HomeMy WebLinkAboutAGENDA ITEM SUMMARY - 7/12/2016- CAMPANA,BOARDS,COMMISSIONSFrom: Gino Campana
Sent: Monday, June 27, 2016 2:21 PM
To: Wanda Winkelmann; Wade Troxell
Cc: CCSL
Subject: Boardmembers and Liaisons ‐ Section 2‐568. Ethical rules of conduct
Wanda, I would like the Ethics Review Board (ERB) to consider and provide an advisory opinion
regarding the question of whether under the City Charter board and commission members may, after
declaring and disclosing a conflict of interest in a matter, participate in that matter on behalf of an
interested stakeholder (for example, as a technical professional providing advice to an applicant), so
long as they do not personally appear before the board to advocate on behalf of another person.
I would like the ERB to consider Councilmembers as well.
Thanks,
Gino Campana
gcampana@fcgov.com
(970) 460‐6329
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1
Cary Alton
From: Christine Macrina
Sent: Tuesday, July 05, 2016 5:05 PM
To: Christine Macrina
Cc: Carrie Daggett; Cary Alton; Wanda Winkelmann
Subject: Ethic's Review Board Meeting on Conflict of Interest
Attachments: Meeting Notice 2016-7-12.pdf
Board and Commission Members:
You may recall that there have been recent discussions regarding whether an individual board or commission member
who has declared a conflict of interest may present materials to his or her own board on behalf of a client or project. In
order to obtain more clear guidance on this issue, Councilmember Gino Campana has requested that the Council’s Ethics
Review Board consider this question and issue an ethics opinion. (The Ethics Review Board opinion is then presented to
the City Council for review and adoption by resolution.)
The Ethics Review Board is scheduled to meet at 4:00 p.m. for one hour on Tuesday, July 12th, in the City Attorney’s
Office conference room at 300 LaPorte Avenue. The meeting is a public meeting and is open for all interested persons
to attend. A copy of the formal notice of this meeting is attached.
You may want to provide input regarding this issue to the Ethics Review Board (either as a board/commission if you have
time to meet prior to July 12, or as an individual). If so, it will facilitate with coordination and allow the Ethics Review
Board to make efficient use of its meeting time for you to provide your comments in writing in advance through me by
noon on July 12, so that I can be sure to forward that input to the Board as it is received, in addition to including the
information in the Board’s meeting packet.
Please feel free to call if you have any questions or concerns regarding this process or how you may comment on it.
Thank you.
CHRISTINE MACRINA
Boards and Commissions Coordinator
City of Fort Collins
300 LaPorte Avenue
970-416-2525 office
cmacrina@fcgov.com
Item 1 Page 1
AGENDA ITEM SUMMARY July 12, 2016
City Council-Ethics Review Board
STAFF
Carrie M. Daggett, City Attorney
SUBJECT
Councilmember Campana’s Request for advisory opinion concerning declared boardmember conflicts of
interest and related involvement on behalf of an interested stakeholder (not as a board member), and
concerning the same issue as it relates to Councilmembers.
EXECUTIVE SUMMARY
This matter comes before the Ethics Review Board (“Board”) as a result of an inquiry from Councilmember
Gino Campana requesting that the Board consider and provide an advisory opinion regarding the question of
whether under the City Charter board and commission members, after declaring and disclosing a conflict of
interest in a matter, can participate in that matter on behalf of an interested stakeholder (for example, as a
technical professional providing advice to an applicant), so long as they do not personally appear before the
board to advocate on behalf of another person. This request also includes consideration of the same question
as it relates to Councilmembers.
BACKGROUND / DISCUSSION
The central issues for discussion before the Ethics Review Board are:
1. Can a board or commission member, after declaring and disclosing a conflict of interest in a matter,
participate in that matter on behalf of an interested stakeholder, so long as he or she does not
personally appear before the board to advocate on behalf of another person?
2. Can a Councilmember appear before Council, after declaring and disclosing a conflict of interest, and
participate on behalf of an interested stakeholder so long as he or she does not personally appear
before Council to advocate on behalf of another person?
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 whether what the limits are on 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, 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
Item 1 Page 2
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) 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.
The highlighted provision has been specifically addressed in two Ethics Opinions, both of which are attached.
One, Ethics Opinion 93-1, was adopted by the Council Ethics Review Board before the process called for
presentation of ethics opinions to the City Council for approval. 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. That Ordinance, which is also attached, added to the City Code language providing that
an ethics opinion approved by the Council would provide an affirmative defense to any civil or criminal action,
or any other sanction, to a Councilmember or boardmember who acted in reliance on it.
Ethics Opinion 98-1, which was approved by the City Council in Resolution 98-53, addressed the question of
personal appearances by a boardmember on behalf of a client in matters where the boardmember had
declared a conflict of interest and was not participating in the matter as a member of the board. That opinion
provided that such personal appearances 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.
This issue has been raised in part because some City boards include, or are required under the Code to
include, professionals in fields related to that board’s functions. As a result, 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 in the matter 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 for an applicant or other party.
Item 1 Page 3
Under the provision above regarding sales to the City there is a related question as to whether a
boardmember’s firm is disqualified from representing a client in front of that boardmember where the
boardmember has declared a conflict. This question has not been specifically raised, though it may be helpful
for the Ethics Review Board to confirm how it views this issue to relate to the question posed.
Concerning the second question, that is, 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, express Code language governs.
Section 2-568(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.”
If the Board would like to recommend further review and consideration of alternatives to this express Code
provision, it may be helpful to separate that discussion from the discussion and interpretation of the above
provision, to facilitate resolution of the pending question regarding obligations of boardmembers with conflicts
of interest.
PUBLIC OUTREACH/NOTICES
Boards and Commissions Coordinator, Christine Macrina contacted all board and commission members on
July 5, 2016 to ask for feedback, and that request is attached. Public Notice of the Board meeting was posted
both electronically and physically on July 1, 2016.
ATTACHMENT
Councilmember Campana’s June 27, 2016 Request
Public Notice
Request for Boardmember input
Ethics Opinion 91-3
Ethics Opinion 98-1
Ordinance No. 064, 1993
Ethics Review Board Agenda for July 12, 2016