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HomeMy WebLinkAboutMINUTES - 1/29/2021-1 Ethics Review Board Meeting Minutes January 29, 2021 4:00 p.m. Meeting Via Zoom Ethics Review Board members in attendance: Mayor Wade Troxell, Councilmembers Julie Pignataro, Ken Summers. Staff in attendance: Carrie Daggett, City Attorney; Doug Marek, Greeley City Attorney (as special legal counsel to the Board), Jeanne Sanford, Paralegal; Darin Atteberry, City Manager. Other Attendees: Councilmember Melanie Potyondy, Mary Saliva, citizen, Michael Pruznick, citizen, A meeting of the City Council Ethics Review Board (“Board”) was held on Friday, January 29, 2021, at 4:00 p.m. via Zoom Meeting. The meeting started at 4:00 pm. The Board reviewed the Agenda which contained the following items: 1. Selection of Presiding Officer for Ethics Review Board as it considers the pending complaint. 2. Review and Approval of the August 19, 2020 Minutes of the Ethics Review Board. 3. Consideration of a request by Councilmember Melanie Potyondy for an advisory review and opinion pursuant to City Code Section 2-569(d)(2) of the following questions: (a) Possible conflicts of interest that may arise from her husband, Eric Potyondy, being employed as an assistant city attorney in the City Attorney’s Office; and (b) Possible conflicts of interest that may arise from her employment with Poudre School District. 4. Discussion and scheduling of next steps. 5. Other Business. 6. Adjournment. Mayor Troxell called the meeting to order of the Fort Collins Ethics Review Board on 1/29/2021 and, pursuant to health orders with safer at home COVID concerns, in the mode to participate via Zoom. Paralegal Jeanne Sanford took roll call: Julie Pignataro – here; Wade Troxell – here; Ken Summers – here. City Attorney Daggett introduced Greeley City Attorney Doug Marek to the Board and explained he would be advising the Board with respect to the portion of the inquiry regarding possible conflicts related to the City Attorney’s Office. 2 Ms. Daggett noted for the record that both she and City Manager Darin Atteberry have consulted with the Mayor and other members of Council regarding the continued use of remote meetings and all are in agreement with the use of remote meetings as necessary due to the global health emergency re: COVID. City Manager Darin Atteberry confirmed his concurrence. Mayor Troxell called the first order business – selection of presiding officer. Councilmember Summers made a motion that Mayor Troxell continue leading this meeting as the presiding officer and Councilmember Julie Pignataro seconded the motion. Paralegal Jeanne Sanford took roll call of the vote: Julie Pignataro – yes; Ken Summers: yes. Wade Troxell: yes. The motion passed by unanimous vote. Chair Troxell called the second item to the Board, the review and approval of the August 19, 2020, meeting minutes. Councilmember Summer made a motion for approval of the minutes and Councilmember Pignataro seconded the motion. Paralegal Jeanne Sanford took roll call on the vote. Julie Pignataro – yes; Ken Summers – yes; Wade Troxell – yes. The motion passed by unanimous vote. Chair Troxell called for the third item on the Agenda, Councilmember Melanie Potyondy’s request for an advisory opinion regarding possible conflicts of interest that may arise from her husband, Eric Potyondy, being employed as an assistant city attorney in the City Attorney’s Office and possible conflicts of interest that may arise from her employment with Poudre School District. City Attorney Carrie Daggett called the Board’s attention to the materials she sent out on January 28, 2021, and suggested a process which was laid out on Page 3 and 4 of such materials. Ms. Daggett suggested that today’s meeting would be a good chance to frame the issues, brainstorm circumstances and questions that might come up and to discuss the use of conflicts management plans and whether that would be useful as an accompaniment to an advisory opinion. This discussion will help prepare materials for a second meeting to further discuss, if necessary, and reach conclusions about an advisory opinion and, if desired, a draft of a conflicts management plan. It was discussed that this Board would approve the advisory opinion, which would then be scheduled on a regular Council agenda for approval via resolution. Councilmember Summers stated there were specific issues with Councilmember Potyondy’s situation and policy that would apply across the board which would be helpful to discuss, but suggested Councilmember Potyondy will have to consider conflicts on a case by case basis. Councilmember Summers stated he does not see any conflicts of interest with her employment 3 with the Poudre School District. He stated he is confident Councilmember Potyondy would be aware of obvious conflicts and handle those like the rest of Councilmembers do. Councilmember Summers indicated the most obvious sticky point will be when Councilmember Potyondy participates in the annual evaluation of the City Attorney. Councilmember Summers stated Councilmember Potyondy having a chance to critique her husband’s boss clearly raises potential for a conflict. Chair Troxell stated he and City Attorney Daggett met with Councilmember Potyondy’s to discuss the process for her request for an advisory opinion. They also discussed the CSU Management Plan process and in his experience at CSU dealing with conflicts with faculty, he noted he believes it might be a very effective tool. Chair Troxell stated the Board should start with Councilmember Potyondy describing the potential conflicts she envisions. Councilmember Potyondy described her situation as a councilmember and her husband, Eric Potyondy being an Assistant City Attorney working under City Attorney Carrie Daggett. She also discussed her employment at Poudre School District. The job description for her position was included as an attachment to the agenda materials. Councilmember Potyondy pointed out the clearest conflict she believes would arise around evaluating her husband’s boss, Carrie Daggett, along with salary discussions and negotiations. Councilmember Potyondy wondered if this may be inappropriate. She also noted a question as to whether she should recuse herself when water rights and quasi-judicial decisions come before Council, but also noted those instances would likely be infrequent. Regarding her employment with Poudre School District, Ms. Potyondy believes there may be perceived conflicts in connection with City acquisitions of land or negotiations for new school sites, but noted those will not necessarily raise conflicts of interest. Chair Troxell pointed out he has noted several property transactions between the City and CSU and unless one is directly involved directly or will experience some financial benefit, he does not see those as posing a conflict. City Attorney Daggett noted for the Board that she just got an email from Mike Pruznick and he is the “MP” showing up in the Zoom meeting that the attendees had been trying to determine the identity and role of. He noted he does not have a camera and was present to observe the meeting. Councilmember Pignataro stated she agrees with the statement Councilmember Summers started with. She feels the City’s current ethics code covers what Councilmember Potyondy needs for potential conflicts related to the School District and suggested that Councilmember Potyondy not worry about those except when specific circumstances raise an issue to be evaluated. Councilmember Pignataro stated perhaps the issue around the District’s school resource officers could be a conflict and might need to be considered under the conflicts rules. 4 The Board then discussed Councilmember Potyondy’s husband and the potential conflict in his relationship with the City Attorney. Councilmember Pignataro felt to remove one Councilmember from participating in the evaluation of a direct report would be a huge impact as that is a major part of Councilmembers’ responsibilities. Chair Troxell asked Greeley City Attorney Doug Marek for insight on potential conflicts of interest. Mr. Marek replied that under the pecuniary definition of conflict of interest, there would be very few, if any, instances of conflict of interest for members of Council in these situations. Mr. Marek continued that he would be cautious, however, of the reputational impact on a presentation related to water resources, for example. Mr. Marek stated one issue City Attorney Daggett is dealing with would be ethical wall provisions regarding a lawyer who has a personal contact with someone who is a client or representative of another party. Mr. Marek generally agreed with the Councilmembers who spoke of few situations they envision where an actual conflict would arise. Mr. Marek did state the issue of evaluations and compensation is significant, but indirect in that Carrie Daggett’s performance and compensation do not have a direct impact on Eric Potyondy in his role as an assistant city attorney. Mr. Marek did suggest when Council gets closer to evaluation time, they might want to flush that out a little bit. Mr. Marek expressed his support for to the benefits of talking about these situations now and perhaps providing a roadmap for councilmembers if/when those situations should arise. Chair Troxell stated while this may not be a conflict, confirmation of what Councilmember Potyondy’s role in this process should be would be helpful. Councilmember Summers agreed and felt it is very important to disclose the fact of a connection and make a decision to recuse or stay. Mr. Summers expressed the importance of transparency, disclosing potential conflicts of interest and being up front. Councilmember Potyondy stated she had one issue to address. If her husband, hypothetically, were to be underperforming at his job, would her role affect City Attorney Daggett’s objectivity? Councilmember Potyondy stated she considers herself as a professional, as does her husband. They are functioning in different roles within City and feel they can be impartial. Councilmember Potyondy stated the reason she wanted to pursue this advisory opinion is because she is very focused on ethics and recent perceived conflicts. She wants to be up front from the get-go so there is no perception of or concern about an issue. 5 Chair Troxell asked Greeley City Attorney Doug Marek to explain a professional firewall and how that works within a profession and how it is applied here. Mr. Marek cited a couple of examples in his office revolving around confidential matters representing a decision maker in the City. Mr. Marek explained his staff does not share details with employees not involved in a matter, so there is no chance even within his office that people have knowledge of a confidential issue they have an interest in. Legal matters involving a city council matter are treated as very sensitive, so the information is locked down so only the attorney and paralegal working on the matter have access to the information. Doug Marek stated that in any matters City Attorney Daggett’s office is handling, City Attorney Daggett would erect a firewall so Eric Potyondy, for example, would not even have access to sensitive information involving Councilmember Potyondy. City Manager Darin Atteberry stated in the case of complaints of harassment for example, employees need to feel very safe talking about the issue and that information is handled with great sensitivity and is not shared outside those working on the matter. He noted that if Councilmember Potyondy were married to one of the City’s management employees, there might be a different range of matters that concerns would come up about. Mr. Atteberry stated while he has complete faith in both Eric Potyondy’s and Melanie Potyondy’s ethics, it is helpful to think about the long-term issues that could arise and cause strain over the course of several years’ time. City Attorney Daggett stated for the record that the City Attorney’s Office has a practice of being mindful of conflicts and situations where there may be a councilmember who declared a conflict and in connection with that matter, managed how information is shared to avoid improperly divulging it. Councilmember Summers appreciated Mr. Marek’s explanation of a firewall. This is a situation of Eric Potyondy having a focused job – not like other attorneys in the City Attorney’s Office who are involved in a broader range of responsibilities. City Attorney Daggett agreed and noted that, for example, the Deputy City Attorney fills in for her so that instance would raise a more difficult issue to manage. Chair Troxell asked the Board how they envision using a conflict management plan and whether there was any use for one? Councilmember Potyondy stated she reviewed the CSU management plan and found some aspects do not apply. She would defer to the Ethics Review Board, but it seems like the bulk of her situation falls within clear ethics guidelines and can be addressed in an advisory opinion. 6 City Attorney Daggett stated the Ethics Review Board mechanism of issuing advisory opinions which serves a lot of the purposes of a conflicts management plan. An advisory opinion in this case might serve the desired or same purpose. Councilmember Summers talked about Councilmember Potyondy finding herself in a unique situation but as the Board has looked at this situation, there seems to be a level of understanding, firewalls within the departments, etc., and she just may need to deal with situations when they arise. Councilmember Summers asked if the advisory opinions were put in a Resolution. City Attorney Daggett stated they are. Ms. Daggett further stated that a majority of the Ethics Review Board work is in response to a councilmember’s request for an advisory opinion. That does offer some degree of protection for the requesting councilmember. There is benefit to having gone through the process for an advisory opinion to get others’ viewpoints about potential conflicts. Chair Troxell stated an advisory opinion serves a similar purpose as a conflicts management plan and the advisory opinion would be a good step for Councilmember Potyondy as a best practice of transparency. Chair Troxell asked if there was something to bring back to the Board. City Attorney Daggett outlined the next steps as she saw them. Ms. Daggett stated that she and Mr. Marek, based on the discussions of this meeting, would put together a draft advisory opinion. Ms. Daggett will draft the framework and Mr. Marek will add the pieces he is advising the Board on, and then will provide the material in advance of the next meeting. That way the Board members will come to their next meeting with a sense of whether the opinion is on track or if there are questions or needed modifications or further discussion. The Board discussed potential meeting dates and Friday, February 12th at 4:15 pm worked for everyone. Chair Troxell asked if there was any other business; there was none. Meeting adjourned at 5:08 p.m.