as a

 

dependent for federal income tax purposes.

 

     (i) "Outside employer or business" means any of the following:

 

     (i) An activity, other than service to the governmental entity,

 

from which the executive official or employee receives compensation

 

for services rendered or goods sold or produced.

 

     (ii) An entity, other than the governmental entity, if the

 

executive official or employee is a member, official, director, or

 

employee of the entity and he or she receives compensation for

 

services rendered or goods sold or produced by the entity.

 

Compensation does not include reimbursement for necessary expenses,

 

including travel expenses.

 

     (iii) An entity in which the executive official or employee has

 

an ownership interest, except a corporation in which the executive

 

official or employee owns less than 10% of the outstanding stock.

 


     (j) "Person" means an individual, sole proprietorship,

 

partnership, limited partnership, limited liability company,

 

corporation, association, or other legal entity.

 

     (k) "Transactional disclosure statement" means a report that

 

this act requires an executive official or employee to file in a

 

form prescribed by the board to reveal an actual or potential

 

conflict of interest or violation of this act and that includes all

 

of the following information:

 

     (i) A full description of the circumstances that present a

 

potential or actual conflict of interest or violation of the act.

 

     (ii) If applicable, the reason for the executive official's or

 

employee's abstention or refraining from acting.

 

                      CHAPTER 2. CODE OF ETHICS.

 

     Sec. 201. Except as otherwise provided by law, an executive

 

official or employee shall not use his or her public position, or

 

take or fail to take action, to obtain anything of value for

 

himself or herself or any other person or entity.

 

     Sec. 203. An executive official or employee shall not solicit

 

or accept anything of value in connection with his or her official

 

responsibilities.

 

     Sec. 205. An executive official shall not represent for

 

compensation a person in a matter that the person has before the

 

executive or legislative branch of state government.

 

     Sec. 207. (1) An executive official or employee or a former

 

executive official or former employee shall not use or disclose

 

confidential information to further his or her own or another

 

person's interests, except to the extent permitted by law.

 


     (2) An executive official or employee shall not engage in a

 

business transaction in which the executive official or employee

 

may profit from his or her official position or authority or

 

benefit financially from confidential information that the

 

executive official or employee has obtained or may obtain by reason

 

of that position or authority. Instruction that is done outside of

 

regularly scheduled working hours or during annual leave or

 

vacation time is not a business transaction under this subsection

 

if the instructor does not have any direct dealing with or

 

influence on the employing or contracting entity associated with

 

his or her course of employment with this state.

 

     Sec. 209. (1) An executive official or employee or an outside

 

employer or business with which the executive official or employee

 

is associated shall not enter into a contract valued at $1,500.00

 

or more with this state or a political subdivision of this state

 

unless the contract is awarded through an open and public

 

competitive process that includes prior public notice and

 

subsequent availability for public inspection of the proposals

 

considered and the contract awarded.

 

     (2) An executive official or employee who has or later

 

acquires an interest in an actual or proposed contract with this

 

state or a political subdivision of this state shall publicly

 

disclose the nature and extent of that interest as required by this

 

chapter.

 

     (3) A contract or agreement that is executed in violation of

 

this section is voidable only if the person who entered into the

 

contract or took assignment of the contract had actual knowledge of

 


the prohibited conflict. If a person is other than an individual,

 

the actual knowledge must be that of an individual or body finally

 

approving the contract. A contract involving a prohibited conflict

 

of interest under this act is voidable only by a decree of a court

 

of proper jurisdiction. A decree of a court of proper jurisdiction

 

may provide for the reimbursement of a person for the reasonable

 

value of money, goods, material, labor, or services furnished under

 

the contract, to the extent that the governmental entity has

 

benefited. This provision does not prohibit the parties from

 

reaching a settlement outside of court.

 

     Sec. 211. (1) Except as provided in sections 213 and 215, an

 

executive official shall abstain from acting formally or informally

 

on a matter before the official or a governmental body on which he

 

or she serves if he or she knows that acting on the matter, or

 

failing to act on the matter, may result in a conflict of interest

 

or a violation of this chapter.

 

     (2) If an executive official is required to abstain from

 

acting on a matter, he or she shall file a transactional disclosure

 

statement with the board within 10 days.

 

     Sec. 213. Section 211 does not apply and an executive official

 

may vote on, make, or participate in making a governmental decision

 

if all of the following circumstances are present:

 

     (a) The requisite quorum necessary for official action on the

 

governmental decision by the public entity to which the executive

 

official has been elected or appointed would not be available if

 

section 211 applied to bar the participation of the executive

 

official in the official action.

 


     (b) The executive official is not paid for working more than

 

25 hours per week for this state or a political subdivision of this

 

state.

 

     (c) The executive official verbally discloses any personal,

 

contractual, financial, business, or employment interest he or she

 

has in the governmental decision before the body acts on the

 

matter, the disclosure is made part of the public record of the

 

official action on the governmental decision, and a transactional

 

disclosure statement is filed with the board within 10 days of the

 

verbal disclosure.

 

     Sec. 215. If a governmental decision involves the awarding of

 

a contract, section 211 does not apply and an executive official is

 

permitted to vote on, make, or participate in making the

 

governmental decision if all of the following circumstances are

 

present:

 

     (a) All of the conditions of section 213 are fulfilled.

 

     (b) The executive official will directly benefit from the

 

contract in an amount less than $250.00 or less than 5% of the

 

public cost of the contract, whichever is less.

 

     (c) The executive official files a sworn affidavit containing

 

the information described in section 213(c) with the governmental

 

entity making the governmental decision.

 

     (d) The affidavit required by subdivision (c) is made a part

 

of the public record of the official action on the governmental

 

decision.

 

     Sec. 217. An executive official or employee with direct

 

responsibility for the management of a contract for goods or

 


services on behalf of this state shall refrain from acting formally

 

or informally on a matter before the executive official or employee

 

if he or she knows that acting on the matter, or failing to act on

 

the matter, may result in a conflict of interest or a violation of

 

this act. If an executive official or employee is required to

 

abstain from acting on a matter under this section, he or she shall

 

file a transactional disclosure statement with the board within 10

 

days.

 

     Sec. 219. An executive official or employee with direct

 

responsibility for the management of a contract for goods or

 

services on behalf of this state shall not do either of the

 

following:

 

     (a) Solicit or accept from a vendor providing goods or

 

services to this state a political contribution to or on behalf of

 

a committee under the Michigan campaign finance act, 1976 PA 388,

 

MCL 169.201 to 169.282.

 

     (b) Engage in discussions or negotiations with the vendor

 

providing goods or services to this state under the contract that

 

relate to the direct or indirect employment of the executive

 

official or employee by the vendor.

 

     Sec. 221. An executive official or employee shall not

 

represent his or her personal opinion as that of this state or a

 

department or agency of this state. This section does not prohibit

 

an elected executive official or the head of an executive branch

 

department or agency from representing the official position of

 

this state or a department or agency of this state, or from

 

expressing his or her personal opinion on any matter.

 


     Sec. 223. An executive official or employee shall use

 

personnel resources, property, and funds under the executive

 

official's or employee's official care and control judiciously and

 

solely in accordance with prescribed constitutional, statutory, and

 

regulatory procedures and not for personal gain or benefit.

 

     Sec. 225. (1) An executive official or employee shall not

 

engage in or accept employment or render services for a private or

 

public interest if that employment or service is incompatible or in

 

conflict with the discharge of the executive official's or

 

employee's official duties or if that employment may tend to impair

 

his or her independence of judgment or action in the performance of

 

official duties.

 

     (2) An executive official or employee shall not participate in

 

the negotiation or execution of contracts, making of loans,

 

granting of subsidies, fixing of rates, issuance of permits or

 

certificates, or other regulation or supervision relating to a

 

business entity in which the executive official or employee has a

 

financial or personal interest.

 

     Sec. 227. (1) A person shall not offer or give anything of

 

value in connection with the official responsibilities of an

 

executive official or employee to any of the following:

 

     (a) An executive official or employee.

 

     (b) A member of the executive official's or employee's

 

immediate family.

 

     (c) An outside employer or business with which the executive

 

official or employee is associated.

 

     (d) A customer or client of the executive official or

 


employee.

 

     (2) A person shall not induce or attempt to induce an

 

executive official or employee to violate any of the provisions of

 

this chapter.

 

     (3) Nothing in this section shall be construed to prohibit a

 

person from receiving a service or benefit, or from using a

 

facility, that is generally available to the public, provided the

 

person does so in the same manner or degree that is available to

 

the general public.

 

     (4) Under this section, a corporation, partnership, limited

 

liability company, or other entity is not vicariously liable for

 

the actions of an employee unless the employee acted in the

 

execution of company policy or custom.

 

     Sec. 229. This chapter does not prohibit conduct specifically

 

authorized by statute, rule, regulation, the state constitution of

 

1963, or the constitution of the United States.

 

                        CHAPTER 3. PENALTIES.

 

     Sec. 301. The person or body authorized by law to impose

 

disciplinary action shall initiate appropriate proceedings and may

 

take appropriate disciplinary action concerning an executive

 

official or employee who violates this act.

 

     Sec. 303. (1) An executive official or employee who has

 

knowledge that another executive official or employee has violated

 

chapter 2 may report the existence of the violation to a

 

supervisor, person, agency, or organization. An executive official

 

or employee who reports or is about to report a violation of

 

chapter 2 is not subject to any of the following sanctions because

 


he or she reported or was about to report a violation of chapter 2:

 

     (a) Dismissal from employment or office.

 

     (b) Withholding of salary increases that are ordinarily

 

forthcoming to the employee.

 

     (c) Withholding of promotions that are ordinarily forthcoming

 

to the employee.

 

     (d) Demotion in employment status.

 

     (e) Transfer of employment location.

 

     (2) Whenever an executive official or employee who has

 

reported or who intends to report a violation of chapter 2 is

 

subject to any of the sanctions under this section for reasons

 

other than the executive official's or employee's actions in

 

reporting or intending to report a violation of chapter 2, the

 

appointing or supervisory authority, before the imposition of a

 

sanction, shall establish by a preponderance of evidence that the

 

sanction to be imposed is not imposed because the executive

 

official or employee reported or intended to report a violation of

 

this act.

 

     (3) A person who violates this section is responsible for a

 

civil fine of not more than $1,000.00.

 

     (4) A civil fine recovered under this section shall be

 

deposited in the general fund of this state.

 

     Sec. 305. (1) A person who alleges a violation of section 303

 

may bring a civil action for appropriate injunctive relief, or

 

actual damages, or both within 90 days after the occurrence of the

 

alleged violation.

 

     (2) An action under subsection (1) may be brought in the

 


circuit court for the county where the alleged violation occurred,

 

the county where the complainant resides, or the county where the

 

person against whom the civil complaint is filed resides.

 

     (3) The court rendering judgment in an action under subsection

 

(1) may order reinstatement of the employee, back wages, full

 

reinstatement of fringe benefits and seniority rights, actual

 

damages, or any combination of these remedies as the court

 

considers appropriate. The court may also award the complainant all

 

or a portion of the costs of litigation, including reasonable

 

attorney fees and witness fees, if the court determines that the

 

award is appropriate.

 

     (4) As used in subsection (1), "damages" means damages for

 

injury or loss caused by each violation of section 303.

 

     Sec. 307. A person who violates this act is subject to a civil

 

fine of not more than $1,000.00 for each violation, in addition to

 

any other penalty provided in this act or other law of this state.

 

The civil fine shall be imposed by a court of proper jurisdiction

 

or the person or body authorized by law to impose sanctions. A

 

civil fine recovered under this section shall be deposited in the

 

general fund of this state.

 

     Sec. 309. A person who violates this act is liable for damages

 

to this state for losses or increased costs incurred by this state

 

as a result of the violation. Damages may be imposed by a court of

 

proper jurisdiction in addition to any other penalty contained in

 

another provision of law.

 

     Sec. 311. A person required under chapter 2 to file a

 

transactional disclosure statement who willfully files a false or

 


incomplete transactional disclosure statement or who fails to file

 

a transactional disclosure statement within the time prescribed is

 

guilty of a misdemeanor punishable by imprisonment for not more

 

than 90 days or a fine of not more than $1,500.00, or both.

 

                  CHAPTER 4. STATE BOARD OF ETHICS.

 

     Sec. 401. (1) The state board of ethics is created as an

 

autonomous entity within the department of civil service.

 

     (2) The board shall consist of 9 members, including 7 voting

 

members appointed by the governor with the advice and consent of

 

the senate, 1 of whom shall be designated by the governor as

 

chairperson and all of whom shall be residents of this state and

 

not associated with public employment. Not more than 4 members of

 

the board shall be members of the same political party. An

 

individual serving as a member of the board of ethics created under

 

1973 PA 196, MCL 15.341 to 15.348, on the day prior to the

 

effective date of this act shall serve as a member of the board of

 

ethics created under this chapter until the date on which his or

 

her term as a member of the board of ethics created under 1973 PA

 

196, MCL 15.341 to 15.348, would have expired had this act not been

 

enacted. An individual appointed as a member of the board after the

 

effective date of this act shall be appointed for a term of 4

 

years. If a vacancy occurs, the governor shall fill the vacancy for

 

the remainder of the unexpired term.

 

     (3) The attorney general and the state personnel director

 

shall serve ex officio as members of the board without the right to

 

vote.

 

     (4) Four voting members of the board shall constitute a

 


quorum, and the affirmative vote of 4 members shall be necessary

 

for any action. Members of the board shall serve without

 

compensation but may be reimbursed for their actual and necessary

 

expenses incurred in the performance of their duties. With the

 

consent of the civil service commission, the state personnel

 

director shall designate an employee of the department of civil

 

service acceptable to the board to act as executive secretary of

 

the board and shall provide clerical or administrative assistance

 

from the department of civil service as the board requests.

 

     (5) Except as provided in section 403, business conducted by

 

the board shall be conducted in compliance with the open meetings

 

act, 1976 PA 267, MCL 15.261 to 15.275. Notice of the meetings of

 

the board shall be made public in compliance with the open meetings

 

act, 1976 PA 267, MCL 15.261 to 15.275.

 

     (6) Except as provided in section 407, a writing prepared,

 

owned, used, in the possession of, or retained by the board in the

 

performance of an official function is subject to the freedom of

 

information act, 1976 PA 442, MCL 15.231 to 15.246.

 

     (7) A voting member of the board shall not while a member of

 

the board hold an elective public office or an elective political

 

party office or accept appointment to or become a candidate for an

 

elective public office or an elective political party office.

 

     Sec. 403. (1) The board shall do all of the following:

 

     (a) Receive complaints concerning alleged violations of this

 

act by an executive official or employee from any person or entity,

 

inquire into the circumstances surrounding the alleged violation,

 

and make recommendations concerning individual cases to the

 


appointing authority with supervisory responsibility for the

 

official or employee whose activities have been investigated. All

 

departments of state government shall cooperate with the board of

 

ethics in the conduct of its investigations. The board shall

 

review, index, maintain on file, dispose of complaints, make

 

notifications, and conduct investigations.

 

     (b) Initiate investigations of practices that could affect the

 

ethical conduct of an executive official or employee.

 

     (c) Hold public hearings.

 

     (d) Administer oaths or affirmations, subpoena witnesses,

 

compel their attendance, require the production of books or records

 

the board considers relevant or material, and receive sworn or

 

unsworn testimony.

 

     (e) Render, index, and maintain on file as provided under this

 

chapter advisory opinions upon request from an executive official

 

or employee or his or her appointing or supervisory authority

 

relating to matters affecting ethical conduct of an executive

 

official or employee.

 

     (f) Grant waivers under section 411.

 

     (g) Prepare and publish nonconfidential special reports and

 

technical studies to further the purposes of this act.

 

     (h) Provide training and education to executive officials and

 

employees regarding the requirements of this act.

 

     (i) Prepare reports as required under this act and recommend

 

proposed changes to this act.

 

     (j) Provide for public inspection of records required under

 

this act as authorized by law.

 


     (k) Select provisions of this act, special reports, and

 

technical studies for reproduction and distribution under this act.

 

     (l) Examine transactional disclosure statements filed under

 

this act, the supporting records, and other documents. The board

 

shall index and maintain on file for at least 7 years all

 

transactional disclosure statements filed under this act.

 

     (m) Promulgate rules in accordance with the administrative

 

procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, to carry

 

out the provisions of this act and to govern the board's

 

procedures. For a period of 1 year following the effective date of

 

this act, the board shall have full authority to exercise all of

 

its powers and duties in accordance with temporary rules of

 

procedure adopted by the board. Both the temporary rules adopted

 

and administrative rules promulgated may provide without limitation

 

for any of the following:

 

     (i) That the board may request the attendance of any witness

 

whose testimony, in the judgment of the board, will aid in the

 

conduct of its investigations.

 

     (ii) That a person appearing before the board must submit

 

either sworn or unsworn testimony as the board may decide and may

 

at all times be represented and accompanied by counsel.

 

     (iii) That a record of testimony taken before the board or a

 

hearing officer providing hearing officer services for the board

 

shall be made in the manner prescribed by the board.

 

     (iv) That the board may, when it appears to the board necessary

 

for the protection of individual rights, hold its meetings and

 

hearings in private. All other meetings and hearings shall be open

 


to the public.

 

     (2) Except for matters before the board involving the attorney

 

general or the department of attorney general, the attorney general

 

shall advise the board concerning legal matters in the issuance of

 

advisory opinions, investigative reports, recommendations, and

 

other reports. If a matter before the board involves the attorney

 

general or the department of attorney general, the attorney general

 

shall designate a special assistant attorney general who is not an

 

employee of the department of attorney general to advise the board

 

independently.

 

     (3) When a recommendation to an appointing authority is made

 

by the board that affects an employee in the state classified

 

service, the appointing authority shall initiate appropriate

 

proceedings in accordance with the recommendation and pursuant to

 

the rules of the civil service commission.

 

     (4) When a recommendation to an appointing authority is made

 

by the board concerning an unclassified employee or appointee, the

 

appointing authority shall take appropriate disciplinary action

 

which may include dismissal, suspension, or removal.

 

     (5) In any matter before the board where the board determines

 

that there may have been a violation of the laws of this state, the

 

board shall forward the matter to the governor and the attorney

 

general or another appropriate law enforcement authority, unless

 

the matter involves the attorney general or the department of

 

attorney general. When a matter involves the attorney general or

 

the department of attorney general, the board shall forward the

 

matter to the governor and the county prosecutor for the county of

 


Ingham or another appropriate law enforcement authority but not the

 

attorney general or department of attorney general.

 

     Sec. 405. (1) The board may act only with respect to the

 

executive officials, employees, former executive officials, and

 

former employees covered by this act.

 

     (2) The termination of an elected executive official's term of

 

office does not affect the jurisdiction of the ethics board with

 

respect to the requirements imposed on him or her by this act.

 

     Sec. 407. (1) If a majority vote of the board determines that

 

there is reason to believe that this act was violated, the board

 

shall initiate an investigative proceeding to determine whether a

 

violation occurred. The board shall mail a notice of the

 

investigation and the nature of the alleged violation to a person

 

under investigation within 5 days after the decision to undertake

 

an investigation is made. Every 60 days until a final determination

 

is made, the board shall mail to the complainant and to the person

 

under investigation notice of the action taken to date by the board

 

along with the reasons for the action or nonaction.

 

     (2) Except as otherwise required by law, the board's actions

 

and the records relative to an investigation shall be confidential

 

until the board makes a final determination under this chapter.

 

     (3) All state departments, agencies, and institutions shall

 

cooperate with the board when it is conducting an investigation.

 

     (4) If the board determines that this act was not violated,

 

the records and actions relative to the investigation and

 

determination shall remain confidential unless the person

 

investigated requests in writing that the records and actions be

 


made public. If the ethics board determines that this act was

 

violated, the board shall make a recommendation of sanction to the

 

appropriate authority designated in section 409.

 

     Sec. 409. (1) After a hearing providing for due process

 

procedural requirements and subject to applicable provisions of

 

law, the board may recommend disciplinary action. The

 

recommendation of the board shall be made to the person or body

 

authorized by law to impose or recommend discipline. For purposes

 

of this act, the person or body authorized by law to impose or

 

recommend discipline for an executive official is 1 of the

 

following:

 

     (a) For the governor, the state legislature as authorized in

 

the state constitution of 1963.

 

     (b) For an elected executive official other than the governor,

 

the governor.

 

     (c) For an executive official appointed by the governor, the

 

governor.

 

     (d) For an executive official appointed by an individual or

 

entity other than the governor or for an employee, the appointing

 

authority of the executive official or employee.

 

     (2) The board shall conduct and complete the hearing with

 

reasonable promptness. If the board refers the matter to the person

 

or body authorized by law to impose disciplinary action or if the

 

board refers the matter to the attorney general, the county

 

prosecutor for the county of Ingham, or other appropriate law

 

enforcement authority, the board may adjourn the matter pending

 

determination by the person, body, attorney general, prosecutor, or

 


other appropriate law enforcement authority.

 

     (3) After a hearing providing for due process procedural

 

requirements, the board may recommend that sanctions and penalties

 

be imposed upon an executive official or employee found by the

 

board to have violated this act. The recommendation of the board

 

shall be made to the person or body authorized by law to impose or

 

recommend sanctions. If ordered to pay a civil fine, the executive

 

official or employee shall pay the fine to the state treasurer for

 

deposit in the general fund.

 

     (4) The board may initiate an action or special proceeding in

 

the court of appropriate jurisdiction to obtain damages under

 

section 309.

 

     (5) A person other than the board shall not bring an action in

 

court alleging a violation of this act unless all of the following

 

apply:

 

     (a) The person initiating the action has first filed a sworn

 

statement with the board alleging the violation by the executive

 

official or employee.

 

     (b) Not less than 6 months and not more than 10 months have

 

elapsed since the statement was filed with the board, and the board

 

has failed to file a final determination in the matter.

 

     Sec. 411. (1) Upon written application and a showing of

 

compelling need by the executive official or employee, the board

 

may grant the executive official or employee a waiver of a

 

provision of this act.

 

     (2) A waiver may be granted only at an open meeting after

 

public notice as provided in the open meetings act, 1976 PA 267,

 


MCL 15.261 to 15.275. The notice shall state that a waiver is being

 

considered. A waiver shall be in writing and shall state the

 

grounds upon which it is granted.

 

     (3) Not more than 10 days after granting a waiver, the board

 

shall send a copy of the decision to the executive official or

 

employee, the person or body authorized by law to impose discipline

 

upon the executive official or employee, and the governor. The

 

decision shall include the name of the person requesting the waiver

 

and a general description of the circumstances of the waiver. The

 

board shall index and maintain on file the application, decision,

 

and other records and proceedings relating to a waiver proceeding.

 

     Sec. 413. (1) Upon the written request of an executive

 

official or employee, the board shall render a written advisory

 

opinion regarding the interpretation or application of this act.

 

     (2) Advisory opinions and requests for advisory opinions shall

 

be indexed and maintained on file by the board.

 

     (3) An executive official or employee who has submitted a

 

written request for an advisory opinion to the board may bring a

 

civil action against the board to compel it to issue the advisory

 

opinion. The complaint shall clearly identify the matters or

 

proceedings before the board. An action shall not be brought under

 

this subsection unless not less than 6 months or more than 10

 

months have elapsed since the filing of the request for an advisory

 

opinion and the board has failed to issue an advisory opinion in

 

the matter.

 

     (4) If an advisory opinion rendered by the board has not been

 

amended or revoked, it is binding on the board in a subsequent

 


proceeding concerning the person who requested the opinion and who

 

acted in good faith, unless the person omitted or misstated a

 

material fact. The person may rely on the advisory opinion, and a

 

court may receive the opinion as evidence for the person's defense

 

in a civil action.

 

     Sec. 415. A person aggrieved by a decision of the board may

 

seek judicial review and relief in a court of proper jurisdiction.

 

     Sec. 417. The board shall do both of the following:

 

     (a) Make information concerning this act available to each

 

executive official or employee, to the public, and to persons

 

interested in doing business with this state, through appropriate

 

means.

 

     (b) Develop educational materials and an educational program

 

for executive officials and employees to inform them of their

 

duties and responsibilities under this act.

 

     Sec. 419. (1) The board shall prepare and submit an annual

 

report to the governor and each house of the legislature,

 

summarizing the activities of the board under this act. The report

 

may also recommend statutory or administrative changes to this act.

 

     (2) The board shall review this act and the board's rules,

 

regulations, and administrative procedures annually to determine if

 

they set forth clear and enforceable common-sense standards of

 

conduct and promote integrity, public confidence, and participation

 

in state government.

 

     Sec. 421. (1) Not more than 90 days after the first meeting of

 

the board, and after then as appropriate, the board shall transmit

 

to each executive official and department copies of the provisions

 


of this act that the board considers necessary for distribution and

 

shall make copies available to the public.

 

     (2) The board shall furnish an executive official or employee

 

who is elected, appointed, or employed after the effective date of

 

this act with a copy of the selected provisions of this act within

 

10 days after he or she enters upon the duties of his or her

 

position.

 

     (3) The board's failure to comply with the provisions of this

 

section or an executive official's or employee's failure to receive

 

a copy of the provisions of this act does not affect the duty to

 

comply with or the ability to enforce this act.

 

     (4) The board shall transmit copies of special reports and

 

technical studies relating to this act and its administration to

 

the governor in a form suitable for distribution.

 

     Enacting section 1. 1968 PA 318, MCL 15.301 to 15.310, and

 

1973 PA 196, MCL 15.341 to 15.348, are repealed.

 

     Enacting section 2. This act does not take effect unless all

 

of the following bills of the 93rd Legislature are enacted into

 

law:

 

     (a) Senate Bill No. 1218.                                  

 

            

 

     (b) Senate Bill No. 1216.