HomeMy WebLinkAboutOPINION - 7/12/2016- LIMITS,PERSONAL INTERESTS,REPRESENTATION,RESTRICTIONS2016 -1
OPINION OF THE ETHICS REVIEW BOARD
OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS
July 18, 2016
The City Council Ethics Review Board (Athe Board@) met on July 12, 2016, to render an advisory
opinion on a question submitted to the Board by Councilmember Gino Campana. The question
presented is the extent to which a boardmember may take action as a private citizen (and not as a
boardmember) to influence the decision of his or her board after declaring a conflict of interest in
that decision. The pending inquiry also requests review of the question as it relates to City
Councilmembers.
Background.
In contrast to the questions commonly before the Ethics Review Board for consideration, this
inquiry relates not to whether a conflict of interest must be declared, but rather to whether what the
limits are on a boardmember or Councilmember once a conflict has been declared.
Article IV, Section 9(b) of the City Charter states as follows (emphasis added):
. . .
(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 concerning such sale; or
c. in the case of services, such officer or employee exercises any supervisory
authority 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
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July 19, 2016
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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.
Under past ethics opinions evaluating the Charter limitations on boardmembers who have a
conflict of interest, there has been a distinction made between representing the interests of others
before a boardmember’s board (not allowed where a conflict has been declared), and representing
personal interests before that board (allowed in the interests of preserving personal rights of
boardmembers). This distinction has raised concerns in recent months in part because some City
boards include, or are required under the Code to include, professionals in fields related to that
board’s functions. As a result, there are challenges posed by a bar on appearing in front of that
board by board members, particularly those who are sole practitioners and do not have colleagues
who can work on client matters as needed. In these situations, while the boardmember does not
participate in the matter as a member of the board, there is a question as to the extent to which he or
she must avoid any participation as an advocate or representative for an applicant or other party.
In addition to these Charter limitations on Councilmembers with conflicts of interest, Section
2-568(c)(2) of the Fort Collins Municipal Code provides that “No Councilmember shall represent
any person or interest before the City Council or any board or commission of the City.”
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July 19, 2016
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Application of City Charter Provisions.
1. “As an Officer or Employee.”
A Council-adopted “Policy Statement on Ethics,” in place from 1988 until it was superseded by
the adoption of the conflicts provisions in the Charter in 1989, prohibited boardmembers from
acting in a representative capacity for compensation to influence a decision of his or her board.
In contrast, the relevant Charter language, adopted by the voters in March 1989, prohibits a
boardmember with a conflict of interest in a board decision from “attempting to influence, or
otherwise participating in such decision in any manner as an officer or employee.” (City Charter
Article IV, Section 9(b)(3) (emphasis added)).
This Charter provision has been specifically addressed in three Ethics Opinions:
Ethics Opinion 91-2 distinguished between boardmember personal interests and
boardmember representation of the interests of others:
The Board believes that members of City boards or commissions, as
non-elected citizen volunteers, should not be required to give up the right to
protect their personal interests when they might be directly affected by a
board or commission, even if they serve on that board or commission.
This right should not extend, however, to representing interests other than
their own individual interests. For example, while a member of the Zoning
Board of Appeals should be able to argue in favor of a variance for his or
her private residence, that same board member should not be permitted to
serve in a representative capacity, with or without compensation, and make
presentations to the Zoning Board of Appeals on behalf of another person or
entity, such as a developer or neighborhood association. (Ethics Opinion
91-2, page 2).
Ethics Opinion 91-3, citing to Ethics Opinion 91-3, indicated that the limits on a
Councilmember’s participation did not extend to that Councilmember’s spouse, so long as
the Councilmember declared a conflict of interest and did not participate in any way in the
subject Planning and Zoning Board decision. (Ethics Opinion 91-3, page 4).
Ethics Opinion 98-1, which was approved by the City Council in Resolution 98-53
1
,
addressed the question of personal appearances by a boardmember on behalf of a client in
1 In July 1993, the City Council adopted Ordinance No. 064, 1993, which changed the process for
adoption of ethics opinions so as to require Council review and approval.
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July 19, 2016
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matters where the boardmember had declared a conflict of interest and was not
participating in the matter as a member of the board. That opinion, also citing to Ethics
Opinion 91-2 in evaluating this issue, concluded that such appearances before one’s own
board in a representative capacity would not be allowed, but did not address whether other
means of advocating to the board, or providing other materials for consideration by the
board, on behalf of a client would also be prohibited. (Ethics Opinion 98-1, pages 3-4).
After a thoughtful review of these prior ethics opinions, the Board has carefully considered the
language of the Charter, and is concerned that the application of the Charter language to activities
that are not carried out by an individual in his or her role “as an officer or employee” goes beyond
the intended meaning and proper interpretation of the language of the Charter. The Board
recognizes that there is a need to carefully govern both the involvement of boardmembers in
matters in which they have declared a conflict, and to avoid any appearance of impropriety that
might result from boardmember advocacy to said member’s own board. However, the Board
believes it would be more appropriate for the Council to adopt City Code provisions establishing
specific requirements and procedures regarding how boardmembers may participate in a matter
once a conflict has been identified, rather than rely on a broad reading of the Charter provision.
The Board also recommends consideration of an exception or variance process to allow
participation in circumstances of hardship or other special circumstances, provided that the
decisionmaking board could continue to carry out its decision making role properly.
2. “Attempting to Influence.”
In addition, the Board has considered the question of what constitutes “attempting to influence” a
decision. In general, the Board concluded that participating in discussion of a particular matter as
a boardmember is likely difficult to distinguish from “attempting to influence,” and should be
avoided. Many board decisions of significance are quasi-judicial matters that do not allow for ex
parte communications or discussion with stakeholders outside of the hearing process. In those
circumstances, the potential for confusion regarding the role in which an individual is acting is
very limited. Nonetheless, the Board believes guidelines are needed to set out the limits on and
types of interactions that are permissible where a conflict of interest is present. For example,
distinction may be drawn between involvement of a design professional in the design of a project
and involvement in an active capacity as an advocate or respondent to questions.
3. Councilmember Appearances.
As noted above, concerning the second question, that is, may a Councilmember appear before
Council, after declaring and disclosing a conflict of interest, and participate on behalf of an
interested stakeholder if they do not personally appear before Council to advocate on behalf of
another person, express Code language governs. Section 2-568(c)(2) of the Fort Collins Municipal
Code provides that “No Councilmember shall represent any person or interest before the City
Council or any board or commission of the City.” In addition, Colorado statute requires that
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members of local government governing bodies abstain from any matter in either a personal or an
official capacity in the event of a conflict in order to avoid a breach of fiduciary duty and public
trust. (Section 24-18-109(3)(a), C.R.S.). In light of these provisions, the Board was in general
agreement that it is appropriate to hold Councilmembers to a higher standard and limit more
strictly the extent to which a Councilmember may participate in any way in a decision in which
that Councilmember has a conflict of interest. It was noted, however, that in extreme
circumstances this could preclude a Councilmember from defending his or her own personal
interests.
Board Conclusions and Recommendations:
1. The language of Article IV, Section 9(b)(3) of the City Charter should be and is most
reasonably interpreted to limit the actions of a City officer or employee only in his or her capacity
as an officer or employee, and not outside of that role.
2. The Council should adopt City Code provisions to establish restrictions and requirements
related to actions of boardmembers, in a representative capacity and in a personal capacity (outside
of the boardmember role) in connection with matters in which they have a conflict of interest.
The Board also recommends consideration of a variance process that would allow for limited
exceptions in that case of hardships or other special circumstances.
3. The restriction on Councilmember representation of any persons or interests before the
Council or a City board or commission should remain in place, although it may be beneficial to
clarify this language to distinguish between representation where a Councilmember has a financial
or personal interest (as defined in the Charter), and representation in the sense of advocating for
certain policy or other interests in the role as a Councilmember.
This advisory opinion was reviewed and approved by Councilmembers Ray Martinez, Gino
Campana, and Kristin Stephens, as the designated regular members of the Ethics Review Board.
Pursuant to Section 2-569(e) of the City Code, this opinion and recommendation is to be
immediately filed with the City Clerk and made available for public inspection. Additionally, this
opinion shall be considered by the City Council at its adjourned meeting on July 26, 2016.
Dated this 18th day of July, 2016.
____________________________________
Carrie M. Daggett, City Attorney