HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 02/23/2021 - RESOLUTION 2021-025 ACCEPTING AND ADOPTING ETHICS Agenda Item 1
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AGENDA ITEM SUMMARY February 23, 2021
City Council
STAFF
Carrie Daggett, City Attorney
Douglas M. Marek, City Attorney, Greeley
SUBJECT
Resolution 2021-025 Accepting and Adopting Ethics Opinion No. 2021-01 of the Ethics Review Board Advising
Councilmember Melanie Potyondy in Response to Her Request for an Advisory Opinion.
EXECUTIVE SUMMARY
The purpose of this item is proposed adoption by Council of Ethics Opinion No. 2021 -01 of the Ethics Review
Board providing an advisory opin ion to Councilmember Melanie Potyondy in response to her request related to
possible conflicts of interest.
STAFF RECOMMENDATION
Staff recommends adoption of the Resolution.
BACKGROUND / DISCUSSION
Under City Code Section 2-569(d)(2), any Councilmember may present directly to the Ethics Review Board
(the “Board” or “ERB”) any inquiry regarding the application of ethical rules of conduct under state statute or
the City Charter or Code to any actual or hypothetical situation of a Councilmember or board an d commission
member.
The Board, comprised of Mayor Wade Troxell, Chair, Councilmember Ken Summers and Councilmember Julie
Pignataro, met on January 29 and February 12, 2021, to consider and render an advisory opinion addressing
two questions submitted to the Board by Councilmember Melanie Potyondy on January 19, 2021.
Councilmember Potyondy asked the following questions:
1. Possible conflicts of interest that may arise from her employment with Poudre School District.
2. 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
Summary of Conclusions
1. With respect to her employment at Poudre School District, Councilmember Potyondy does not have a
financial or personal interest under the City Charter in the most Council decisions, with some potential
exceptions. Matters that have a close tie to her role with the District may require a closer analysis. It may
be helpful for Councilmember Potyondy to seek formal assurance from the District that her actions as a
Councilmember will have no bearing on her treatment by the District.
2. Similarly, the Board has concluded that the state law ethics provisions do not bar participation by
Councilmember Potyondy in the Council decisions of the sort identified in this Opinion, and further review
Agenda Item 1
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and analysis would be necessary mainly in the event the details of the Council decision were closely tied to
her work or work conditions.
3. With respect to her spouse’s employment as an assistant city attorney in the Fort Collins City Attorney’s
Office, Councilmember Potyondy does not have a financial or personal interest under the City Charter in
most of the Council decisions related to the City Attorney or the City Attorney’s Office. Matters that relate
to budgets and that could have a direct impact on staffing levels and support services for members of the
City Attorney’s Office may require closer analysis. It may be helpful for Councilmember Potyondy to
evaluate the potential for an actual or perceived conflict-of-interest in advance of Council’s consideration of
any matters related to the City Attorney or City Attorney’s Office and to seek specific advice or an ethics
opinion on such matters as the need arises.
4. Councilmember Potyondy does not have a state law ethics bar from participating in the Council decisions
related to the City Attorney or City Attorney’s Office as a general matter. It is conceivable that a specific
issue might arise that would require Council action on a matter tha t could lead to an actual or perceived
conflict-of-interest due to her spouse’s employment as an assistant city attorney. In that event, it would be
advisable for Councilmember Potyondy to evaluate the potential for an actual or perceived conflict -of-
interest on such a matter in advance of Council’s consideration.
5. The Ethics Review Board does not find at this time that it is necessary or appropriate to establish a specific
conflicts management plan for Councilmember Potyondy.
Greeley City Attorney, Douglas Marek, advised the Board as special legal counsel on matters related to the
City Attorney’s Office.
Agenda Item Summaries from the January 29, 2021 meeting and the February 12, 2021, meeting are included.
(Attachments 1-2) All materials from the Board’s meetings are available at the following web address:
https://www.fcgov.com/council/ethics.php .
The local ethics provisions considered as part of the Board’s inquiry are City Charter Article IV, Se ction 9(a),
regarding conflicts of interest, and City Code Section 2 -568(a), establishing related definitions. The state ethics
provisions considered as part of this inquiry include the following Colorado Revised Statutes: Sections 24 -18-
102 through -105 and Section 24-18-109. The Board also considered the applicability of Article XXIX of the
Colorado Constitution (referred to as “Amendment 41”). These provisions are discussed and examined in
Ethics Opinion No. 2020-02, as applicable.
Section 2-569(c) provides for the opinions and recommendations of the Board to be submitted to the full
Council for Council consideration for approval by resolution.
ATTACHMENTS
1. Ethics Review Board Agenda Item Summary, January 29, 2021 (w/o attachments) (PDF)
2. Ethics Review Board Agenda Item Summary, February 12, 2021 (w/o attachments) (PDF)
3. Ethics Review Board Minutes, January 29, 2021 (draft) (PDF)
4. Ethics Review Board Minutes, February 12, 2021 (draft) (PDF)
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AGENDA ITEM SUMMARY January 29, 2021
Ethics Review Board
STAFF
Carrie Daggett, City Attorney (with Greeley City Attorney Doug Marek as Special Counsel)
SUBJECT
Consideration of the January 19, 2021, request by Councilmember Melanie Potyondy for an advisory
review and opinion by the Ethics Review Board pursuant to City Code Section 2-569(d)(2) regarding
possible conflicts of interest that may arise from her husband, Eric Potyondy, being employed with the
City Attorney’s Office as well as her employment with Poudre School District.
EXECUTIVE SUMMARY
The purpose of this item is consideration of the January 19, 2021, request by Councilmember
Melanie Potyondy for an advisory review and opinion by the Ethics Review Board (“ERB” or “Board”)
pursuant to City Code Section 2-569(d)(2) regarding 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.
STAFF RECOMMENDATION
The Ethics Review Board should consider Councilmember Potyondy’s questions in light of the City
Charter and Code, relevant ethics opinions, and applicable State ethics laws, and information
obtained from Councilmember Potyondy regarding her circumstances, and formulate an advisory
opinion. The Board may wish to work with Councilmember Potyondy to develop a “conflict
management plan” as a tool to assist her in managing and fostering transparency related to potential
conflicts.
BACKGROUND / DISCUSSION
Under City Code Section 2-569 (attached), City Councilmembers may present to the Council
Ethics Review Board inquiries regarding the application of state or local ethical rules to actual or
hypothetical situations involving potential conflicts of interest. On January 19, 2021, Councilmember
Potyondy requested that the ERB consider the following questions to the ERB:
(a)Possible conflicts of interest that may arise from my husband, Eric Potyondy,
being employed in the City Attorney’s Office; and
ATTACHMENT 1
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(b) Possible conflicts of interest that may arise from my employment with Poudre
School District.
General Background:
Composition of the Board:
The members of the Ethics Review Board include Councilmember Ken Summers and
Councilmember Julie Pignataro, with alternate ERB member Mayor Wade Troxell. Former Mayor
Pro Tem Kristin Stephens, who left the Council at the end of 2020, was the third regular member of
the ERB. Pursuant to the Resolution by which Council appointed ERB members in May 2019, the
person replacing former Mayor Pro Tem Stephens automatically assumes her appointments except
as the Council otherwise appoints. Council has not yet taken any action to appoint a new ERB
member and therefore Councilmember Potyondy would assume the vacant seat on the ERB.
However, because this matter relates to potential conflicts of Councilmember Potyondy, Mayor
Troxell will appropriately participate in the ERB’s action on this matter as the alternate board
member.
Special Counsel for City Attorney-Related Matters:
Because some of the matters to be discussed by the Board involve the relationship of
Councilmembers to the City Attorney, the relationship of the City Attorney to Councilmember
Potyondy’s husband, and related interests, Greeley City Attorney Doug Marek will serve as the legal
advisor to the Board and the Council related to the evaluation of the potential conflicts of interest
stemming from Councilmember Potyondy’s inquiry about conflicts related to her husband’s
employment as an assistant city attorney.
In connection with the evaluation of the potential conflicts related to Councilmember Potyondy’s
employment by Poudre School District or general discussion related to the use of Conflicts
Management Plans, the Fort Collins City Attorney will continue her involvement, unless that
arrangement proves unworkable.
Advisory Review and Conflicts Management Plans:
The purpose of the Board, as described in City Code Section 2-569(a), is “to assist Councilmembers
and board and commission members in interpreting and applying the definitions, rules and
procedures pertaining to ethics established by the Charter (City Charter Article IV, Section 9,
attached) and Code (City Code Section 2-568, attached) and by the applicable provisions of state
statute…” The duties and responsibilities of the Board (set out in Code Section 2-569(c)) are:
(1) To review and investigate complaints of unethical conduct filed against
Councilmembers or board and commission members by any person;
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(2) To review and investigate actual or hypothetical situations involving potential
conflicts of interest presented by individual Councilmembers or board and
commission members;
(3) After review and investigation, to render advisory opinions or interpretations
pertaining to such complaints or inquiries under the relevant provisions of the
Charter or Code and the applicable provisions of state law, if any, and to make
written recommendations to the City Council and any affected board or
commission concerning the same; and
(3) To propose any revisions or the provisions of the Charter or Code or other
regulations, rules or policies of the City pertaining to ethical conduct as the
Review Board may deem necessary and appropriate in the best interests of the
City.
In recent ethics policy discussions, Council has discussed the concept of using “conflict
management plans” to identify in advance and plan for management of conflicts of interest questions
for individuals. An example of this approach is the use of Conflicts of Interest/Conflicts of
Commitment Management Plans by Colorado State University (CSU). The form of Conflicts
Management Plan publicly available from CSU is attached for the Board’s reference.
The Board may wish to discuss the potential for the use of Conflicts Management Plans to assist
Councilmember Potyondy in managing her potential conflicts and may also wish to consider making
recommendations regarding the use of this tool more generally.
Suggested Process for Review:
Because this is the Board’s initial meeting to discuss Councilmember Potyondy’s inquiry, the
materials provided are intended to provide general background and the basis for initial
discussion, scoping of the potential conflict of interest issues, and a plan for general
approach in moving forward.
• In this initial discussion, the Board may wish to discuss with Councilmember
Potyondy and gather or request information related to her potential conflicts.
• In particular, the Board will need to develop a list of topics or types of matters that
may arise that would raise conflicts questions for Councilmember Potyondy under
each of the two areas of inquiry she has identified.
• Then, after some initial discussion of those types of matters, the Board will likely need
to meet again to more fully discuss, evaluate and develop recommendations for an
advisory opinion, which may also incorporate suggestions for a Conflicts Management
Plan.
After the Board has considered and adopted an advisory opinion in response to the request,
that opinion will be presented to the City Council for adoption by resolution.
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Conflicts of Interest Authorities for Consideration:
1. City Charter Conflicts of Interest:
Article IV, Section 9(b)(3) of the City Charter requires 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, to upon
discovery disclose that interest in the manner described and refrain from voting on,
attempting to influence, or otherwise participating in the decision as an officer or employee.
The Charter defines “financial interest” and “personal interest” as follows (emphasis added):
Financial interest means any interest equated with money or its equivalent. Financial interest shall
not include:
(1) the interest that an officer, employee or relative has as an employee of a business, or as a
holder of an ownership interest in such business, in a decision of any public body, when the
decision financially benefits or otherwise affects such business but entails no foreseeable,
measurable financial benefit to the officer, employee or relative;
(2) the interest that an officer, employee or relative has as a non-salaried officer or member
of a nonprofit corporation or association or of an educational, religious, charitable, fraternal or
civic organization in the holdings of such corporation, association or organization;
(3) the interest that an officer, employee or relative has as a recipient of public services when
such services are generally provided by the city on the same terms and conditions to all
similarly situated citizens, regardless of whether such recipient is an officer, employee or
relative;
(4) the interest that an officer, employee or relative has as a recipient of a commercially
reasonable loan made in the ordinary course of business by a lending institution, in such
lending institution;
(5) the interest that an officer, employee or relative has as a shareholder in a mutual or
common investment fund in the holdings of such fund unless the shareholder actively
participates in the management of such fund;
(6) the interest that an officer, employee or relative has as a policyholder in an insurance
company, a depositor in a duly established savings association or bank, or a similar interest-
holder, unless the discretionary act of such person, as an officer or employee, could
immediately, definitely and measurably affect the value of such policy, deposit or similar
interest;
(7) the interest that an officer, employee or relative has as an owner of government-issued COPY
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securities unless the discretionary act of such owner, as an officer or employee, could
immediately, definitely and measurably affect the value of such securities; or
(8) the interest that an officer or employee has in the compensation received from the city for
personal services provided to the city as an officer or employee.
Related key terms (from Section 2-568(a) of the City Code) include:
(2) Benefit = an advantage or gain.
(6) Different in kind from that experienced by the general public = of a different type or nature
not shared by the public generally and that is not merely different in degree from that
experienced by the public generally.
(7) Direct = resulting immediately and proximately from the circumstances and not from an
intervening cause.
(8) Detriment = disadvantage, injury, damage or loss.
(13) Public services = city services provided to or made available for the public's benefit.
(15) Relative = the spouse or minor child of the officer or employee, any 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.
(18) Substantial = more than nominal in value, degree, amount or extent.
2. Conflicts of Interest Under State Law
Colorado law provides ethics provisions for local government officials, including Colorado Revised
Statutes: Sections 24-18-102 through -105 and Section 24-18-109 (attached for reference).
1. As defined for the purpose of the statutory ethics provisions:
i. Councilmembers are “local government officials” (as defined in Section 24-18-102(6)).
ii. "Financial interest" means a substantial interest held by an individual which is:
(a) An ownership interest in a business;
(b) A creditor interest in an insolvent business;
(c) An employment or a prospective employment for which negotiations have begun;
(d) An ownership interest in real or personal property;
(e) A loan or any other debtor interest; or
(f) A directorship or officership in a business. (Section 24-18-102(4)).
2. Section 24-18-103, C.R.S., when read in conjunction with the rest of the statutory standards of
conduct, is interpreted to establish an ethical standard of conduct concerning activities that could
allow covered individuals to improperly benefit financially from their public office. However, it is
general in nature and does not specify a standard or rule to determine what is permissible. COPY
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3. Section 24-18-104, C.R.S., prohibits disclosure or use of confidential information acquired in the
course of official duties and acceptance of certain gifts.
4. Section 24-18-105, C.R.S., sets out ethical principles that are “intended as guides to conduct and
do not constitute violations as such of the public trust of office or employment in state or local
government.”
i. Section 24-18-105(2) provides that:
(2) A … local government official … should not acquire or hold an interest in any business or
undertaking which he has reason to believe may be directly and substantially affected to its
economic benefit by official action to be taken by an agency over which he has substantial
authority.
ii. Section 24-18-105(4) provides that:
(4) A …local government official …should not perform an official act directly and substantially
affecting a business or other undertaking to its economic detriment when he has a substantial
financial interest in a competing firm or undertaking. (Emphasis added.)
5. Section 24-18-109(2), C.R.S., provides that a local government official or employee shall not (in
relevant part):
i. Engage in a substantial financial transaction for his private business purposes with a person
whom he inspects or supervises in the course of his official duties (§ 24-18-109(2)(a)); or
ii. Perform an official act directly and substantially affecting to its economic benefit a business or
other undertaking in which he either has a substantial financial interest or is engaged as
counsel, consultant, representative or agent (§ 24-18-109(2)(b));
6. A member of a governing body of a local government who has a personal or private interest in
any matter proposed or pending before the governing body shall disclose such interest and refrain
from participating in the decision unless necessary to obtain a quorum (§ 24-18-109(3)).
i. Although the key term from this statute “personal or private interest” is not defined, guidance
from other uses of this term in related Colorado law may be helpful. As noted in a 2004 Colorado
Lawyer article describing this statute (an excerpt of which is attached), this “standard of conduct”
was likely adapted from a provision of the Colorado constitution that is applicable to members
of the General Assembly (Colo. Constitution Art. V, § 43). As described in the article, the limits
focus primarily on financial relationships in determining whether an impermissible personal or
private interest exists.
ii. In light of the relationship between this provision and the constitutional limit on members of the
General Assembly, the way the constitutional limit has been applied to the General Assembly
may provide some useful guidance in considering the meaning of “personal or private interest.”
Attached to this Agenda Item Summary are materials further elaborating on this limit on
members of the General Assembly: Joint Rule 42, which states a legislative interpretation of the
limit, and two excerpts from materials prepared and published by the Office of Legislative Legal
Services to help with applying it. COPY
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To summarize, Joint Rule 42 provides that:
a) If the passage or failure of a measure will result in the legislator deriving a direct
financial or pecuniary benefit that is greater than any such benefit derived by or
shared by other persons in the legislator’s profession, occupation, industry or
region, the legislator is considered to have a personal, private or financial interest
in the measure.
b) If the interest a legislator has in a measure affects the entire membership of a class
to which the legislator belongs, the interest is not deemed to be a personal, private
or financial interest.
Merriam-Webster’s online definition of the term “pecuniary” is: 1. consisting of or measured in
money; such as pecuniary aid pecuniary gifts; 2: of or relating to money.
iii. Examples interpreting the constitutional limit on the General Assembly and Joint Rule 42 are
provided in the attached.
7. Article XXIX of the Colorado constitution – also referred to as “Amendment 41,” sets out
limits for state and local officers and employees, by establishing limits on the acceptance of gifts
and forming an Independent Ethics Commission to hear complaints about conduct of covered
officials. While the amendment applies to municipalities in general, Section 7 provides, “Any county
or municipality may adopt ordinances or charter provisions with respect to ethics matters that are
more stringent than any of the provisions contained in this article. The requirements of this article
shall not apply to home rule counties or home rule municipalities that have adopted charters,
ordinances, or resolutions that address the matters covered by this article.” (Emphasis added.)
Since the enactment of Amendment 41, it has been generally understood that Section 7 exempts
home-rule cities that have enacted their own local charter and code ethics provisions, like Fort
Collins, from its provisions.
In September 2010, the City Council adopted Resolution 2010-063, finding and determining that
the City’s Charter and Code adequately and appropriately address those matters covered by
Amendment 41, that no further action by the City Council is warranted or necessary in order to
further the purposes of Amendment 41 or address the matters contained therein, and that the
requirements of Amendment 41 shall not be applicable to the City of Fort Collins.
Other Considerations:
Although there is no specific City Charter or Code provision precluding a Councilmember from
participating in a decision due to the “appearance of a conflict” if the specific ethics standards that
apply are met, this issue is frequently raised as a component of the evaluation of conflicts of interest.
Councilmembers do on occasion recuse themselves from an item by leaving the Council meeting for
the item when that Councilmember is uncomfortable participating due to the potential for or
appearance of a conflict. COPY
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In addition, where acting as a quasi-judicial decisionmaker, a Councilmember has an obligation to
consider carefully whether his or her relationships, particularly business or professional relationships
result in a bias or inability to be impartial in a quasi-judicial decision. As described on page 3 of the
attached Colorado Lawyer article:
Often, opponents or proponents in a public hearing will accuse a board member of
having a private interest or conflict simply because he or she is acquainted with the
applicant. However, the Standards focus primarily on financial relationships in
determining whether an impermissible personal or private interest exists.
Following are examples of relationships that ordinarily would not disqualify a board
member from acting in his or her quasi-judicial capacity. They reflect the practical
reality of life in a small community and, standing alone, should not prevent a board
member from voting on an application. Bearing in mind that the Standards are
primarily concerned with financial interest, it is important to note that these kinds of
fact patterns lack the potential of personal financial gain or loss:
1. The member lives next door to the applicant;
2. The member and the applicant know and like (or dislike) each other,
are friends, go to the same church, have memberships at the same
club, or play golf together.
3. The member is related by blood or marriage to the applicant, but has
no financial connection or potential of experiencing financial gain or
loss. However, to the extent the blood or marriage relationship is
immediate (for instance, husband and wife or father and son), the
member should step down. Even though there may be not financial
connection, the relationship is so close that a conflict of interest would
be presumed.
The City does have an interest in assuring that those making quasi-judicial decisions have carefully
considered whether they have a bias or will not be able to be impartial. In those instances, the
individual should seriously consider not participating in the decision.
In light of this, Councilmember Potyondy may find it helpful for the Board to consider and provide
guidance related to identifying and evaluating potential bias in quasi-judicial matters.
ATTACHMENTS
1. City Code Section 2-569
2. City Code Section 2-568(a)
3. City Charter Section 9(a)
4. CSU Conflicts Management Plan
5. CRS Section 24-18-102(4) and (6)
6. CRS Section 24-18-103
7. CRS Section 24-18-104
8. CRS Section 24-18-105
9. CRS Section 24-18-109
10. Excerpt from 2004 Colorado Lawyer Article
11. Colorado General Assembly Joint Rule 42 and related guidance COPY
AGENDA ITEM SUMMARY February 12, 2021
Ethics Review Board
STAFF
Carrie Daggett, City Attorney
Doug Mark, Greeley City Attorney (Special Legal Counsel)
SUBJECT
Consideration of the January 19, 2021, request by Councilmember Melanie Potyondy for an advisory
review and opinion by the Ethics Review Board pursuant to City Code Section 2-569(d)(2) regarding
possible conflicts of interest that may arise from her husband, Eric Potyondy, being employed with the
City Attorney’s Office as well as her employment with Poudre School District.
EXECUTIVE SUMMARY
The purpose of this item is continued consideration of the January 19, 2021, request by
Councilmember Melanie Potyondy for an advisory review and opinion by the Ethics Review Board
pursuant to City Code Section 2-569(d)(2) regarding 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.
STAFF RECOMMENDATION
The Ethics Review Board (“ERB” or the “Board”) should consider the proposed advisory opinion,
referenced as Ethics Opinion 2021-01, addressing Councilmember Potyondy’s questions and the
January 29 discussion of the Board, in light of the City Charter and Code, relevant ethics opinions,
and applicable state ethics laws.
BACKGROUND / DISCUSSION
A proposed advisory opinion based on the Board’s discussion and the City Charter and Code,
relevant ethics opinions, and applicable state ethics laws is attached for the Board’s consideration.
If the Board approves Ethics Opinion 2021-01 it will be presented to the Council for approval by
resolution. If the Opinion is ready for consideration, the Council may wish to adjourn its February 16
meeting to February 23 for action on it.
A copy of the agenda materials provided to the ERB for its January 29, 2021, meeting regarding this
matter is attached for the Board’s reference.
ATTACHMENTS
1.(Proposed) Ethics Opinion 2021-01
2.Ethics Review Board Agenda Item Summary, January 29, 2021
ATTACHMENT 2
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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.
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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
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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.
1
Ethics Review Board Meeting Minutes
February 12, 2021
4:15 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;
Other Attendees: Councilmember Melanie Potyondy, Michael Pruznick, citizen,
A meeting of the City Council Ethics Review Board (“Board”) was h eld on Friday, February 12,
2021, at 4:15 p.m. via Zoom Meeting.
The meeting started at 4:15 pm. The Board reviewed the Agenda which contained the following
items:
1. Review and Approval of the January 29, 2021 Minutes of the Ethics Review Board.
2. Review and Approval of the draft Ethics Advisory Opinion 2021-01, with
continued consideration of an inquiry by Councilmember Potyondy pursuant to
City Code Section 2-569(d)(2) requesting that the Board consider and provide an
advisory opinion regarding the questions of:
(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 (“PSD” or the “District”).
3. Other Business.
4. Adjournment.
Chair Troxell called meeting to order at 4:17 pm and stated this meeting was available via Zoom
with the link available on the City’s website. The Mayor conferred with City Manager Darin
Atteberry and City Attorney Carrie Daggett and determined the board should conduct this meeting
remotely due to the public health emergency re: COVID and per the County’s emergency orders.
Paralegal Jeanne Sanford took roll call: Julie Pignataro – here; Wade Troxell – here; Ken
Summers – here.
The first item was review and approval of Minutes of the January 29 meeting.
ATTACHMENT 4
2
Councilmember Pignataro made a motion to approve the January 29, 2021 Minutes.
Councilmember Summers seconded the motion. The Minutes were approved by unanimous
vote.
Mayor Troxell confirmed that members of the Ethics Review Board were agreeable to his
continuing as Chair of the Board.
The second agenda item, review and approval of the draft Ethics Opinion 2021-01 regarding the
inquiry of Councilmember Potyondy regarding possible conflicts of interest concerning her
husband, Assistant City Attorney Eric Potyondy and her employment with Poudre School
District (“PSD”) was read.
City Attorney Carrie Daggett gave an overview of the Opinion and noted for the record that
Greeley City Attorney Douglas Marek was present at the meeting. Ms. Daggett noted Mr. Marek
worked on the portion of the draft Opinion related to the City Attorney’s Office. Ms. Daggett
noted that a summary of conclusions is included near the beginning of the draft Opinion.
Chair Troxell asked City Attorney Daggett if there were any specific suggestions going forward
on this issue.
City Attorney Daggett noted that members of the Board may have suggestions not included in
the Opinion that they would like to add and explained the Opinion was prepared based on the
Board’s January 29 discussion. In the discussion of conflicts and the summary in the Opinion, it
was noted it might be helpful for Councilmember Potyondy to obtain from the Poudre School
District an affirmation that the District recognizes that she is carrying out her role as a
councilmember independent of her work at the District and commits to assuring that her actions
as a councilmember will have no bearing or impact on the District’s treatment of her as an
employee. City Attorney Daggett noted this was just a suggestion and not a requirement.
Greeley City Attorney Douglas Marek then spoke of the relationship of Councilmember
Potyondy to Eric Potyondy and the indirect ways Council actions might impact her personally or
financially, such as City Attorney’s Office budget approvals, and more specifically budget cuts
for reduction of force. Mr. Marek stated Councilmember Potyondy would be wise to evaluate, in
those instances, if she or her husband has a financial or personal stake in the outcome and if so,
to recuse herself from those matters.
Mr. Marek stated, regarding the issue of performance evaluations and Councilmember
Potyondy’s participation in performance review of the City Attorney, there was no inherent
financial or personal conflict in that regard. Mr. Marek stated he reviewed the organizational
chart of the City Attorney’s Office and found it to be very rare for any Council decision making
to have a direct impact on Eric Potyondy in his role as Assistant City Attorney. Mr. Marek noted
City Attorney Daggett will need to erect an ethical wall on certain confidential matters, as is
commonly done in legal offices, so Eric Potyondy cannot access information about matters he or
Councilmember Potyondy have a conflict of interest in, but stated those issues would be rare
since he is a specialist attorney.
3
The Board discussed if the matters of budget cuts and raises would raise conflicts of interest. It
was noted that in the organization, employees are granted salary increases, but department heads
may give some employees different percentages so there is some latitude on discretionary
decisions of those salary increases which could present a presumption.
City Attorney Daggett confirmed that is way the City Attorney’s Office handles salary
adjustments. The department gets a “pot of money” to be distributed according to methods in
use at that time. Ms. Daggett explained she sets the approach to be used for the raises for the
attorneys. She also noted that the attorney pay plan is not included in the classified pay plan that
the City Council approves.
Chair Troxell asked Councilmember Potyondy for her input and responses to the Opinion, and
asked it is helpful or if she would like more, noting that it was designed to help her out with her
questions. Chair Troxell did note that he was hoping it would be more like a conflicts
management plan, however, he hoped Councilmember Potyondy has discussed this issue with
her employer as it falls on Councilmembers to make the determination of when there is a
conflict.
Councilmember Pignataro stated she was fine after reading the conclusions of the Opinion but
wanted to check in with Councilmember Potyondy on how she felt.
Councilmember Potyondy stated she felt the Opinion was very helpful on specific issues and
noted she was free to consult with Carrie Daggett and Darin Atteberry to identify and understand
up-coming agenda items that may raise a question for her. Councilmember Potyondy stated her
take-away from the Opinion was that she will work to always know what’s coming, be up-front
regarding concerns on financial or personal gain and plan to consult with folks on areas of
concern. Councilmember Potyondy did state, regarding issues raised in an email earlier on the
12th by a member of the public, Michael Pruznick, she did disclose this issue as part of her
application for the District 4 appointment and in discussion with the Mayor and others, so that
has been transparent and out in the open. Councilmember Potyondy stated she is open to any
structure or type of guidance, and will proceed with caution, always vetting these issues.
Chair Troxell indicated that individual Councilmembers have an obligation to evaluate these
issues and Councilmember Potyondy has stated that correctly.
The Board discussed the issue of water as not being a common issue and whether Poudre School
District is ever given money from the City.
City Attorney Daggett answered that there were some instances when the City and PSD work
together, such as on infrastructure where a grant has come from CDOT or where the City and
PSD develop a park together. City Attorney Daggett noted the City does provide services to
PSD, such as after school programs for example.
Councilmember Summers felt these types of situations were pretty broad and don’t relate
directly to Councilmember Potyondy’s role as school psychologist.
4
Councilmember Potyondy agreed and discussed the notion of values vs. financial/personal
interest. Ms. Potyondy stated she does not get a raise based on anything so the School District
issues will be pretty clear.
Chair Troxell asked Councilmember Potyondy if there was anything with the advisory opinion
she wanted added to help her out?
Councilmember Potyondy stated the way the Opinion was written is as clear as it can be
considering the fluid nature of Council and how unpredictable it is what items will come forward
and noted she has folks to touch base with if sticky issues do come up.
Councilmember Pignataro noted as Councilmembers, we have access to the attorneys to discuss
complicated issues, such as water. One can always arrange a 1x1 meeting with an attorney to
ask question.
City Attorney Daggett noted that she can arrange for specific discussions with Councilmembers
about legal issues, also noting, though, that since her role is to advise Council as a body rather than
individual Councilmembers, the City Attorney’s Office works hard to make sure any legal advice
or information is provide to the entire Council rather than with individual Councilmembers and
that she manages and coordinates those communications with Council.
City Attorney Daggett then explained if the Opinion as presented was acceptable and the Board
approves it by motion, then it can come forward to Council on Tuesday, February 23 at an
adjourned meeting, if Council is willing to adjourn the February 16 meeting to February 23rd for
that purpose. The Code requires that the Opinion be presented promptly to Council once the Ethics
Review Board approves it.
Councilmember Ken Summers made a motion to approve Ethics Opinion 2021-01 and Chair
Troxell seconded the motion.
Paralegal Jeanne Sanford took a roll call vote: Mayor Wade Troxell: yes; Julie Pignataro: yes;
Ken Summers: yes. The motion was approved by unanimous vote.
Councilmember Potyondy thanked the Board as this was helpful to have this conversation and
think the issues through.
As there was no other business, the meeting adjourned 5:02 pm.
-1-
RESOLUTION 2021-025
OF THE COUNCIL OF THE CITY OF FORT COLLINS
ACCEPTING AND ADOPTING ETHICS OPINION NO. 2021-01
OF THE ETHICS REVIEW BOARD ADVISING COUNCILMEMBER
MELANIE POTYONDY IN RESPONSE TO HER REQUEST FOR AN
ADVISORY OPINION
WHEREAS, the City Council has established an Ethics Review Board (the “Board”)
consisting of designated members of the City Council; and
WHEREAS, the Board is empowered under Section 2-569 of the City Code to render
advisory opinions and recommendations regarding actual or hypothetical situations of
Councilmembers or board and commission members of the City; and after review and
investigation, to render advisory opinions or interpretations pertaining to such complaints or
inquiries under the relevant provisions of the Charter and Code and the applicable provisions of
state law, if any, and to make written recommendations to the City Council and any affected
board or commission concerning the same; and
WHEREAS, on January 19, 2021, Councilmember Melanie Potyondy requested that the
Board consider and provide an advisory opinion regarding the following questions:
1. 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
2. Possible conflicts of interest that may arise from her employment with Poudre School
District; and
WHEREAS, the Board, comprised of Mayor Wade Troxell, chair, Councilmember Ken
Summers and Councilmember Julie Pignataro, met on January 29 and February 12, 2021, to
consider Councilmember Potyondy’s inquiry; and
WHEREAS, at the conclusion of its review and discussions, the Board unanimously
adopted and issued an ethics opinion, Ethics Opinion 2021-01, describing and explaining its
advisory conclusions and recommendations to Councilmember Potyondy; and
WHEREAS, Greeley City Attorney Douglas Marek advised the Board as special legal
counsel on matters related to the City Attorney’s Office; and
WHEREAS, Section 2-569(e) of the City Code provides that all advisory opinions and
recommendations of the Board be placed on the agenda for the next special or regular City
Council meeting, at which time the City Council shall determine whether to adopt such opinions
and recommendations; and
WHEREAS, the City Council has reviewed the opinion of the Board and wishes to adopt
the same.
-2-
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That Opinion No. 2021-01 of the Ethics Review Board, a copy of which is
attached hereto as Exhibit “A” and incorporated herein by this reference, has been submitted to
and reviewed by the City Council, and the Council hereby accepts and adopts the opinion
contained therein.
Passed and adopted at an adjourned meeting of the Council of the City of Fort Collins
this 23rd day of February, A.D. 2021.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk
Page 1 of 14
2021-01
OPINION OF THE ETHICS REVIEW BOARD
OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS
February 12, 2021
The City Council Ethics Review Board (“the Board”) met on January 29 and February 12, 2021,
to consider and render an advisory opinion addressing two questions submitted to the Board by
Councilmember Melanie Potyondy on January 19, 2021. Councilmember Potyondy asked for an
advisory opinion under City Code Section 2-569(d)(2) regarding:
1. Possible conflicts of interest that may arise from her employment with Poudre School
District; and
2. 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.
The Board’s conclusions and recommendations are summarized as follows:
1. With respect to her employment at Poudre School District, Councilmember Potyondy does
not have a financial or personal interest under the City Charter in the most Council
decisions, with some potential exceptions. Matters that have a close tie to her role with the
District may require a closer analysis. It may be helpful for Councilmember Potyondy to
seek formal assurance from the District that her actions as a Councilmember will have no
bearing on her treatment by the District.
2. Similarly, the Board has concluded that the state law ethics provisions do not bar
participation by Councilmember Potyondy in the Council decisions of the sort identified
in this Opinion, and further review and analysis would be necessary mainly in the event
the details of the Council decision were closely tied to her work or work conditions.
3. With respect to her spouse’s employment as an assistant city attorney in the Fort Collins
City Attorney’s Office, Councilmember Potyondy does not have a financial or personal
interest under the City Charter in most of the Council decisions related to the City Attorney
or the City Attorney’s Office. Matters that relate to budgets and that could have a direct
impact on staffing levels and support services for members of the City Attorney’s Office
may require closer analysis. It may be helpful for Councilmember Potyondy to evaluate
the potential for an actual or perceived conflict-of-interest in advance of City Council’s
consideration of any matters related to the City Attorney or City Attorney’s Office and to
seek specific advice or an ethics opinion on such matters as the need arises.
4. Councilmember Potyondy does not have a state law ethics bar from participating in the
Council decisions related to the City Attorney or City Attorney’s Office as a general matter.
It is conceivable that a specific issue might arise that would require City Council action on
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February 12, 2021
Page 2 of 14
a matter that could lead to an actual or perceived conflict-of-interest due to her spouse’s
employment as an assistant city attorney. In that event, it would be advisable for
Councilmember Potyondy to evaluate the potential for an actual or perceived conflict-of-
interest on such a matter in advance of City Council’s consideration.
5. The Ethics Review Board does not find at this time that it is necessary or appropriate to
establish a specific conflicts management plan for Councilmember Potyondy.
Overview of Ethics Opinion 2021-01
Background (page 2)
Councilmember Potyondy’s Position and Role at Poudre School District (page 2)
Council Decisions Related to Poudre School District (page 3)
Councilmember Potyondy’s Spousal Relationship with Assistant City Attorney Eric
Potyondy (page 3)
Council Decisions Related to the City Attorney’s Office of Eric Potyondy (page 4)
Use of Conflicts Management Plan (page 4)
Conflicts of Interest Authorities for Consideration:
• City Charter Conflicts Interest (page 4)
• Conflicts of Interest Under State Law (page 6)
Application of Conflicts/Ethics Provisions to Council Decisions:
• Council Decisions Related to Poudre School District (page 9)
• Council Decisions Related to the City Attorney’s Office or Eric Potyondy (page 10)
Board Conclusions and Recommendations (page 12)
Background
Under City Code Section 2-569, councilmembers may present to the Council’s Ethics Review
Board inquiries regarding the application of state or local ethical rules to actual or hypothetical
situations involving potential conflicts of interest. Upon completion of its review, the Ethics
Review Board adopts an Ethics Opinion that is then presented to the City Council for consideration
and possible adoption by the Council by resolution.
The local ethics provisions considered as part of this inquiry are City Charter Article IV, Section
9(a), regarding conflicts of interest, and City Code Section 2-568(a), establishing related
definitions. The state ethics provisions considered as part of this inquiry include the following
Colorado Revised Statutes: Sections 24-18-102 through -105 and Section 24-18-109. These
provisions are discussed and examined below as applicable.
Councilmember Potyondy’s Position and Role at Poudre School District
Councilmember Potyondy is employed by Poudre School District as a Psychologist. In this role,
she is responsible for the delivery of direct educational and mental health services to create
supportive learning and social environments for all students.
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She is responsible for conducting formal and informal assessments for the identification,
placement and programming of students for Special Education services and providing effective
services to help students succeed academically, socially, behaviorally and emotionally. She
collaborates with teachers, support personnel, administrators and colleagues to improve student
outcomes and in team- and building-based meetings and discussions and communicates students’
progress and needs with parents and other staff as needed. She is assigned to and works at Rocky
Mountain High School, although she formally reports to the main School District administration.
In her role as a school Psychologist, Councilmember Potyondy is not involved in School District
planning or decision making for facilities, generally curriculum, financial or staffing decisions.
Council Decisions Related to Poudre School District
Council actions in recent decades related to Poudre School District have included the following:
• Real estate transactions, such as leases, easements and transfers;
• Annexation and zoning of School District property;
• Agreements and funding decisions regarding school resource officers;
• Cooperative agreements for construction of transportation-related projects such as “safe
routes to schools” and grant-funded projects;
• Agreements for services such as after-school programs, crossing guard programs and email
or other services;
• Deferral of plant investment fees;
• Agreements and setting of School District land dedication and fee-in-lieu requirements;
and
• Appropriation of funds for cooperative programs, projects and services such as those noted
above.
This Opinion addresses the potential conflicts related to these types of Council decisions below.
Councilmember Potyondy’s Spousal Relationship with Assistant City Attorney Eric
Potyondy
Councilmember Potyondy is married to Assistant City Attorney Eric Potyondy, who is employed
by the City Attorney’s Office. Mr. Potyondy reports to Senior Assistant City Attorney Judy
Schmidt, who in turn reports to City Attorney Carrie Daggett. All deputy and assistant city
attorneys in the City Attorney’s Office serve at the pleasure of the City Attorney.
The City Attorney reports directly to and serves at the pleasure of the City Council. The City
Attorney’s performance is reviewed regularly by the City Council and her compensation is set
annually by the City Council.
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Council Decisions Related to the City Attorney’s Office or Eric Potyondy
The City Council makes the following decisions directly related to the City Attorney or City
Attorney’s Office:
• Mid-year and formal annual evaluation of the City Attorney;
• Annual compensation for the City Attorney;
• Occasional approval of employment contract revisions for City Attorney;
• Budget offers to fund the City Attorney’s Office and appropriations of funds for
the City Attorney’s Office; and
• Direction to the City Attorney for action on work projects and litigation matters.
In addition, the Council interacts with assistant city attorneys on matters in which each individual
attorney has responsibilities. Assistant City Attorney Eric Potyondy works primarily on water
rights and related policy matters, Water Utility, Wastewater Utility, and Stormwater Utility and
floodplain matters. In this capacity, he advises Council confidentially and responds to questions
in public meetings regarding matters coming before Council.
This Opinion addresses the potential conflicts related to these types of Council decisions below.
Use of Conflicts Management Plan
The Ethics Review Board discussed with Councilmember Potyondy the use of conflicts
management plans by entities such as Colorado State University to assist employees in anticipating
and managing conflicts of interest on an annual basis. Although it was noted that in some instances
this approach could be useful, the Board concluded, with agreement from Councilmember
Potyondy, that under the City’s process this advisory review process and opinion serve a similar
purpose and at this time that it is not necessary or appropriate to establish a specific conflicts
management plan for Councilmember Potyondy.
Conflicts of Interest Authorities for Consideration:
1. City Charter Conflicts of Interest:
Article IV, Section 9(b)(3) of the City Charter requires 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, to upon discovery
disclose that interest in the manner described and refrain from voting on, attempting to
influence, or otherwise participating in the decision as an officer or employee.
The Charter defines “financial interest” and “personal interest” as follows (emphasis added):
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Financial interest means any interest equated with money or its equivalent. Financial interest shall
not include:
(1) the interest that an officer, employee or relative has as an employee of a business, or as
a holder of an ownership interest in such business, in a decision of any public body, when
the decision financially benefits or otherwise affects such business but entails no
foreseeable, measurable financial benefit to the officer, employee or relative;
(2) the interest that an officer, employee or relative has as a non-salaried officer or member
of a nonprofit corporation or association or of an educational, religious, charitable, fraternal
or civic organization in the holdings of such corporation, association or organization;
(3) the interest that an officer, employee or relative has as a recipient of public services
when such services are generally provided by the city on the same terms and conditions to
all similarly situated citizens, regardless of whether such recipient is an officer, employee
or relative;
(4) the interest that an officer, employee or relative has as a recipient of a commercially
reasonable loan made in the ordinary course of business by a lending institution, in such
lending institution;
(5) the interest that an officer, employee or relative has as a shareholder in a mutual or
common investment fund in the holdings of such fund unless the shareholder actively
participates in the management of such fund;
(6) the interest that an officer, employee or relative has as a policyholder in an insurance
company, a depositor in a duly established savings association or bank, or a similar interest-
holder, unless the discretionary act of such person, as an officer or employee, could
immediately, definitely and measurably affect the value of such policy, deposit or similar
interest;
(7) the interest that an officer, employee or relative has as an owner of government-issued
securities unless the discretionary act of such owner, as an officer or employee, could
immediately, definitely and measurably affect the value of such securities; or
(8) the interest that an officer or employee has in the compensation received from the city
for personal services provided to the city as an officer or employee.
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Personal interest means any interest (other than a financial interest) by reason of which an officer
or employee, or a relative of such officer or employee, would, in the judgment of a reasonably
prudent person, realize or experience some direct and substantial benefit or detriment different in
kind from that experienced by the general public. Personal interest shall not include:
(1) the interest that an officer, employee or relative has as a member of a board,
commission, committee, or authority of another governmental entity or of a nonprofit
corporation or association or of an educational, religious, charitable, fraternal, or civic
organization;
(2) the interest that an officer, employee or relative has in the receipt of public services
when such services are generally provided by the city on the same terms and conditions to
all similarly situated citizens; or
(3) the interest that an officer or employee has in the compensation, benefits, or terms and
conditions of his or her employment with the city.
Related key terms (from Section 2-568(a) of the City Code) include:
(2) Benefit = an advantage or gain.
(6) Different in kind from that experienced by the general public = of a different type or
nature not shared by the public generally and that is not merely different in degree from
that experienced by the public generally.
(7) Direct = resulting immediately and proximately from the circumstances and not from
an intervening cause.
(8) Detriment = disadvantage, injury, damage or loss.
(13) Public services = city services provided to or made available for the public's benefit.
(15) Relative = the spouse or minor child of the officer or employee, any 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.
(18) Substantial = more than nominal in value, degree, amount or extent.
2. Conflicts of Interest Under State Law
Colorado law provides ethics provisions for local government officials, including Colorado
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Revised Statutes: Sections 24-18-102 through -105 and Section 24-18-109.
1. As defined for the purpose of the statutory ethics provisions:
i. Councilmembers are “local government officials” (as defined in Section 24-18-102(6)).
ii. "Financial interest" means a substantial interest held by an individual which is:
(a) An ownership interest in a business;
(b) A creditor interest in an insolvent business;
(c) An employment or a prospective employment for which negotiations have begun;
(d) An ownership interest in real or personal property;
(e) A loan or any other debtor interest; or
(f) A directorship or officership in a business. (Section 24-18-102(4)).
2. Section 24-18-103, C.R.S., when read in conjunction with the rest of the statutory standards
of conduct, is interpreted to establish an ethical standard of conduct concerning activities that
could allow covered individuals to improperly benefit financially from their public office.
However, it is general in nature and does not specify a standard or rule to determine what is
permissible.
3. Section 24-18-104, C.R.S., prohibits disclosure or use of confidential information acquired in
the course of official duties and acceptance of certain gifts.
4. Section 24-18-105, C.R.S., sets out ethical principles that are “intended as guides to conduct
and do not constitute violations as such of the public trust of office or employment in state or
local government.”
i. Section 24-18-105(2) provides that:
(2) A … local government official … should not acquire or hold an interest in any business
or undertaking which he has reason to believe may be directly and substantially affected to
its economic benefit by official action to be taken by an agency over which he has
substantial authority.
ii. Section 24-18-105(4) provides that:
(4) A …local government official …should not perform an official act directly and
substantially affecting a business or other undertaking to its economic detriment when he
has a substantial financial interest in a competing firm or undertaking. (Emphasis added.)
5. Section 24-18-109(2), C.R.S., provides that a local government official or employee shall not
(in relevant part):
i. Engage in a substantial financial transaction for his private business purposes with a person
whom he inspects or supervises in the course of his official duties (§ 24-18-109(2)(a)); or
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ii. Perform an official act directly and substantially affecting to its economic benefit a business
or other undertaking in which he either has a substantial financial interest or is engaged
as counsel, consultant, representative or agent (§ 24-18-109(2)(b));
6. A member of a governing body of a local government who has a personal or private interest
in any matter proposed or pending before the governing body shall disclose such interest and
refrain from participating in the decision unless necessary to obtain a quorum (§ 24-18-109(3)).
i. Although the key term from this statute “personal or private interest” is not defined,
guidance from other uses of this term in related Colorado law may be helpful. As noted in
a 2004 Colorado Lawyer article describing this statute, this “standard of conduct” was likely
adapted from a provision of the Colorado constitution that is applicable to members of the
General Assembly (Colo. Constitution Art. V, § 43). According to that article, the limits
focus primarily on financial relationships in determining whether an impermissible personal
or private interest exists.
ii. In light of the relationship between this provision and the constitutional limit on members
of the General Assembly, the way the constitutional limit has been applied to the General
Assembly may provide some useful guidance in considering the meaning of “personal or
private interest.” Further elaborating on this limit on members of the General Assembly is
Joint Rule 42, which states a legislative interpretation of the limit.
To summarize, Joint Rule 42 provides that:
a) If the passage or failure of a measure will result in the legislator deriving a direct
financial or pecuniary benefit that is greater than any such benefit derived by or
shared by other persons in the legislator’s profession, occupation, industry or
region, the legislator is considered to have a personal, private or financial interest
in the measure.
b) If the interest a legislator has in a measure affects the entire membership of a class
to which the legislator belongs, the interest is not deemed to be a personal, private
or financial interest.
Merriam-Webster’s online definition of the term “pecuniary” is: 1. consisting of or
measured in money; such as pecuniary aid pecuniary gifts; 2: of or relating to money.
7. Article XXIX of the Colorado constitution – also referred to as “Amendment 41,” sets out
limits for state and local officers and employees, by establishing limits on the acceptance of
gifts and forming an Independent Ethics Commission to hear complaints about conduct of
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covered officials. While the amendment applies to municipalities in general, Section 7
provides, “Any county or municipality may adopt ordinances or charter provisions with respect
to ethics matters that are more stringent than any of the provisions contained in this article. The
requirements of this article shall not apply to home rule counties or home rule municipalities
that have adopted charters, ordinances, or resolutions that address the matters covered by this
article.” (Emphasis added.)
Since the enactment of Amendment 41, it has been generally understood that Section 7
exempts home-rule cities that have enacted their own local charter and code ethics provisions,
like Fort Collins, from its provisions.
In September 2010, the City Council adopted Resolution 2010-063, finding and determining
that the City’s Charter and Code adequately and appropriately address those matters covered
by Amendment 41, that no further action by the City Council is warranted or necessary in
order to further the purposes of Amendment 41 or address the matters contained therein, and
that the requirements of Amendment 41 shall not be applicable to the City of Fort Collins.
Application of Conflicts/Ethics Provisions to Council Decisions
Council Decisions Related to Poudre School District
Financial Interest Under City Charter
Considering the circumstances presented by Councilmember Potyondy, the Board readily
concluded that there is not a financial interest presented by any of the identified Council decisions
regarding Poudre School District. This is because there is no connection between the funding for
her position at Poudre School District and the decisions, nor any identifiable indirect connection,
so there is no foreseeable, measurable financial benefit to her.
Personal Interest Under City Charter
Whether Councilmember Potyondy has a personal interest in the types of decisions Council makes
regarding Poudre School District by virtue of her employment with the District is governed by the
standard of whether as a result of the Council decision she would experience some direct and
substantial benefit or detriment, different in kind from that experienced by the general
public.
Although in recent years there has been much speculation as to whether an employee is under
pressure to act as a Councilmember in a manner that will please their employer, it is commonly
speculative to attribute a direct and substantial benefit or detriment to the
employee/Councilmember unless the specific circumstances indicate some relationship between
the employer’s interest in the decision and how the employer will treat the
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employee/Councilmember. In other words, Councilmember Potyondy is unlikely to have a
personal interest in a decision related to Poudre School District, unless there is an evidence-based
and not speculative reason to think the School District will take action of some kind for or against
her as a result of a specific decision she makes as a Councilmember.
It is imaginable that the Council could at some point consider an action, such as the funding of
mental health resources for the School District, that may relate directly and closely enough to
Councilmember Potyondy’s role and work with the School District to merit a close look as to
whether a personal interest is presented.
It may be helpful for Councilmember Potyondy to seek assurance and commitment from the
School District that her actions as a City Councilmember will not influence in any way her
treatment, compensation or other circumstances in connection with her employment.
In addition, there may be instances in which Councilmember Potyondy has concerns about the
significance of an issue to the School District and chooses to declare a personal interest in the
matter in order to avoid the appearance of or potential for a conflict of interest.
State Ethics Provisions
Similarly, the state law ethics provisions each relate to personal or private interests in which some
financial or pecuniary impact may be experienced by a local government official from official
actions. The Board did not identify any direct or indirect financial or economic impact to
Councilmember Potyondy likely to result from decisions generally involving her employer Poudre
School District.
Councilmember Potyondy would be required under state law to disclose a personal or private
interest in any matter proposed or pending before the Council and refrain from participating in
the decision unless necessary to obtain a quorum. Under the guidance related to this provision, it
is unlikely that a decision related to Poudre School District would trigger this prohibition unless
the specific circumstances suggested an impact directly to Councilmember Potyondy from the
decision. Accordingly, the Board has concluded that the state law ethics provisions do not bar
participation by Councilmember Potyondy in the Council decisions of the sort identified above,
and further review and analysis would be necessary mainly in the event the details of the Council
decision were closely tied to her work or work conditions.
Council Decisions Related to the City Attorney’s Office or Eric Potyondy
Financial Interest Under City Charter
Considering the circumstances of Councilmember Potyondy’s relationship to Assistant City
Attorney Eric Potyondy and of his roles and responsibilities within the City Attorney’s Office, the
Board readily concluded that there is not a financial interest, as defined in the City Charter,
presented by the majority of the Council decisions related to the City Attorney or City Attorney’s
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Office. It is conceivable that at some point the City Council might consider funding issues that
would have an impact on staffing levels within the City Attorney’s Office. Such an event, if it were
to result in a reduction in force for example, could give rise to an actual or perceived measurable
financial benefit or detriment.
It may be helpful for Councilmember Potyondy to evaluate the potential for an actual or perceived
conflict-of-interest in advance of City Council’s consideration of each funding matter related to
the City Attorney or City Attorney’s Office and to seek specific advice or an ethics opinion on
such matters as the need arises. It will be incumbent upon the City Attorney to provide
information to the City Council sufficient to give them notice of potential impacts of their funding
decisions on staffing at the City Attorney’s Office so that Councilmember Potyondy is aware of
the potential for a conflict of interest. There may be instances in which Councilmember Potyondy
has concerns about the significance of budget issues affecting the City Attorney’s Office and
chooses to declare a personal interest in the matter in order to avoid the potential for a conflict of
interest.
Personal Interest Under City Charter
Whether Councilmember Potyondy has a personal interest in the types of decisions Council makes
regarding the City Attorney’s Office is governed by the standard of whether as a result of the
Council decision she would experience some direct and substantial benefit or detriment,
different in kind from that experienced by the general public. Because the Council’s role in
making decision related to the City Attorney’s Office generally is limited to reviewing
performance and setting compensation and terms of employment of the City Attorney, there is
little likelihood of any issues generating a direct and substantial benefit or detriment to
Councilmember Potyondy.
Although the City Council does interact with and receive legal advice from Assistant City Attorney
Eric Potyondy on matters concerning water rights, utilities, and related utility matters, it is difficult
to imagine any of Council’s decisions on those matters giving rise to any direct and substantial
benefit or detriment to Councilmember Potyondy that would be different in kind from that
experienced by the general public.
Because the City Attorney’s Office has access to confidential information and may advise
managers and employees of the City on matters over which they have authority, there may be a
perception by some that a Councilmember whose spouse is an assistant city attorney may have
access to confidential information not otherwise available to the City Council. For example, the
City Attorney’s Office may provide advice and representation to City managers and employees on
matters that are confidential and not within the direct authority of City Council, such as personnel
and employment issues or criminal justice information. It may be advisable to have the City
Attorney adopt policies and institute appropriate safeguards such as intra-office “ethical walls” to
prevent any appearance that a member of City Council whose spouse is an assistant city attorney
might have access to otherwise confidential information.
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State Ethics Provisions
State law ethics provisions each relate to personal or private interests in which some financial or
pecuniary impact may be experienced by a local government official from official actions. The
Board did not identify any direct or indirect financial or economic impact to Councilmember
Potyondy likely to result from decisions generally involving the City Attorney’s Office. As
discussed above, there is the possibility that at some point the City Council might consider funding
issues that would have an impact on staffing levels within the City Attorney’s Office. It is
conceivable that a funding decision could result in a financial or pecuniary impact to
Councilmember Potyondy because of her spouse’s employment as an assistant city attorney.
Councilmember Potyondy would be required under state law to disclose a personal or private
interest in any matter proposed or pending before the Council and refrain from participating in
the decision unless necessary to obtain a quorum. Accordingly, the Board has concluded that the
state law ethics provisions do not bar participation by Councilmember Potyondy in the Council
decisions related to Council decisions related to the City Attorney or the City Attorney’s Office.
Only if the ramifications of a decision could impact her spouse’s employment status would this
require further review and analysis.
Board Conclusions and Recommendations:
1. With respect to her employment at Poudre School District, Councilmember
Potyondy does not have a financial or personal interest under the City Charter in
the most Council decisions, with some potential exceptions.
The Board finds that Councilmember Potyondy is unlikely to have a financial
interest under the City Charter in any of the types of Council decisions identified
above, based on the facts as presented in this review.
The Board finds that Councilmember Potyondy is unlikely to have a personal
interest in any of the types of Council decisions identified above, based on the facts
as presented in this review. However, in the event the Council is faced with a
decision involving facts directly and closely related to Councilmember Potyondy’s
role and work with the School District, such as funding of mental health support
services, a closer look for potential personal interest would be warranted.
It may be helpful for Councilmember Potyondy to seek assurance and
commitment from the School District that her actions as a City Councilmember
will not influence in any way her treatment, compensation or other circumstances
in connection with her employment.
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2. Councilmember Potyondy does not have a state law ethics bar from participating
in the Council decisions related to Poudre School District as a general matter.
The Board has concluded that the state law ethics provisions do not bar
participation by Councilmember Potyondy in the Council decisions of the sort
identified above, and further review and analysis would be necessary mainly in
the event the details of the Council decision were closely tied to her work or work
conditions.
3. With respect to her spouse’s employment as an assistant city attorney in the Fort
Collins City Attorney’s Office, Councilmember Potyondy does not have a
financial or personal interest under the City Charter with most City Council
decisions, with some possible exceptions.
The Board finds that Councilmember Potyondy is unlikely to have a financial
interest under the City Charter in most types of Council decisions identified
above, based on the facts as presented in this review.
Matters that relate to budgets and that could have a direct impact on staffing
levels and support services for members of the City Attorney’s Office may require
closer analysis. It may be helpful for Councilmember Potyondy to evaluate the
potential for an actual or perceived conflict-of-interest in advance of City
Council’s consideration of any matters related to the City Attorney or City
Attorney’s Office and to seek specific advice or an ethics opinion on such matters
as the need arises.
4. Councilmember Potyondy does not have a state law ethics bar from participating
in the Council decisions related to the City Attorney or City Attorney’s Office.
The Board finds that state law ethics provisions do not bar Councilmember
Potyondy from participating in in the Council decisions related to the City
Attorney or the City Attorney’s office as a general matter.
It is conceivable that a specific issue might arise that would require City Council
action on a matter that could lead to an actual or perceived conflict-of-interest due
to her spouse’s employment as an assistant city attorney. In that event, it would
be advisable for Councilmember Potyondy to evaluate the potential for an actual
or perceived conflict-of-interest on such a matter in advance of City Council’s
consideration.
5. The Ethics Review Board does not find at this time that it is necessary or
appropriate to establish a specific conflicts management plan for Councilmember
Potyondy.
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This advisory opinion was reviewed and approved by Mayor Wade Troxell and Councilmembers
Ken Summers and Julie Pignataro, as the designated regular members of the Ethics Review Board,
at a meeting of the Ethics Review Board on February 12, 2021. Pursuant to 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 shall be considered by the City Council at an
adjourned meeting on February 23, 2021.
Dated this 12th day of February, 2021.
____________________________________
Carrie M. Daggett, City Attorney
____________________________________
Douglas M. Marek, Greeley City Attorney
(Special Counsel to the Board)
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