HomeMy WebLinkAboutOPINION - 7/25/2016- CONFLICT,DECISION,DECLARE,PRESENT,STAKEHOLDER2016-1
OPINION OFTHE ETHICS REVIEW BOARD
OF THE CITY COUNCIL OF THE CITY OF FORT COLUNS
July +42-5, 2016
The City Council Ethics Review Board ("the Board") met on July 12m 11) and 25,2016, ttro conjdc�q
a.u.d render an advisory opinion on a question submitted to the Board by Councilmernber Girm
Carnpana. The question presented is (lie extent to which a member of a City board or commission
(together referred to as "boardinernber") may take action as a privale citizen (and not as a
boardmember) to influence the decision of his or her board after cleclaringa conflict (if interest in
that decision, The pending inquiry also requests review of the quostion as it relates to City
Councilmernbers.
Bottom Line,
The Board interprets Article IV, Section 9(b)(3) of the City Charter to prohibit any officer or
employee of the City from acting as an offiver or emplovee in connection with a decision in
which he or she has a financial or person interest. The Board recommends that Council adopt
City Code provisions to h-ni,44-esiahlkh and c.l..:aaily. the fimiiol4nis, on direct conlin 10ca Lf I � 1�,
boardrnetnbers-44= 4ffi those� deei�4ion,;An a pef�,A*i4-*N, representative
capacity., art regard to w, well as, -ex;+t--whtq) ;I variance 11la)cedurc m allow IlIc
-mn0ML, 0I'VMjM1L:CS for more direct invokcinent in ific Case o 1
special bardshjpjiL( metLjLn
j jjt_I" ag 5 - The Board recommends that City Councilmembers continue
to be limited from representing any persons or interests before the Council or other City board or
corrintissionhut notes dw. this hinitation does j )I el��ft C 10UnLjln1LAr1lVr'S l'irrir from
. ......... ..
alrlroewxrir
u f.L ()LiL F rmatted: Underline
L . �and.adyocainig I(, Councif in a malter, so ouncillnernhei It recused 0
leant 161 `A —ILI h�c - -
JIL�I_SC]f fr()jjj o, nj�jtje and I
Back around.
III COMURSt 10 the (.11.106011S commonly before the Ethics Review Board for considerati(ni, this
inquiry relates not to whether a conflict of interest must be declared, but rather to what limits apply
to boardi-nernber Or COLIncilmernber once a conflict has been declared,
Article W, Section 9(b) of the City Charter states as follows (emphasis odded):
(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,
I The Charter defines "officer or ernployce" to mean "any person holding a position by election,
appointment (Iremployinent in, the Service of the city, whether pare -time or full-time, including as ineiliber of
any authority, board, connnitt", or c(mimission of the city, her than an authority that is:
ka
Ethics Opinion 2016-1
July 4925, 2016
Page 2
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 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
(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."
Charter Art. IV, § 9(a).
2 The Charter defines "relative" to mean: "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." Charter Art. IV, § 9(a).
Ethics Opinion 2016-1
July -W25, 2016
Page 3
reason of such contract shall, if required by the city, forthwith return to the city all or any
desmgnated 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.
Past ethics opinions evaluating the Charter lirr:titations on boarch-nernbers with a conflict of interest
have distinguished between representing the interests ofothers 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 fights of boarchnernbers). 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 funoicins, "there arcchallenges
posed by a liar on appearing in front of that board by boarclrrmcmbcrs, particularly those who are
sale practitioners and do not have colleagues who can work on client ma(lors as needed. In those
situations, while [lie boardraernber does not Participate as a member of dic board, there is a
question as to the extent to which lie or she must avoid any pailicipation as an advocate or
representative for an applicant or other party,
fit addition to these Charter limitations on Councilmenibers with conflicts of interest, Section
2-568(c)(2) of the Fort Ccfflins Municipal Code Provides that "No Councilniernber shall represent
any person or interest before the City Council or any board or commission of the City."
Al)plication of City Charter Provisions,
"As tin 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 boardarenibers from
acting in a representative capacity for conipensation to influence a decision of his or her board.
I
In contrast, the relevant Charter language, adopted by the voters in March 1989, prohibits a
boardinember with as conflict of interest in a board decision front "`attempting to influence, or
otherwise parficipating in such decision in,any..manner as an officer or erndgyee." (City Charter
Article IV, Section 9(b)(3) (emphasis adeled)). 1'[1i extcmad C,€Gatten_upllar
influence,,ol P�,)�r!u:jD,.!tJHL, in decision� ol'boards and conirnissioiis that make tecornmendaiions to
tfic hoc and than aan individual WI-ves on.
']'his Charter pr(wision has been specifically addressed in three Ethics Opinions:
Ethics Opinion 91-2 distingUislied between boardinernbers addressing their own personal
interests and boardinernbers representing the interests of others:
The Board believes that members of City boards or conin Js s ions, as
Ethics Opinion 2016-1
July 492 "- 5,2016
Page 4
nun -elected citizen volunteers, should not be required to give LIP 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 ,I 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 it) a representative capacity, with or without compensation, and make
presentations to the Zoning Board of Appeals on behalf ofarl0thor PerWri Or
entity, such as a developer or neighborhood association. (Ethics Opinion
91-2, page 2).
Ethics Opinion 91-3, citing to Ethics Opinion 91-2, indicated that the linrits on a
Councilinernber's participation did riot extend to that Counciinlember's spouse, so tong as
the Councilmeniber declared a conflictof interest and did riot participate in any way in the
subject Planning and 7A)i1ing Board decision. (Ethics Opinion 91-3, page 4).
Ethics Opinion 98-1, which was approved by the City Council in Resolution 98-53,3
addressed the question of personal appearances by a boardrocniber on behalf of a client
where the boardinember had declared a conflict of interest and was not participating as a
member of the board. That opinion, also citing to Ethics Opinion 91-2, concluded that
such appearances beforca one's own board in a representative capacity would riot be
allowed, but (lid riot 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 Charier, an(] is concerned that applying the Charter language to activities not
carried out byo 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, (Please note that different
considerations apply to the activities of Councilmenibers, in contrast to boardmembers, as
described below,)
The Board LCCOgMiZCS there is it need to carefully govern both the involvement of boardoLembers
where they have declared a conflict, and to avoid any appearance of impropriety that might result
from boardnieniber advocacy t(r said inernber's own board. However, the Board believes it
would be more appropriate for the Council to adopt City Code provisions establishing,_,Ei114
On extent t0 whMiboardinernbers
may participate in a matter once a conflict has been identified, rather than rely or) a broad reading
3 In July 1993, the City Council adopted Ordinance No. 064, 1993, which changed the process for
adaption of ethics opinions so as to require Council review and approval,
Ethics Opinion 2016-1
July W25, 2016
Page 5
of the Charter provision. The Board also recornmends, an exception or variance process that allows
Le1jai �participationi circumstances of hardship or other special circumstances, provided that the
-1in
decision making board could continue to carry out its decision making role properly.
1 "Attempting to Influence."
In addition, the Board has considered the question of what, constitutes "attempting to influence" a
decision. The Board concluded that participating in discussion of a particular matter as a
boardmember is likely difficult to distinguish from "attempting to influence," all(] should be
avoided.
Many board decisions of significance are quasi Judicial matters 1ha( do Not allow for ex parte
communications or discussion with stakeholders outside of the licaring process. In those
circumstances, the potential for confusion regarding the role in which ,in individual is acting is
very limited.
The Board believes guidelines are needed to set out the limits on and types of interactions that are
pen-nissible where a conflict of" interest is present. For exaniple the guidelines could:
m IV inVolved'.(in a I J)IescrIL'ItIve in personal
as a hoard n ic I I ibC r) III III III.l th a I Cf, a I uC he I I IC i F b0a rd for dec i si (111
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of llu llc6ai-s. nSaIdies and d
the Wfllldl COUIA01 a1c s a lam ) lem o the I ct and 'L�111:n 'lited to and
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fl�' �Lll )�2Lt�l t are not made fov the I)rh a __L Lt_bU
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c¢autmaulplaWilh 01 adVOLNII tamer. ................
board of a hoard 1,11W will NlAe a IeConlulendation to the
h(MI-d[HOMI)LA'S h0at'd On a imallur rclalcd Io the hoardinembet's
Prohihil boardrnenihor� fromi aP COHMILIlrae,,dt,,rrg directly ,vyith their board in,11
deciskin in whi A fit Ii conflict, except when a
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varizill1c,M'I'll'as been"orillited 1)CCaLlS0 special hardship or other special cirCLIMSUINCeS create
unfairness for the boardmernber or other persons;
Eslahlish a varIan c - ( artiggaf 'I C by'.glsc basi.�
on � 'I �Ise-
and arant varhmce,, Ova In the, form oC(fireck
RE rut, aItions'and a(hocacy. Ill unlisual llardsldpeiT,lIQI
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Ethics Opinion 2016-1
Jul), 4-9,25 ' 2016
Page 6
kitofm I he",- homd -aN 4,4-- 0 -pfo ffeStflj k4ji - J'J)the - Js(4fffd t-ffi i fl t er,,tc+j
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* Clarify that although a boardmember may have a conflict of interest because his or her
firm is actively working on a project, this means that the firm is not disqualified from the
project so long as the boardmernber recuses himself or herself as a boardmember; and
* Esuablish a disclosure process for a boardmember to use when the boardmember must
appear before his or her board to protect a personal interest,
1 Councilmember Appearances
As noted above, express Code language governs concerning the second question (may a
Councilmember appear before Council, after declaring and disclosing a conflict of interest, and
participate on behalf of an interested stakeholder if they (,to not personally appear before Council to
advocate on behalf of another person).
Section 2-568(c)(2) of the Fort Collins Municipal ("ode provides that "No Councilmernber shall
represent ,Any person or interest before the City Cotuicil or any board or commission of the City "
In addition, Colorado statute requires that rnernhers oflocal government governing bodies abstain
from any matter in either a personal or an official capacity in the event of conflict in order to
avoid a breach of fiduciary duty and public trust. (Section 24-18-109(3)(a), CRS.).
In light of these provisions, the Board agrees it is appropriate to hold Councilmembers to a higher
standard and limit more strictly Councilmeniber participation in any decision in which that
COUncilmember has a conflict of interest. Nevertheless, in extreme Cil-CLImstances this may
preclude a Councilmenfl,)cr from defending his or her own personal interests.
The ffixird dkQ AUWCd thdt ahl)OU 11 :: COLUICilphAnbei nn have a conffic( ofinterest 11ccause his
()fr 11el j,N�()riLI -En, s !'I dis �11jleCl kli—11W COMICHmember recuscs hirnsclf or hcrscif from the inatter. This is bccause the codified
ly��Ji�Hlion is on Ow Councilmember's S�ItPli( I' of
-- .. .-- 1. -1 Ple� -,-a- —
Board Conclusions ,anti Recommendations:
1. The language of Article IV, Section 9(b)(3) of the City Charter is most reasonably
interpreted to limit the actions of a City officer or employee g1i1_y in his or tier capacity as an officer
or employee, and not outside of that role.
Ethics Opinion 2016-1
July 4-Q.15, 2016
Page 7
2, The Council should adopt City Code provisions to establish d nd-+equ 4-eme_ f I ts
e laOy wVmr -io actions 4-boardinembers me allowed to take, in as representative
capacity and in a personal capacity (outside of (lie boardmember role) A -W-ill COQIICdk)I1 Wkh
matters in which they have a conflict of interest, k4mtie_Nw-4fitamp described ill 2 oil pages
S 'T k.(.l above. The Board recOnliTiCrids adoption of a variance process flu'9Mlm y l7naNLOIC
Cuumk Imi% on a case-bv-,,ase haskk�4 allow boardinernbers
"r . . ........ .......... I : __ _ — — -
Ihf'Oklah (fit'00 COMIIIIMIoC'Wi( I S lLt���dll S, n X
�.I L on a d 0� LL111 a matter (as a representative or a
stakeholder) -i*) N+e e,,+st-4r\rYr1!c12 hardships or other special circumstances Olai•create unfairness
for time boardmember or other persons.
3. The restriction on Councilmernber 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 Councilmeniber 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 Council n ie vilber. l lov, cw cr, tfds_pLaLLjjtaition d� L!
VMCIld [A) r1 COWIKJII[WMI)CM
I. H 1his ),
L
sire gHl s, �,Ll �,jl
_qp�L
This advisory opinion was reviewed and approved by Councilmernbers Ray Martinez, Gino
Canipana, and Kristin Stephens. as dic designated regular members of' the ElIncs Review Board.
Under Section 2-569(e) of the, City, Code, flus opinion arid recommendation is to be immediately
filed with the (lily Clerk and made available for public inspection. .-This opinion will be
considered by the City Council al its adjourned meeting on July 26, 2016,
Dated this 1401 2da _day ol'July, 20 6
Carrie M. Daggett, City Attorney
Gr
2016-1
OPINION OF THE ETHICS REVIEW BOARD
OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS
July 25, 2016
The City Council Ethics Review Board ("the Board") met on July 12, 19 and 25, 2016, to consider
and render an advisory opinion on a question submitted to the Board by Councilmember Gino
Campana. The question presented is the extent to which a member of a City board or commission
(together referred to as "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.
Bottom Line.
"jli
The Board interprets Article IV, Section 9(b)(3) of the City Charter to prohibit any officer or
employee of the City from acting as an officer or employee in connection with a decision in
which he or she has a financial or person interest. The Board recommends that Council adopt
City Code provisions to establish and clarify the limitations on direct communications by
r4ft\ boardmembers in a representative capacity in regard to that decision, as well as a variance
procedure to allow the granting of variances for more direct involvement in the case of a special
hardship (as outlined on pages 5 and 6). The Board recommends that City Councilmembers
continue to be limited from representing any persons or interests before the Council or other City
board or commission, but notes that this limitation does not prevent a Councilmember's firm from
appearing before and advocating to Council in a matter, so long as the Councilmember has recused
himself or herself from the matter and does not participate in it.
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 what limits apply
to 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,
1 The Charter defines "officer or employee" to mean "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;
Ethics Opinion 2016-1
July 25, 2016
Page 2
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, direct19 oNridirectly,
purchase any real or personal property from the city, except such.,, property att�i��s offered for
m
sale at an established price, and not by bid or auction, on the same-ter��,�nd`'cp`i?ditions as to
all members of the general public. 11141,
(3) Interests in other decisions. Any officer or employee who hair or whose relative has, a
eolh1
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 rolh1
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 andy, 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
(2) governed by state statutory rules of ethical conduct; and
(3) expressly exempted from the provisions of this Article by ordinance of the Council."
Charter Art. IV, § 9(a).
2 The Charter defines "relative" to mean: "the spouse or minor child of the officer or employee, any edml�
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." Charter Art. IV, § 9(a).
i""'� Ethics Opinion 2016-1
July 25, 2016
Page 3
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.
Past ethics opinions evaluating the Charter limitations on boardmembers with a conflict of interest
have distinguished 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. Ther6are challenges
posed by a bar on appearing in front of that board by boardmembers, particularly these who are
sole practitioners and do not have colleagues who can work on client maers as needed. In these
situations, while the boardmember does not participate 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 Councihnember shall represent
,oft", any person or interest before the City Council or any board or commission of the City."
Application of City Charter Provisions.
"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 prohibition extends to attempting to
influence or participating in decisions of boards and commissions that make recommendations to
the board that an individual serves on.
This Charter provision has been specifically addressed in three Ethics Opinions:
Ethics Opinion 91-2 distinguished between boardmembers addressing their own personal
interests and boardmembers representing the interests of others:
'OwN 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
Ethics Opinion 2016-1
Jul-y'25, 2016
Page 4
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.. (Etlts Opinion
91-2, page 2).�{
o Ethics Opinion 91-3, citing to Ethics Opinion 91-2, .indicated that the limits on a
Councilmember's participation did not extend to that, Coui eilmember'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 98-53,3
addressed the question of personal appearances by a boardmember on behalf of a client
where the boardmember had declared a conflict of interest and was not participating as a
member of the board. That opinion, also citing to Ethics Opinion 91-2, 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 applying the Charter language to activities not
carried out by an individualn his or her role "as an officer or employee" goes beyond the intended
meaning and proper interpretation of the language of the Charter. (Please note that different
considerations apply to the activities of Councilrnembers, in contrast to boardmembers, as
described below.)
The Board recognizes there is a need to carefully govern both the involvement of boardmembers
where 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 and
clarifying the extent to which 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 an exception or variance process that allows certain participation in circumstances of
3 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.
/aft` Ethics Opinion 2016-1
July 25, 2016
Page 5
hardship or other special circumstances, provided that the decision making 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. The Board concluded that participating in discussion of a pardl,ular 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 d93,not allow for ex parte
communications or discussion with stakeholders outside of the hearing Rrocess. In those
circumstances, the potential for confusion regarding the role in which an individual is acting is
very limited.
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 the guidelines could:
Expressly allow boardmembers to be involved (in a representative or personal capacity;
not as a boardmember) in matters that come before their board for decision.
o When participating in a personal capacity, the type of communication would not
be limited.
o When participating in a representative capacity, permissible involvement would
including preparation of materials, plans, studies and designs, that are prepared in
the normal course of development of the project and that may be presented to and
considered by that board but are not made for the primary purpose of
communicating with or advocating to the board or a board that will make a
recommendation to the boardmember's board on a matter related to the
boardmember's work);
• Prohibit boardmembers from appearing or communicating directly with their board in a
representative capacity regarding a decision in which they have a conflict, except when a
variance has been granted because special hardship or other special circumstances create
unfairness for the boardmember or other persons;
o Establish a variance process by which the Council may consider on a case -by -case basis
and grant variances that would permit participation in the form of direct communications,
presentations, and advocacy, in the event a boardmember has an unusual hardship or other
special circumstance (such as illness or incapacity of a professional firm colleague, or
,,� unavailability of others as a result of sole proprietorship);
Ethics Opinion 2016-1 i~'1
July 25, 2016
Page 6
e Address whether limitations should be imposed regarding a boardmember's participation
in and communications with boards or commissions that make recommendations to the
board the boardmember serves on;
e Clarify that although a boardmember may have a conflict of interest because his or her
firm is actively working on a project, this means that the firm is not disqualified from the
project so long as the boardmember recuses himself or herself as a boardmember; and
c Establish a disclosure process for a boardmember to use whdn the l,o'ardinember must
appear before his or her board to protect a personal interest.''`''
i . 3. Councilmember Appearances,
As noted above, express Code language governs concerning Ilse second question (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).
W
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 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 agrees it is appropriate to hold Councilmembers to a higher
standard and limit more strictly Codncilmember participation in any decision in which that
Councilmember has a conflict of interest. Nevertheless, in extreme circumstances this may
preclude a Councilmember from defending his or her own personal interests.
The Board also agreed that although a Councilmember may have a conflict of interest because his
or her firm is actively working on a project, the firm is not disqualified from the project so long as
the Councilmember recuses himself or herself from the matter. This is because the codified
prohibition is on the Councilmember's representation of any person or interest.
Board Conclusions and Recommendations:
1. The language of Article IV, Section 9(b)(3) of the City Charter 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.
Ethics Opinion 2016-1
July 25, 2016
Page 7
2. The Council should adopt City Code provisions to establish and clarify what actions
boardmembers are allowed to take, 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, as
described in Section 2 on pages 5 and 6, above. The Board recommends adoption of a variance
process through which the Council may on a case -by -case basis allow boardmembers to actively
participate through direct communications, presentations, and advocacy in a matter (as a
representative or a stakeholder) when hardships or other special circumstanceisgcreate unfairness
for the boardmember or other persons.
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 wherdip Councilmember has a financial
or personal interest (as defined in the Charter), and representaticin,iin the sense of advocating for
certain policy or other interests in the role as a Councilmember. Howe this prohibition does not
extend to a Councilmember's firm.
4. If this Opinion is adopted by the City Council, to the extent this Opinion conflicts with
r""'\ prior Ethics Opinions of the Ethics Review Board, such prior Opinions shall be superseded.
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.
Under 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. This opinion will be considered
by the City Council at its adjoumed;;meeting on July 26, 2016.
Dated this 25th day of July, 2016.
LQ
Carrie M. Daggett, City Attorney