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HomeMy WebLinkAboutOPINION - 7/19/2016- CONFLICT,DECISOIN,DECLARE,PRESENT,STAKEHOLDER,VARIANCE2016-1 Formatte OPINION OF THE ETHICS REVIEW BOARD OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS July 19, 2016 LCj1�,!l]4',',CS 18 kcrsiorlare Formatte The City Council Ethics Review Board ("the Board") rnet on July, 12, 2016, to render an advisory, opinion on a question submitted to the Board by Councilmember Gino Canipana. The question presented is the extent to which a member ofa City board or g,.)rMl-),iSsJon_Ctr. "erred to as, "boardniernber".1, may take action as a private citizen (and not as a boardniember) to influence the decision of his or her board after declaring a conflict of interest in that decision. The pending inquiry also requests review ofthe question as it relates to City COUncilmernbers. L-y"01111--ine. 1F0 J lic Board intts ticlSicA(b(t_LiJ!�ohibit ol"rorMill Connection with a decisiml in �-Formatte \0,iich I'le or she hots a finaincizfl: i The Mard recorm mel'Ids that Council a&,)Lj. C, A ode m-ovisions to lin'liL boardnielnhers from other in ............ . . the c�lec . S t ( I os �err DCM'Le �-e Et—i'll J-r/ L cc 2_t a i a variance for slN6�1 --h rdsh pjja!j )c�,pwgranwd, I [_-7--- Thc Board recommends that( itv (7ouncilinembers Continue to he limited fi,onii I, I t 114, aliv t 2r -r— � . . . . . ......... I ........................ I .... . ---U . . .... ..... interests before the (,'ouncd or other City board or con-iii-fission. WMMM In contrast to the questions commonly before the Ethics Review Board for consideration, this inquiry relates not to whether conflict ofinterest must be declared, but rather to w1r 4ief-what4w limits to a boardmember or Councilmernber once a conflict has been declared. Article W, Section 9(b) of the City Charter states as follows (emphasis added): Formatte P't, (b) Rules of conduct concerning conflicts of interest, Formatte Line spacii (1) Sales to the city. No officer or em,ployee i or relative of such officer or employee, shall Formatte have a financial interest in the sale to the city of any real or personal property, equipment, r't Supers ["Formatte pt ------------ -- 1111 C C harter del-mes, -offilic o g! f L� to I'lled er-r- 11 Qycc 11 -anv luLLt LtrigjLp�).sitiorl by clection. Formatte pt Supers Mll!��DIJA.flie service 0I III I full-lirrie. includinu a meinb- f ........ ...... .. commillee, or conimissjori.ol-I . ..... I )rit Formatte ;iiiablish d.1.111der,alhe wisions c)f` (lie ('olora(lo­­Revisec] Stalutes: �pr - ---------- ­­.— - ----- - - ---------- --- ----- - U AeRIC(I hV St,'Ae St�,MIINN M[OS OfeflliCa� CQIWUCI� alltl Formatte Roman, I X ress IL�Lx I t � I T!Egy � S i ci ns, of'th s A rl icl e h%' Q rd i IN cill CC 0 f t I le C OLUIC i 1. 0 11 GuArter Art, IV._§_() al Formatte Roman, 1: Ethics Opinion 20lO-1 July l9,2Vl6 Page 2 material, supplies or services, except personal services provided to the city as an officer or employee, if: a. such officer oremployee isamember ofthe Council; b. such officer or employee exercises, directly or indirectly, any decision -making authority concerning such sale; mr c. in the case afservices, such officer or employee exercises any supervisory authority over the services to be rendered tmthe city. (2)Purchases from the city. No officer, employee or relative shall, directly or indirectly, purchase any real or personal property from the city, except such property as is offered for sale at an established price, and not by bid or auction, on the same terms and conditions as to all members ofthe general public. (3)interests in other decisions. Any officer o,employee who has, or whose relative has, a financial or personal interest in any decision of any public body of which he or she is a member or to which he or she makes recommendations, shall, upon discovery thereof, disclose such interest in the official records of the city in the manner prescribed in subsection (4) hereof, and shall refrain from voting on, attemipting to influence, or otherwise participating in such decision in any manner as an officer or employee, (4)0bclosure procedure. If any officer or employee has any financial or personal interest requiring disclosure under subsection (3�) of this section, such person shall immediately upon discovery thereof declare such interest �bydelivering awritten statement tothe City Clerk, with copies to the City Manager and, ifapplicable, tothe chairperson of the public body of which such person is a member, which statement shall contain the name of the officer or employee, the office or position held with the city by such person, and the mature of the interest. If said officer or employee shall discover such financial or personal interest during the course of meeting or in such other circumstance as to render it practically impossible to deliver such written statement prior to, action upon the matter in question, said officer oremployee shall immediately declare such interest bygiving oral notice to all present, including a description of the nature ofthe interest. (5)Viobdums. Any contract made in violation of this Section shall be voidable by the city. If voided within one (1) year of the date of execution thereof, the party obtaining payment by reason of such contract shall, if required by the c[ty, forthwith return to the city all or any designated portion of the monies received by such individual from the city by reason of said contract, together with interest atthe lawful maximum rate for interest onjudgments. �tethics opinions evaluating the Charter limitations on boerdomomnber and shal-L�_wvjlh tile (ffil(Lc Ethics Opinion 2016-1 July 19, 2016 Page 3 representing the interests of others before a board member's board (not allowed where as conflict has been declared), and representing personal interests before that board (allowed in the interests of preserving personal rights of boardmembers). This distinction has raised concerns in recent months in part becaLlse some City boards include, or are required under the Code to include, professionals in fields related to that board's functions. A-s-a-+&st4t-4+&K-' - I ' liere are challenges posed by a bar oil appearing in front of that board by board members, partiCUlarly those who are sole practitioners and do not have colleagues who can work on client matters as needed. In these situations, while the boardmernber does not participate a member of the board, there is a question as to the extent to which lie or she must avoid any participation as all advocate or representative for an applicant or other party. In addition to these Charter limitations on Councilmernbers with conflicts of interest, Section 2-568(c)(2) of the Fort Collins Municipal Code provides that "No Councilmernber shall represent any person or interest before the City Council or any board or commission of the City." Application of Citv Charter Provisions. I. -As an Officer or Employee. - A COUncif-adopted "Policy Statement oil E'thics," in place from 1988 until it was superseded by the adoption of the conflicts provisions in the Charter. in 1989, prohibited boardmembers from acting in a representative capacity for compensation to influence a decision of his or her board. In contrast, the relevant Charter language, adopted by the voters in March 1989, prohibits a boardmember with a conflict of interest in a board decision from "attempting to influence, or otherwise participating in such decision in any manner as an officer or employee." (City Charter Article IV, Section 9(b)(3) (einlAtisis atleieef")). This Charter provision has been specifically addressed in three Ethics Opinions: Ethics Opinion 91-2 distinguished between board me rn bers addres'sing Lhei al person interests and boardmembers representin um-ioii-of the interests of others: The Board believes that members of City boards oT commissions, as non -elected citizen volunteers, should not be required to give Up the right to protect their personal interests when they might be directly affected by a board or commission, even if they serve on. that board or commission, This right should not extend, however, to representing, interests other than their own individual interests. For example, while as nlemberofthe Zoning Board of Appeals should be able to ar-LIC in favor of as variance for his or, her private residence, that same board member should not be permitted to serve in a representative capacity, with or without compensation, and make Ethics Opinion 2016-1 July 19, 2016 Page 4 presentations to the Zoning Board of Appeals on behalf of another person or entity, such as a developer or neighborhood association. (Ethics Opinion 91-2, page 2). Ethics Opinion 91-3, citing to Ethics Opinion 91-32, indicated that the limits on a Councilrnernber's participation did not extend to that Councilmernber's spouse, so long as the Councilmember declared a conflict of interest and did not participate in any way in the subject Planning and Zoning Board decision. (Ethics Opinion 91-3, page 4). Ethics Opinion 98-1, which was approved by the City Council in Resolution 98-53,3 addressed the question of personal appearances by a boardmernber on behalf of a client vi-ft here the boardmember had declared a conflict of interest and was not participating iiin Ike as a member of the board. That opinion, also citing to Ethics Opinion concluded that such appearances before one's own board in a representative capacity would not be allowed, but did not address whether other means of advocating to the board, or providing other materials for consideration by the board, on behalf of a client would also be prohibited. (Ethics Opinion 98-1, pages 3-4). After a thoughtful review of these prior ethics opinions, the Board has carefully considered the language of the Charter, and is concerned applying the Charter language to activities gift47-af-e-not carried out by an individual in his or her role "as an officer or employee,*' goes beyond the intended meaning and proper interpretation of the language of the Charter. Lplease 110te that diffe,,rent considerations apply W the activities Of' COUne, J I inem bers. in contrast to boardinembers, as described belojyj_ The Board recognizes 4iat—there, is a need to carefully govern both the involvement of board rn ern bers in RifiReFS i n--v,44c4+-w fie re they have declared a conflict, and to avoid any appearance of impropriety that might result frorn boardrnernber advocacy to said member's own board. However, the Board believes it would be more appropriate for the Council to adopt City Code provisions establishing specific requirements and procedures regarding how boardmembers may participate in a matter once a conflict has been identified, rather than rely on a broad reading of the Charter provision. The Board also recommends exception or variance process tl,iato allows participation in circumstances of hardship or other special circumstances, provided that the decision making board could continue to carry out its decision making role properly. 2. "Attempting to Influence." In addition, the Board has considered the question of what constitutes "attempting to influence" a decision. M geiiet:flk "lie The Board concluded that participating in discussion of a particular 3 In July 1993, the City COLHICH adopted Ordinance No. 064, 1993, which changed the process for adoption of ethics opinions so as to require CoLincil review and approval. Ethics Opinion 2016-1 July 19, 20 16 Page 5 matter as a boarchnernber is likely difficult to distinguish from "attempting to influence," and should be avoided. Many board decisions of significance are quasiJudicial matters that do not allow for ex parte communications or discussion with stakeholders outside of the hearing process, In those circumstances, the potential for confusion regarding the role in which an individual is, acting is very limited. Hie Board believes guidelines are needed to set out the limits on and types of interactions that are permissible where a conflict of interest is present. For L_1LiJdClJ11CS COUICk Prohibit bmirdillembers fi-(2ul 1m�m: a pg�,(y hefc)re Quit bo�ardmeniber's, hoard - . . . Quit . . .... ­­ - - ............... other specCipd ch-cumstanccs creatc unfairriess for the L ef Irrc 1" 11v to IncUde audwrh'n,(ifiateK1al ? ;p0 ate o .... ................ _�..j................ ..11,Iy.:r inf'orin ilic board abOffl I S "LL' Ot I !�i 1 of inf'ormation to flw board or interaction ........ . ....... . with the hoard to resL)L)�IcJ to ct,��esdons: i ri the -design or i iecrino of a pro boardmember active a -IJ J) tion or intcract.k,:)n q!�&A,�jbc work does not.in .......... --------- . ...... . %Vith thc boa QarH'v that altlacarar i r,l botu-cinicniber rnm havc a conflict of interest because his or her. . . ........... I`irin is acOveIN) worki H; 1 _111,1s, _111enrly, 1� n!")� L�ru,�L(ad i Fick] rrOLID —the 12Mjs�c°Lbo IoiLg as the boardnietniber reCUSeS s h�jnclfor hersell I as a hoirdmher: . ... . ...... . ..... . . ...... . .nie. .... L'stablish a discIMMI-e for a boardmengber to use Nyhen the boardniernber 111LIS1 ........... ................ ... .... . ...... I 1)(L(L�rc his or 11cr board to.j. ct a,1,) illie (.,St,­ 3. COUnCifi-nernber Appearances. s As noted above, e., 1121L.Mue 210 'erli may a 7L concerning the second question, tlra Councilmernber appear before Council, after declaring and disclosing a conflict of interest, and participate on behalf of an interested stakeholder ifthey do not personally appear before Council to advocate on behalf of another Section 2-568(c)(2) of the Fort Collins Municipal Code provides that "No COUncilrnember shall represent any pet -'son or interest before the City Council or any board or commission of the City." In addition, Colorado statute requires that members of local government governing bodies abstain from any matter in either a personal or an official capacity in the event of a conflict in order to avoid a breach of fiduciary duty and public trust. (Section 24-18-109(3)(a), CKS.). In light of these provisions, the Board wes_4n-t�t4ieil�r ,feeffi,,-wLt-,Lies4+m it is appropriate to hold COUncili-nembers to a higher standard and I irnit more strictly Councilmember Formatte + Agned Ethics Opinion 2016-1 .July 19, 2016 Page 6 ---c.MjqqLi in any decision in which that Councilmernber has a conflict of interest. - I ' ess, in extreme circumstances this e�+"A Li)L4y preclude a COUncilmember from defending his or her own personal interests, Board Conclusions and Recommendations: I . The language of Article IV, Section 9(b)(3) of the City Charter ,4*A-14&-is most reasonably interpreted to limit the actions of a City officer or employee pal-y in his or her capacity as an officer or employee, and not outside ofthat role. 2. 'rhe Council should adopt City Code provisions to establish restrictions and reqUirements related to actions of boardmembers, in a representative capacity and in a personal capacity (outside of the boardmember role) fix- matters in which they have a conflict of interest. gala !a'. tlar jines described in Section 21 m� I above. The Board al-so-recornmends tia)n ofa variance process t-ha-t-\Aq-)-uk-fto allow boardmeirthcr im/61yernent t) ia . . .. . .... . .... — J-v..e (Ii,g �-t..a k-cl.l.o in theak case ofhardships or other special cirCLUnstances that creme unftairness @:or the boarchrien1bel, Or" Other iersons. 3. The restriction on Councilmember representation of any persons or interests before the Council or a City board or commission should remain in place, although it may be beneficial to clarify this language to distinguish between representation where as Councilmernber has a financial or personal interest (as defined in the Charter), and representation in the sense of advocating for certain policy or other interests in the role as a Councilmernber. This advisory opinion was reviewed and approved by COUnCilmembers Ray Martinez, Gino Campana, and Kristin Stephens, as the designated regular members of the Ethics Review Board. aaasa+t act tat t.Drrcler Section 2-569(c) of the City Code, this opinion and recommendation is to be irrum,diately filed with the City Clerk and made available for public inspection. -A-d-d4kHi,+"i4s jjjjLopinion s4a44-%vjl1 be considered by the City Council at its adjjourned meeting on July 26, . ...... ....... 2016, Dated this 19th day of.luly, 2016. Carrie M. Daggett, City Attorney 2016-1 OPINION OF THE ETHICS REVIEW BOARD OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS July 19, 2016 The City Council Ethics Review Board ("the Board") met on July 12, 2016, to render an advisory opinion on a question submitted to the Board by Councilmember Gino Campana. The question presented is the extent to which a member of a City board or commission (together referred to as "boardmember") may take action as a private citizen (and not as a boardmember) to influence the decision of his or her board after declaring a conflict of interest in that decision. The pending inquiry also requests review of the question as it relates to City Councilmembers. Bottom Line. The Board interprets Article IV, Section 9(b)(3) of the City Charter to prohibit any officer or employee of the City from acting as an officer or emnloyee in connection with a decision in which he or she has a financial or person interest. The Board recommends that Council adopt City Code provisions to limit boardmembers from other participation in those decisions (in a personal or representative capacity) except when a variance for special hardship has been granted. The Board recommends that City Councilmembers continue to be limited from representing any persons or interests before the Council or other City board or commission. Backitround. In contrast to the questions commonly before the Ethics Review Board for consideration, this inquiry relates not to whether a conflict of interest must be declared, but rather to what limits apply to a boardmember or Councilmember once a conflict has been declared. Article IV, Section 9(b) of the City Charter states as follows (emphasis added): (b) Rules of conduct concerning conflicts of interest. (1) Sales to the city. No officer or employee,' or relative of such officer or employee, shall have a financial interest in the sale to the city of any real or personal property, equipment, 1 The Charter defines "officer or employee" to mean "any person holding a position by election, appointment or employment in the service of the city, whether part-time or full-time, including a member of any authority, board, committee, or commission of the city, other than an authority that is: (1) established under the provisions of the Colorado Revised Statutes; (2) governed by state statutory rules of ethical conduct; and (3) expressly exempted from the provisions of this Article by ordinance of the Council." Charter Art. IV, § 9(a). /oW, 2 The Charter defines "relative" to mean: "the spouse or minor child of the officer or employee, any Ethics Opinion 2016-1 July 19, 2016 Page 2 material, supplies or services, except personal services provided to the city as an officer or employee, if: a. such officer or employee is a member of the Council; b. such officer or employee exercises, directly or indirectly, any decision -making authority concerning such sale; or c. in the case of services, such officer or employee exercises any supervisory authority over the services to be rendered to the city. (2) Purchases from the city. No officer, employee or relative shall, directly or indirectly, purchase any real or personal property from the city, except such property as is offered for sale at an established price, and not by bid or auction, on the same terms and conditions as to all members of the general public. (3) Interests in other decisions. Any officer or employee who has, or whose relative has, a financial or personal interest in any decision of any public body of which he or she is a member or to which he or she makes recommendations, shall, upon discovery thereof, disclose such interest in the official records of the city in the manner prescribed in subsection (4) hereof, and shall refrain from voting on, attempting to influence, or otherwise participating in such decision in any manner as an officer or employee. /4� (4) Disclosure procedure. If any officer or employee has any financial or personal interest requiring disclosure under subsection (3) of this section, such person shall immediately upon discovery thereof declare such interest by delivering a written statement to the City Clerk, with copies to the City Manager and, if applicable, to the chairperson of the public body of which such person is a member, which statement shall contain the name of the officer or employee, the office or position held with the city by such person, and the nature of the interest. If said officer or employee shall discover such financial or personal interest during the course of a meeting or in such other circumstance as to render it practically impossible to deliver such written statement prior to action upon the matter in question, said officer or employee shall immediately declare such interest by giving oral notice to all present, including a description of the nature of the interest. (5) Violations. Any contract made in violation of this Section shall be voidable by the city. If voided within one (1) year of the date of execution thereof, the party obtaining payment by reason of such contract shall, if required by the city, forthwith return to the city all or any designated portion of the monies received by such individual from the city by reason of said contract, together with interest at the lawful maximum rate for interest on judgments. Past ethics opinions evaluating the Charter limitations on boardmembers with a conflict of interest have distinguished between representing the interests of others before a boardmember's board (not person claimed by the officer or employee as a dependent for income tax purposes, or any person residing in and sharing with the officer or employee the expenses of the household." Charter Art. IV, § 9(a). /1006N Ethics Opinion 2016-1 July 19, 2016 Page 3 allowed where a conflict has been declared), and representing personal interests before that board (allowed in the interests of preserving personal rights of boardmembers). This distinction has raised concerns in recent months in part because some City boards include, or are required under the Code to include, professionals in fields related to that board's functions. There are challenges posed by a bar on appearing in front of that board by board members, particularly those who are sole practitioners and do not have colleagues who can work on client matters as needed. In these situations, while the boardmember does not participate as a member of the board, there is a question as to the extent to which he or she must avoid any participation as an advocate or representative for an applicant or other party. In addition to these Charter limitations on Councilmembers with conflicts of interest, Section 2-568(c)(2) of the Fort Collins Municipal Code provides that "No Councilmember shall represent any person or interest before the City Council or any board or commission of the City." Application of City Charter Provisions. f°"a 1. "As an Officer or Employee." A Council -adopted "Policy Statement on Ethics," in. place from 1988 until it was superseded by the adoption of the conflicts provisions in the Charter in 1989, prohibited boardmembers from acting in a representative capacity for compensation to influence a decision of his or her board. In contrast, the relevant Charter language, adopted by the voters in March 1989, prohibits a boardmember with a conflict of interest in a board decision from "attempting to influence, or otherwise participating in such decision in any manner as an officer or employee." (City Charter Article IV, Section 9(b)(3) (emphasis added)). This Charter provision has been specifically addressed in three Ethics Opinions: • Ethics Opinion 91-2 distinguished between boardmembers addressing their own personal interests and boardmembers representing the interests of others: The Board believes that members of City boards or commissions, as non -elected citizen volunteers, should not be required to give up the right to protect their personal interests when they might be directly affected by a board or commission, even if they serve on that board or commission. This right should not extend, however, to representing interests other than their own individual interests. For example, while a member of the Zoning Board of Appeals should be able to argue in favor of a variance for his or /00%\ her private residence, that same board member should not be permitted to serve in a representative capacity, with or without compensation, and make Ethics Opinion 2016-1 July 19, 2016 Page 4 presentations to the Zoning Board of Appeals on behalf of another person or entity, such as a developer or neighborhood association. (Ethics Opinion 91-2, page 2). • Ethics Opinion 91-3, citing to Ethics Opinion 91-2, indicated that the limits on a Councilmember's participation did not extend to that Councilmember's spouse, so long as the Councilmember declared a conflict of interest and did not participate in any way in the subject Planning and Zoning Board decision. (Ethics Opinion 91-3, page 4). • Ethics Opinion 98-1, which was approved by the City Council in Resolution 98-53,3 addressed the question of personal appearances by a boardmember on behalf of a client where the boardmember had declared a conflict of interest and was not participating as a member of the board. That opinion, also citing to Ethics Opinion 91-2, concluded that such appearances before one's own board in a representative capacity would not be allowed, but did not address whether other means of advocating to the board, or providing other materials for consideration by the, board, on behalf of a client would also be prohibited. (Ethics Opinion 98-1, pages 3-4). After a thoughtful review of these prior ethics opinions, the Board has carefully considered the language of the Charter, and is concerned that applying the Charter language to activities not carried out by an individual in his or her role "as an officer or employee" goes beyond the intended meaning and proper interpretation of the language of the Charter. (Please note that different considerations apply to the activities of Councilmembers, in contrast to boardmembers, as described below.) The Board recognizes there is a need to carefully govern both the involvement of boardmembers where they have declared a conflict, and to avoid any appearance of impropriety that might result from boardmember advocacy to said member's own board. However, the Board believes it would be more appropriate for the Council to adopt City Code provisions establishing specific requirements and procedures regarding how boardmembers may participate in a matter once a conflict has been identified, rather than rely on a broad reading of the Charter provision. The Board also recommends an exception or variance process that allows participation in circumstances of hardship or other special circumstances, provided that the decision making board could continue to carry out its decision making role properly. 3 In July 1993, the City Council adopted Ordinance No. 064, 1993, which changed the process for adoption of ethics opinions so as to require Council review and approval. /00%\ Ethics Opinion 2016-1 July 19, 2016 Page 5 2. "Attempting to Influence." In addition, the Board has considered the question of what constitutes "attempting to influence" a decision. The Board concluded that participating in discussion of a particular matter as a boardmember is likely difficult to distinguish from "attempting to influence," and should be avoided. Many board decisions of significance are quasi-judicial matters that do not allow for ex pane communications or discussion with stakeholders outside of the hearing process. In those circumstances, the potential for confusion regarding the role in which an individual is acting is very limited. The Board believes guidelines are needed to set out the limits on and types of interactions that are permissible where a conflict of interest is present. For example the guidelines could: • Prohibit boardmembers from representing a party before that boardmember's board, except when special hardship or other special circumstances create unfairness for the boardmember or other persons; • Define representation of a party to include authoring of materials prepared to advocate or inform the board about a project, presentation of information to the board or interaction with the board to respond to questions; • Allow design or engineering of a project by a boardmember so long as the work does not include active participation or interaction with the board; • Clarify that although a boardmember may have a conflict of interest because his or her firm is actively working on a project, this means that the firm is not disqualified from the project so long as the boardmember recuses himself or herself as a boardmember; and • Establish a disclosure process for a boardmember to use when the boardmember must appear before his or her board to protect a personal interest. Councilmember Appearances. As noted above, express Code language governs concerning the second question (may a Councilmember appear before Council, after declaring and disclosing a conflict of interest, and participate on behalf of an interested stakeholder if they do not personally appear before Council to advocate on behalf of another person). Section 2-568(c)(2) of the Fort Collins Municipal Code provides that "No Councilmember shall represent any person or interest before the City Council or any board or commission of the City." In addition, Colorado statute requires that members of local government governing bodies abstain from any matter in either a personal or an official capacity in the event of a conflict in order to /OW\ avoid a breach of fiduciary duty and public trust. (Section 24-18-109(3)(a), C.R.S.). Ethics Opinion 2016-1 July 19, 2016 Page 6 In light of these provisions, the Board agrees it is appropriate to hold Councilmembers to a higher standard and limit more strictly Councilmember participation in any decision in which that Councilmember has a conflict of interest. Nevertheless, in extreme circumstances this may preclude a Councilmember from defending his or her own personal interests. Board Conclusions and Recommendations: 1. The language of Article IV, Section 9(b)(3) of the City Charter is most reasonably interpreted to limit the actions of City officer or employee only in his or her capacity as an officer or employee, and not outside of that role. 2. The Council should adopt City Code provisions to establish restrictions and requirements related to actions of boardmembers, in a representative capacity and in a personal capacity (outside of the boardmember role) for matters in which they have a conflict of interest, along the lines described in Section 2 on page 5, above. The Board recommends adoption of a variance process to allow boardmember involvement in a matter (as a representative or a stakeholder) in the case of hardships or other special circumstances that create unfairness for the boardmember or other persons. 3. The restriction on Councilmember representation of any persons or interests before the Council or a City board or commission should remain in place, although it may be beneficial to clarify this language to distinguish between representation where a Councilmember has a financial or personal interest (as defined in the Charter), and representation in the sense of advocating for certain policy or other interests in the role as a Councilmember. This advisory opinion was reviewed and approved by Councilmembers Ray Martinez, Gino Campana, and Kristin Stephens, as the designated regular members of the Ethics Review Board. Under Section 2-569(e) of the City Code, this opinion and recommendation is to be immediately filed with the City Clerk and made available for public inspection. This opinion will be considered by the City Council at its adjourned meeting on July 26, 2016. Dated this 19th day of July, 2016. Carrie M. Daggett, City Attorney Ethics Opinion 2016-1 July 19,2016 Page 7