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AIS 2021-1-29 re Councilmember Potyondy Adv Op request w attachments
1 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 2 (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; 3 (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. 4 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 5 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. 6 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. 7 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. 8 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 Sec. 2-569. - Board of ethics. (a)In order to assist the Councilmembers and board and commission members in interpreting and applying the definitions, rules and procedures pertaining to ethics established by the Charter and Code and by the applicable provisions of state statute, there is hereby created a Board of the City to be known as the Ethics Review Board, hereafter referred to in this Division as the "Review Board." (b)The Review Board shall consist of three (3) Councilmembers elected by the City Council, one (1) of whom shall be elected by the Review Board to serve as a chairperson. One (1) alternate shall also be appointed by the City Council to serve in the event that a regular member of the Review Board is unavailable or in the event that any particular complaint or inquiry is directed towards a member of the Review Board. (c)Subject to the provisions of Subsection (d) below, the duties and responsibilities of the Review Board shall be as follows: (1)To review and investigate complaints of unethical conduct filed against Councilmembers or board and commission members by any person; (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 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 (4)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. (d)Complaints and inquiries shall be submitted to the Review Board only according to the following procedures: (1)Complaints. a.Any person who believes that a Councilmember or board and commission member has violated any provision of state law or the Charter or Code pertaining to ethical conduct may file a complaint with the City Clerk, who shall immediately notify the chairperson of the Review Board, the Councilmembers or board and commission members named in the complaint and the City Council. The complaint shall be promptly scheduled for consideration by the Review Board as soon as reasonably practicable. No more than thirty (30)working days after the date of filing of the complaint, the Review Board shall meet and consider the complaint. In the event extenuating circumstances arise in the scheduling and preparation for such meeting, the time for meeting shall be extended by fourteen (14) calendar days. All Councilmembers or board and commission members named in the complaint, as well as the complainant, shall be given written notice of such meeting at least three (3) working days prior to the meeting. A notice of the complaint, including the identity of the complainant shall be posted along with the meeting notice. b.Upon receipt of any such complaint, the Review Board shall, after consultation with the City Attorney, decide by majority vote whether to formally investigate the complaint. In making such determination, the Review Board shall consider 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 that the Review Board may consider relevant. If the Review Board determines that the complaint does not warrant investigation, the Review Board shall send written notice to the complainant of its determination and the reasoning behind that determination, and shall provide a copy of such notice, together with Attachment 1 0001 a copy of the complaint, to all Councilmembers or board or commission members named in the complaint, as well as the City Council. c.In the event that a complaint is filed with the City Clerk under the provisions of this Subsection which alleges a violation on the part of two (2) or more members of the Review Board (including the alternate), such complaint shall not be referred to the regular Review Board for review but shall instead be submitted to an alternate Review Board consisting of all remaining Councilmembers who are not named in the complaint; provided, however, that if five (5) or more Councilmembers are named in the complaint, the alternate Review Board shall also include as many members of City boards and commissions as are necessary to constitute a seven-member board. Said Board and commission members shall be selected at random by the City Clerk within ten (10) working days of the date upon which the complaint is filed with the City Clerk. Any board and commission members selected by the City Clerk who elect not to serve on the alternate Review Board shall immediately so notify the City Clerk, who shall thereafter select as many additional board and commission members as are necessary to constitute the seven-member alternate Review Board. The procedures utilized by the alternate Review Board for reviewing and investigating the complaint and rendering an advisory opinion and recommendation shall be as provided in Subsections (b) and (e) of this Section, except that: (i) the opinion and recommendation of such Board shall be final and shall not be submitted to the City Council for review or adoption by the City Council unless at least three (3) Councilmembers remain available to consider and take action on the opinion and recommendation; and (ii) the City Council and City staff shall, upon request by the alternate Review Board, make available to such Board all information in the possession of the city that is relevant to the Board's investigation, including, without limitation, tape recordings of any relevant executive sessions, unless the release of said information is prohibited by state or federal law; and, in reviewing and discussing such information, the Board shall abide by any local, state or federal confidentiality requirements that might limit or prohibit the release of such information to third parties. (2)City Council inquiries. Any Councilmember may present directly to the Review Board any inquiry regarding the application of ethical rules of conduct under state statute or the Charter or Code to any actual or hypothetical situation of a Councilmember or board and commission member. (e)In performing its review and investigation of any complaint or inquiry submitted in accordance with Subsection (d) hereof, the Review Board shall afford all affected Councilmembers or board and commission members an opportunity to present their interpretations of the facts at issue and of the applicable provisions of law before rendering its opinion and recommendation. The Review Board may also request such additional materials or information from City staff or members of the public which it considers reasonably necessary or helpful to its deliberations. In addition, in the case of a complaint, the Review Board shall have the power to compel by subpoena the attendance and testimony of witnesses and the production of such documents as the Review Board may consider necessary to its investigation. After investigation, the Review Board shall forthwith issue an advisory opinion and recommendation to the City Council, which shall immediately thereafter be filed with the City Clerk and be available for public inspection. Said opinion and recommendation shall be submitted to city Council at a regular City Council meeting, at which time the City Council shall determine whether to adopt the same. Any whose conduct or circumstance is the subject of the opinion shall refrain from participating in any deliberations of the City Council regarding the opinion. (f)The City Attorney shall provide legal advice to the Review Board and shall prepare and execute all advisory opinions and recommendations of the review board. (g)Compliance with the applicable provisions of the Charter and Code and the provisions of state law, as well as decisions regarding the existence or nonexistence of conflicts of interest and the appropriate actions to be taken in relation thereto, shall be the responsibility of each individual Councilmember or board and commission member, except as provided in Subparagraph 2- 568(c)(1)(g). An opinion adopted by the City Council under Subsection (e) of this Section shall Attachment 1 0002 constitute an affirmative defense to any civil or criminal action or any other sanction against a Councilmember or board or commission member acting in reliance thereon. (Ord. No. 112, 1989, § 1, 8-1-89; Ord. No. 17, 1993, 2-16-93; Ord. No. 64, 1993, 7-20-93; Ord. 132, 2001, § 2, 9-18-01; Ord. No. 110, 2002, §§ 1—3, 8-20-02; Ord. No. 144, 2014, 11-4-14 ; Ord. No. 102, 2019 , § 2, 9-3-19) Attachment 1 0003 Sec. 2-568. - Ethical rules of conduct. (a)Definitions. The following words, terms and phrases, when used in this Section, Section 2-569 and in Section 9 of the Charter Article IV, shall have the following meanings: (1)Attempt to influence or influence, as it pertains to this Section, shall mean take any action intended to impact, shape, control, sway, bias or prejudice. (2)Benefit shall mean an advantage or gain. (3)Board and commission member shall mean a member of any appointive board or commission of the City. (4)Confidential information or information received in confidence shall mean: a.Information contained in any writing that may properly be withheld from public inspection under the provisions of the Colorado Open Records Act and that is marked "confidential" when provided to the officer or employee; b.All information exchanged or discussed in any executive session properly convened under § 2-31 or 2-71 of the Code, except to the extent that such information is also contained in a public record available to the general public under the provisions of the Colorado Open Records Act; or c.All communications between attorneys representing the City and officers or employees of the City that are subject to the attorney-client privilege, whether oral or written, unless the privilege has been waived. (5)Councilmember shall mean a member of the City Council. (6)Different in kind from that experienced by the general public shall mean 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 shall mean resulting immediately and proximately from the circumstances and not from an intervening cause. (8)Detriment shall mean disadvantage, injury, damage or loss. (9)Financial interest shall have the meaning given to this term in Section 9(a) of Charter Article IV, which states: Financial interest means any interest equated with money or its equivalent. Financial interest shall not include: a.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; b.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; c.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; d.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; Attachment 2 0001 e.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; f.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; g.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 h.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. (10)Officer or employee shall mean any person holding a position by election, appointment or employment in the service of the City, whether part-time or full-time, including any member of the City Council and any member of any authority, board, committee or commission of the City, other than an authority that is: a. Established under the provisions of the Colorado Revised Statutes; b. Governed by state statutory rules of ethical conduct; and c.Expressly exempted from the provisions of Article IV of the City Charter by ordinance of the City Council. (11)Personal interest shall have the meaning given to this term in Section 9(a) of the Charter Article IV, which states: 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: a.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; b.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 c.the interest that an officer or employee has in the compensation, benefits, or terms and conditions of his or her employment with the city. (12)Public body shall have the meaning given to this term in Section 9(a) of Charter Article IV, which states: Public body means the Council or any authority, board, committee, commission, service area, department or office of the city. (13)Public services shall mean city services provided to or made available for the public's benefit. (14)Purchases from the city, as described in Section 9(b)(2) of Charter Article IV, shall not include payments by an employee to the city pursuant to an agreement for housing in which such employee is required to live as a condition of employment with the city. (15)Related entity shall mean any corporation, limited liability company, partnership, sole proprietorship, joint venture, trust, estate, foundation, association, business, company or any Attachment 2 0002 other organization, whether or not operated for profit, with respect to which an officer or employee, or a relative of the same, has a substantial ownership interest in, is employed by, is an agent for or otherwise represents in any legal capacity. (16)Relative shall have the meaning given to this word in Section 9(a) of Charter Article IV, which states: Relative means 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. (17)Routine City matter shall mean a usual and ordinary registration, reservation, or other request or application, within a program or for public services or City approval, such as a registration for a recreation class, reservation of a park shelter, request for standard utility services or application for a building permit, development approval or variance, or an appeal, provided that the same is carried out using a routine process or system or in a manner consistent with standard practices. (18)Similarly situated citizens shall mean citizens in like circumstances having comparable legal rights and obligations. (19)Substantial shall mean more than nominal in value, degree, amount or extent. (b)Notwithstanding the provisions of § 1-15 of the Code, an alleged violation of the provisions of this Section by a member of the City Council shall not be prosecuted in the Municipal Court as a misdemeanor criminal offense but shall instead be referred to the Ethics Review Board for an advisory opinion and recommendation under the provisions of § 2-569. (c)Rules of conduct. (1)Use and disclosure of confidential information. The following rules shall apply to the use and disclosure of confidential information by officers and employees of the City. In the event of any conflict among these provisions, the more specific provision shall take precedence over the more general provision. a.No use for personal gain. No officer or employee shall knowingly use information received in confidence as an officer or employee to advance the financial or personal interests of the officer or employee or others. b.Disclosure of confidential information, generally. No officer or employee shall knowingly disclose any confidential information to any person who is not an officer or employee or to an officer or employee whose official duties are unrelated to the subject matter of the confidential information or to maintaining an official record of such information on behalf of the City, unless such disclosure is reasonably necessary to protect the City from the gross mismanagement of public funds, the abuse of governmental authority, or illegal or unethical practices. c.Disclosure of confidential information provided to the City Council. All information received in confidence by the City Council shall remain confidential, and no officer or employee shall knowingly disclose any such confidential information to any person to whom such information was not originally distributed by City staff unless and until the City Council has, by majority vote, consented to its release, unless such disclosure is reasonably necessary to protect the City from the gross mismanagement of public funds, the abuse of governmental authority, or illegal or unethical practices. d.Disclosure of information discussed in executive session. No officer or employee shall knowingly disclose any confidential information discussed in an executive session to any person who was not present during such discussion, other than members of such body who were unable to attend the executive session, without the prior knowledge and consent of the body holding such executive session, unless such disclosure is reasonably necessary to protect the City from the gross mismanagement of public funds, the abuse of Attachment 2 0003 governmental authority, or illegal or unethical practices. In the event that a matter discussed in executive session comes before the City Council or a board or commission of the City for formal action at an open meeting, or if such formal action is anticipated, nothing herein shall be construed as prohibiting a member of the body that will be taking such formal action from stating his or her position or opinion with regard to the matter, as long as such statements do not divulge confidential information received from others during the executive session. e.Certain distribution and discussion by City Manager and City Attorney permitted. Notwithstanding the provisions of Subparagraphs c. and d. above, the City Manager and City Attorney may further distribute confidential information provided to the City Council and may disclose confidential information discussed in any executive session of the City Council, or of a Council committee, to such staff members and/or board and commission members as they may consider reasonably necessary to enable them to fully advise the City Council or to implement any direction given by the City Council or to advise other officers and employees of the City whose official duties are related to the subject matter of the confidential information or to maintaining a record of the same on behalf of the City. f.No disclosure of confidential information to officer or employee having conflict of interest. No officer or employee who has filed a statement of conflict of interest with the City Clerk under Article IV, Section 9 of the Charter, or who has been determined by the City Council under the provisions of Subparagraph g. below to have a conflict of interest, shall knowingly elicit, accept or inspect any confidential information pertaining to the subject matter of such conflict of interest, nor shall any such officer or employee attend or participate in an executive session of the City Council, or of a Council committee or board or commission of the City, pertaining to said subject matter. g.The City Council may determine that a Councilmember shall not receive confidential information or attend executive sessions on a particular topic if the City Council first determines that said Councilmember has a conflict of interest in the subject matter of such confidential information and/or executive session. Any such determination by the City Council shall be made only after the City Council has received an advisory opinion and recommendation of the Ethics Review Board on the question, rendered in accordance with the provisions of § 2-569. (2)With respect to any matter regarding which a Councilmember has declared a conflict of interest, said Councilmember is prohibited from discussing with, or otherwise attempting in any capacity to influence, directly or indirectly, any City officer or employee, and from representing any person or interest before the City Council or any board of commission of the City or in dealing with any City officer or employee, except that such Councilmember may represent with any City employee or before the City Council or a board or commission of the City his or her own interest or that of a relative provided said Councilmember does not violate Section 2- 568(c)(5) or (c)(6). (3)In any action in which a member of a City board or commission member ("member") declares a conflict of interest, such member shall not communicate to or attempt to influence such board or commission regarding such item, in any capacity, except that: a.the member may communicate with said board or commission to protect a strictly personal interest, in the same or similar ways in which the public is permitted to communicate with the board or commission. b.the member may prepare materials on behalf of another for a project in the normal course of business or operation, so long as the purpose of those materials is not directly and substantially related to advocacy before said member's board or commission. Those materials may be included in materials submitted by another to said member's board or commission so long as they fall within this exception. For illustrative purposes, such materials may include, but are not necessarily limited to architectural plans, technical studies, and engineering designs. Attachment 2 0004 c.if a member has declared a conflict of interest in a matter in accordance with the City Charter and Code and so is precluded from participating in or influencing the decision of his or her board or commission, he or she may request a variance from the limitations of this subsection from the City Council in the following circumstances, and in the following manner: 1.The member must submit a request for a variance to the City Clerk on a form provided by the City Clerk for such purpose. 2.The member must demonstrate that without the variance, he or she would suffer an exceptional hardship, and that no reasonable alternative exists that would allow for that hardship to be avoided or substantially mitigated; 3.The City Council must act by resolution to approve or disapprove the requested variance. d.This limitation does not apply to other members, partners, or other parties of the member's or firm or entity, who may continue to work on the project and may advocate to such member's board or commission, provided that the member has declared the conflict and refrains from participating in the matter consistent with the application limitations. (4)All officers and employees shall refrain from accepting payment for any speeches, debates or other public events and shall further refrain from accepting any gift or favor which, in the judgment of a reasonably prudent person, would tend to impair the officer's or employee's independence of judgment in the performance of his or her official duties. The following shall not constitute prohibited gifts or favors under this Section: a.Campaign contributions reported as required by Chapter 7, Article V of this Code; b.A nonpecuniary award publicly presented by a nonprofit organization in recognition of public service; c.Payment of or reimbursement for actual and necessary expenditures for travel and subsistence for attendance at a convention or other meeting at which an officer or employee is scheduled to participate; d.Reimbursement for or acceptance of an opportunity to participate in a social function or meeting which is offered to an officer or employee which is not extraordinary when viewed in light of the position held by such officer or employee; e.Items of perishable or nonpermanent value that are insignificant in value, including, but not limited to, meals, lodging, travel expenses or tickets to sporting, recreational, educational or cultural events; and f.Payment of salary from employment, including other employment in addition to that earned from being an officer or employee. (5)No officer or employee shall request on his or her own behalf, or for or through a relative or related entity, from any other officer or employee, or grant to any other officer or employee, or relative or related entity of the same, any consideration, treatment or advantage in the interpretation, administration or enforcement of the Charter, Code, any City regulation, policy or program or in the provision of public services, that is substantially different from that available to other persons in the same circumstances or having the same need. (6)If any Councilmember contacts an officer or employee regarding a request in connection with that contacted officer's or employee's role and in relation to a matter that is not a routine City matter and is not within the Councilmember's role as an officer of the City, said Councilmember shall no later than 5:00 p.m. on the next business day after such contact deliver a written disclosure to the City Clerk and the City Manager and to all other members of City Council. The written disclosure must describe the date, time and general subject matter of the contact, together with the identity of the officer or employee contacted. Any private or confidential information, such as tax, utility account, or other personal information may be excluded or Attachment 2 0005 redacted from such disclosure. Disclosure by means of an electronic message shall be deemed to constitute written disclosure for purposes of this provision. (Ord. No. 112, 1989, § 1, 8-1-89; Ord. No. 162, 2000, § 2, 11-21-00; Ord. No. 109, 2002, §§ 1— 4, 8-20-02; Ord. No. 145, 2014, 11-4-14 ; Ord. No. 159, 2014, §§ 1—3, 11-18-14 ; Ord. No. 037, 2017 , §§ 2, 3, 3-7-17; Ord. No. 167, 2017 , § 2, 12-19-17; Ord. No. 057, 2020 , § 2, 4-21-20) Attachment 2 0006 Section 9. - Conflicts of interest. (a)Definitions. For purposes of construction of this Section 9, the following words and phrases shall have the following meanings: Business means a corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust, activity or entity. 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 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. Officer or employee means any person holding a position by election, appointment or employment in the service of the city, whether part-time or full-time, including a member of any authority, board, committee or commission of the city, other than an authority that is: (1)established under the provisions of the Colorado Revised Statutes; (2)governed by state statutory rules of ethical conduct; and (3)expressly exempted from the provisions of this Article by ordinance of the Council. 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:. Attachment 3 0001 (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. Public body means the Council or any authority, board, committee, commission, service area, department or office of the city. Relative means 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. (b)Rules of conduct concerning conflicts of interest. (1)Sales to the city. No officer or employee, or relative of such officer or employee, shall have a financial interest in the sale to the city of any real or personal property, equipment, material, supplies or services, except personal services provided to the city as an officer or employee, if: a.such officer or employee is a member of the Council; b.such officer or employee exercises, directly or indirectly, any decision-making authority on behalf of the city concerning such sale; or c.in the case of services, such officer or employee exercises any supervisory authority in his or her role as a city officer or employee over the services to be rendered to the city. (2)Purchases from the city. No officer, employee or relative shall, directly or indirectly, purchase any real or personal property from the city, except such property as is offered for sale at an established price, and not by bid or auction, on the same terms and conditions as to all members of the general public. (3)Interests in other decisions. 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, shall, upon discovery thereof, disclose such interest in the official records of the city in the manner prescribed in subsection (4) hereof, and shall refrain from voting on, attempting to influence, or otherwise participating in such decision in any manner as an officer or employee. (4)Disclosure procedure. If any officer or employee has any financial or personal interest requiring disclosure under subsection (3) of this section, such person shall immediately upon discovery thereof declare such interest by delivering a written statement to the City Clerk, with copies to the City Manager and, if applicable, to the chairperson of the public body of which such person is a member, which statement shall contain the name of the officer or employee, the office or position held with the city by such person, and the nature of the interest. If said officer or employee shall discover such financial or personal interest during the course of a meeting or in such other circumstance as to render it practically impossible to deliver such written statement prior to action upon the matter in question, said officer or employee shall immediately declare such interest by giving oral notice to all present, including a description of the nature of the interest. (5)Violations. Any contract made in violation of this Section shall be voidable by the city. If voided within one (1) year of the date of execution thereof, the party obtaining payment by reason of such contract shall, if required by the city, forthwith return to the city all or any designated portion of the monies received by such individual from the city by reason of said contract, together with interest at the lawful maximum rate for interest on judgments. Attachment 3 0002 (Res. No. 71-12, 2-11-71, approved, election 4-6-71; Ord. No. 155, 1988, 12-20-88, approved, election 3-7-89; Ord. No. 10, 1997, § 1, 2-4-97, approved, election 4-8-97; Ord. No. 22, 2001, § 2, 2-20-01, approved, election 4-3-01; Ord. No. 003, 2017 , § 2, 1-17-17, approved, election 4-4- 17) Attachment 3 0003 {00032004 / ver 2 } 5-2014 COLORADO STATE UNIVERSITY CONFLICT OF INTEREST/CONFLICT OF COMMITMENT MANAGEMENT PLAN This Conflict of Interest/Conflict of Commitment Management Plan (“Management Plan”) is required pursuant to applicable laws and regulations, and/or the policies of Colorado State University, in order to provide assurances to the University, external entities (as applicable) and the public that the conflict described herein will be appropriately managed to avoid improprieties, including any potential bias, inappropriate use of institutional resources, or self-dealing, or the appearance of any of these; and/or that the Employee’s primary commitment of time and effort to the University is not unduly burdened by the Employee’s outside interests and activities. A. DEFINITIONS 1. Conflict of Interest: A conflict of interest (“COI”) occurs when there is a divergence between an individual's private interests and his or her professional obligations to the University such that an independent observer might reasonably question whether the individual's professional actions or decisions are determined by considerations of personal financial gain, rather than the best interests of the institution. A conflict of interest depends on the facts and circumstances of the particular situation, and not on the character or actions of the individual. A conflict of interest is not improper if it is disclosed as required by law, regulation and policy, and is appropriately managed to avoid harm (or the appearance of harm) to the University. Refer to: CSU Academic Faculty and Administrative Prof. Manual (AFAPM) sec. D.7.7. 2. Conflict of Commitment: A conflict of commitment (“COC”) occurs when an external commitment exists which substantially burdens or interferes with the employee’s primary obligations and commitments of time and effort to CSU. Refer to AFAPM sec. D.7.6. Attachment 4 1 CONFLICT OF INTEREST/CONFLICT OF COMMITMENT MANAGEMENT PLAN 2 {00032004 / ver 2 } B.IDENTIFICATION OF EMPLOYEES AND SUPERVISORS INVOLVED IN MANAGING THE CONFLICT 1. Employee whose conflict or potential conflict of interest or commitment is involved (name, address, phone, email): ______________________________________________________________________________ ___________________________________________ Title: ______________________________________________________________________________ ______________________ Home department: __________ 2. Outside employer or client, if applicable (name, address, phone, email) (hereinafter, “Company”) (attach additional sheets if more than one Company is to be listed): Name: _____________________________________________________ Address: _____________________________________________________ Phone: _____________________________________________________ URL: _____________________________________________________ State/country where Company is organized to do business: __________________________________ Employee’s title/role with Company: __________________________________ Extent of Employee’s control, ownership and interest in Company: __________________________________ 3.University Administrator who will have primary responsibility for overseeing implementation of this Management Plan (name, phone, email): _________________________________________________________ (‘UA”) Attachment 4 2 CONFLICT OF INTEREST/CONFLICT OF COMMITMENT MANAGEMENT PLAN 3 {00032004 / ver 2 } C. NATURE OF THE CONFLICT AND REASONS FOR REQUIRING PLAN It is recognized that there are multiple roles that employees have at CSU, and it is difficult to specify in advance all possible situations that could or might raise a conflict issue. The purpose of this Management Plan is to assist the Employee in following the guidelines in Section D.7.6.1 and/or D.7.7 of the CSU Academic Faculty and Administrative Professional Manual, as applicable, and the University in managing conflicts that may exist or develop. Employee should be sensitive to conflicts that may arise and disclose these or other concerns to the UA to allow the Employee and UA to determine what steps should be taken to address the actual or apparent conflict. Examples of actual or potential conflicts are identified in the Sections that follow. Check all that apply: 1.A Conflict of Interest exists because (check all that apply): Employee has a Financial or Equity Interest (as defined in the Guidelines for Assessment)in (or is to be remunerated by) Company, and: Company is funding, or may propose to fund a sponsored project at CSU. CSU may enter into another type of contractual relationship with Company. Note that full costing will be required for Company funded sponsored projects. Employee is in a position to exercise a substantial discretionary function in connection with a government contract, purchase, payment, or other pecuniary transaction with Company, e.g., to participate in the selection of a vendor for the goods or services that Company provides. It is anticipated that intellectual property (“IP”) might be created as a result of Company- funded projects or cooperative projects with Company, along with the use of CSU resources such as space, equipment, employee effort, student effort, or other. Students under Employee’s supervision may work on Company-funded projects. Other, please describe: ________________________________________________________________________ ________________________________________________________________________ _________________________________________________________________. Employee is the author/co-author of a textbook that he/she may assign for a course, and will receive royalties or other compensation as a result. Attachment 4 3 CONFLICT OF INTEREST/CONFLICT OF COMMITMENT MANAGEMENT PLAN 4 {00032004 / ver 2 } Name of textbook: _________________________________________________________ Edition/Date of Publication: ____________________________________________________ Co-authors: _________________________________________________________ Other (explain): _________________________________________________________ 2.A Conflict of Commitment exists because Employee’s outside activities could impact her/his time/effort commitment to CSU. Employee’s appointment at CSU is: 9 mos. 12 mos. other (explain) Employee’s CSU effort distribution is as follows (state percentage of time/effort for each assignment, department or project in which Employee is involved): _________________________________________________________. Employee’s anticipated non-CSU effort/time commitment: _________________________________________________________ The conflict of commitment arises because (explain): ____________________________________________________________________________________ ____________________________________________________________________________________ __________________________________________________________________________ D. M ANAGEMENT PLAN AND OVERSIGHT RESPONSIBILITIES 1. Conflict of Interest Management Oversight: In association with the Department Head/Chair, the responsibilities of the UA include: initial plan implementation, monitoring and reporting as specified in this plan, and modification of the plan as needed. By December 31st of each year, the Employee will submit to the UA an annual report containing a summary of the documented activities in each of the areas outlined in Section 2 below. A template annual report is available for use by the Employee. If necessary, the UA will initiate a revised Management Plan. It is recognized that there are multiple roles that employees have at CSU, and it is difficult to specify in advance all possible situations. The purpose of this management plan is to assure Attachment 4 4 CONFLICT OF INTEREST/CONFLICT OF COMMITMENT MANAGEMENT PLAN 5 {00032004 / ver 2 } that Employee will follow the guidelines in Section D7.6.1 and/or D.7.7 of the CSU Academic Faculty and Administrative Professional Manual, as applicable. 2.COI Management Plan Outline: This Management Plan requires that the following steps be implemented (check all that apply): (a) Conflict of Commitment: (1) Employee affirms his or her primary professional obligation to the University, including the obligations of teaching, advising, research and other creative activity, service and/or outreach, and being accessible to students, staff, and colleagues during the appointment period. (2) If Employee is compensated in whole or in part by sponsored projects funds, the Employee will devote the amount of time and effort required by the project sponsor(s) in accordance with all applicable grants, contracts, laws, rules and regulations. The Office of Sponsored Programs must be advised of this Management Plan. The Employee may not engage in activities that make it infeasible to actually perform the work on all sponsored projects as agreed. (3)Employee agrees to monitor her/his commitment to the external activities that are described above, and to communicate with the Department Head/Chair to assure that this commitment does not adversely impact her/his various responsibilities and commitments to CSU. Should the Department Head/Chair determine that the external commitment is impacting Employee’s performance as a faculty member, appropriate changes will be made in consultation with the UA. Any changes implemented will be documented and maintained by the UA. (4) Clarify and explain the extent of any external time and effort commitments and how the employee will assure that his/her university responsibilities are met: ____________________________________________________________________________________ ____________________________________________________________________________________ __________________________________________________________________________ Employee will devote the following efforts to CSU responsibilities and Company responsibility: % or more to CSU % or more to Company. b. Conflict of Interest: 1. Clarify and explain the steps that will be taken to assure that Employee’s external activities do not involve the inappropriate use of state and university resources, misuse of University personnel or Attachment 4 5 CONFLICT OF INTEREST/CONFLICT OF COMMITMENT MANAGEMENT PLAN 6 {00032004 / ver 2 } students, misuse of the University name or trademarks, or cause confusion as to the Employee acting on behalf of the University. Such steps will include: Appropriate Disclosures: Employee will coordinate with Sponsored Programs and the Research Integrity Compliance Review Office to appropriately disclose her/his affiliation with Company on individual CSU regulatory compliance protocols and sponsored proposal submissions and grants/contracts that also involve the procurement of materials from and/or collaboration with the Company. Research Program: The Employee will provide the VPR with information about the research program that the Employee will pursue. Employee will take steps to ensure that to the extent he identifies research areas to pursue that these decisions are not driven by a desire to benefit a Company. It is understood that Employee’s research by its nature may benefit entities such as the Company and that it may be difficult to determine whether research is being driven by a desire to benefit a specific Company or the entire industry. Employee may be asked to address this question with the VPR. Use of Non-Public Information: Employee will have access to information that is not in the public domain which might be of value to a Company. It is expected that Employee will maintain the confidentiality of non-public information until such time as the information is made public through normal academic channels. Employee should consult with the UA and/or the VPR in the event he is unsure of whether information is considered public or not. Non-Solicitation: Employee hereby covenants and agrees that during the term of his employment with CSU he will not solicit any employee of CSU to leave CSU to become an employee of Company without the prior written consent of the UA. Other/Explanation: Additional standard provisions are available to address other commonly encountered issues: Faculty Member’s Publication contains research funded by their Company: In order to ensure objectivity and continued quality of the research results of the CSU/Company project, research results will be presented at refereed academic conferences and published in peer-reviewed journals as appropriate. When submitting a manuscript for review when Employee is an author, the association with both CSU and Company will be Attachment 4 6 CONFLICT OF INTEREST/CONFLICT OF COMMITMENT MANAGEMENT PLAN 7 {00032004 / ver 2 } acknowledged. A listing of all Company-related publications will be provided to the UA on an annual basis. Faculty Member has a Company that could make use of University Resources: The use of any University resources will be consistent with University policy and any agreements between the University and a Company. University resources, including but not limited to space, personnel and equipment, may not be used for the benefit of Company without a properly documented agreement between Company and the University which includes compensation to the University for such use. No use of University space is anticipated at this time. If that should change, the Company wishing to occupy space will have to enter into a space use agreement prior to use of the space. Faculty Member has a Company that makes or may make payments to CSU: From time to time entities such as Company that are associated with a CSU faculty or staff member will owe unpaid amounts to CSU. Employee understands that notwithstanding his employment relationship with CSU, CSU has a fiduciary duty to collect in a timely manner all amounts due and owing to it and will pursue collections of any amounts owed up to and including referral to a collections agency or the State of Colorado. Faculty Member’s Company could complete with CSU with respect to a “University” Opportunity: If Employee becomes aware of a funding solicitation either through formal announcement or verbal communication which the University has the knowledge, experience and ability to pursue, which the University would qualify to pursue based on the requirements associated with the opportunity and which Employee reasonably should know would be of interest to the University and could benefit the University (“Opportunity”), the Employee will bring this Opportunity to the attention of the VPR and Department Head/Chair, providing material information to allow them to determine whether this is an Opportunity the University should pursue. If the UA determines that this is not an Opportunity the University wishes to pursue, then then the Employee or Company may pursue this Opportunity. Proposals that do not fall within the definition of Opportunity, such as those limited to private entities, need not be presented to the University. Other/Explanation: ______________________________________________________________________________ Attachment 4 7 CONFLICT OF INTEREST/CONFLICT OF COMMITMENT MANAGEMENT PLAN 8 {00032004 / ver 2 } ______________________________________________________________________________ ______________________________________________________________________________ 2. Invention Disclosures and Intellectual Property: Employee will maintain a lab notebook to document all discoveries that may emerge from the sponsored research and file the necessary invention disclosures in a timely fashion as required by CSU policy. Any intellectual property generated by Employee will need to be documented for proper ownership and licensing according to CSU policy. A copy of any invention disclosures will be sent to the UA and kept on file. 3. Student Involvement in Research: Undergraduate and graduate students may be involved in the Company-sponsored research. Undergraduate and graduate student may also be employed by Company directly. The UA will assure that safeguards are in place to prevent undergraduate and/or graduate students from being harmed through delayed graduation, reduction in research time, lessened commitment to coursework, compromised publication abilities or any other action caused by the relationship of Employee with Company. Examples of an adequate process include but are not limited to naming an academic co-advisor, utilizing the graduate advisory committee, considering appropriate supervisory roles and responsibilities, etc. Graduate student research results will be published in a thesis/dissertation, and the students will be strongly encouraged to publish in peer-reviewed journals and to present results at academic conferences consistent with the terms of the Agreement. 4. Publications: In order to ensure objectivity and continued quality of the research results of the CSU/Company project, research results will be presented at refereed academic conferences and published in peer-reviewed journals as appropriate. When submitting a manuscript for review when Employee is an author, the association with both CSU and Company will be acknowledged. A listing of all Company-related publications will be provided to the UA on an annual basis. 5.Recusal: Employee will recuse herself/himself from participating in any CSU capacity associated with negotiations or decision-making with respect to any transaction with or on behalf of the University that involves Company, and will request that any related responsibilities be assigned to another individual, except as this management plan may otherwise specify. When engaged in negotiations with CSU on behalf of Company, it is incumbent upon Employee to inform the CSU representative involved that Employee is negotiating on behalf of Company, not on behalf of CSU or as part of the university position that she/he holds. Attachment 4 8 CONFLICT OF INTEREST/CONFLICT OF COMMITMENT MANAGEMENT PLAN 9 {00032004 / ver 2 } OR Employee will abstain from any Company board decisions involving research at CSU in which she/he is involved. The abstention in such votes will be documented in Company Board minutes which will be sent in a timely fashion to the UA to be kept on file. Employee will refrain from engaging in negotiations on behalf of Company with CSU but, instead, will have professional management and/or legal counsel for Company perform these negotiations. The following disclosure applies: “Colorado statutes create individual and personal obligations for disclosing and managing conflicts of interest, including disclosure to the Secretary of State under certain circumstances. A violation of such statutes can result in criminal sanctions. Thus, it is recommended that Members seek their own legal counsel as they may deem appropriate to protect their legal interests with respect to compliance with conflict of interest statutes.” All of the undersigned hereby acknowledge and agree to abide by the University’s Conflict of Commitment and Consulting Policies (Academic Faculty and Administration Professional Manual sections D.7.6 and D.7.7) and agree to abide by the above stated management plan. Approved and Agreed: ___________________________________ Date: _________ Employee ___________________________________ Date: _________ Department Head/Chair ___________________________________ Date: _______ University Administrator ___________________________________ Date: _________ Dean ___________________________________ Date: _________ Provost’s Office Attachment 4 9 CONFLICT OF INTEREST/CONFLICT OF COMMITMENT MANAGEMENT PLAN 10 {00032004 / ver 2 } FORM/SAMPLE ANNUAL REPORT To: UA From: Employee Re: Annual Conflict of Interest Management Plan Update – Date to Date (the “Year”) 1. During the past Year my level of effort has been as follows: 2. During the next year, my level of effort will be as follows: 3. During the past Year, I have engaged in the following outside consulting activities: 4. During the past Year, the following events or changes in activities have occurred that did or may give rise to a potential conflict of interest or commitment: 5. During the past Year, I have been involved in the following Sponsored Research Agreements: • Sponsored Research Agreement Title: •Parties: • My Role: 6. During this past Year, the following invention disclosures have been made by me (whether to CSU or another entity): 7. During the past Year, the following students have been involved in Company funded sponsored projects or have been employed by Company directly while continuing as a student at CSU: 8. During the past Year, I have been involved in the following negotiations which involved CSU and the Company: 9. During the past Year, I have become aware of the following Opportunities which I have disclosed to CSU: 10. Affirmation of Obligations and Limitations in Management Plan. •I hereby affirm that I have not disclosed Confidential Information other than as permitted in the Management Plan during this Year. •I hereby affirm that I have not directed research to be done at CSU with the intent that it benefit the Company specifically. •I hereby affirm that I have not solicited any CSU employee to leave CSU to become an Employee of Company during this past Year. Attachment 4 10 CONFLICT OF INTEREST/CONFLICT OF COMMITMENT MANAGEMENT PLAN 11 {00032004 / ver 2 } •I hereby affirm that during this Year I have not made use of CSU staff time or resources in support of non-CSU activities. / In the alternative, I hereby disclose that I have made use of CSU staff time or resources as follows but have made proper arrangements to compensate CSU for such use: 11. Additional Information if Desired. I hereby affirm that the foregoing is true, correct and complete to the best of my knowledge. ________________________________________________________________ Signature of Employee Date Attachment 4 11 CRS 24-18-102(4) (4)“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. CRS 24-18-102(6) (6)“Local government official” means an elected or appointed official of a local government but does not include an employee of a local government. Attachment 0001 Colorado Revised Statutes Title 24. Government State § 24-18-103 (1)The holding of public office or employment is a public trust, created by the confidence which the electorate reposes in the integrity of public officers, members of the general assembly, local government officials, and employees. A public officer, member of the general assembly, local government official, or employee shall carry out his duties for the benefit of the people of the state. (2)A public officer, member of the general assembly, local government official, or employee whose conduct departs from his fiduciary duty is liable to the people of the state as a trustee of property and shall suffer such other liabilities as a private fiduciary would suffer for abuse of his trust. The district attorney of the district where the trust is violated may bring appropriate judicial proceedings on behalf of the people. Any moneys collected in such actions shall be paid to the general fund of the state or local government. Judicial proceedings pursuant to this section shall be in addition to any criminal action which may be brought against such public officer, member of the general assembly, local government official, or employee. Attachment 6 0001 Colorado Revised Statutes Title 24. Government State § 24-18-104 (1)Proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his fiduciary duty and the public trust. A public officer, a member of the general assembly, a local government official, or an employee shall not: (a)Disclose or use confidential information acquired in the course of his official duties in order to further substantially his personal financial interests; or (b)Accept a gift of substantial value or a substantial economic benefit tantamount to a gift of substantial value: (I)Which would tend improperly to influence a reasonable person in his position to depart from the faithful and impartial discharge of his public duties; or (II)Which he knows or which a reasonable person in his position should know under the circumstances is primarily for the purpose of rewarding him for official action he has taken. (2)An economic benefit tantamount to a gift of substantial value includes without limitation: (a)A loan at a rate of interest substantially lower than the commercial rate then currently prevalent for similar loans and compensation received for private services rendered at a rate substantially exceeding the fair market value of such services; or (b)The acceptance by a public officer, a member of the general assembly, a local government official, or an employee of goods or services for his or her own personal benefit offered by a person who is at the same time providing goods or services to the state or a local government under a contract or other means by which the person receives payment or other compensation from the state or local government, as applicable, for which the officer, member, official, or employee serves, unless the totality of the circumstances attendant to the acceptance of the goods or services indicates that the transaction is legitimate, the terms are fair to both parties, the transaction is supported by full and adequate consideration, and the officer, member, official, or employee does not receive any substantial benefit resulting from his or her official or governmental status that is unavailable to members of the public generally. (3)The following are not gifts of substantial value or gifts of substantial economic benefit tantamount to gifts of substantial value for purposes of this section: Attachment 0001 (a)Campaign contributions and contributions in kind reported as required by section 1- 45-108, C.R.S .; (b)An unsolicited item of trivial value; (b.5) A gift with a fair market value of fifty-three dollars or less that is given to the public officer, member of the general assembly, local government official, or employee by a person other than a professional lobbyist. (c)An unsolicited token or award of appreciation as described in section 3(3)(c) of article XXIX of the state constitution ; (c.5) Unsolicited informational material, publications, or subscriptions related to the performance of official duties on the part of the public officer, member of the general assembly, local government official, or employee; (d)Payment of or reimbursement for reasonable expenses paid by a nonprofit organization or state and local government in connection with attendance at a convention, fact-finding mission or trip, or other meeting as permitted in accordance with the provisions of section 3(3)(f) of article XXIX of the state constitution ; (e)Payment of or reimbursement for admission to, and the cost of food or beverages consumed at, a reception, meal, or meeting that may be accepted or received in accordance with the provisions of section 3(3)(e) of article XXIX of the state constitution ; (f)A gift given by an individual who is a relative or personal friend of the public officer, member of the general assembly, local government official, or employee on a special occasion. (g)Payment for speeches, appearances, or publications that may be accepted or received by the public officer, member of the general assembly, local government official, or employee in accordance with the provisions of section 3 of article XXIX of the state constitution that are reported pursuant to section 24-6-203(3)(d) ; (h)Payment of salary from employment, including other government employment, in addition to that earned from being a member of the general assembly or by reason of service in other public office; (i)A component of the compensation paid or other incentive given to the public officer, member of the general assembly, local government official, or employee in the normal course of employment; and (j)Any other gift or thing of value a public officer, member of the general assembly, local government official, or employee is permitted to solicit, accept, or receive in Attachment 0002 accordance with the provisions of section 3 of article XXIX of the state constitution , the acceptance of which is not otherwise prohibited by law. (4)The provisions of this section are distinct from and in addition to the reporting requirements of section 1-45-108, C.R.S ., and section 24-6-203 , and do not relieve an incumbent in or elected candidate to public office from reporting an item described in subsection (3) of this section, if such reporting provisions apply. (5)The amount of the gift limit specified in paragraph (b.5) of subsection (3) of this section, set at fifty-three dollars as of August 8, 2012, shall be identical to the amount of the gift limit under section 3 of article XXIX of the state constitution , and shall be adjusted for inflation contemporaneously with any adjustment of the constitutional gift limit pursuant to section 3(6) of article XXIX . Attachment 7 0003 Colorado Revised Statutes Title 24. Government State § 24-18-105 (1)The principles in this section 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. (2)A public officer, a local government official, or an employee 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 substantive authority. (3)A public officer, a local government official, or an employee should not, within six months following the termination of his office or employment, obtain employment in which he will take direct advantage, unavailable to others, of matters with which he was directly involved during his term of employment. These matters include rules, other than rules of general application, which he actively helped to formulate and applications, claims, or contested cases in the consideration of which he was an active participant. (4)A public officer, a local government official, or an employee 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. (5)Public officers, local government officials, and employees are discouraged from assisting or enabling members of their immediate family in obtaining employment, a gift of substantial value, or an economic benefit tantamount to a gift of substantial value from a person whom the officer, official, or employee is in a position to reward with official action or has rewarded with official action in the past. Attachment 8 0001 Colorado Revised Statutes Title 24. Government State § 24-18-109 (1)Proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his fiduciary duty and the public trust. (2)A local government official or local government employee shall not: (a)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; (b)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; or (c)Accept goods or services for his or her own personal benefit offered by a person who is at the same time providing goods or services to the local government for which the official or employee serves, under a contract or other means by which the person receives payment or other compensation from the local government, unless the totality of the circumstances attendant to the acceptance of the goods or services indicates that the transaction is legitimate, the terms are fair to both parties, the transaction is supported by full and adequate consideration, and the official or employee does not receive any substantial benefit resulting from his or her official or governmental status that is unavailable to members of the public generally. (3)(a) A member of the 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 to the governing body and shall not vote thereon and shall refrain from attempting to influence the decisions of the other members of the governing body in voting on the matter. (b)A member of the governing body of a local government may vote notwithstanding paragraph (a) of this subsection (3) if his participation is necessary to obtain a quorum or otherwise enable the body to act and if he complies with the voluntary disclosure procedures under section 24-18-110 . (4)It shall not be a breach of fiduciary duty and the public trust for a local government official or local government employee to: (a)Use local government facilities or equipment to communicate or correspond with a member's constituents, family members, or business associates; or (b)Accept or receive a benefit as an indirect consequence of transacting local government business. Attachment 9 0001 (5)(a) Notwithstanding any other provision of this article 18, it is neither a conflict of interest nor a breach of fiduciary duty or the public trust for a local government official who is a member of the governing body of a local government to serve on a board of directors of a nonprofit entity and, when serving on the governing body, to vote on matters that may pertain to or benefit the nonprofit entity. (b)(I) Except as provided in subsection (5)(b)(II) of this section, a local government official is not required to provide or file a disclosure or otherwise comply with the requirements of subsection (3) of this section unless the local government official has a financial interest in, or the local government official or an immediate family member receives services from, the nonprofit entity independent of the official's membership on the board of directors of the nonprofit entity. (II)A local government official who serves on the board of directors of a nonprofit entity shall publicly announce his or her relationship with the nonprofit entity before voting on a matter that provides a direct and substantial economic benefit to the nonprofit entity. Attachment 9 0002 ADVISING QUASI-JUDGES: BIAS, CONFLICTS OF..., 33-MAR Colo. Law. 69 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 33-MAR Colo. Law. 69 Colorado Lawyer March, 2004 Specialty Law Column Government and Administrative Law News Gerald E. Dahla1 Copyright © 2004 by Colorado Lawyer and Colorado Bar Association; Gerald E. Dahl ADVISING QUASI-JUDGES: BIAS, CONFLICTS OF INTEREST, PREJUDGMENT, AND EX PARTE CONTACTS This article identifies the nature of certain due process pitfalls facing quasi-judicial decision-making bodies, including bias, conflicts of interest, prejudgment, and ex parte contacts. Suggestions are made to deal effectively with these problems to ensure a fair, impartial, and defendable decision. Local government attorneys often face the challenge of guiding elected and appointed decision-making bodies when they act in a “quasi-judicial” capacity. These bodies typically comprise town and city councils, boards of county commissioners, planning commissions, and boards of adjustment. Their members (“quasi-judges”) are usually unpaid volunteers (for planning commissions and boards of adjustment), or elected officials (for town or city councils and boards of county commissioners). Quasi-judges are also referred to in this article as “board members.” Quasi-judges generally have no judicial background and little government experience. Nonetheless, they are expected to act with much of the same formality and dignity as judges when deciding quasi-judicial matters. This article addresses some of the practical aspects of advising quasi-judges. It discusses how bias, conflict of interest, prejudgment, and ex parte contact problems should be resolved prior to the hearing. Also covered are situations where board members engaging in those contacts must recuse themselves. Explanation of Quasi-Judicial Actions The first task of the local government attorney is to determine whether the matter to be considered is quasi-judicial, rather than administrative or legislative. The due process and deliberative protections discussed in this article apply only if the matter is quasi-judicial. Administrative matters involve day-to-day decisions, such as approving contracts, hiring staff, and setting utility rates. Legislative matters affect large areas (such as multiple parcels of property) or set broad policy directives. Examples of legislative matters include adoption of an entire or general amendment to a land use code, comprehensive plan, leash law, or general parking ordinance. By contrast, quasi-judicial actions apply general rules to a specific interest, such as a zoning change affecting a single piece of property, a variance, or a conditional or special use permit. Rezonings in Colorado are quasi-judicial.1 They constitute one Attachment 10 1 ADVISING QUASI-JUDGES: BIAS, CONFLICTS OF..., 33-MAR Colo. Law. 69 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 of the largest categories of such actions considered by local government decision-making bodies. Other quasi-judicial matters include historic preservation district permits, conditional and special use permits, and variances.2 Quasi-judicial actions have three characteristics. They involve a state or local law that: (1) requires that notice be given before the action is taken; (2) requires that a hearing be conducted before the action is taken; and (3) directs that the action results from application of prescribed *70 criteria (such as criteria for rezoning found in local zoning regulations) to the individual facts of the case.3 Throughout the quasi-judicial process, counsel must ensure that all due process requirements are properly met. Notice required by any state statute and applicable local regulations must be given. Further, an adequate right to present evidence and cross-examine witnesses must be provided to the applicant or landowner whose interest is the subject of the hearing. Bias and Conflict Of Interest Colorado law contains a presumption that quasi-judicial hearings are conducted impartially.4 This presumption can be overcome by evidence of actual bias or conflict of interest that creates an appearance of impropriety.5 At the local level, particularly in small communities, it is common for members of the decision-making body to personally know the applicant and opponent and, perhaps, have pre-existing relationships with them. However, by itself, this does not create a bias, prejudgment, or conflict of interest sufficient to exclude members from the decision. It is necessary to review any local charter, ordinance, or land use regulation governing conflicts of interest. The attorney must look to state law for guidance on conflict-of-interest matters. Standards of Conduct In 1988, the General Assembly enacted a comprehensive code of ethics for both state and local government officials, entitled “Standards of Conduct” (hereafter, “Standards”).6 The Standards establish recommended guidelines, as well as mandatory rules of conduct. The Standards also prohibit public officials or employees from performing an official act directly [such as voting to approve] 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.7 The Standards address circumstances where a member of a governing body of a local government has a “personal or private interest” in any matter proposed or pending before the governing body. Such board members must: (1) disclose the interest; (2) not vote on the matter; and (3) refrain from attempting to influence the decisions of the other members. 8 In certain situations, the Standards prohibit local government officials and employees from accepting gifts of substantial value or substantial economic benefit. This would apply if acceptance of the gift by a reasonable person would tend to improperly influence him or her to depart from faithful and impartial discharge of public duties.9 Such prohibition also would apply if a reasonable person in the same position should know under the circumstances that the gift is primarily for the purpose of rewarding that person for official action taken.10 The Standards contain an exception for campaign contributions, occasional non-pecuniary gifts of insignificant value, or payment or reimbursement for travel expenses for attendance at a convention in which the official is participating.11 Also excluded are items of perishable or non-permanent value, including meals; lodging; travel expenses; or tickets to sporting, recreational, or cultural events.12 Personal or Private Interests The “personal or private interest” key phrase in the Standards was likely adapted from a provision of the Colorado Attachment 10 2 ADVISING QUASI-JUDGES: BIAS, CONFLICTS OF..., 33-MAR Colo. Law. 69 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 Constitution that is applicable to members of the General Assembly.13 To the extent the local government attorney can determine that a board member has a personal or private interest in the subject matter of the hearing, it may be necessary to advise the member to step down. There are numerous examples of personal or private interests that might require recusal. The board member might: (1) be involved in a zoning matter, represent an applicant, or attempt to represent himself or herself at the hearing; (2) own or have an interest in a business that is making the application; (3) have financial dealings with the applicant; (4) have a financial interest in a business that is a competitor of the applicant business;14 or (5) be a creditor of the business that is asking for action. It is helpful to have an understanding of what is not a personal or private interest. 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 no financial connection, the relationship is so close that a conflict of interest would be presumed. Prejudgment Local government officials sometimes are allowed or compelled to have engaged in prior decision-making on a matter that later comes before them in their quasi-judicial capacities. A common example is where members of a city council or board of trustees in statutory municipalities are required by their municipal home-rule charters to sit on the planning commission.15 No Colorado case law states that board members receiving such additional information have been impermissibly prejudiced by receiving information prior to the public hearing. The practice of county commissioners appointing themselves to the board of adjustment was upheld by the Colorado Court of Appeals in Fedder v. McCurdy.16 However, the Fedder court was troubled by the concept of incompatible offices. In Johnson v. City Council,17 the Colorado Court of Appeals found no violation of due process where two council members received evidence at an informal hearing and expressed opinions prior to participating in the formal hearing before the entire council.18 In a later case, the Court of Appeals considered a case involving several members of the Public Employees Retirement Association Board who initially denied an application and later sat on the board for its final decision. The court found that the applicant had been *71 improperly prejudiced by at least some of the evidence on which the applicant relied.19 Board members must exercise extreme caution in their activities and statements outside public hearings. Although the case law is largely fact-specific, counsel for local governments should advise public official clients not to participate in any public dialogue or discussion on a quasi-judicial matter prior to the hearing on the matter. In Booth v. Trustees of the Town of Silver Plume,20 a committee of the town board of trustees had investigated an application for a liquor license prior to the hearing, then recommended against issuance of the license. The Colorado Supreme Court found that these board actions, combined with other facts, resulted in the applicant being denied a fair and impartial hearing.21 Attachment 10 3 Attachment 11 1 Attachment 11 2 Attachment 11 3 Attachment 11 4 Attachment 11 5