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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.
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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.
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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
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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.
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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
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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
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.
December 22 Work Session Summary
Ethics Standard and Process
December 29, 2020
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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
December 22 Work Session Summary
Ethics Standard and Process
December 29, 2020
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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