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HomeMy WebLinkAboutAGENDA ITEM SUMMARY - 5/2/2022- Agenda, Agenda Item Summary, Agenda Item Summary 5, Agenda Item Summary 4 Item 1 Page 1 AGENDA ITEM SUMMARY Item 5 May 2, 2022 City Council-Ethics Review Board STAFF Carrie M. Daggett, City Attorney SUBJECT Continued discussion of the alternate review board process. EXECUTIVE SUMMARY The Ethics Review Board met on November 15, 2021, and January 31, 2022, to discuss ethics review board processes. This is to provide more related to the alternate review board process, which the Board discussed briefly at the January meeting in case the Board would like to continue that discussion. BACKGROUND / DISCUSSION The Board initially met in November in response to a request at a Council meeting this summer under “Other Business” initiated by Councilmember Gutowsky in follow up to discussions by Council and the Ethics Review Board in 2020 and 2021. At its November meeting, the Board discussed various issues and ultimately focused on the issue of whether to modify the complaint screening process for complaints against Councilmembers to use outside expert resources. As part of earlier discussion about the screening process, there has been some discussion about the alternate review board provisions and whether that mechanism would be useful as a way to create more separation between Council and consideration of complaints against Councilmembers. The Code provides for an “alternate review board” when a complaint is filed that alleges violations by five or more members of Council. In that event, the City Clerk randomly selects seven members of City boards and commissions (those board or commission members may decline to serve by notifying the Clerk), who serve in the place of the Ethics Review Board in connection with the complaint. Although interest has waned in using this as a mechanism for screening or deciding complaints against Councilmembers, there has been some discussion about whether it would be preferable to name a standing alternate board periodically (perhaps each year) rather than forming the alternate board in response to the filing of a complaint. This came up briefly late in the Board’s discussion on January 31, and this item is to give the Board a chance to circle back to that issue for further discussion. Item 1 Page 1 AGENDA ITEM SUMMARY Item 4 May 2, 2022 City Council-Ethics Review Board STAFF Carrie M. Daggett, City Attorney SUBJECT Continued discussion of options for the screening and review process for ethics complaints. EXECUTIVE SUMMARY The Ethics Review Board met on November 15, 2021, and January 31, 2022, to discuss potential changes to the process for screening and review of ethics complaints that are filed against Councilmembers. This is a continuation of that discussion. BACKGROUND / DISCUSSION The Board initially met in November in response to a request at a Council meeting this summer under “Other Business” initiated by Councilmember Gutowsky in follow up to discussions by Council and the Ethics Review Board in 2020 and 2021. At its November meeting, the Board discussed various issues and ultimately focused on the issue of whether to modify the complaint screening process for complaints against Councilmembers to use outside expert resources. In follow up to the November discussion, staff has researched examples of ethics review processes in Colorado and in some other jurisdictions to identify ways that outside attorneys are used in the screening or complaint review. There is significant variation from city to city and no clear pattern in this respect. More detailed information related to this was provided for the Board’s meeting on January 31, 2022, and those materials for that meeting are attached for easy reference. Under the Code now, the Board reviews (screens) all complaints to evaluate and determine by majority vote whether to formally investigate the complaint based on the following: 1. Whether the allegations in the complaint, if true, would constitute a violation of state or local ethical rules; 2. The reliability and sufficiency of any facts asserted in support of the allegations; and 3. Any other facts or circumstances the Board may consider relevant. Under the current process, if the Board determines that a complaint does not warrant investigation, the Board then directs staff to send written notice to the complainant of that determination and the reasoning behind it. A copy of that notice is also sent to the subject of the complaint and the City Council, and the matter is closed. If the complaint is not screened out, the Board then proceeds with an investigation and hearing about the allegations in the complaint. Item 1 Page 2 The process elements to consider in formulating a recommended new process, with proposed approaches based on the Board’s discussion so far, include: 1. What parts of the process would the Board (or the Council) retain in connection with a complaint against a Councilmember? a. the decision whether to take action to admonish a violator or take other action; b. the final decision as to whether a violation occurred (Council on the recommendation of the Board); c. the application of the Charter and Code to determine of whether a violation occurred; d. the investigation and finding of facts related to the accusations; e. not the initial screening of a complaint for whether it merits investigation. 2. If an outside resource will be used, what type of expert or resource would be preferred? The Board expressed interest in using an outside attorney with expertise in ethics matters to carry out the screening step. 3. For parts of the process that will be carried out by others, would the Board prefer a standing appointment, a pool of appointees to be drawn upon, or an ad hoc appointment? The Board expressed a preference for having outside resources in place to be called upon as needed. 4. Would there be special considerations in making the appointment, such as whether the person is local, for example. The Board didn’t discuss this extensively. It may be beneficial to use outside counsel from outside the community to reduce the potential for existing relationships or involvement. 5. Who would select or appoint the outside resources? The Board seemed comfortable with the City Attorney selecting and making arrangements for the outside counsel for a screening process (with update information provided to the Council), although more discussion of this may be helpful. 6. Would the use of outside resources apply to all ethics complaints (including those about board and commission members as well as Councilmembers)? The Board discussed this and expressed a preference for limiting the special screening to only complaints against Councilmembers, since those raised the question about impartiality. To move forward in this direction, some changes to the City Code would be needed. In addition, it may be beneficial to more clearly outline considerations in the screening process to guide screening decisions both for the Board and for an outside screener. ATTACHMENTS January 31, 2022, Ethics Review Board Agenda Item Summary City Attorney’s Office 300 Laporte Avenue PO Box 580 Fort Collins, CO 80522 970.221.6520 970.221.6327 fcgov.com PUBLIC NOTICE ETHICS REVIEW BOARD MEETING An Ethics Review Board meeting will be held Monday, January 31, 2022, from 4:00 p.m. - 5:30 p.m. Due to COVID-19, this meeting will be held remotely via Zoom. Members of the public who wish to join the meeting via Zoom may do so by calling in to the information below: Join Zoom Meeting https://fcgov.zoom.us/j/92352116192?pwd=alhhSk40VW5xUXVJRlhiaFUrblZsdz09 Meeting ID: 923 5211 6192 Passcode: XN0.S6.i One tap mobile +17209289299,,92352116192# US (Denver) +12532158782,,92352116192# US (Tacoma) Dial by your location +1 720 928 9299 US (Denver) +1 253 215 8782 US (Tacoma) +1 346 248 7799 US (Houston) +1 312 626 6799 US (Chicago) +1 646 558 8656 US (New York) Meeting ID: 923 5211 6192 Find your local number: https://fcgov.zoom.us/u/aciempouJ International numbers available: https://fcgov.zoom.us/u/acmMItBAcQ 1-31-22 ERB Meeting 0001 City Attorney’s Office 300 Laporte Avenue PO Box 580 Fort Collins, CO 80522 970.221.6520 970.221.6327 fcgov.com AGENDA Ethics Review Board Meeting January 31, 2022 (4:00 – 5:30 p.m.) Via Zoom Members of the public who wish to join the meeting via Zoom may do so by calling in to the information below: https://fcgov.zoom.us/j/92352116192?pwd=alhhSk40VW5xUXVJRlhiaFUrblZsdz09 Meeting ID: 923 5211 6192 Passcode: XN0.S6.i One tap mobile +17209289299,,92352116192# US (Denver) +12532158782,,92352116192# US (Tacoma) Dial by your location +1 720 928 9299 US (Denver) +1 253 215 8782 US (Tacoma) +1 346 248 7799 US (Houston) +1 312 626 6799 US (Chicago) +1 646 558 8656 US (New York) Meeting ID: 923 5211 6192 Find your local number: https://fcgov.zoom.us/u/aciempouJ International numbers available: https://fcgov.zoom.us/u/acmMItBAcQ 1. Call to Order 2. Roll Call 3. Review and Approval of the November 15, 2021, Minutes of the Ethics Review Board 4. Discuss and consider options for the screening and review process for ethics complaints. 5. Other Business 6. Adjournment 1-31-22 ERB Meeting 0002 Item 1 Page 1 AGENDA ITEM SUMMARY January 31, 2022 City Council-Ethics Review Board STAFF Carrie M. Daggett, City Attorney SUBJECT Continued discussion of options for the screening and review process for ethics complaints. EXECUTIVE SUMMARY The Ethics Review Board first met on November 15, 2021, to initiate the Board’s work during this term. This meeting is a continued discussion from that meeting regarding potential changes to the process for screening and review of ethics complaints that are filed. BACKGROUND / DISCUSSION The City Code (Section 2-569) establishes an Ethics Review Board to assist Councilmembers and board and commission members in interpreting and applying the City’s ethics provisions. In addition to considering complaints and rendering advisory opinions, the Code also empowers the Board to “propose any revisions to 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.” The Board initially met in November in response to a request at a summer 2021 Council meeting under “Other Business” initiated by Councilmember Gutowsky in follow up to discussions by Council and the Ethics Review Board in 2020 and 2021. At its November meeting, the Board discussed various issues and ultimately focused on the issue of whether to modify the complaint screening process to use outside expert resources. The Board asked for additional information about this for further consideration and discussion at this meeting. In follow up to the November discussion, staff has researched examples of ethics review processes in Colorado and in some other jurisdictions to identify ways that outside attorneys are used in the screening or complaint review. There is significant variation from city to city and no clear pattern in this respect. Many city codes simply provide that the city council is responsible for hearing and resolving ethics complaints or establish a council board of ethics similar to the Fort Collins Ethics Review Board. Others assign that responsibility to the city attorney, sometimes with the use of outside counsel where appropriate. 1-31-22 ERB Meeting 0003 Item 1 Page 2 Here are some examples of systems in other jurisdictions that incorporate outside expert resources: 1. Arvada: a. City council is responsible for investigating, hearing and determining ethics violations and considering ethics complaints. b. The council may refer matters to appropriate law enforcement for investigation or refer the matter to an outside disinterested third person selected by the city council for investigation or hear the matter itself. 2. Aspen: a. The city attorney renders advisory opinions and may appoint neutral outside counsel to resolve issues raising significant controversy. b. The city council may remove any official who violates the Aspen code of conduct. c. If applicable, the city attorney may commence a civil action to recover anything of value upon a showing of a violation of the code of conduct. 3. Aurora: a. A panel of three judges (former judicial officials) hears ethics complaints and issues findings; b. The members of the panel are appointed in response to the complaint (not before); c. City attorney sets rules for the hearing process; and d. Final action is taken by the panel of judges. 4. Boulder: a. City attorney investigates ethics complaints and issues findings. City attorney may request that council appoint special counsel in the case of a conflict, professional ethics bar or appearance of impropriety. 5. Central City: a. The city council sitting as the board of ethics has the power to investigate ethics complaints. b. The council may order the city attorney to retain the services of an independent investigator to investigate the issues defined for investigation. 6. Colorado Springs: a. City council appoints a five-member independent ethics commission to issue advisory opinions on request and to make written recommendations to council in response to ethics complaints. b. Each member must have expertise in ethical matters acquired through education or experience. c. The city attorney is liaison and legal advisor to the commission and may also issue advisory opinions upon request. d. Complaints are filed confidentially; the commission may dismiss a complaint as frivolous. e. The commission investigates, deliberates and makes a recommendation of findings confidentially to council and then council by majority vote acts on the complaint. f. If council finds there was a violation, the subject is notified and may then request a public hearing. 1-31-22 ERB Meeting 0004 Item 1 Page 3 7. Denver: a. Based on at least three nominations from a board of ethics nominating committee, mayor and council appoint members of a board of ethics that consists of no more than one City officer/employee, at least one former judicial officer and at least one ethics expert; b. The board makes findings on a complaint by majority vote. 8. Durango: a. Council appoints five community members with expertise in ethics acquired through education or experience to serve on a board of ethics; three must be city residents and the other two may be non-city residents. b. The board of ethics issues advisory opinions and guidelines, and reviews and hears complaints and make recommendations to regarding penalties. c. The city attorney advises the board. d. The board’s powers include mediating and working to resolve disputes related to ethics complaints, conducting investigations and hearings, making findings and issuing an order setting out findings and recommendations, including proposing to the city council actions for the council to take. e. Council actions may include a written reprimand, order for remedial training, suspending or removing an elected or appointed officer, or issuing a public censure and apology letter or resolution for the benefit of an affected person. 9. Lone Tree: a. A board of ethics, advised by the city attorney, reviews ethics complaints. b. The board of ethics consists of two members of the city council (appointed by the city council) and the city manager (or delegee). c. The board may refer a complaint to another agency with jurisdiction. 10. Louisville: a. The city attorney/prosecutor receives complaints and forwards them to an advisory judge, requesting that the advisory judge appoint a qualified, disinterested attorney to serve as special prosecutor. If the advisory judge fails to act, the municipal judge instead makes the appointment. The special prosecutor investigates the complaint and takes enforcement action as they determine appropriate. b. The municipal judge keeps a list of one or more judges of other municipalities to provide advisory opinions on request. Those subject to the ethics provisions may seek an advisory opinion from the advisory judge on an ethics question. Advisory opinions are posted for the public unless the advisory judge determines it’s in the best interest of the city to delay public posting until no harm to the city will result. 11. Thornton: a. The municipal judge keeps a list of one or more judges of other municipalities to provide advisory ethics opinions as requested. b. Determinations of whether a violation has occurred are made as follows: i. For a councilmember, the remaining members of council decide by majority vote whether there are grounds for official reprimand; and 1-31-22 ERB Meeting 0005 Item 1 Page 4 ii. For a board member, the remaining members of the board or the city council decide by majority vote whether there are grounds for an official reprimand and council may remove such board member. Reviewing the examples found, there are some common elements to consider in formulating a recommended new process: 1. What parts of the process would the Board (or the Council) retain? This might include: a. the decision whether to take action to admonish a violator or remove an appointee from office (or take other action); b. the final decision as to whether a violation occurred (if another body or reviewer makes a recommendation); c. the application of the Charter and Code to determine of whether a violation occurred; d. the investigation and finding of facts related to the accusations; e. the initial screening of a complaint to determine whether it merits investigation. 2. If an outside resource will be used, what type of expert or resource would be preferred? This might include: a. An outside attorney (either from a fellow municipality under an IGA or retained from an outside firm); b. An outside judge (either from a fellow municipality under an IGA or separately arranged from another source); c. A retired judge or judicial officer; d. An outside ethics expert (who may or may not be an attorney); or e. An outside investigator. 3. For parts of the process that will be carried out by others, would the Board prefer a standing appointment, a pool of appointees to be drawn upon, or an ad hoc appointment? 4. Would there be special considerations in making the appointment, such as whether the person is local, for example. 5. Who would select or appoint the outside resources? Examples from other jurisdictions include: a. The Council; b. The Ethics Review Board; c. The City Manager; d. The City Attorney; e. The Chief Municipal Judge; f. The City Clerk; g. A nominating committee. 6. Would the use of outside resources apply to all ethics complaints (including those about board and commission members as well as Councilmembers)? Based on the Board’s discussion and preferences related to these elements, a draft outline of a proposed new process could be ready for the Board to consider at its next meeting. 1-31-22 ERB Meeting 0006 Item 1 Page 5 OVERVIEW OF CONFLICTS OF INTEREST PROVISIONS For reference, here is an overview of the City’s conflicts of interest provisions: 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 they are a member or to which they make 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 nonsalaried 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 1-31-22 ERB Meeting 0007 Item 1 Page 6 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. 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. Applying these definitions to determine whether an officer or employee (or that person’s relative) has a financial interest is generally a more objective inquiry, since it turns on whether there is a “foreseeable, measurable financial benefit” to the officer or employee. In contrast, evaluating whether an officer or employee (or that person’s relative) has a “personal interest” is generally more difficult, because there is more room for interpretation. The definition requires an evaluation of whether that person would, in the judgment of a reasonably prudent person: 1. realize or experience some direct and substantial benefit or detriment; 2. that is different in kind from that experienced by the general public. Opinions regarding whether these elements are met in any particular circumstance can vary widely. ATTACHMENTS December 2020 Work Session Summary 1-31-22 ERB Meeting 0008 City Attorney’s Office 300 Laporte Avenue PO Box 580 Fort Collins, CO 80522 970.221.6520 970.221.6327 fcgov.com M E M O R AN D U M Date: December 29, 2020 To: Mayor Troxell and City Councilmembers From: Carrie Daggett, City Attorney Re: December 22, 2020, Work Session Summary: Ethics Standards and Process Councilmembers present were Mayor Troxell, Mayor Pro Tem Stephens, and Councilmembers Cunniff, Gorgol, Gutowsky, Pignataro and Summers. My staff presentation reviewed the City’s conflict of interest standards and the ethics review process, together with some history regarding the pattern of ethics review requests and complaints over the years. It also included an explanation of Ethics Review Board activity during 2019 and 2020 and how that has led to interest in considering ways to improve the current standards and processes. Council then discussed interest in and ideas for changes to the Fort Collins City Charter and City Code related to defining conflicts of interest and the process for reviewing ethics complaints. The items reviewed and related summary follows: 1. Amending the Charter definition of “personal interest” or more generally the concept of “conflict of interest:” a. Councilmembers discussed how the relationship of a Councilmember’s employment to matters of interest to that employer has come up repeatedly during the past year, mainly, but not exclusively, in relation to the Hughes Stadium item. b. There was general consensus that the clearer and easier the standards are to apply, the better able officers and employees are to identify, disclose and appropriately act on conflicts. c. Several Councilmembers expressed interest in continuing to review the standard for possible revision at a later time, noting that it is important to be thoughtful and work through any changes with care before taking action. d. Several Councilmembers noted the difficulty in applying the “personal interest” standard and suggested that it would be beneficial to revisit and improve that aspect of the conflicts of interest provisions. 1-31-22 ERB Meeting 0009 December 22 Work Session Summary Ethics Standard and Process December 29, 2020 Page 2 of 3 e. It was noted that the current Charter definitions may exclude situations that would commonly be viewed as conflicts of interest, also something to consider in connection with an overall review of the conflicts of interest standard. f. There was not support expressed for bringing an item forward for the April election and instead there was some interest in taking more time to consider what changes may be beneficial. There was also some thought expressed that the standard is not “broken” and no action is needed. 2. Amending the City Code to change the ethics review body for complaints against Councilmembers to an “alternative ethics review board:” a. There was substantial discussion about the idea of extending the role of the “alternate ethics review board” in current Code to consider all complaints against Councilmembers, and particularly about ways to improve on the alternate board configuration: i. An idea discussed at length was to select this body from among the chairs of the boards and commissions (rather than all board and commission members); and ii. Additionally, it was discussed that such an alternate board could be appointed annually after the boards and commissions have selected their chairs for the year. b. Ultimately, the discussion evolved and there was not clear interest in moving forward with this approach as the discussion moved to other possibilities. 3. Amending the City Code to change the composition of the ethics review board generally was also discussed. a. One idea that was of some interest was to appoint members of the public with expertise in ethics or law, including retired judges, attorneys or other experts, as all or part of the ethics review board. i. It was noted that this would offer the benefit of having board members better able to independently consider and apply the standards. ii. Some expressed an interest in this approach because it would appear more objective. b. It was noted that other jurisdictions have different approaches that it would be worth learning more about, particularly with respect to the experiences with the system, the successes and advantages and disadvantages that have been experienced. c. There was interest in developing more information related to the options for a different structure for an ethics review board, recognized as likely a discussion for the next Council given the timing and need to be deliberative about any 1-31-22 ERB Meeting 0010 December 22 Work Session Summary Ethics Standard and Process December 29, 2020 Page 3 of 3 changes. There was also the view expressed that the current process works well and there is not an immediate need to change it. Some additional general comments and suggestions included: • It was suggested that Council consider forming a Council governance committee to take on the role of some of the current Council committees, including some of the policy- oriented functions of the Ethics Review Board. • It was suggested that Council consider a practice of developing management plans for individual Councilmembers that would look forward to areas of potential conflicts of interest and anticipate how those would be handled, to be updated annually or periodically. • There was a clear expression of desire to ensure a clear and effective ethics standard and process to assist officers and employees with compliance and ensure public confidence in the Council’s decisions and other actions of City officers and employees. • The general outcome of the discussion was that the City Attorney’s Office will continue to gather information about options for both updating the standards and the ethics review process, for discussion with Council at an unspecified later time. pc: Darin Atteberry, City Manager Delynn Coldiron, City Clerk Jenny Lopez-Filkins, Sr. Assistant City Attorney Claire Havelda, Assistant City Attorney 1-31-22 ERB Meeting 0011 1 Ethics Review Board Meeting Minutes November 15, 2021 4:00 p.m. Meeting Via Zoom Ethics Review Board members in attendance: Mayor Jeni Arndt, Councilmembers Julie Pignataro, Councilmember Susan Gutowsky. Staff in attendance: Carrie Daggett, City Attorney; Jeanne Sanford, Paralegal; Nina Bodenheimer, Travis Storin Other Attendees: Kevin Jones, Fort Collins Chamber of Commerce. A meeting of the City Council Ethics Review Board (“Board”) was held on Monday, November 15, 2021, at 4:00 p.m. via Zoom Meeting. The meeting started at 4:08 pm. The Board reviewed the Agenda which contained the following items: 1. Call to Order 2. Roll Call 3. Selection of a Presiding Officer 4. Review and Approval of the February 12, 2021, Minutes of the Ethics Review Board 5. Consideration of conflicts of interest related to employment relationships 6. Consideration of any additional policy ideas or concerns the Board would like to address in upcoming meetings 7. Consideration of meeting frequency and schedule 8. Other Business 9. Adjournment Paralegal Jeanne Sanford took roll call for the Board. All members were in attendance. City Attorney Daggett advised the board a chair was to be nominated. Councilmember Pignataro made a motion to nominate Councilmember Gutowsky as Chair and Mayor Arndt seconded the motion. Paralegal Jeanne Sanford took a roll call vote and the motion was approved by unanimous vote. Item 4 of the agenda was discussed, the review and approval of the February 12, 2021, Minutes. Councilmember Pignataro made a motion to approve the February 12, 2021, Minutes. Mayor Arndt seconded the motion. The Minutes were approved by unanimous vote. Item 5 was discussed, the consideration of conflicts of interest related to employment agreements and the Board asked City Attorney Daggett to provide some background information on this item. 1-31-22 ERB Meeting 0012 2 Ms. Daggett explained the information provided to the Board was to give background on this topic. This topic came up under Other Business at a Council meeting several months ago. Ms. Daggett explained that in 2020, there were a number of complaints filed regarding Councilmembers’ employment and matters of interest to Councilmembers’ employer and evaluating the question of when an employment relationship creates a conflict of interest. The City’s Charter and Code do not specifically address an officer’s outside employment and each situation is evaluated based on the interpretation and application of the financial interest and personal interest provisions. The determination of whether there is a personal interest turns on whether, in the “judgment of a reasonably prudent person, direct and substantial benefit/detriment different in kind from the general public”. It was noted that this may have been of interest in suggesting that the Board discuss whether changes are needed. City Attorney Daggett explained that examples have been provided to the Board of other jurisdictions, other state and local laws defining the employer relationship. A few examples are fairly strict, very broad definition on employer having interest. One example, Montpelier, Vermont, gives a specific provision addressing State of Vermont employees. Former Mayor Wade Troxell provides an example of how the issue has typically been approached here – in connection with matters in the department he worked in or projects he was involved in, he would file a conflict of interest and stay out of the decision. But for general CSU matters, he did not. Ms. Daggett suggested that the Board review this information and consider if a change is needed. Then, if it is the Board’s desire to evaluate this issue further, based on the discussion and additional options would be provided on this issue. Councilmember Gutowsky asked, should the Board decide to recommend changes, would it be a charter change, ballot issue be initiated? City Attorney Daggett explained to change a definition of a conflict of interest would need to be in the Charter. This change could go to either a November or April election. Councilmember Pignataro provided further background on this issue explaining the majority of ethics complaints over the past two years were related to Hughes Stadium, CSU and former Mayor Troxell and former Councilmember Stephens’ employment status with CSU. Ms. Pignataro explained that a significant share of the issue of concern had been that when Councilmembers are tasked with evaluating an ethics complaint brought against another Councilmember, some in the community perceived a lack of objectivity in the process. Mayor Arndt observed that upon review the complaints fall away, demonstrating strong, clear policies, and noted that the Code lays out what to do in those instances. Mayor Arndt also noted the purpose of the Board is to help others work through ethical questions. Mayor Arndt noted it would be absurd to eliminate those who work for employers in this town and questioned where that would lead. She noted the purpose of the Ethics Review Board is to provide guidance on these issues. 1-31-22 ERB Meeting 0013 3 Councilmember Gutowsky noted her concerns about the difficulty in applying the “personal interest” provisions and indicated that the issue had arisen in late 2020 regarding the mobile home park updates and Mayor Pro Tem Emily Francis (then Councilmember Gorgol) who worked for an organization actively working with and advocating for mobile home park residents. City Attorney Daggett explained that the Ethics Review Board did a formal advisory review on the mobile home park rezoning question and produced an advisory opinion from the Board finding she did not have conflict in general but that it would be important to evaluate individual rezoning proposals in case she had been actively, directly involved with the situation of a particular affected property. The need for education and awareness on part of Councilmembers on the benefit of using the advisory process was discussed. Ideas on how to promote the advisory process were mentioned, including the idea of the Board reminding other councilmembers of the process. Mayor Arndt suggested adding information about this to Councilmember training and/or other on- boarding activities and education. Councilmember Pignataro noted that everyone has their own tolerance of risk which may not be the same for all and noted a desire to respect that as well. Some may not feel the need to seek an advisory opinion. Ms. Pignataro suggested that the Respectful Workplace policy training may offer a chance to remind Councilmembers of the advisory process. City Attorney Daggett circled back to the discussion in 2020 about this Ethics Review Board process, considering the complaints against Councilmembers. Ms. Daggett noted that although there has not been a lot of momentum, there may be interest in changing this process. There was a work session in December 2020 with a follow up memo summarizing the discussion. Ms. Daggett summarized some of the points and ideas generated in the earlier discussion: • The complaint review process is in the Code and Council can modify it (without it going to the voters); • An alternative ERB process is triggered when so many councilmembers are involved that the Ethics Review Board cannot be formed. In that instance, there could be a random selection from Board and Commission members to act on the Ethics Review Board; • Perhaps this approach would work on complaints on Councilmembers to foster a greater sense of objectivity; • Alternatively, an independent group such as representation from the legal community could have a role in the process; • The idea has been discussed of adding non-Councilmembers to the Ethics Review Board; • The idea of using an outside attorney or retired judge in the screening step has also been discussed. 1-31-22 ERB Meeting 0014 4 Councilmember Pignataro asked about hiring other municipalities to hear the complaints. Ms. Pignataro stated she like that approach and noted that we provided that assistance to Boulder recently. She expressed concern about the dynamics of asking board and commission members to serve in the role of evaluating complaints against Councilmembers given that there could be too much pressure to support the Councilmember in that situation. She expressed interest in pursuing further the use of outside counsel instead. Mayor Arndt agreed. While complaints don’t occur often, it’s good to have a process ready for when they occur. She expressed support for the idea of using outside counsel. City Attorney Daggett stated “frivolous” complaints can be pretty easy to resolve, although the process that the Board has been using can be time-consuming and labor-intensive. Within our process, the screening review is a way to see if the complaint even alleges facts that would constitute an ethics violation, and whether the facts are plausible given information known to Council. One approach could be to use an outside entity to carry out the screening stage of the process, or to determine the facts and make a recommendation to the Board. Ms. Daggett suggested that she research some examples and provide information to the Board for further discussion. The Board discussed that the screening process has evolved into looking more of like a hearing. Mayor Arndt stated she is very supportive of getting policies and procedures in place before they are needed. Item 6 on the agenda was discussed and there was support for scheduling another Board meeting in January to continue the discussion of using outside resources in the process. The Board then discussed item 7 on the agenda -- meeting frequency for the Board. Councilmember Pignataro suggested the Board meet only when requested once this issue was sorted out. Councilmember Gutowsky and Mayor Arndt agreed. The best days and times were discussed for scheduling the follow up meeting. As there was no other business, the meeting adjourned at 5:05 pm. 1-31-22 ERB Meeting 0015