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HomeMy WebLinkAboutOpinion - Ethics Review Board - 11/22/1994 - Opinion No. 94-2RESOLUTION 94-202 OF THE COUNCIL OF THE CITY OF FORT COLLINS ACCEPTING THE ADVISORY OPINION AND RECOMMENDATION NO. 94-2 OF THE ETHICS REVIEW BOARD WHEREAS, the City Council has established an Ethics Review Board ("the Board") , consisting of three 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 WHEREAS, the Board met on November 22, 1994, to consider the question of whether a Councilmember's social or political contacts with a candidate for appointment to a City office creates a conflict of interest which would prevent the Councilmember from participating in the appointment process; and WHEREAS, after review of the relevant facts and the standards contained in the City Charter, the Board rendered an advisory opinion and recommendation on the foregoing subject; 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 opinion and recommendation; and WHEREAS, the City Council has reviewed the opinion and recommendation of the Board and wishes to adopt the same. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that Opinion No. 94-2 of the Ethics Review Board, a copy of which is attached hereto and incorporated herein by this reference, has been submitted to and reviewed by the City Council , and the Council hereby adopts the opinion and recommendations contained therein. Passed and adopted at a regular meeting of the Council of the City of Fort Collins held this 6th day of December, A.D. 1994. or A TEST: City Clerk 94-2 OPINION OF THE ETHICS REVIEW BOARD OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS November 22, 1994 The Ethics Review Board ("the Board") met on the above-referenced date to address a question presented by Councilmember Alan Apt. In attendance were Ethics Review Board members Mayor Ann Azari and Councilmember Bob McCluskey, as well as Councilmember Apt. The purpose of the meeting was to formulate an advisory opinion to help clarify when a councilmember's social or political contacts with a candidate for appointment to a City office creates a conflict of interest which would prevent the councilmember from participating in the appointment process. Councilmember Apt has presented a particular situation for the Board's consideration. Councilmember Apt is acquainted with John Gascoyne, a candidate for appointment to the vacant council seat for District 6. Mr. Gascoyne was a contributor to Councilmember Apt's campaign in the spring of 1993. More recently, Councilmember Apt and Mr. Gascoyne have seen each other socially on a couple of occasions, and those social contacts are likely to continue. Councilmember Janett has also expressed interest in having the Board address this question in the broader context of Council appointments to the City boards and commissions. In that context, it is common for councilmembers to seek people of similar political philosophies to serve as board or commission members. Frequently, then, candidates will be considered who have had frequent contacts, either politically or socially or both, with the councilmembers making the appointments. RELEVANT CHARTER PROVISIONS: The City Charter defines two kinds of conflict of interest, financial and personal. The issue presented to the Board deals principally with the definition of a personal interest. That is defined under the Charter to mean any interest (other than a financial interest) arising from blood or marriage relationships or from close business, political or personal associations or concerns which would, in the judgment of a reasonably prudent person, tend to impair independence of judgment or action in the performance of official, discretionary duties. APPLICATION TO THE FACTS: In applying this standard to the appointment process, there appear to be two phrases which require interpretation. First, how "close" must a political or personal association be before it presents a conflict? Secondly, how might a "reasonably prudent person" view the significance of these relationships in the context of the appointment process? Turning to the latter question first, the Board believes that a reasonably prudent person would expect elected officials to appoint other individuals with whom they are politically aligned. Ethics Opinion 94-2 November 22, 1994 Page 2 Moreover, in a community the size of Fort Collins, it might also be expected that councilmembers would have occasional and even frequent contacts with potential appointees, either socially or through their mutual participation in local political organizations. Therefore, it seems unreasonable to require that councilmembers refrain from participating in the appointment process merely because such individuals have applied for appointment. Something more than these kinds of casual or occasional contacts would appear to be necessary. As to the former question, several factors appear to be relevant in determining whether a particular political, social or business relationship is "close" enough to create a conflict of interest. These include: the frequency and nature of the contacts, the number of people who share the same relationship with the councilmember in question and the likelihood that an adverse decision would have a significant impact on the relationship. The term "close" has been defined to mean "bound by mutual interest, loyalties or affections; intimate." (American Heritage Dictionary, Houghton Mifflin Company, Copyright 1985; emphasis added.) This definition emphasizes that the mere sharing of similar interests, loyalties or affections may not be sufficient to create a conflict of interest. Instead, a conflict would appear to exist under this definition only when a social or political relationship is close enough that the parties feel "bound" by loyalty to one another to such an extent that if one makes a decision contrary to the other's interests, a reasonable person would expect that decision to undermine or have a serious adverse effect on the relationship. In applying these guidelines to the situation presented by Councilmember Apt, the Board does not believe that the political or social association between Councilmember Apt and Mr. Gascoyne creates a conflict of interest for Councilmember Apt. As to the political association, the Board believes that the mere fact of a financial contribution does not, in itself, evidence a conflict of interest. The City Code limits such contributions to a maximum of $50. The very purpose of this limitation is to avoid creating any sense of obligation between a councilmember and those who contributed to the councilmember's campaign. Other kinds of more active involvement in a councilmember's campaign could create a conflict of interest, however, depending upon the nature and extent of that involvement. For example, a councilmember's campaign manager or treasurer might well be viewed as sufficiently "close" to the councilmember that a conflict of interest would exist by reason of that relationship. There may also be other ways in which an individual can become so actively involved in a councilmember's campaign that a conflict of interest could be created. In summary, then, the Board believes that the closeness of any political, social or business association should be reviewed on a case-by-case basis to determine whether a reasonably prudent person would consider the relationship one that creates a sense of obligation between the parties involved. If so, the Board believes that a personal interest may well exist within the meaning of the City Charter. As to the case at hand, however, the Board does not believe that Councilmember Apt has a conflict of interest. Ethics Opinion 94-2 November 22, 1994 Page 3 This advisory opinion was reviewed and approved by Mayor Azari and Councilmember Bob McCluskey, regular members of the Ethics Review Board. 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. Additionally, this opinion and recommendation shall be considered by the Council at the continuation of its adjourned meeting this same date and shall be presented for formal review by the Council at its next regular meeting on December 6, 1994. Dated this 22th day of November, 1994. Stephen J. Roy, City Attorney SJR:whm