HomeMy WebLinkAboutAGENDA ITEM SUMMARY - 3/6/2020- CONFLICT INTEREST,CSU,ETHICS,HUGHES,MAYOR TROXELLAgencla ftern ,3
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Carrie Daggett, City Attorney
RUNWAM
These are reference materials provided for the Ethics Review Board's use in considering Items 3a, 3b
and 3c, all related to review of the complaint filed on January 21, 2020, by Rory Heath Linder City Code
Section 2-569(d)(1) to determine whether the complaint warrants investigation.
The purpose of this item is to provide references for use in the initial screening by the Ethics Review
Board of a complaint filed with the Board under City Code Section 2-569(d), as described below.
Under City Code Section 2-569(d), any person who believes a Councilmember or board or commission
member has violated any provision of state law or the City Charter or City Code pertaining to ethical
conduct may file a complaint with the City Clerk. After notice to the complaining party and the subject
of the complaint, the Ethics Review Board then considers the complaint and whether it should be
further investigated. A copy of Section 2-569 is provided as an attachment to this Agenda Item
Summary.
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The Board will consider a complaint lodged with the Board through the City Attorney on January 21,
2020, by Rory Heath (the "Complainant"), a Fort Collins resident, against Mayor Wade Troxell,
Mayor Pro Tern Kristin Stephens and CounciLmember Ken Summers. The Complaint (without
attachments) is attached to this AIS and has been electronically provided to Council along with all
attachments.
Generally, the ethics provisions established by the City include City Charter Article IV, Section 9, and
City Code Section 2-568. These are each provided as reference materials, attached to this Agenda
Item Summary.
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In addition, various state laws are commonly considered ethics laws. These include:
Sections 24-18-101 through -105, Colorado Revised Statutes (C.R.S.);
Section 24-18-109, C.R.S.;
Agenda Ite/7'i 3
• Sections 24-18-201 through -206, C.R.S.;
• Sections 18-8-302 through -308, C.R.S.; and
• Sections 18-8-402 through -409, C.R.S.
These statutes are all attached to this Agenda Item Summary for convenient reference. Advisory
Opinion 17-04 of the Colorado Independent Ethics Commission (IEC), interpreting some of these state
law provisions, and Advisory Opinion 16-05 of the I EC are also attached.
(The language of Article XXIX of the Colorado constitution — also referred to as "Amendment 41,"
provides that home rule municipalities that have adopted local ethics provisions addressing the
topics in that provision are exempt from its application.)
Prior Related Ethics Opinions:
Also attached for your reference is Resolution 2014-107, adopted by the City Council in 2014,
accepting advisory opinion and recommendation no. 2014-01 of the Ethics Review Board. At that
time, then Councilmember Troxell had requested and advisory opinion regarding whether he would
have a conflict of interest in continuing to participate in, Council discussions and, ultimately, Council's
vote, regarding the proposed new Colorado State University football stadium then under discussion.
The conclusion at that time was that: 1) there was no indication that then Councilmember Troxell
would receive any "foreseeable, measurable" financial benefit, so no financial interest was
presented; and 2) there was no indication that his position of employment or the amount of his
compensation would be affected by his vote or Council's decision or actions with regard to the
proposed football stadium, so there was no "direct and substantial gain or detriment to him and no
personal interest was presented.
The Board is required under the Code to evaluate the Complaint and determine by majority vote
whether to formally investigate the Complaint. In doing so, the Board should consider:
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 anV facts asserted in support of the allegations; and
3. Any other facts or circumstances the Board may consider relevant.
If the Board determines that the Complaint does not warrant investigation, the Board then directs
staff to send written notice to the complainant of that determination and the reasoning behind it. A
copy of that notice is also sent to the subject of the Complaint and the City Council.
1. If the Board determines that there is no potential violation of state or local ethics laws
under the facts alleged, the Board should make a motion to that effect that explains
the Board's reasoning, and then vote to make that determination. If the Board makes
this determination, no further action is needed on the Complaint (other than the
provision of notice as required in the Code).
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Agendaltern 3
2. If the Board determines that the Complaint states a potential a conflict of interest, then
the Board will need to evaluate whether the facts asserted are reliable and sufficient
enough to support the allegation in the Complaint that a violation occurred, making an
investigation of the Complaint appropriate. The Board may have knowledge of
information that contradicts the asserted facts, or there may be a lack of information
needed to form a reasonable suspicion that the violation alleged in the Complaint
occurred.
3. If there is additional information available or presented to the Board that leads the
Board to conclude that the Complaint does not merit further investigation, the Board
should identify that information and explain how it affects the Board's decision as to
whether further investigation is warranted.
After the completion of its review of all factors, if it has not already made a determination, the Board
will need to make a motion and vote on whether it has determined that further investigation is
warranted, explaining the reasoning for its decision.
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As, noted above, if the Board makes this determination, no further action is needed on the Complaint
(other than the provision of notice as required in the Code).
Alternatively, if the Board determines that further investigation is warranted, staff will suggest a
schedule for next steps for the Board to proceed to that phase of the process. At the end of the
Board's review and investigation, if any, the Board will issue an Ethics Opinion stating the outcome
of its action. The Board's Ethics Opinion is then presented to the City Council for consideration and
possible adoption by resolution.
ATTACHMENTS
1. January 21, 2020, Complaint filed by Rory Heath (EXHIBITS incorporated by reference only)
2. Fort Collins City Code Section 2-569
3. Fort Collins City Charter Article IV, Section 9
4. Fort Collins City Code Section 2-568
5. Sections 24-18-101 through -105, Colorado Revised Statutes (C.R.S,)
6. Section 24-18-109, C.R.S.
7. Sections 24-18-201 through -206, C.R.S.
8. Sections 18-8-302 through -308, C.R.S.
9. Sections 18-8-402 through -409, C.R.S.
10. Advisory Opinion 17-04 of the Colorado Independent Ethics Commission (IEC)
11. Resolution 2014-107, of the City Council': of the City of Fort Collins, Accepting Advisory Opinion
,and Recommendation No. 2014-01 of the Ethics Review Board
12. Advisory Opinion 16-05 of the Colorado Independent Ethics Commission (IEC)
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Disclaimer: I am not a licensed attorney in Colorado, nor purporting to be one by submitting this Ethics
Complaint.
To the best of my knowledge, information contained within this ethics complaint is accurate and factual,
as executed to the best of my ability.
I request that the City of Fort Collins Ethics Review Board evaluate the information given herein and that
the Board take any and all appropriate procedures and actions as outlined in the applicable City, State,
and Federal laws, not solely limited to the specific ones discussed within this complaint.
Due to the nature of submitting a complaint of this weight 1 ask that the review process be explicitly
contingent upon my presence at City Hall during the Ethics Review Board Meeting.
I submit this complaint with the expressed statement that additional material may be submitted, and
the complaint revised, as needed, as new information is discovered and investigated, reserving all rights
to do so.
COMPLAINANT
Rory Heath
PO Box 271777
Fort Collins, CO 80527
COMPLAINEES
Wade Troxell
Mayor, City of Fort Collins
Associate Professor, Mechanical Engineering, Colorado State University
Director, Center for Networked Distributed Energy, Colorado State University
Director, RamLab, Colorado State University
Kristin Stephens
Mayor Pro Tem, Fort Collins City Council
Counciimember representing District 4, Fort Collins City Council
Graduate Coordinator, Department of Statistics, Colorado State University
Program Assistant II, Department of Statistics, Colorado State University
Ken Summers
Councilmember representing District 5, Fort Collins City Council
Owner and Registered Agent, KGS Consulting
1 EXHIBIT
ALLEGATIONS
There exists a consistent betrayal of the public trust vested in the elected officials and the city staff of
Fort Collins. This act was evident in varying levels throughout this process and perpetrated by various
individuals. The most egregious and measurable violation of this trust was evident in the actions of 3
Fort Collins City Council Members, with questions surrounding why they voted against the
overwhelming majority of citizens' wishes, continually, in strong light of each councilmembers' obvious
conflicts of interest. The councilmembers in violation are Wade Troxell, Kristin Stephens and Ken
Summers.
Wade Troxell and Kristin Stephens are both current employees of Colorado State University. Colorado
State University, in seeking to sell a tract of land it owns to Lennar Homes, is seeking government
approval before the very city council that Wade Troxell and Kristin Stephens are both voting members
of. This is textbook conflict of interest and corruption at the elected official level. Each has significant
personal and social interests, significant financial interests, and thus, significant related Conflicts of
Interest.
Ken Summers, by all indications, owns and operates KGS Consulting, a business with the key taglines of
"Opening Doors", "Providing Access" and "Empowering Influence" listed just below its' entity name, as
currently seen on Ken Summers' own website, Kensummers.org. The contents of this website are an
explicit billboard for "pay for play" in the political realm. Kensummers.org is a website still very much in
use and regularly updated, with a post by the user "kensummers" on 12/23/2019. Ken Summers' email
address and personal phone number are listed on the same page, below the list of services he is able to
provide. This advertisement for influence into governmental decisions, in light of Ken Summers' present
standing as councilmember brings all of his actions under justified scrutiny. Further, when seen voting
opposite of the public will, his actions become that much more suspicious and in question.
Summers himself also possesses a near "sky is the limit" conflict of interest from a personal, social, and
even specific business perspective, possibly even including related lobbying statutes and laws. To really
understand the extent to which Summers' actions have effected his position of public trust, an intense
investigation will be required; up to and including obtaining copies of financial statements, business
transactions and the like. Opening up the possibility of selling influence invites all possible outside
suitors into the legislative process.
The actions of the councilmembers in question have specifically affected the integrity and the procedure
of Fort Collins City Government in the consideration and the voting of City Ordinance No.138, 2019 and
even the Ethics Review Board that convened on 12/16/2019.
FACTS
1. Wade Troxell is currently and gainfully employed by Colorado State University. Mr. Troxell is an
Associate Professor in the Mechanical Engineering department as well as the Director of the Center
for Networked Distributed Energy, as well as Director for RamLab. Kristin Stephens is currently and
gainfully employed by Colorado State University. Ms. Stephens is the Graduate Coordinator of the
Department of Statistics and Program II Assistant in the Department of Statistics. (contained within
Ex. 17)
2. Wade Troxell and Kristin Stephens both took an Oath to CSU as a condition to their employment at
CSU. (see Ex. 11)
3. Ken Summers is the presumable owner of KGS Consulting, as displayed as a feature tab on the
website kensummers.org. Kenneth G Summers is listed as the registered agent on the Colorado
Secretary of State website directory for the same KGS Consulting. (see Ex.18)
4. Colorado State University is the owner of a tract of land bounded to the West by Horsetooth
Reservoir and it's related Open Space, and bounded to the East by South Overland trail. More
particularly described by the accompanying and attached documents, and more generally referred
to simply as the former site of Hughes Stadium.
5. The university is attempting to sell this land to a developer, Lennar Homes, under conditional terms,
via a Purchase Agreement. (contained within Ex.17)
6. The Purchase Agreement in place explicitly lists an "Additional Purchase Price" to be paid as bonus
for every housing unit sold on the property. Also explicitly listed in the Purchase Agreement is a
clause titled "Preliminary Entitlement Confirmation" whereby Lennar homes is given a means by
which to remove itself from the agreement if a stated minimum number of units is not met.
(contained within Ex.17)
7. Wade Troxell has collected a paycheck, aka compensation for his employment and efforts. Wages
have been exchanged as consideration for services rendered in the past and continuing to be
rendered into the future.
8. Further, Mr. Troxell has gained national notoriety from his continued employment and involvement
at programs housed within the CSU System and within the academic buildings of Colorado State
University. (contained within Ex.17)
9. Troxell is a director and by extension, a fiduciary, for the Center and the Ramlab. (contained within
Ex.17)
10. Wade Troxell, though currently an associate professor, could conceivably be promoted to a full
professor or even further promoted to a Dean or the like, as had been the case in the past. This
promotion would carry with it all of the additional benefits of the new title.
11. Kristin Stephens has collected a paycheck, aka compensation for her employment and efforts.
Wages have been exchanged as consideration for services rendered in the past and continuing to be
rendered into the future. (contained within Ex.17)
12. Kristin Stephens, though currently listed as a Graduate Coordinator and a Program Assistant, could
conceivably be promoted to a position with better career opportunities, research authoring
possibilities or a myriad of other benefits.
13. Ken Summers, through his KGS Consulting, offers the following services via his website (see Ex. 4)
• "Opening Doors"
• "Providing Access"
• "Empowering Influence"
• "PERSONAL CONTACT WITH LEGISLATORS to inform them of your position on a bill and why
you support or oppose the legislation."
• "COMMUNICATION WITH DEPARTMENTS that interface with your business on the writing
and implementation of rules"
• "TOURS AND RECEPTIONS that provide legislators an opportunity to learn firsthand about
the work that you do"
• "Navigating through the maze of the political arena can be a challenge. That is why an
individual with experience working with you and advocating on your behalf can make a
difference."
14. In 2017 Mayor Wade Troxell received campaign contributions from the National Association of
Realtors Fund in the amount of $39,722. This number was added to $5,000 that had rolled over
from a previous campaign, and $15,000 collected during this campaign. By definition, local realtors
are dependent on housing as their "inventory" by which to make their commission, an
overwhelming part of their personal compensation. (see Ex. 9)
15. Thompson Area Against Stroh Quarry, Inc. et al v. Board of County Commissioners of Larimer et al,
Larimer County District Court Case No. 2018CV30371, A court decision within Larimer County,
entered in August of 2019, has directly and specifically addressed the question as to whether a
campaign contribution would warrant recusal by a government official, in any capacity. (see Ex. 9)
16. Wade Troxell had previously recused himself in a matter related to CSU in 2017 regarding ordinance
No.051, 2017. (see Ex. 9)
17. When collecting research data at the Drake Centre Event regarding as to which zoning was preferred
by the general public, a narrow offering of 5 different scenarios was given, with none being
composed only of RF and none containing POL. (see Ex. 2)
18. When asked for public comment and public feedback throughout the re -zoning process, there exists
an absolute preponderance of evidence to support the conclusion that the public would support
either the bare minimum of development for that parcel of land or no development at all, leaving it
just how it is now, untouched. (see Ex. 1)
GOVERNING LAW
The governing laws presented below are only a selection of applicable laws to the Complaint. As such,
consideration of the matter before the Board is not limited only to those cited below and within this
Complaint.
The references made below are given in smaller snippet form. Please review the full attached exhibits,
and the full verbiage of each statute, etc. Please see Ex. 5, 6, 7, 8, 9.
• Fort Collins City Code Sec 2-568 (a) lays out the definitions by which to define the following
portions of the city code
• Fort Collins City Code Sec 2-568 (a) (11) 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 judgement 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." Also citing Section 9(A) of the Charter Article IV.
• Fort Collins City Code Sec 2-568 (a) (18) states: Substantial shall mean more than nominal in
value, degree, amount or extent.
• Fort Collins City Code Sec 2-569 (c)(2) states: "To Review and investigate actual or hypothetical
situations involving potential conflicts of interest presented by individual Councilmembers or
board and commission members"
• Fort Collins City Code Sec 2-569 (d)(1) (a) states: "Any person who believes that a
Councilmember or board and commission member had violated any provision of state law or
the Charter or Code pertaining to ethical conduct may file a complaint with the city clerk..."
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• Fort Collins City Code Sec 2-569 (d)(1) (b) states: "... 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."
• Fort Collins City Code Sec 2-569 (g) states: "Compliance with the applicable provisions of the
Charter and Code and the provisions of state law, as well as decisions regarding the existence of
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..."
• Colorado Revised Statute 24-18-102 states:
"As used in this part 1, unless the context otherwise requires:
(1) "Business" means any corporation, limited liability company, partnership, sole
proprietorship, trust or foundation, or other individual or organization carrying on a
business, whether or not operated for profit.
(2) "Compensation" means any money, thing of value, or economic benefit conferred
on or received by any person in return for services rendered or to be rendered by
himself or another.
(3) "Employee" means any temporary or permanent employee of a state agency or any
local government, except a member of the general assembly and an employee under
contract to the state.
(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 employmentor,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
(0 A directorship or ofs cersi p in a business;
(5) "Local government" means the government of a_n_y-county, city and county, city;
town, special distqct�o sch1 o strict
(8) "Public officer" means any elected officer, the head of a principal department of the
executive branch, and any other state officer. "Public officer" does not include a
member of the general assembly, a member of the judiciary, any local government
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official, or any member of a board, commission, council, or committee who receives no
compensation other than a per diem allowance or necessary and reasonable expenses.
(9) "State agency" means the state; the general assembly and its committees; every
executive department, board, commission, committee, bureau, and office; every state
institution of higher education, whether established by the state constitution or by law,
and every governing board thereof, and every independent commission and other
political subdivision of the state government except the courts."
• Colorado Revised Statute 24-18-103 states:
"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 goyernment: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."
Colorado Revised Statute 24-18-104 (1)states: " 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:..."
Please consider Colorado Revised Statute 24-18-105, in it's entirety.
Colorado Revised Statute 24-18-109 states:
(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 aat ditectlyand.substantially affecting to its-economicbenefit a
business or other undertaking m_ which °he errherhasasubstantalfmancial interest or
._n._:c ._..._...
is engaged as`counsel, consultants representatwe, or agent, of
(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.
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(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.
(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)
(1) 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.
In applying the laws referenced and re -stated above, there exist numerous applications, arguments and
even very clear cut violations of law and worse yet, violations of the public trust given to the individuals
in question.
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ANALYSIS
Wade Troxell and Kristin Stephens have a direct personal Interest in CSU, a bias because of their
relationship with CSU, and a means by which they can be rewarded by CSU as expertly laid out in a
previous, and wholly separate ethics complaint regarding the very same ordinance. (see Ex.17)! Their
refusal to recuse themselves from the process gave them a means by which they could exert their bias
and personal/professional agenda upon the final decision. (see Ex. 3, in lieu of a typed transcript
pertaining to the 111512019 Council Meeting, in addition to all other meetings as related to the
Ordinance referenced within this Complaint)
At every occasion that public comment was collected, the overwhelming majority of respondents asked
for zoning that maximized open space, and minimized the number of houses placed on the parcel of
land in question. The original materials for the First Reading of the ordinance relating to this parcel of
land contained a breathtaking 655 pages full of citizens begging their elected officials to vote with the
will of the people and approve a zoning solution best exhibited by either RF or POL zoning for the
entirety of the tract. (see Ex.1)
When it came time to declare their voting intentions, both Wade Troxell, Kristin Stephens, and Ken
Summers, even upon being directly advised by city staff that affordable housing was unenforceable,
chose to vote for higher density/ more housing units under the false rationale that this would create
more affordable housing. (see Ex. 3, in lieu of a typed transcript pertaining to the 111512019 Council
Meeting, in addition to all other meetings as related to the Ordinance referenced within this Complaint)
This voting rationale, especially when told that their argument was proven invalid on record, is
suspicious to say the least. By all appearances and indications, Troxell and Stephens voted in line with a
course of action that would benefit their employer/ the entity that they are representatives for. Their
votes were just opposite of the overwhelming public opinion. Further, the fact that they were even
allowed to guide and participate in the discussion is alarming and a tainting of the sanctity of
government, and especially alarming when considering their fiduciary duty to their constituents and the
greater good of the Colorado public. (see Ex.1, and aU applicable lows regarding fiduciary duty, not
limited only to the ones contained within this complaint)
Further bringing into question the sanctity of the process is the way that research data was collected
and presented to Council, and similarly presented to the public. At the Drake Centre, public respondents
were railroaded into choosing amongst only 5 options, with all options containing a large amount of
homes to be built in their relating zoning. (see Ex. 2)
No options were given that had exclusive RF or POL zoning. Coupled with the slides presented by city
staff summarizing support for each of the narrow options, a misrepresentation of the public's will and
wishes was provided, with ease. Even the digitization of the post -it comments edited some comments
by practice. (see page 19 and 15 of Ex.1)
Fundamentally, this is an affront to the will of the people, as perpetrated by city staff and further brings
into question the trust that is placed in local government officials, and city staff. These were both
actions supported by city staff and referenced by the Councilmembers in question. Also interesting was
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Troxell's previous recusal when a similar conflict of interest arose in relation to his employment at CSU
in 2017 regarding Ordinance No. 051, 2017.
By the wording and definitions of the State Statutes and the Fort Collins Codes that generally reference
the State Statutes, (see Ex. 6, 7, 8), Troxell and Stephens are representatives and employees of CSU/ the
seller of the parcel described in the ordinance. Within (Ex. 6,7,8), there are numerous applications of the
terms and concepts introduced within the law, resulting in a very clear violation of nearly each
applicable one.
Councilperson Summers was presented the same overwhelming number of responses from citizens
begging for Open Space and at worst, RF zoning, and just like Troxell and Stephens, he voted against the
wishes of the very people that he was entrusted to represent and vote in line with. This decision to vote
against the people before him, against the 655 pages of public comment and against the public's wishes
in general was particularly alarming when considered in the frame of his website ie "Providing Access",
"Empowering Influence". When looked at in that context, a vote against the public will, and instead in
line with a possible private commercial interest seems to have possibly occurred.
There is also a workplace sociological factor involved in Troxell and Stephens inherent bias towards their
workplace. Not only is their future success tied to the future of CSU, but their success is also tied to their
relationships with the people whom all fly the same CSU flag. It is a known psychological assertion that
those together, all striving towards the same goal, especially in employment, regardless of the sector,
tend to exhibit a groupthink mentality and one that is in line with supporting the endeavors of the
organization as a whole, regardless of evidence to the contrary; even to the detriment of those not a
part of the same organization. Key examples of this can be seen in the Milgram Experiment on
Obedience to Authority, The Solomon Asch Conformity Concept, and Irving Janis' work regarding the
identification and study of the idea of "groupthink." (see Ex. 12,13,14)
Previous opponents of the fact that employment within State Education is still employment, with all of
it's associated trappings, have argued that there is somehow a difference between the two. When
evaluating any differences between public and private employment, they share nearly all of the same
key characteristics: They show up to perform work duties at a common location usually, get a paycheck
from this work, network and socialize with their peers and fellow employees while at work. They even
share the same common goal of the prosperity and continued success of that entity that they represent.
This goal in this case is firmed up by an oath to CSU which they both took. (see Ex.11)
When evaluating the issue of conflict of interest, the Academic Faculty and Administrative Professional
Manual of Colorado State University (see Ex.10) states "External obligations, financial interests, and
activities of each University employee must be managed so that there is no interference with the
employee's primary obligation and commitment to the University." When evaluating which of Troxell
and Stephen's conflicting interests will win out, it's very clear that the CSU Staff Manual dictates that
The University's interests must win out. In this case, dictating that CSU's interest must win out over the
public's wishes regarding this Ordinance and the fate of the associated parcel of land. This fact is laid out
in writing. In fact, Troxell and Stephens are to even remove themselves from the interference, as per the
same Manual.
Also in relation to this passage in the CSU Manual is the fact that Troxell and Stephens have not even
properly adhered to the policies of CSU, nor the public trust placed within them by that employment, by
removing themselves from the interference
All of these actions, and suspicious voting patterns, coupled with Troxell and Stephens steadfast refusal
to simply recuse themselves places us on the doorsteps of a very scary political principle: corruption.
Continuing on this course and allowing these individuals to vote on, much less influence the discussion
on the topic, is improper and casts a shade of impropriety on the process.
Further, it has been shown again and again that this approach to determining the fate of a such a large
and valuable swath of land is the wrong way to go about it. This is evidence that the fate of the Hughes
Site needs to be in the hands of the thousands of people that have enjoyed it, and not just in the hands
of 7 people too easily influenced by outside interests and unwilling to recognize their own inherent bias.
(see Ex.1)
At no point during this process has government aptly summarized the people's opinion for them, nor
should they be allowed to.
Further disconcerting was the question as to whether the Ethics Review Board that previously met on
12/16/2019 can even be considered to be unbiased, when council themselves are asked to essentially
police themselves in the manner. I feel that asking anyone to objectively judge and evaluate a peer
whom shares the same duties and responsibilities as oneself is not a fair process in the least due to
inherent biases. Le., you're naturally inclined to feel sympathetic to someone who encounters the same
possible challenges and possible pitfalls before them.
What personally concerns me in the matter is the voracity with which Ken Summers attacked all
arguments in support of an investigation into the Ethics Complaint (see future exhibit to be added of
record of the Ethics Review Board meeting having taken place on 1211612019). Considering Ken's own
promises of "Opening Doors", "Providing Access", and "Empowering Influence" on his website, I can't
help but fear that Ken's own consulting business has somehow tainted even the Ethics Review Board.
And to be honest, I don't even know where to start on all of the processes that Ken could have tainted
by his actions and questionable motives.
The question to consistently be asked here is: What happens when the needs and goals of a client of
Ken's consulting service runs opposite of that of his constituents? The fact that the possibility even
exists that he could arrive at this decision juncture is unacceptable, especially in view of the public trust
that is placed upon him. In fact, the very idea of "opening doors" and "selling access" is antithetical to a
properly represented constituency.
When looking to outside advice and academic legal guidance on the subject, Robert Wechsler, a
graduate of Harvard College and Columbia University Law School, and contributor to Columbia Law
School's Center for The Advancement of Public Integrity, offers terrific exploration of the topic through
two writings, Local Government Ethics Programs: A resource for Ethics Commission Member, Local
Officials, Attorneys, Journalists, and Students, and A Manual for Ethics Reform EX and Local Government
Ethics Programs In a Nutshell. (see Ex. 15,16) In the past, Wechsler has even contributed to The
Washington Post regarding Washington D.C. politics.
10
Finally, regarding the topic of campaign contributions by the National Association of Realtors Fund to
Mayor Troxell's election campaign, there exists case law regarding proportionally large contributions to
a candidate's election campaign serving to "violate a person's due process rights to an impartial
decision -making body." (see Ex. 5,9) This case law, found in the same county as the parcel in
consideration, is a terrific path by which to approach Troxell's actions from an additional front.
CONCLUSION
In summary, the following has been presented:
I. Fort Collins Mayor Wade Troxell and Fort Collins City Councilmember Kristin Stephens are both
employees of Colorado State University, the very same entity seeking favorable re -zoning so
that the sale of a large 165-acre parcel of land may be successfully sold to Lennar Homes, a
developer.
II. Fort Collins City Councilmember Ken Summers is currently hosting on his website
kensummers.org, a page dedicated to his political consulting business/lobbyist business. This
page promises direct influence of legislative matters that can be interpreted to mean either the
influence of a third party, or of himself, in exchange for compensation of some sort.
Ill. The actions of all three individuals, as it pertains to all related activities relating to the
consideration of Fort Collins Ordinance No.138, 2019 (including all related Ethics Complaints
hearings), are in direct violation of State and Municipal Ethical and Conflict of Interest Laws. All
three individuals have also failed in performing their fiduciary duty to the people of Colorado, a
duty ingrained within their public service, and in the case of Troxell and Stephens, their
employment by Colorado State University.
IV. A consistent effort to minimize the representation of the public's wishes regarding the end use
of the parcel of land in consideration has been continually undertaken by city staff and City
Elected officials.
I request that the Ethics Review Board investigate all ethics violations made by Wade Troxell, Kristin
Stephens, and Ken Summers. I request that the Board carry this out using all tools and options at it's
disposal and do so by taking to heart the public's explicit, expressed, and continual wishes regarding one
of the most important pieces of land to Fort Collins' Identity. I specifically request that Wade Troxell,
Kristin Stephens and Ken Summers are removed from all interactions with the decision -making process,
and severe remediation actions are taken to address the harm to the process already caused.
In closing, I'd like to give the opportunity for a few other members of the public to speak and have their
voices heard in a more direct way:
"No westward growth. Open Space. Walking trails only."
"500-600 Homes added to this area unacceptable"
"Encourage CSU to look for a buyer that will keep it open space"
11
"This 'open space' has been an outdoor recreation location well-known by the community and used as
such for many, many years. Development is taking this away from the community. {post -it note placed
over word, illegible} allow lots of open space."
"Takes public access and enjoyment/ shared use out of the picture. Not fair when we have to stare at
those houses instead of our beautiful foothills habitat every day."
Above quotes excerpted from Exhibit 1, and pages 94-112 of the First Reading Pocket for Ordianance No.
138, 2019.
In light of this complaint, and consistent with the actions taken regarding past Ethics Review Board
Complaints, I respectfully request a delay in any matters before Council in relation to Ordinance No.
138, 2019, commonly referred to as "The Hughes Re -Zoning." As explicitly acknowledged and stated
on 11/19/2019, the mere appearance of impropriety in the process could forever stain the process
and further erode the public trust in Council's actions.
Submitted with respect and severe concern to the Ethics Review Board this 21' day of January, 2020.
Rory Heath
12
Exhibits
1. All pages of previous submitted comments, pages 94-748 of the packet
2. All pages of narrow options given to drake centre attendees
3. Video of first reading
4. KGS website
S. Referenced court case by lawyer letter
6. Muni Code
7. State Statutes
8. Statutes submitted by city attorney
9. Lawyer letter
10. Excerpt from Academic Faculty and Administrative Professional Manual of Colorado State
University
11. Oath of CSU
12. Voltage- Milgram Experiment
13. Group Think- asch conformity concept
14. Groupthink- Irving LJanis, https://www.britannica.cam/science/groupthink
15. Shortened Columbia University Paper
16. Long Columbia University Paper
17. Nick Frey Complaint
18. Secretary of State Directory Result for KGS Consulting
19. Official Record of Ethics Meeting to be found in the future
13
(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) Siubject to the provisions of Subsection (d) below, the duties and responsibilities of the Review
Board shall be Pag�-WW.4�
(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:
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
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
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)
Fort Collins, CO Municipal Code
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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
interestshall 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;
EXHIBIT
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(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 interestmeans any interest (other than a financial interest) by reason of
which an officer or employee, or a relative of such officer or employee, would, in the
judgment of a reasonably prudent person, realize or experience some direct and
substantial benefit or detriment different in kind from that experienced by the
general public. Personal interest shall not include:.
(1) the interest that an officer, employee or relative has as a member of a board,
commission, committee, or authority of another governmental entity or of a
nonprofit corporation or association or of an educational, religious,
charitable, fraternal, or civic organization;
(2) the interest that an officer, employee or relative has in the receipt of public
services when such services are generally provided by the city on the same
terms and conditions to all similarly situated citizens; or
(3) the interest that an officer or employee has in the compensation, benefits, or
terms and conditions of his or her employment with the city.
Publicbodymeans the Council or any authority, board, committee, commission,
service area, department or office of the city.
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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
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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.
(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)
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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 orinfluence, 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 membershall 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) Councilmembershall mean a member of the City Council.
(6) Different in kind from that experienced by thegeneral publicshall 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) Directshall mean resulting immediately and proximately from the
circumstances and not from an intervening cause.
(8) Detrimentshall 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
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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;
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.
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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) Ofceror 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 bodyshall have the meaning given to this term in Section 9(a) of
Charter Article IV, which states:
Public bodymeans the Council or any authority, board, committee,
commission, service area, department or office of the city.
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(13) Public services shall mean city services provided to or made available for the
public's benefit.
(14) Related entityshall mean any corporation, limited liability company,
partnership, sole proprietorship, joint venture, trust, estate, foundation,
association, business, company or any 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.
(15) 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.
(16) 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.
(17) Similarlysituated citizens shall mean citizens in like circumstances having
comparable legal rights and obligations.
(18) Substantialshall 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)
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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 governmental authority,
or illegal or unethical practices. In the event that a matter discussed in
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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
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Fort Collins, CO Municipal Code
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.
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.
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Fort Collins, CO Municipal Code
Page 8 of 9
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.
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Fort Collins, CO Municipal Code
Page 9 of 9
(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
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)
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The genera| assemb|y recoyloes to impo-tanca of the parbcipebon of the cOzems ofUh|s Vate in WU
|eve|s m[governmenk in the state The gene,a| assemb|y hu�her recognizesihan when Wizensmfthis
sLa�e obtain �)ub|ic Me, con0cts may arise between the public dulty of such a citizen and his or her
phvate Interest- T'he general assernbly hereby declares that the prescrtykan of sorre standards of
mundoc1 common to Me cidzens invo|ved with government is benehda| to all residents mftbe Mate,
The provisions ofWis part 1 recognize that some actions are oznMids per se between pabhc duty and
pMvate inie,estm0i}e otherWow may or may not pose such conflicts dependingupon the
surruund|ngcircumsWnces,
2/1-18-102.D2fiDldon5
As used in dhis part 1, unless one context odhervise requirew
Cl; "Buaness^ means any corporabon, Um|ted |iaU8|N company, partnership, sole pnoprieborsh/p, trust.
Or huundaUuo, or other individua| or (rganizat|nn carry|ng on a business, whether or nctopera1ed for
prubt.
P) "tompensaUon^ means any mmneo thing ofva|ue, orec000mic benefit conferred on ornaceiwed
by any person io return for services rendered or to be nendered by hirnse|for another.
(3) "Employee"' means any temporary or permsinent employee of sAte agency or any local
gouernrnent, except a membe/of thegenera| wysemb|y and an mmp|Vyee unclerconLrac1to Lhestate,
(q ''F)nancia| inLeresr means a swWantia| interest he|U by an indiv|dua| which is:
(a) An ownership interest in a business;
[b} Acoed|tor|nterest in an inso|vent bws|ness�
(g An emp|oyment or a pnnspeltive emp|oymentfor which negubations have begun;
{d} An ownership interest in pea| orpersona� property;
(c) A |oan orany other debtor or
(f) A d|nsctoeh)p or ofhoership in a business
(5) "Local government" onaamsthe governmen|o[any county, ciLyand county, city, toVm, spects|
district, or schon| d(stAct.
{a) "Local government ofhoa|^ means an elected o/appointed ohhda| of local governnrient bai.doeo
nctinclude anemployee cfa local government.
(7) ''0U5cia|act" nr"official ac1ion"means any We, Uec|sion, recommendadon, appnovoL dsap�)nova|,
o, olfheracbon, inc|udiog |oactiun, which involves the use ofdim rebonary autbority,
(8) ' Public officer" means any e|ecled uMice� the head of phnc|pa| depatmes1 of the exsculimm
braoMh, and enyoN/er qate aRKer. ^Pub|ic oRuer" does not include a mEmberAthe general
anemWV^ a member of the judOary, any local government u8icia|, or any member of board,
commission, counci|, orcommitLeewho receives no cornpansabon omerTsn a per d4m aQomampe o,
necessa/yand "easmnab|eexpe.nses
(9) "State agency~ means the stak; the general assembly and itscommAtees; e*eryexecuLiue
department, bomd, comm|ss/on, comm|Uee, bureau, and office; every state institution of higher
education, mhetheresLab|ished by the stee cons%R|on or by law, and every governing board
thereof; and evey ivdependentoommission and Werpohbca| sub6vis|on of the state government
ezceptthe cnur1s,
24-I8-103. PQbH[ trust - bireach of fiduciary duty
(g The ho>d|ng ofpub|k office or emlNuymant is Pubhc trut, created by the confidence wh|ch the
e|ectonaLe reposes in the integrby of public Mors, membecs of the general ansembQ, Jmw|
government ofhcia|s, and employees, A public officer, member of the genena� assembly, |oca|
government Micia|, or erop|oyee shaU carry out his duties for the beneht of the pecp|e of the state.
(2) A puhUc officer, member of the genena| assembly, local gmvermment o0hc�al, mrempywyee xvhose
couduct departs Frorm his hduc}ary duty |s hab/e to he peop|e of the state as a trustee of property and
ahaU suffer suchother habU/desas a private hduciary wnu|d sufferfor abuse of his t�rust. The district
allorneyofthe d|sLMrz where the trust |syiu|ated may bring appropriaLejud|cJa| proceedings on behaVf
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.
24-18-104. Rules of conduct for all public officers, members of the general
assembly, local government officials, and employees
(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:
(1) 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
(11) 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:
(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
Wh the proWsons of sec ion 3 ofag|de XXIX of the state corsLituUon Hot an rqmrAd pursuan! to
section 24-6-203 (3)<d);
(to Payment of Wry Nom emp|oymen1, induding odor govmrnmenl: em[d,)yment, in addition to that
earned Rom being a member of the general assemb|y or by reason o[servic(.,,, in other pub|ic office;
(i) A componenL(if the ommpensmbnn paid nr*ther Wenhvegiven to the pubOcofhoeq member Of
the general assembly, local government ofncia(, or emp|oyee in the ou,ma| course ofemp/oyment;
and
V) Any othergift or Ling of va|ue a pob|/c officer, member of the genens| assemb/y, local governi-I
Wda|, oremp|oyee is penmitted to suhcit, accepk' or nece|ve in accordance wKh the provisions of
secUon .3 ofao|c|e X&IX of the state consUtuMon, the acceptance ofmh|ch is riot otherwise pruh/Ked
by law,
(1) The; provisionsofihis section are d|st|nc( from and in addibon tothe reporting requirements of
secUon 105-108, C R S. and aection24-6-2O1and du not reUeveen |ncun'bentinorc|ected
cand/daie to pub|ic Me horn reAmting an Rem descrled in su0sec1inn (Y ofdhis sedLion, Isuch
report|ng prov|s|ons app|y
(S) The amounR of the gift ||mY speci[ied in paragraph (bV5) ofsubsecU�n (3) of dh|s section, set at
hRythree doUars as of August 8, 2012, shall be idendca| to the amount, of ihe gift |im|t under sec�ion
3 ofarbde X%I% of the sAir condlut/on, and shaU be aUlusted for inOahon with
any adjustmenL&the consiiAwUona| g1t,hm|tpuryuanttosecoon 3 (6) &arUc|a XX[X
24-18-105. Ethfta� principles for OUbii[ pffi[BFS/ local gUvernn8eOf 0ffi[ia|5/
and e0OrWayee5
(q Theprinciples |nN|ssectk`nare intendedasguidesLoconduct and donotconsdLuLeviol ationsas
such of Hie pub|ic tusi of Me or employment in state or local gumarnmenL
(q A pubhcohhcer, a local govemmeniofhcia|, or an employee shou|d not acquireo/ hold an |nterest
in any business urundWaWng which he has reason to be|ieve may be d|necUy and aubetanWy
affected to IS economic benebt by WKia| acUon to be Laken by an agency ova which ho has
boWantixaauthnnLy,
(%) A pub|icoMicer, a |ocePgovernmenLoh/da|, or an emp|oyeeshou|d ooC' mlhin sw months
foUowng the oerm|nadon of its ofhce or emp|oyment, obLam emphyment in mh}ch he wiU Lake direct
advankage' unavai|ab|e Uo others, of %i\h v/h|ch he was direcz|y invo|xed during h|s term of
employment, These mavers include ru|es, other than ru|es o[genera| apphcat/un, which he acUwe|y
he|ped to formu|ate and app|icaUons, daims, o/coniested cases m the ronsidesahon ofwhich he was
an aaive parbc,pan?
(4) A pub|icofMceq a |oca| government oUida|, or an emp|oyeeshou|d not pe�orm an oh5cia| act
d/oec�|y and suba[anUaUy affecbng a business of other unUerLaWng to its economicdeLrimenL oUen he
has a substanda| [inanrim| interest in a hrm Ci,uodeftaking.
(S) Public ofncers, local government ohqcia|n and enip|oyees are discouraged from assisting or
enab|ing members of Oeir |rnmediete fami|y in obLaioing emp|oymen4 a gift o[yubstanna| vale, or
an ecmnom|c benefcLuntamount to a g4tofsubstanoa| va|ua Rom a person whom theufMcer, oUic|a|'
o/i� in a pmsiUon to r�ward with Wcia| acdnn orhas rewarded YAK oAhc|a| action in the
paaL
(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 ins substantial: financial transaction for his private business purposes with a person whom
heinspects orsupervises inthe course mfhis official duties;
(b) Perform an official act directly a:nd substantially affecting to its economic benefit a business or
other undertaking in which beeither has a substantial financial interest or�sengaged as Counsel,
consultant, representative, or agent; or
(c) Accept goods or services for his orher 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 contract orother means by which the person reoe�ues payment orother 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 officia� oremployee does not
receive any substantial benefit resulting from his or her official or governmental status that is
unavailable tnmembers ofthe public QeneraHy.
(3) (a) A member of the governing body of local government who has a personal or private interest
in any matter proposed or pending before the governing body shaQ disclose such interest tmthe
governing body and shall not vote thereon and shall refrain from attempting to influence thededs|ons
of the other members of the governing body in voting on the matter.
(b) A member of the governing body of local government may vote notwithstanding paragraph (o)
of this subsection (3) if his parLic�pabun is necessary to obtain a quorum or otherwise enable the body
to act and if he complies with the voluntary disclosure procedures Linder section 24-18-11&
(4) It shall not be a breach of fiduciary duty and the public trust for e local government ofhc�a| or local
government employee to:
(a) Use local government facilities orequipment tocommunicate or correspond with a member's
constituents, family members, orbusiness associates; or
(b) Accept or receive a benefit as an indirect consequence of transacting local government business.
(S) (a) Notwithstanding any other Provision of this article 18, it is neither conflict of interest nor
breach of fiduciary duty or the public trust for a local government official who is a member wfthe
governing body of local government to serve on a board of directors of nonprofit entity and, when
serving on the governing body, to vote on matters that may pertain to orbenefit the nonprofit entity.
(b)
(I) Except as provided in subsection (S)(b)(II) of this section, a local government official is not
required to provide or file a disclosure or otherwise ommpUY with the requirements of subsection (3) of
th[ssection 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 ofthe
official's membership onthe board ofdirectors ofthe nonprofit entity,
(Q) A local government official who serves on the board of directors of nonproft entity shaH publicly
announce his or her relationship with the nonprofit entity before voting on a matter that provides a
direct and substantial economic benefit tmthe nonprofit entity,
24-18-2{)1. Interests in contracts
(1] Members o[the general assemb|y, pubUcofhcens, local governmenLmi%da|s, coremployees shk
not be Werested in any contact made by them in Lheirofhciay capacity or by any body, agency ur
board ofmh|ch they are members or emp|oyees.A fonneremp!iuyee may n:t, within six months
[aUuw|ng the bsrminabon of his emp|oyment, omntracto/be empWVed by an emp|o"rwho contracts
mith a state agency or any local government invo|ving mWers wkh Mich he was direcdy kvu[ved
during his emp|oVrnentFor purposes ofthis section, the te,ril
(a) "Be |nieresLed in" dues not Ndode ho|ding a minnr|ty |nitspest in a corpoabon
(N ''{bntracr' does not include:
O) ConLraAs awarded in the lowest responsible bidder based on compeUbve b|dding p/ocedvres�
Uq Plerchsndise sold to the highest Mar at public aucdons�
(T[|) Investments ordepos|Ls in financial instRut|ons*hOch are in the bus|nsssnf|oan|ng o/ rece|vmg
moneys;
(IV) A contract mith an interested party it because ofgeograph|c resftr|ct|on� a local governmenf
cou|d onit utherwise reasonably afford Ase|fof the subject of the contract It sha|| be presumed that a
|ocai government could nut oLhermise reasonably afford Sell? of the subject of a contract 4 the
addtona| cost to the |oca/ government is gneater than ten percent of contract With an Werested
party or if to contract /s furservices that must be pelonned mAh}n a dme penod and no
o,herconrnsctorcan provide Me sen/iceswithin ihal Ume per�od,
LV) A, cuntractm|Y respect to vvh|ch any member of the general assemb|y, pubUc officer, |oca|
government MCA, or*n`p|oyae hasd|sc|osed a personal interest and has not voter! thereon orwirh
respect to which mny mennberofthe governing body of |oca/ gove/nmen� has v"�e� thereon in
aczordance mithsecbon 24 18109 (3)(b)nr3l-4-4n4 (3), CASAnysuchdisc|osureshaU bsma�e�
To the governing body, for olff|c|a|ssnd amp|oyees' in accordance w|dh the ruks of
the house u[repressotahves and the senahe, for members of the genero' assemb|y, �n� Ln�he
secretary ofsta&e' for all others,
24-18-2[}2. }nteFt-�5[ iASal2�, or purchases
Pob/.c o"ce,s e'i'.1 |oca| governmak n5cis|s shaU not be punrhasers at any sa|e o/ wnJorsat en/
uorchase medoby LhemM theirca�aci�y
24-18-283. Voidable contracts
Every contract m*demv|o|aUun o[anyufthe pnzv|sionsofsect/on 24-18001 o/S-18-202shaU bc
vo,dab|e at the instance ofany psrLy in W oonuact excmpt the therein,
24-18-204. [)2B[rigS iO warrants and other Claims prohibited
Szateofhoes, coun�yo0iceai city and oountyofficers, 00yoThcery, andI:= c0cers, as well asa!|
oUhe/ |oca} governmeot oh5da|s, anc tho|rdeput|es ano c|e��, are. p/ohibiced from punchasing or
sting or |n any manner rece|Wng to Meiruwn use o, benefif or Lo the use or benAt of any person or
p*rsons whaRver any stme, county, My and county, My, or town warrants, scAp, o^ders, demands,
c|aims^ oroAhsr ev|dences of indebtedness against the staha or any county, cAy and counly, city, or
town thereof except evidences of|ndebtedness iseued to or om!d by them for services rendened as
such ofhcer, deputy, or del, and evidences of to [undaU indebtedness qfsuch state, county, ci\y
and county, �|�y, orLown
24-18-205. Settlements to be withheld on affidavit
(1) Every officer charged with the disbursement of public moneys who is informed by affidavit
establishing probable cause that any officer whose account is about to be settled, audited, or paid by
him has violated any of the provisions of this part 2 shall suspend such settlement or payment and
cause such officer to be prosecuted for such violation by the district attorney of the appropriate
jurisdiction.
(2) If there is judgment for the defendant upon such prosecution, the proper officer may proceed to
settle, audit, or pay such account as if no such affidavit had been filed.
24-18-206. Penalty
A person who knowingly commits an act proscribed in this part 2 commits a class 1 misdemeanor and
shall be punished as provided in section 18-1.3-501, C.R.S. In addition to the penalties provided in
section 18-1.3-501, C.R.S., the court may impose a fine of no more than twice the amount of the
benefit the person obtained or was attempting to obtain in violating a provision of this part 2.
18-8-302. BrIbery
(1) A person conorks the Mr-ne of Me F
(a) his. offers, confert, or agrees to amIr any pecumary benebt UpOi`r 8 oUth[c sErvant th- iriterrt
Wo Mence the puNv puvwo'..,� cjp�rwjri, jL.�dgrnenr, EXErCiSre, Cif or ath,;. r a, ti,)n in h-;
r: , fffr ". f a 1 C a p ac� i t Y ; cf r
(b) WhMe a po1, ,,". seridsnt, h:--, sohm""s, ar ;J;Veas to mept any pecumary benebt, upon an
agannst or uriderstanding Not his vo, OPIUMT, jUdgMEFJ0 exacne of c1screnort or cAher Won -a's
a pubhc servant nod! thereby be Muenced
(2) It is no dehense U) a proseMon under thn seUbn that the peNon sugM to be Whenced was
not quahhed to tactin Lhe desked sac Maher because he had not yet assurned offa, Wed
cir for an:y other reason.
(3) Bribery is a class 3 felony
18-8-303. Compens�rAlon for past official behavior
(1) A person coirmS a Wss 6 AM", I he !
(a) 'S" l)-' i'. -: , _ , (,-, e p: Y, cw a g r e a s 1 a a a qR a ri y penumary benefdt Fit„+ cc,iripensati.,.:r
PATC SayanO gbvi a MVY6 op man mnornunwdaUon, or y,,,rr. fa,/cilab�z,-. ,,c Or 'j, fr] t� I Ci
othowiss exerciwd a chsnreMn r, his favor, vindho or not he has V; so doing WaVed his chqy; Gr,
(b) Wers, tavifers, o; agrees to coin compansafan, aiceptance V MV in ;"WtAced by Qk;
SeCU0)
18-8-304. SoHdting (,,-om[,,)ensaLion
A p0tr savant comm; a r Qrs5 2 rn OqTeaqw J hC' ,, th-,�.
PlArmanA Oran CAMON a7tri"'I vi:)s
awnMen5glo- cw at a Rvo of Cmerl tha-
18-8-305. Trachng in putAk Mce
(q A poson noronks tradirig in publy o1hre if:
QHs oler;a, MAU, nx aWens to wAs any pscuTary henek upon a put W SUVOR or pnq ,.rmlr.
coon an agnerneR (N tuidermaqIng thiP he or a PEWLAW PeSWI "M or Poi bE sq;Vojed n q
pu&T chne o; depynatod w no7i nk-,J a C'w,m-IiJate Fc), 0�
(b) Mhe 0 PUM SovaQ C; Paav olaeq he stmk� accepts, or agreES W 2MlY W? pbUTHa,",
Watt Non, WAMW iqw, an agopmerY or underwaidmg thav a pybadar perss; W or rnT; W
aPPONtal to a PJWV We ur designated or a,,5 a csrid,'Jate for p,fbho ofncE�
(Z) R shK be an W"Wwe defirse that the pecurrWy benefa was a cukomyy CoMhny�n tu
pNqV& Cangrg 1 finds MCA& and reKvEd b/ lawfuhy cons haited jUnch gnuEs.
(3) Trading Pr pribW Me is a dess ! FnSderoanw,
18-8-306. Attempt to �nfWence a PUblic servant
Any Poson WhD allenMs to Muence any pubH: semak by means of dEceK of by Kreat of ootinn.-
u; ewnxmc reWwW agarnst any pason of property, Wh the Went MCI to Her or MC th-,
public se"ants dEMsion, vat, opmol or allhon concemIng axy rnF.�U.-,r vah� h i,� - be ) ,
C , to cc rr,,,Jdere(J or
pedwnwd bl han or he agaxy or My of Wdn he is a rnefri-Aber, a chars 4 f e I o iy, ,
18-8-307. DesignaUon of' supplier prohibited
( 1) No pubhc servant shalf requiVe or dknt a balder or CoMraaor to MY wth a par-b-a-d-a-rp-e-o-o-n IT—
priowing any goods or service requVed in submitUng a Wd to Or UFOhng a contraic"t vv^ th any
govern rent.
(2) Any prc.)Osiori v) invitatioris to bid or any conked domirrants paroWbRed by thk sechan are agatst
putdo pW&y and void
(3) It shall be an affirmative defense that the defendant was a public servant acting within the scope
of his authority exercising the right to reject any material, subcontractor, service, bond, or contract
tendered by a bidder or contractor because it does not meet bona fide specifications or requirements
relating to quality, availability, form, experience, or financial responsibility.
(4) Any public servant who violates the provisions of subsection (1) of this section commits a class 6
felony.
18-8-308. Failing to disclose a conflict of interest
(1) A public servant commits failing to disclose a conflict of interest if he exercises any substantial
discretionary function in connection with a government contract, purchase, payment, or other
pecuniary transaction without having given seventy-ttivo hours' actual advance written notice to the
secretary of state and to the governing body of the government which employs the public servant of
the existence of a known potential conflicting interest of the public servant in the transaction with
reference to which he is about to act in his official capacity.
(2) A "potential conflicting interest' exists when the public servant is a director, president, general
manager, or similar executive officer or o ins or controls directly or indirectly a substantial interest in
any nongovernmental entity participating in the transaction.
(3) Failing to disclose a conflict of interest is a class Z misdemeanor.
18-8-402. Misuse of official information
[1) ATry FmAkc iservart, in contepn&hon of of!`" 11 acUml by iTmself c,,r Lp/ a governmental urdt YvAh
Much he is assocoted or in rehance on informabon to v0vch h.. In offic& C'--�;)--�Jt'y
Much has rmt been trade publiq mqunqs misuse A MiM informadon I he:
(al Acqule-, a pecunfary interest in any prroperly, transaction, or entuprise which may be MUM bi�
such information or, officiaacUnn; Or
Y) SpecuAtes or wagers an the bats of such informaticirt or officiai actl�)n;
(c) Wt advises, or encourages anater to do any of the foregoing vvith Knten,,. J:(,) confer on arty
pat son a specit pecuniary, benef?
(Y Flisuse of KIM Khr-iraWks, a chss 6 Sony,
.18-)-103. Official oppression
(1) A puWk', servant, w0we actog cy purporting to W in an WWI capasty ix taking Adiarii—g.-,,-;t
SUA MUM Or PLOPYted CaPaUtt cmials WWI oppessiori if, �vith 8,--tual 0lat his
1 tinr to wrent, Mmarn search, sanx, rn ,fir nalmeqt, dapamnW, a5smsinw,
01 hen, Or
(b) Ha:-, ,-,,j!JQQy ann junidmon of any persm 49KY reWaired e W I Way YKI done, the
11mol reAramed th: reason?Ke op,Alhumty to consul in puivate wolv a hweN6ed if
New is no da-le: of unnumW and th,� penal m cuqmJv exposes a dean to corGoo w,
Twh Ucimm',,
(2) ()rftJzfl To a class 2 misdemeamy
18-8-404. FAL degree offi(-Jal rniscoriduccL
(1) A p-AR servant conmus hot Agae, oHwy! rniscynll;'[ , w1h yjeQ p) jQjn a 1.?jV0FKjQ
PAP: SEWA 0- another coma'Qmsly to Caus, hom to an0heq he or Po Anomay y:
(a) Corv',rriit-a I reAking tO Ids OHMS bot Cowl"ThIting an unninormed swernse & hK Was!
hurtmqor
(h) �211D° mYn'j a dLrt," 'rip"'sed upcm hirn bm
M %AaW any s3hke or WKS AM& rula c), cc' t�vn
(2) F;YV degmy GIM i-mmmint o 3 class 2 mysmewm,.
18-8-405, Second degre�e cifhda� l'TiiscondUCL
(1) A p4adiv smourl cmmls mccrid dagme WON rmm:i,['JUt H' he
Rehans torn pyfoxrri1 g a (-'?.Py rip
(14 Waks aij Nakite 0 lawfuly adopted rule or regu%om rOgUng to Ins cW�e.
(2) clegree Mat rnmondL!':u, iS a Cla,35 I PeZt'll Ohen%�',
18-8-406. JSS(Jifr)
g a false certiMcate
A peacin carrimits a class 6 felony, t being a pubW savant m0orized try w �SSLT^:-
'.)ffi6a( Certificates of over offimal wntten irmsuments, he rnalkes and issues mstiument
004ammg a s4tement e,%hch her to be false,
18-8-407. Embezzlement of public property
(1) Every, pubic servant who AMAy or unkwWy cmnes into posseskan of any public nmney-3 or
pubhcproperty of whatever descripthol being the IroPerty of the state or of my plitical subUlsion
of thie state, and v%ho knoviingly co nvens any of such pubic moneys or proputy to hit OWn Lae or to
any use Wher Wan the pub holy use ashwmed by law is g0ty of erribezzflement OF PUbhc property.
Every person corwated under the provifons of NO sechon shall be forever thmeafter Wigible and
disqualified from being a member of the general assembly of this state or from holding any office of
trust or profit in this state.
(2) Embezzlement of public property is a class S felony.
18-8-408. Designation of insurer prohibited
(1.) No public servant shall, directly or indirectly, require or direct a bidder on any public building or
construction contract which is about to be or has been competitively bid to obtain from a particular
insurer, agent, or broker any surety bond or contract of insurance required in such bid or contract or
required by any law, ordinance, or regulation.
(2) Any such public servant who violates any of the provisions of subsection (1) of this section
commits a class 1 petty offense.
(3) Any provisions in invitations to bid or in any contract documents prohibited by this section are
declared void as against the public policy of this state.
(4) Nothing in this section shall be construed to prevent any such public servant acting on behalf of
the government from exercising the right to approve or reject a surety bond or contract of insurance
as to its form or sufficiency or the lack of financial capability of an insurer selected by a bidder.
(s) This section shall apply only to contracts entered into on or after July 1, 1977.
18-8-409. Violation of rules and regulations of judicial nominating
commissions not subject to criminal prosecution
.A person who violates a rule or regulation promulgated by any judicial nominating commission shall
not be subject to criminal prosecution.
State of Colorado
William Leone, Chair
Bob Bacon, Vice -Chair
April Jones, Commissioner
Matt Smith, Commissioner
Jo Ann Sorensen, Commissioner
Dino Ioannides, Executive Director
Independent Ethics Commission
1300 Broadway, Suite 240
Denver CO 80203
Phone: (720) 625-5697
www.colorado.gov/iec
Advisory Opinion 17-04
(Conflict of Interest, Local Government Official)
Summary: It is not a violation of Article XXIX or the statutory Standards of Conduct for a
county commissioner to continue serving as a director on the board of a transportation authority
under the facts and circumstances presented in the request.
I. Background
Requester is an Eagle County Commissioner. Among other duties as a county commissioner, the
Requester sits "in a quasi-judicial capacity" to review, hear, and approve or deny land use
applications.
Requester also serves as a member of the Board of Directors for the Roaring Fork Transportation
Authority ("RFTA"). RFTA is a regional transportation authority created under § 43-4-603,
C.R.S. RFTA's purpose is to finance, construct, operate, and maintain an efficient, sustainable,
and regional multi -modal transportation system at locations within or without the boundaries of
RFTA. RFTA directors serve without compensation, except for expense reimbursement. The
members of RFTA include Eagle County, Garfield County, Pitkin County, the City of Aspen, the
Town of Basalt, the Town of Carbondale, the City of Glenwood Springs, and the Town of
Snowmass Village.
Article 4 of Title 43, C.R.S., authorizes the creation of transportation authorities, each of which
is a "separate political subdivision and body corporate of the state" having "all the duties,
privileges, immunities, rights, liabilities, and disabilities of a public body politic and corporate."
§ 43-4-603(1), C.R.S. Each transportation authority is mandated to have at least five directors,
each of whom must be an elected official from every member of the combination. § 43-4-
603(2)(b)(I), C.R.S.
One of the issues pending before the Eagle County Board of County Commissioners ("BOCC")
is a land -use application for Preliminary Plan for Planned Unit Development. The application
concerns property that is located within the Roaring Fork Valley portion of Eagle County and
seeks a rezoning of the property. The application initially presented a public benefit dedication
of 50 parking spaces to RFTA, and was later amended to dedicate 20 parking spaces and
$400,000 to build additional parking on other land. As a result of the application amendment,
EXHIBIT
RFTA's Director of Planning sent a letter to be considered by Eagle County in connection with
the County's consideration of the application. The letter expressed dissatisfaction with the
application amendment.
Requester does not recall being involved in discussions concerning the public benefit being
offered by the land -use applicant. The Requester did not have any involvement in developing
RFTA's position on the application, or in drafting or approving RFTA's responsive letter.
Requester is concerned about the potential for a conflict of interest if the Requester was to take
official action on the application, given that RFTA could benefit from a County decision on the
application. Requester asks whether her taking of official action would violate the code of ethics
for local government officials as set forth in the Colorado Constitution and in § 24-18-109(2)(b),
C.R.S. During the pendency of this advisory opinion request, Requester has resigned from the
RFTA Board, but asks whether she may be reappointed to the RFTA Board during the pendency
of the hearing on the application.
II. Jurisdiction
Colo. Const. Art. XXIX gives the Commission jurisdiction over local government officials. See
generally, Colo. Const. Art. XXIX §§ 3, 4, and 6. Requester is a local government official under
Colo. Const. Art. XXIX § 2(3).
III. Applicable Law
Section 43-4-603, C.R.S., provides, in pertinent part:
(2) Any contract establishing [a transportation] authority shall specify:
(a) The name and purpose of the authority and the regional transportation systems to be
provided;
(b) The establishment and organization of the board of directors in which all legislative
power of the authority is vested, including:
(1) The number of directors, which shall be at least five, all of which, except as provided
in subsection (5) of this section, shall be elected officials from the members of the
combination and which shall include at least one elected official from each member of
the combination...
The declarations in Section 1 of Colo. Const. Art. XXIX state, in pertinent part:
(a) The conduct of public officers, members of the general assembly, local government
officials, and government employees must hold the respect and confidence of the people;
(b) They shall carry out their duties for the benefit of the people of the state;
(c) They shall, therefore, avoid conduct that is in violation of their public trust or that
creates a justifiable impression among members of the public that such trust is being
violated;
(d) Any effort to realize personal financial gain through public office other than
compensation provided by law is a violation of that trust...
Section 5 of Colo. Const. Art. XXIX provides, in pertinent part:
...The purpose of the independent ethics commission shall be to hear complaints, issue
findings, and assess penalties, and also to issue advisory opinions, on ethics issues arising
under this article and under any other standards of conduct and reporting requirements as
provided by law...
Section 24-18-109, C.R.S., provides, in pertinent part:
(2) A local government official or local government employee shall not:
(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...
IV. Discussion
At the heart of this request for advisory opinion is the extent to which the dual role of the
Requester could inherently create an appearance of impropriety or a conflict of interest that
violates Article XXIX of the Colorado Constitution or the Standards of Conduct found in Article
18 of Title 24, C.R.S.
Article XXIX of the Colorado Constitution
The voters who adopted Article XXIX expressed the intention, inter alia, to preserve the respect
and confidence of the people in their elected officials by requiring elected officials to avoid
conduct that is a violation of the public trust. In Position Statement 08-01, the Commission
stated that the term "public trust" means that employees and officials must carry out their duties
for the benefit of the people. The dual role played by the Requester as both an Eagle County
Commissioner and as a Director on the RFTA Board does not, in and of itself, violate public
trust or the provisions of Article XXIX.
As a member of RFTA, Eagle County is required by state law to have one of its elected
commissioners serve as a Director on the RFTA Board. This dual role created by the statutory
scheme appears to contemplate that the interests of Eagle County will be represented on the
RFTA Board by an Eagle County elected official in the very same manner that the interests of
the other RFTA member governments are represented. But the reverse is not true; namely, it is
not true that a Director on the RFTA Board is expected to represent the RFTA's interests in the
official business of the member government.
This is not to say that RFTA's interests will always be aligned with those of the member
governments. This is clearly not the case, inasmuch as the RFTA is composed of various
member governments with different interests. Rather, it is to say that the statutory scheme
contemplates that Requester should represent her member government's interests in both fora.
As such, there is no inherent conflict of interest nor is there an appearance of impropriety that
would erode the public trust.
3
Standards of Conduct in Article 18 of Title 24 C.R.S.
Section 24-18-109(2)(b), C.R.S., prohibits a local government official from performing an
official act that directly and substantially affects 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 (emphasis added).
Requester receives no personal economic benefit from her service on the RFTA. Under the
statutory scheme, the Requester serves as a representative of Eagle County in the RFTA. The
reverse is not true; namely, it is not true that the Requester serves as a representative of the
RFTA in Eagle County. Moreover, the reference to "other undertaking" should not be
interpreted to refer to the RFTA, which is a "public body politic and corporate" that, under the
statutory scheme, mandates representation from the various member governments. As such,
§ 24-18-109(2)(b), C.R.S., is inapplicable to the facts as presented in this case.
Best Practices
Due to the unique nature of Requester's dual role, the Commission recommends that Requester
disclose her dual role whenever taking official action for the County that would also implicate
Requester's role in the RFTA.
V. Conclusion
It is not a violation of Article XXIX or the statutory Standards of Conduct for Requester to
continue serving as both a county commissioner and as a director on the board of a transportation
authority under the facts and circumstances presented in the request.
The Commission cautions that this opinion is based on the specific facts presented herein, and
that different facts could produce a different result. The Commission therefore encourages
individuals with particular questions to request more fact -specific advice through requests for
advisory opinions and letter rulings related to their individual circumstances.
The Independent Ethics Commission
William J. Leone, Chair
Bob Bacon, Vice -Chair
April Jones, Commissioner
Matt Smith, Commissioner
Jo Ann Sorensen, Commissioner
Dated: April 3, 2017
4
State of Colorado
William Leone, Chair
Bob Bacon, Vice -Chair
April Jones, Commissioner
Matt Smith, Commissioner
Jo Ann Sorensen, Commissioner
Dino Ioannides, Executive Director
Independent Ethics Commission
1300 Broadway, Suite 240
Denver CO 80203
Phone: (720) 625-5697
www.colorado.gov/iec
Advisory Opinion 17-04
(Conflict of Interest, Local Government Official)
Summary: It is not a violation of Article XXIX or the statutory Standards of Conduct for a
county commissioner to continue serving as a director on the board of a transportation authority
under the facts and circumstances presented in the request.
I. Background
Requester is an Eagle County Commissioner. Among other duties as a county commissioner, the
Requester sits "in a quasi-judicial capacity" to review, hear, and approve or deny land use
applications.
Requester also serves as a member of the Board of Directors for the Roaring Fork Transportation
Authority ("RFTA"). RFTA is a regional transportation authority created under § 43-4-603,
C.R.S. RFTA's purpose is to finance, construct, operate, and maintain an efficient, sustainable,
and regional multi -modal transportation system at locations within or without the boundaries of
RFTA. RFTA directors serve without compensation, except for expense reimbursement. The
members of RFTA include Eagle County, Garfield County, Pitkin County, the City of Aspen, the
Town of Basalt, the Town of Carbondale, the City of Glenwood Springs, and the Town of
Snowmass Village.
Article 4 of Title 43, C.R.S., authorizes the creation of transportation authorities, each of which
is a "separate political subdivision and body corporate of the state" having "all the duties,
privileges, immunities, rights, liabilities, and disabilities of a public body politic and corporate."
§ 43-4-603(l), C.R.S. Each transportation authority is mandated to have at least five directors,
each of whom must be an elected official from every member of the combination. § 43-4-
603(2)(b)(I), C.R.S.
One of the issues pending before the Eagle County Board of County Commissioners ("BOCC")
is a land -use application for Preliminary Plan for Planned Unit Development. The application
concerns property that is located within the Roaring Fork Valley portion of Eagle County and
seeks a rezoning of the property. The application initially presented a public benefit dedication
of 50 parking spaces to RFTA, and was later amended to dedicate 20 parking spaces and
$400,000 to build additional parking on other land. As a result of the application amendment,
1
RFTA's Director of Planning sent a letter to be considered by Eagle County in connection with
the County's consideration of the application. The letter expressed dissatisfaction with the
application amendment.
Requester does not recall being involved in discussions concerning the public benefit being
offered by the land -use applicant. The Requester did not have any involvement in developing
RFTA's position on the application, or in drafting or approving RFTA's responsive letter.
Requester is concerned about the potential for a conflict of interest if the Requester was to take
official action on the application, given that RFTA could benefit from a County decision on the
application. Requester asks whether her taking of official action would violate the code of ethics
for local government officials as set forth in the Colorado Constitution and in § 24-18-109(2)(b),
C.R.S. During the pendency of this advisory opinion request, Requester has resigned from the
RFTA Board, but asks whether she may be reappointed to the RFTA Board during the pendency
of the hearing on the application.
II. Jurisdiction
Colo. Const. Art. XXIX gives the Commission jurisdiction over local government officials. See
generally, Colo. Const. Art. XXIX §§ 3, 4, and 6. Requester is a local government official under
Colo. Const. Art. XXIX § 2(3).
III. Applicable Law
Section 43-4-603, C.R.S., provides, in pertinent part:
(2) Any contract establishing [a transportation] authority shall specify:
(a) The name and purpose of the authority and the regional transportation systems to be
provided;
(b) The establishment and organization of the board of directors in which all legislative
power of the authority is vested, including:
(1) The number of directors, which shall be at least five, all of which, except as provided
in subsection (5) of this section, shall be elected officials from the members of the
combination and which shall include at least one elected official from each member of
the combination...
The declarations in Section 1 of Colo. Const. Art. XXIX state, in pertinent part:
(a) The conduct of public officers, members of the general assembly, local government
officials, and government employees must hold the respect and confidence of the people;
(b) They shall carry out their duties for the benefit of the people of the state;
(c) They shall, therefore, avoid conduct that is in violation of their public trust or that
creates a justifiable impression among members of the public that such trust is being
violated;
(d) Any effort to realize personal financial gain through public office other than
compensation provided by law is a violation of that trust...
2
Section 5 of Colo. Const. Art. XXIX provides, in pertinent part:
...The purpose of the independent ethics commission shall be to hear complaints, issue
findings, and assess penalties, and also to issue advisory opinions, on ethics issues arising
under this article and under any other standards of conduct and reporting requirements as
provided by law...
Section 24-18-109, C.R.S., provides, in pertinent part:
(2) A local government official or local government employee shall not:
(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...
IV. Discussion
At the heart of this request for advisory opinion is the extent to which the dual role of the
Requester could inherently create an appearance of impropriety or a conflict of interest that
violates Article XXIX of the Colorado Constitution or the Standards of Conduct found in Article
18 of Title 24, C.R.S.
Article XXIX of the Colorado Constitution
The voters who adopted Article XXIX expressed the intention, inter alia, to preserve the respect
and confidence of the people in their elected officials by requiring elected officials to avoid
conduct that is a violation of the public trust. In Position Statement 08-01, the Commission
stated that the term "public trust" means that employees and officials must carry out their duties
for the benefit of the people. The dual role played by the Requester as both an Eagle County
Commissioner and as a Director on the RFTA Board does not, in and of itself, violate public
trust or the provisions of Article XXIX.
As a member of RFTA, Eagle County is required by state law to have one of its elected
commissioners serve as a Director on the RFTA Board. This dual role created by the statutory
scheme appears to contemplate that the interests of Eagle County will be represented on the
RFTA Board by an Eagle County elected official in the very same manner that the interests of
the other RFTA member governments are represented. But the reverse is not true; namely, it is
not true that a Director on the RFTA Board is expected to represent the RFTA's interests in the
official business of the member government.
This is not to say that RFTA's interests will always be aligned with those of the member
governments. This is clearly not the case, inasmuch as the RFTA is composed of various
member governments with different interests. Rather, it is to say that the statutory scheme
contemplates that Requester should represent her member government's interests in both fora.
As such, there is no inherent conflict of interest nor is there an appearance of impropriety that
would erode the public trust.
3
Standards of Conduct in Article 18 of Title 24 C.R.S.
Section 24-18-109(2)(b), C.R.S., prohibits a local government official from performing an
official act that directly and substantially affects 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 (emphasis added).
Requester receives no personal economic benefit from her service on the RFTA. Under the
statutory scheme, the Requester serves as a representative of Eagle County in the RFTA. The
reverse is not true; namely, it is not true that the Requester serves as a representative of the
RFTA in Eagle County. Moreover, the reference to "other undertaking" should not be
interpreted to refer to the RFTA, which is a "public body politic and corporate" that, under the
statutory scheme, mandates representation from the various member governments. As such,
§ 24-18-109(2)(b), C.R.S., is inapplicable to the facts as presented in this case.
Best Practices
Due to the unique nature of Requester's dual role, the Commission recommends that Requester
disclose her dual role whenever taking official action for the County that would also implicate
Requester's role in the RFTA.
V. Conclusion
It is not a violation of Article XXIX or the statutory Standards of Conduct for Requester to
continue serving as both a county commissioner and as a director on the board of a transportation
authority under the facts and circumstances presented in the request.
The Commission cautions that this opinion is based on the specific facts presented herein, and
that different facts could produce a different result. The Commission therefore encourages
individuals with particular questions to request more fact -specific advice through requests for
advisory opinions and letter rulings related to their individual circumstances.
The Independent Ethics Commission
William J. Leone, Chair
Bob Bacon, Vice -Chan
April Jones, Commissioner
Matt Smith, Commissioner
Jo Ann Sorensen, Commissioner
Dated: April 3, 2017
4
F " RESOLUTION 2014-107
OF THE COUNCIL OF THE CITY OF FORT COLLINS
ACCEPTING ADVISORY OPINION AND RECOMMENDATION NO.2014-01
OF THE ETHICS REVIEW BOARD
WHEREAS, the City Council has established an Ethics Review Board (the `Board")
consisting of designated members of the City Council; and
WHEREAS, the Board is empowered under Section 2-569 of the City Code to render
advisory opinions and recommendations regarding actual or hypothetical situations of
Councilmembers or board and commission members of the City; and
WHEREAS, the Ethics Review Board met on November 18, 2014, to consider whether
Councilmember Troxell's position as a tenured faculty member in the mechanical engineering
department at Colorado State University ("CSU") limits his participation as a City Council
member representing District 4 in any discussion and any vote related to a CSU stadium; and
WHEREAS, the Board has issued an advisory opinion with regard to this matter
concluding that Councilmember Troxell does not have a conflict of interest with respect to the
CSU stadium issue; and
WHEREAS, Section 2-569(e) of the City Code provides that all advisory opinions and
recommendations of the Board be placed on the agenda for the next special or regular City
Council meeting, at which time the City Council shall determine whether to adopt such opinions
and recommendations; and
WHEREAS, the City has reviewed the opinion of the Board and wishes to adopt the
same.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS that Opinion No. 2014-01 of the Ethics Review Board, a copy of which is
attached hereto and incorporated herein by this reference as Exhibit "A," has been submitted to
and reviewed by the City Council, and the Council hereby adopts the opinion contained therein.
Passed and adopted at an adjourned meeting of the Council of the City of Fort Collins
this 25th day of November A.D. 2014.
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ATTEST; '• .n
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City Clerk '1 • •'••
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EXHIBIT
Ethics Opinion 2014-1
November 18, 2014
Page 2
interest and refrain from voting on, attempting to influence, or otherwise participating in such
decision in any manner as a Councilmember. Under the Charter, the following definitions apply:
a. "Financial Interest"
A "financial interest" is defined under the Charter as "any interest equated with money or its
equivalent." The Charter expressly excludes from the definition of "financial interest" the interest
that a Councilmember has as an employee of a business where the Council decision may
financially benefit or otherwise affect the business but entails no "foreseeable, measurable
financial benefit" to the Councilmember.
In reviewing the facts of this situation, it is likely that the Council's deliberations and actions with
regard to the CSU football stadium will "affect" the University, since, at a minimum, the
University will have difficulty moving forward with any stadium project without some degree of
cooperation and coordination with the City. There is no indication, however, that Troxell, as an
individual, will receive any "foreseeable, measurable financial benefit" as a result of the Council
decision(s), as no evidence has been presented to the effect that Troxell's salary or other
compensation will be changed or discontinued as a result of the Council's decision related to the
CSU football stadium. Therefore, the Board believes that Troxell does not have a financial
interest in the Council's actions related to the CSU football stadium.
b. "Personal Interest"
The next inquiry is whether Troxell has a "personal interest" under the Charter. The Charter
defines a personal interest in relevant part as an interest by reason of which a Councilmember
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."
This benefit or detriment need not be financial in nature, but it must be "direct and substantial." As
recently established by the City Council in Ordinance No. 145, 2014, "direct" means "resulting
immediately and proximately from the circumstances and not from an intervening cause," and
,'substantial" means "more than nominal in value, degree, amount or extent."
Clearly, Troxell is differently situated with regard to this matter than are the members of the
general public because of his employment with the University. The question is whether, because
of his status as an employee, he might realize any "direct and substantial benefit or detriment" by
reason of Council's decision related to the CSU football stadium. Again, there is no indication
that Troxell's position of employment or the amount of his compensation would be affected by his
vote or Council's decision or actions with regard to the proposed football stadium. In fact,
Troxell's status as a tenured member of the academic faculty indicates to the contrary, that is, that
there could be no job related ramifications based upon the manner in which Troxell votes with
regard to these upcoming Council decisions. Moreover, the Charter standard requires that the
�.. potential benefit or detriment to Troxell be "direct and substantial" and not merely indirect or
State of Colorado
William Leone, Chair
Bob Bacon, Vice -Chair
April Jones, Commissioner
Matt Smith, Commissioner
Dino Ioannides, Executive Director
Independent Ethics Commission
1300 Broadway, Suite 240
Denver CO 80203
Phone: 720-625-5697
www.colorado.gov/iec
Advisory Opinion 16-05
(Conflict of Interest)
Summary: A local government official should avoid real and perceived conflicts of interest
when voting on or debating questions that affect the personal, private, or financial interests of the
official.
I. Background
Board of Trustees member Rachel New ("New"), of the Town of Pitkin, Colorado, filed a
request for an advisory opinion requesting guidance about a possible conflict of interest between
New's personal business and her role as a member of the Town's Board of Trustees (the
"Board").
New indicates that she is a newly elected member of the Board as a result of elections held in
April, 2016. Prior to her election, in the spring of 2014, New established a property management
business, which she owns. Among other services, her business provides house winterizing, de -
winterizing, cleaning, lawn maintenance, window washing, laundry services, errand services,
pest control, and general maintenance. Included in the business portfolio is the management of
short-term rental properties. New assists in the short-term leasing of these properties by taking
reservations, receiving rental payments, and remitting taxes on behalf of the homeowner.
Twenty percent of the business income is generated by managing the two short-term rentals.
The Town of Pitkin is a statutory town. Recent issues being addressed by the Board include
updating the zoning code to regulate short term rentals. In this regard, New may be faced with
policy debate and/or voting on short term rental issues in the context of her duties as a member
of the Board. Specifically, Sections 3, 7, and 8 of the Amended Town of Pitkin Zoning Code of
2012 provide:
Section 3. Definitions. For the purpose of this code, certain words and phrases
used herein shall be defined as follows:
37. Short-term Transient Rental (Lodging): Rental of a residential structure or
part thereof, for any twenty-nine (29) day period or less, is considered a
1
EXHIBIT
1a
commercial/business use.
Section 7. Principal Permitted Uses. This section enumerates the principal
uses which are permitted in each zoning district:
A. Resident, Low Density Residential:
1. Dwellings, single family
2. Community centers and public buildings
3. Parks and playgrounds
4. Accessory uses as listed in Section 10 of this Code
5. Long-term permanent rental: Rental of a residential use of
structure, or part thereof, where the occupants are primarily
permanent in nature for any thirty (30) day period or more.
(Nontransient)
B. Business, Business:
1. Any use permitted in the Resident district
2. Accessory buildings and uses
3. Amusement or recreation
4. Automobile gas stations or garages
5. Automobile parking lots
6. Club or lodge
7. Dining or drinking places
8. Hotel or motel
9. Laundromat
10.Office or clinic
11. Retail store or shop
12. Schools and churches, including seasonal church schools.
Section 8. Conditional Uses. The following uses shall be permitted only after
written request to the Board of Trustees, and acceptance of written approval made
by the Board of Trustees:
D. Short Term Rental (Lodging) in the Business District: After review of the
Zoning Board of Adjustment, a recommendation for conditional use appropriate
to the available water, sewage, and off-street parking will be referred to the Board
of Trustees for final decision. [Emphasis added.]
The Town Clerk confirms that the Town of Pitkin does not currently have any conflicts of
interest or other ethical policies in place.
I1. Jurisdiction
Ms. New is a member of a statutory town's Board of Trustees and is therefore a "local
government official" under Colo. Const. Article XXIX, sec. 2(3), and C.R.S. § 24-18-102(6).
The Independent Ethics Commission has authority to issue advisory opinions on ethics issues
arising under Article XXIX or any other standards of conduct or reporting requirements as
provided by law. See Colo. Const. Article XXIX, sec. 5(5).
III. Applicable Law
Conflicts of interest are addressed in C.R.S. § 24-18-109 as follows:
(2) A local government official or local government employee shall not:
E�3
(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[.]
(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.
IV. Discussion
A. Conflicts of Interest.
The conflicts of interest statute cited herein restricts a local government official such as New
from: (1) performing an official act directly and substantially affecting to its economic benefit a
business in which the local government official has a substantial financial interest; and (2) voting
on or attempting to influence the decisions of other members of the governing body in voting on
a matter in which the local government official has a personal or private interest.
The Commission finds that New's ownership interest in a property management business that
manages short-term rentals in the Town of Pitkin is substantial. As such, New must refrain from
performing any official act that directly and substantially benefits the business economically.
For example, because the Town's zoning code requires the Board to give final approval for
conditional short-term rental uses, New should refrain from voting to grant or withhold such
approval when doing so would economically benefit her business. Moreover, New must not vote
or attempt to influence the decisions of other members of the Board when she has a personal or
private interest in the outcome.
B. Appearance of Impropriety
In addition to the statutory provisions cited above, Colo. Const. Article XXIX, sec. I (c), requires
covered individuals "to avoid conduct that is in violation of their public trust or that creates a
justifiable impression among members of the public that such trust is being violated."
Appearances of impropriety are generally referred to as "perception issues" or "violating the
smell test." They can weaken public confidence in government and create a perception of
dishonesty, even among government officials who are in technical compliance with the law.
In order to avoid the appearance of impropriety, local government officials should avoid voting
on or debating questions in a manner that may lead the public to perceive that the local
government official is either placing his or her own private business interests in a position of
competitive advantage or keeping his or her own private business interests from being adversely
affected by the decisions of the governing body.
The Commission also recommends that when feasible, counties and municipalities should
consider enacting an ethics code to provide further guidance to elected officials with similar
potential conflicts.
V. Conclusion
A member of a town's board of trustees should follow Colorado statutes pertaining to conflicts
of interest and constitutional requirements pertaining to the appearance of impropriety.
The Commission cautions public official and employees that this opinion is based on the specific
facts presented herein, and that different facts could produce a different result. The Commission
therefore encourages individuals with particular questions to request more fact specific advice
through requests for advisory opinions and letter rulings related to their individual
circumstances.
The Independent Ethics Commission
William J. Leone, Chcrir
Bob Bacon, Vice -Chair
April Jones, Commissioner
Matt Smith, Commissioner
Dated: June 30, 2016
4
Agenda Item 3a
Consideration: in accordance with City Code Section 2-569(d)(1) of whether a complaint filed on
January 21, 2020, by Rory Heath, alleging that Mayor Wade Troxell has a financial and personal
interest in the Hughes, Stadium annexation property rezoning decision, warrants investigation,
EXECUTIVE SUMMARY
The purpose of this item is to complete the initial screening by the Ethics Review Board of a complaint
filed with the Board under City Code Section 2-569(d), as described below. The Complaint and other
materials referenced are provided as attachments to the Agenda Item Summary for Item 3 (overall),
and that information, is incorporated into this subpart by reference,
STAFF RECOMMENDATION
Staff recommends that the Board consider the Complaint and determine whether to proceed with an
investigation of the Complaint.
Under City Code Section 2-569(d), any person who believes a Councilmember or board or commission
member has violated any provision of state law or the City Charter or City Code pertaining to ethical
conduct may file a complaint with the City Clerk. After notice to the complaining party and the subject
of the complaint, the Ethics Review Board then considers the complaint and whether it should be
further investigated.
The Board will consider a complaint lodged with the Board through the City Attorney on January 21,
2020, by Rory Heath (the "Complainant"), a Fort Collins resident, against Mayor Wade Troxell (as
well as against Mayor Pro Tom Kristin Stephens and Councilmember Ken Summers). The Complaint
alleges Mayor Wade Troxell has a conflict of interest in the form of a financial', interest and a personal
interest in the Hughes Stadium annexation property rezoning decision in light of his employment at
Colorado State University (CSU), which owns the property, Mr. Heath further alleges that Mayor
Troxell is a representative and employee of CSU and that as a result his participation in the Hughes
Rezoning "results in, a very clear violation of nearly each applicable [law]."
The following is an excerpt from the Complaint summarizing Mr. Heath,'s concern (from page 11 of
the Complaint):
Agenda to 3a
Fort Collins Mayor Wade Troxell and Fort Collins City Councilmember Kristin Stephens
are both employees of Colorado State University, the very same entity seeking favorable
re -zoning so that the sale of a large 165-acre parcel of land may be successfully sold to
Lennar Homes, a developer.
//t. The actions of all three individuals, as it pertains to all related activities relating to the
consideration of Fort Collins Ordinance No. 138, 2019 (including all related Ethics
Complaints hearings), are in direct violation of State and Municipal Ethical and Conflict of
Interest Laws, All three individuals have also failed in performing their fiduciary duty to the
people of Colorado, a duty ingrained within their public service, and in the case of Troxell
and Stephens, their employment by Colorado State University.
V. A consistent effort to minimize the representation of the public's wishes regarding the end
use of the parcel of land in consideration has been continually undertaken by city staff
and City Elected Officials.
The Complaint goes on to request that the Ethics Review Board do the following:
* investigate all ethics violations made by Wade Troxell, Kristin Stephens, and Ken Summers;
carry this out using all tools and options at its disposal and "'do so by taking to heart the
public's explicit, expressed, and continual wishes regarding one of the most important pieces
of land to Fort Collins' Identity;" and
remove Wade Troxell, Kristin Stephens and Ken, Summers from all interactions with the
decision -making process, and take "severe remediation actions" to address "the harm to the
process already caused."
(The Complaint provides argument and: additional description of the concerns of the Complainant not
repeated in this Summary.)
City Ethics, Provisions:
Generally, the ethics provisions established by the City include City Charter Article IV, Section 9, and
City Code Section 2-568.
State Ethics Provisions:
In addition, various state laws are commonly considered ethics laws. These include.,
• Sections 24-18-101 through -105, Colorado Revised Statutes (C.R.S.);
• Section 24-18-109, C.R.S.;
• Sections 24-18-201 through -206, C.R,S-;
• Sections 18-8-302 through -308, C.R.S.; and
• Sections 18-8-402 through -409, C.R.S,
AgelXhl Itern 3a
(The language of Article XXIX of the Colorado constitution — also referred to as "Amendment 41,"
provides that home rule municipalities that have adopted local ethics provisions addressing the
topics in that provision are exempt from its application.)
. . . . ........ . ........ ...................................... . . ......
The Board is required under the Code to evaluate the Complaint and determine by majority vote
whether to formally investigate the Complaint. In doing so, the Board should consider:
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 an V facts asserted in support of the allegations; and
3. Any other facts or circumstances the Board may consider relevant.
If the Board determines that the Complaint does not warrant investigation, the Board then directs
staff to send written notice to the complainant of that determination and the reasoning behind it. A
copy of that notice is also sent to the subject of the Complaint and the City Council.
Factual Allegations in the Complaint -
The interests of CSU in the Hughes Rezoning is likely undisputed, so the detailed assertions in that
regard in the Complaint are not recited here.
The Complaint asserts the following basic facts regarding Mayor Troxell's relationship to CSU, as
more fully explained in the Complaint itself:
1. He is employed by CSU as, an associate professor of Mechanical Engineering, is the Director
of the Center for Networked Distributed Energy and is a Director for Ramlab.
2. He has taken an Oath to CSU as a condition of his employment. [The, oath requires academic
faculty members and administrative professionals to swear to uphold the Constitution of the
United States and the Constitution of the State of Colorado, and to faithfully perform the
duties of their position at CSUJ
3, He has collected a paycheck from CSU as consideration for past and future services.
4. He has gained "national notoriety" from his continued employment and involvement at
programs [loused within the CSU System and within the academic buildings of CSU
5. He is "a director and: by extension, a fiduciary, for the Center and the Ramlab."
6. "Though currently an associate professor," he "could conceivably be promoted to full
professor or even further promoted to a Dean or the like, as had been the case in the past,"
presumably carrying additional benefits,
7. He in 2017 "received campaign contributions from the National Association of Realtors Funds
in the amount of $39,722," in addition to an amount of $5,000 rolled over from a previous
campaign and $15,000 "collected during this campaign."
8. He previously recu:sed himself in a matter related to CSU in 2017 regarding Ordinance No.
051,2017.
11111 Xi I I IN I I I r I I I P! I ii I i I
0
Agend,a Item 3a
• By definition, local realtors are dependent on housing as their 'inventory' by which to make
their commission, an overwhelming part of their personal compensation.
• A COLUT decision within Larimer County entered in August of 2019, has directly and
specifically addressed the question as to whether a campaign contribution would warrant
reCUsal by a government official in any capacity,
The Complaint contains a number of assertions and statements related generally to the input the,
City Council has received from members of the public regarding the Hughes Rezoning, asserting
that voting in a manner contrary to members of the public's opposition to the Hughes Rezoning
suggests a vote untended to benefit CSU.
It further asserts a number of psychological studies and makes assertions related to inherent bias
from employment ties.
"Screening Review Steps"
1. Whether the Complaint Alleges a Violation of City or State Ethics Provisions:
1. City Ethics Provisions: The City Charter and City Code prohibit members of the City
Council from participating in a decision if the Councilmember has a financial interest
or a personal interest in the decision.
1. A financial interest is an interest in the Hughes, Rezoning that is equated with money
or its equivalent.
i. If the councilmember is an employee of an affected business, but the Council
decision entails NO FORESEEABLE, MEASUREABLE FINANCIAL BENEFIT
to the Councilmember, the employee relationship does, not create a financial
interest.
2. A personal interest is any interest (other than a financial interest) by reason of which
an officer or employee would, in the judgment of a reasonably prudent person, realize
or experience:
i. some direct and substantial benefit or detriment,
[direct = resulting immediately and proximately from the circumstances
and not from an intervening cause.]
[substantial = more than nominal in value, degree, amount or extent,]
[benefit = an advantage or gain.]
[detriment = disadvantage, injury, damage or loss.]
ii. different in kind from that pxperjencecl bV the general public.
[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.]
Agenda Item 3a
3. The Ethics Review Board must evaluate whether the facts as asserted in the
Complaint (assuming they are true) support the allegation that Mayor Troxell has
either a financial interest or a personal interest.in the Hughes Rezoning.
2. State Ethics Provisions:
1. For the purpose of the statutory ethics provisions:
i. Councilmembers are `local government officials" (as defined in Section 24-
18-102(6), C.R.S.).
ii. Financial interest means a substantial interest held by an individual which is
(in relevant part):
1. An employment or prospective employment for which negotiations
have begun; or
2. A directorship or officership in a business.
(Section 24-18-102(4), C.R.S.).
iii. Business means any corporation, limited liability company, partnership, sole
proprietorship, trust or foundation, or other individual or organization carrying
on a business, whether or not operated for profit. (Section 24-18-102(1),
C.R.S.).
iv. Terms not`defined in the statutes are considered to, have their commonly
reference to common resources such as a standard_dictionary'
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.
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."
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. (Emphasis added.)
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.)
Agerlda Item 3a
As noted above, "businesg' is defined as "any corporation, limited liability company,
partnership, sole proprietorship, trust or foundation, or other individual or organization
carrying on a business, whether or not operated for profit." As commonly understood,
"business" is means a "commercial or industrial enterprise,"
An "undertaking' is not defined in the statutes; the term is commonly understood to
mean "something undertaken" like a "business, work or a project."
In at least one formal advisory opinion issued by the Colorado Independent Ethics
Commission (IEC), which is authorized to issue opinions concerning the state's ethics
statutes, the IEC observed that public entities and bodies are not a "business or
other undertaking" under Section 24-18-109(2)(b) (IEC Advisory Opinion 17-04,
which is attached to the Item 3 Agenda Item Summary for reference).
CSU is established under Article Vill, Section 5 of the Colorado Constitution as a
9(state institution of higher education" and, as such, is not a "business or other
undertaking" under Section 24-18-105(2).
Thus, while employment is defined as a "financial interest" under Section 24-18-
102�(4)(c), employment with a public entity like CSU is not employment with a
"business or other undertaking" to which Section 24-18-105(2) applies.
5. Section 24-18-109, C.R.S., provides, that
i. a local government official shall not (in relevant part) 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));
As discussed above in relation to the limitation in Section 24-18-105(2), CSU is
established under Article VI I[, Section 5 of the Colorado Constitution as a "state
institution of higher education" and, as such, is not a "business or other
undertaking" under Section 24-18-109(2)(b).
Thus, while employment is defined as a "financial interest"' under Section 24-18-
102(4)1(c), employment with a public entity like CSU is not employment with a
"business or other undertaking" to which, Section 24-18-109(2)(b) applies.
ii. 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));
1. The statutes don't define the term "personal or private interest" and
there is no directly relevant guidance interpreting this provision.
a. The Colorado Independent Ethics Commission ("IEC"), which is
authorized to issue opinions concerning the state's ethics
statutes) has applied this provision in considering a complaint
against a local official related to that official's interest in a
regulatory decision of the body she was a member of. The IEC
did not specifically interpret the term "private interest"'
A
Agenda Item 3a
while focusing on the direct and substantial benefit to the
official. (IEC Advisory Opinion 16-05, which is attached to
the Item 3 Agenda Item Summary for reference).
b. A common explanation found consistently in the review of
provisions of this sort suggests that a "personal or private
interest" is one that tends to impair a person's independence of
judgment in the performance of the person's duties, and this is
typically interpreted to relate to a financial interest of the person
or their relative in a private enterprise.
c. A local government official would likely be considered as having
a personal or private interest in any decision that would result in
the official receiving a direct and immediate pecuniary benefit
or result in the official receiving a non -pecuniary benefit or
suffering a non -pecuniary detriment that is direct, immediate
and different in kind from that shared by the general public.
d. The City's local provisions related to financial and personal
interests are essentially parallel to this formulation.
2. Applying this standard here, the Board must determine whether the City
Council's Hughes Stadium rezoning decision would likely result in
Mayor Troxell receiving a direct and immediate pecuniary benefit or
result in him receiving a non -pecuniary benefit or suffering a non -
pecuniary detriment that is direct, immediate and different in kind from
that shared by the general public.
3. Constitutional Due Process:
The Complaint cites to an August 2019 court decision in Larimer County District Court in which
the District Court found that County Commissioner Tom Donnelly's participation in a land use
decision in favor of a business owner that he had a years' long business relationship, who had
made a substantial campaign contribution to Donnelly's campaign, violated the constitutional
due process right that interested parties had to an impartial decision -making body. The
Complaint asserts that the case directly and specifically addressed the question as to whether a
campaign contribution would warrant recusal by a government official in any capacity.
A copy of Thompson Area Against Stroh Quarry, Inc., et al. v. Board of County Commissioners of
Larimer County, et al., the case cited in the Complaint, is attached for your reference.
Setting aside any difference of opinion regarding this case and whether it decides the
question asserted by the Complainant, to the extent the Complaint alleges a violation of
the Colorado or U.S. constitutions, the Complaint is outside the scope of the Board's
authority and charge under City Code Section 2-569.
11. Reliability and Sufficiency of Facts Asserted:
If the Board determines that there may have been a violation, then the Board will need to evaluate
the facts asserted in the Complaint.
7
Agenda Itein 3a
The Board may know information, that contradicts the facts that were asserted in, the Complaint, or
there may not be enough information in the Complaint for you to form a reasonable suspicion that
the violation alleged in the Complaint Occurred.
On this basis, the Board may determine that the facts asserted in the Complaint are not
reliable or sufficient and find the Complaint does not warrant further investigation.
111. Other Relevant Facts or Circumstances:
If there is additional information available or presented to the Board that leads the Board to
conclude that the Complaint does not ' merit further investigation, the Board may identify that
information and find the Complaint does not warrant further investigation on that basis.
�j Fj "I 1 11 11111 1 1 1111111 1 i 11111111 !!!! 1 11111, 111111 111 !111 111
1. Thompson Area Against Stroh Quarry, Inc., et al. v. Board of County Commissioners of Larimer
County, et al.
2. Review Checklist — Heath Complaint re Wade Troxell
M
District Court, Latimer County, :State of Colorado
201 LaPorte Avenue, Suite 100
Fort Collins, CO 80521-2761 DATE #AILED:August 12,, 201..19
(970) 494-3500 CASE NUMBER: 2018CV30371
'Thompson Area Against Stroh Quarry, Inc., a Colorado
nonprofit corporation, Dani Korkegi, an individual,
Gregory Martino, an individual, Monique Griffin, an
individual, Crisd Baldino, an individual, Victoria Good, an
individual, and Arlene Libby, an individual, ♦ COURT USE ONLY
Plaintiffs,
V.
The Board of County Commissioners of Latimer County,
Colorado (including Commissioner Lew Gaiter and
Commissioner Tom Donnelly, in their official capacities),
the governing body of a political subdivision of the state
of Colorado and Coulson Excavating Company, Inc., a
Colorado corporation,
Defendants.
Case Number: 2018CV30371
Courtroom: 3B
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND
GRANTING IN PART AND DENYING IN -PART DEFENDANT BOARD'S
MOTION FOR SUMMARY JUDGEMENT AND DENYING DEFENDANT
COULSON'S MOTION FOR SUMMARY JUDGMENT
Just as no man is allowed to be a judge in his own cause, similar fears of bias can
arise when —without the consent of the other parties man chooses the judge in
his own cause.
Caperton a t4.T. Massey Coal Co., 556 U.S. 868, 886 (2009).
Plaintiffs Thompson Area Against Stroh Quarry, Inc., Dani Korkegi, Gregory Martino,
Monique Griffin, Crisd Baldino, Victoria Good, and Arlene Libby (collectively, "Thompson"), and
Defendants Coulson Excavating Company, Inc. ("Coulson'), and Board of County Commissioners
of Latimer County, Colorado ("Board') each filed cross -motions for summary judgment regarding
Thompson's claims under Colo. R. Civ. P. 57.
E
HIBIT
In its motion for summary judgment, Thompson argues that it is entitled to judgment as a
matter of law on its as -applied due process challenge to the Larimer County Land Use Code's
C'Code) recusal rule under Colo. K Civ. P. 57.' The Board and Coulson filed cross -motions for
summary judgment arguing that they are entitled to summary judgment on the same as -applied claim
raised by Thompson, and the Board further contends that it is entitled to summary judgment on
Thompson's claims that the USR criteria are unconstitutionally vague, and that the Code's conflict
of interest regulation is unconstitutionally vague.
This action involves a dispute about the Board's decision to approve Coulson's use by
special review application to operate a gravel -pit mine in Johnstown, Colorado, on a parcel that is
zoned for agricultural use and which is surrounded by residential neighborhoods comprised of
approximately 1,000 single-family homes. While the application was pending, Commissioner
Donnelly accepted $10,000 in campaign contributions from Ken and Dick Coulson, owners of
Coulson, representing a significant and disproportionate amount of the contributions Commissioner
Donnelly received during the 2016 election cycle. Commissioner Donnelly went on to win that
election, and in March 2018, he participated in the Board's decision, casting the deciding vote on
Coulson's application.
The Court concludes that, under those circumstances, Commissioner Donnelly's
participation and vote on Coulson's application violated Thompson's due -process rights under the
Colorado Constitution, and deprived Thompson's right to a fair and impartial decision -maker. The
1 Following briefing on the merits and oral argument by both parties, the Court construed the
substance of Thompson's claim to involve both a facial due -process challenge to the recusal rule and
an as -applied due -process challenge under Colo. K Civ. P. 57 to the same rule. The Court addressed
this construction in its Order Vacating In -Part June 19, 2018, Order issued December 14, 2018 and
its Order Denying Motion to Reconsider, issued February 28, 2019. Given the disposition of
Thompson's Rule 57 due -process claim, the Court doesn't reach the merits of the Rule 106 claims.
19
Court also concludes that neither Latimer County's USR process nor the Code's conflict of interest
rules are facially unconstitutional.
Accordingly, the Board's motion for summary judgment is granted as to Thompson's facial
challenges to the Code, and the motion is denied as to Thompson's as -applied due process claim.
Coulson's motion for summary judgment is also denied. Thompson's motion for summary
judgment is granted as to the Rule 57 as -applied challenge to Commissioner Donnelly's conflict of
interest. The Board's decision is hereby vacated; and the matter is remanded to the Board with
instructions to hold another hearing on Coulson's application with Commissioner Donnelly recused,
consistent with the Code.
I. Factual Background
The following facts, unless otherwise indicated, are not in dispute.
A. The Property.
In 1993, Coulson purchased property located at 260 SE Frontage Road in unincorporated
Latimer County (the "Property'). Compl.,1 � 4,128; Coulson Ans., $14,128; Board. Abs., IL The
Property is zoned for agricultural uses within the "FA -Farming" zone. Compl., $ 43; Coulson Ans.,
43; Board Ans.,11. Section 4.1.2 of the Code provides that lands designated as `TFA-Farming" are
to be principally used for "agricultural" uses. Vol. V at 104-05. Under the Code, mining is expressly
described as an "industrial" use. Code § 4.1..1. To engage in mining with the FA -Farming zone, a
landowner must receive approval from Latimer County for a use -by -special -review {"USR').. Code
4.5.1.
B. The USR Process.
To obtain a USR permit, the applicant must submit an application to the Latimer County
Planning Department ("planning Department"}. Vol. I, at 281. After receiving a USR application,
the Planning Department sends it to referral agencies and other county departments for review and
comment. Id If a referral agency or department identifies any issues with a USR application, the
applicant must resolve those issues with the agency before the application can proceed. Id
Once a USR applicant resolves all referral agency and Planning Department comments and
issues, the Planning Commission provides notice to the general public of the USR application and
holds a hearing in which the public will have the opportunity to submit written comments in
advance and be heard at the hearing. Id at 119-22. After the public hearing, the Planning
Commission recommends approval or denial of the application to the Board, and forwards the
matter to the Board for its consideration. Id at 281, 864. In turn, the Board holds a hearing on the
USR application, providing public notice of the hearing and allowing the public to submit written
comments or to testify at the hearing. Id at 1.14-17.
C. Coulson's USR Applications.
In 2002, Coulson first applied for a USR permit to operate an industrial sand and gravel pit
mine at the Property C Proposed Mine'). Compl., ¶ 30; Coulson Ans., � 30; Board Ans., 130. The
parties disagree what happened between 2002 and 2008, but it's undisputed that the application was
not approved during that time. In 2008, Larimer County required Coulson to submit a new USR
application, which Coulson did in 2009. Compl.,131 ¶ 32; Board Ans. 11.
Coulson apparently began resolving referral agency concerns immediately upon submitting
its new application. In October 2009, for example, Coulson completed an air displacement modeling
study. Vol.11302-1673. By August 31, 2010, Coulson also completed a noise study indicating that
the proposed mine could be operated in compliance with applicable ordinances and statutes, so long
as certain mitigation methods were used. Vol. I at 961,1675-1701.
After that noise study, however, Coulson's application virtually lay dormant from 2010 to
2015. Coulson apparently didn't think it economically feasible to move forward with the application
during that period. As Ken Coulson, one of Coulson's owners, explained at the Planning
4
Commission hearing, because of the "recession in 2008, [Coulson] decided they had adequate
reserves and had other pits that they were mining at the time" and that "[t]he permitting process
started back up in 2015 with new analyses and reports." Vol. I at 434. Peter Wayland of Weiland,
Inc., an engineering consulting firm representing Coulson, noted that a noise study was conducted in
2015. Id at 434-35.
In September 2016, nearly one year after Coulson completed the 2015 noise study and two
months after completing a floodplain review, Coulson submitted a status update with the Planning
Department. Vol. I. at 393. The status update from Coulson's land use consultant explained that
"there have only been changes made to the project to reduce impacts and insure [sic] public safety
with regard to potential flood issues." Vol I. at 390-92. Specifically, the letter noted that "the only
significant change to the site plan is to specify a conveyor system instead of overland haul roads ...
in response to Latimer County Health's suggestion , .. to reduce dust emissions and noise." M at
393. In addition, "the PM10 and Crystalline Silica Air Dispersion Modeling Report has been
updated" based on the use of the conveyor system. Id at 387, 394. Coulson also noted that a
condition of the floodplain. review board's approval included "placement of soil cement on the west
slope of the east pit for the purpose of protecting the pipeline which runs between the two pits. Id
About the same time as the status update, Coulson "xequest[ed] that the Community
Development Team scheduler the application for a hearing" before the Planning Commission. Vol.
I at 433. As will be explained more fully below, at about the same time, Richard and Ken Coulson
made their sizeable contributions to Commissioner Donnelly's reelection campaign. Coulson"s Resp
to Rog.1.
More than one year elapsed between Coulson's request and the hearing before the Planning
Commission. In November 2017, .the Planning Commission held a public hearing on Coulson's
USR application. Vol. I, at 431-63, 864-68; Vol. II, at 29:16-24. (By this time, Commissioner
Donnelly had won re-election). The Planning Commission recommended approval of Coulson's
USR application to the Board. Vol. I, at 431-63; Vol. IV, at 1.
At approximately the same time (November 2017), Thompson initially raised the issue of
conflicts of interest. On November 10, 2017, Thompson wrote to Robert Helmick of the Latimer
County Community Development Commission, specifically requesting that Latimer County "ensure
that all potential conflicts of interest of the various decisionmakers [be] disclosed as part of the
administrative record and that any dedsiorrnrakers with corfticts of inlerest recuse themselves f nm any further
action on (Conlsotr'sJApplicaiion." Vol. I at 326 (emphasis added). At that time, Thompson identified
one such conflict, requesting that "Planning Commissioner Gary Gerrard be formally recused from
participating in the Planning Commission's consideration of the Application." Id But Planning
Commissioner Gerrard didn't recuse himself? See id at 432 (Planning Commission meeting minutes
noting that Commissioner Gerrard was "present").
In the same correspondence, Thompson also requested that the Board adhere to all
regulations regarding "conflicts of interest," specifically citing Code §§ 2-71 and 2-67(10). Vol. I., at
326-30; see also Vol. V, at 26, 28. Those provisions require a commissioner to (a) act with
"unconflicted loyalty" regarding the interests of the citizens in Latimer County, a loyalty that
supersedes the commissioner's personal interests or those of any advocacy and interest groups; and
(b) recuse himself if the commissioner believes that he has a conflict of interest or that the
commissioner cannot make a fair and impartial decision.
On February 26, 2018, the Board held a public hearing on Coulson's USR application. Vol.
II at 2. As part of its consideration of the application, the Board invited and received written
evidence and took testimony at the hearing. Vol. IV at 1. At the conclusion of the hearing, the Board
s The nature of Commissioner Gerrard's conflict is unclear, but Thompson didn't press a due -
process violation from the commissioner's participation at the hearing.
6
voted 2-1 in favor of the application, with Commissioner Donnelly voting in favor of it. Id at 213-
14.
Almost a month after the Board's hearing, but before the Board issued its findings and
decision, Thompson sent a letter on March 19, 2018, to the County Attorney, Jeannine Haag,
indicating that Ken and Dick Coulson had contributed to Commissionerponnelly's campaign
committee and requesting that he recuse himself from further involvement in the proceedings. Vol.
I at 298-99. One day later, on March 20, 2018, the Board issued its Findings and Resolution
Approving The Petition of Coulson Excavating Company, Inc. VoL iV at 1-13.
D. Commissioner Donnelly.
By trade, Commissioner Donnelly is a private land surveyor, a profession he engaged in
between 1994 to January2008, in Loveland, Colorado. He worked for a company called CDS.
Coulson's Supp. Resp. to Rog. 1; Board's Resp. to Rog. 1.
In that capacity, Commissioner Donnelly had a professional relationship with Coulson,
performing surveyor work for the company for several years. The relationship began in 1999, when
Loveland Commercial Builders :hired both Coulson and CDS to perform work on a subdivision
called Frank Farms. Id Commissioner Donnelly estimated that Coulson hired him to conduct land
surveys on approximately "10 projects during [his] 14 years as a surveyor" Rog. 1. While
Commissioner Donnelly didn't recall the exact number of projects, id., Coulson states that between
1999 and 2005, it and CDS worked on five projects together? Coulson Resp. to Rog. 1,
3 Thompson's attempt to dispute the extent of Commissioner Donnelly's work history with Coulson
is nothing more than argument, which can't create a material factual dispute at summary judgment.
See § H, irtrra (discussing cases that a party can't use pretense, or apparent formal controversy to
avoid summary judgment); Ginter a Palmer & Co., 585 P.2d 583, 585 (Colo 1978) (Colo. R Civ. P.
56(e) requires that the opposing party adequately demonstrate by relevant and specific facts that a
real controversy exists). As set forth in the body, Coulson provided concrete projects and facts
figures, which Thompson failed to dispute.
7
Commissioner Donnelly wasn't Coulson's employee and Coulson didn't hire him Donnelly
directly.' Id During the time frame that Donnelly was a surveyor, Coulson and its owners, Dick and
Ken Coulson, never had any conversations with Donnelly other than about the surveying work he
performed. Id
The Coulson-CDS surveying projects, which ended in 2005, represent the extent of
Commissioner Donnelly's professional relationship with Coulson or its principals, Ken and Dick
Coulson (the "Coulson'). Id, Commissioner Donnelly and the Coulsons have never been friends or
had a social relationship, Id; see also Ex. 3. As far as the Coulson recollect, their last personal
interaction between them and Commissioner Donnelly occurred in 2008 during Commissioner
Donnelly's 2008 election campaign, in which he sought a campaign contribution from them.
Coulson's Resp. and Board's Resp. to Rog. 1.
Commissioner Donnelly won the 2008 election and became a Latimer County
Commissioner in January 2008; he was re-elected in 2012 and 2016. Official Larimer County
Election Results, www.larim&.org/derk/elections/records-dati/past-info/results, follow the
"General Election Summary" hyperlinks for 2008, 2012 and 2016 elections.
The breakdown of Commissioner Donnelly's campaign contributions during the 2012 and
2016 election cycles is as follows. During the 2012 candidate four-year election cycle (designated as
12/5/2008—12/6/2012 by the Colorado Secretary of State) ("2012 election'), Commissioner
Donnelly's campaign committee received $31,726.19 in campaign contributions. Board MSJ at Ex.
B. Of that amount, Dick and Ken Coulson each contributed $500, for a combined total of $1,000.
Id Commissioner Donnelly's opponent was Karen Stockley, whose campaign committee received
' For the same reasons cited, above, Thompson cannot create a dispute merely by argument, but
must present evidence to demonstrate that a dispute exists. See SN., 329 P.3d at.282. The Court
concludes no such dispute exists here.
8
campaign contributions totaling $21,237.20. Id at Ex. C. Commissioner Donnelly won that re-
election.
For Commissioner Donnelly's 2016 campaign, his candidate committee reported total
contributions of $53,580, which it raised between March and October 2016. Ex. 3 Board's Am. Ans.
and Ans.. to Req. to Admit No. 6. The committee also spent a total of$56,342.16 during the 2016
election. Coulson MSJ at Ex. 2.
For the 2016 election, Commissioner Donnelly didn't personally seek campaign
contributions from the Coulsons. Instead, a representative from Commissioner Donnelly's political
party stopped by Coulson's offices to .solicit a donation. Coulson's Resp to Rog.1. Shortly after, in
August and September 2016, Dick Coulson and Ken Coulson each contributed $5,000 to
Commissioner Donnelly's campaign committee, respectively, for a combined total of $10,000. Id
The Coulsons' campaign contributions amounted to 18.6% of Commissioner Donnelly's total new
contributions for the 2016 election and 17.7% of the total money his committee spent on that
election. Id.
Notably, the Coulsons' contributions for the 2016 election represented a 10 fold inemare from
their contributions in the 2012 election. At the time of the Coulsons' 2016 election contributions, it's
undisputed that Coulson's application was pending before Larimer. County and. that Coulson was
still working on agency and planning department issues related to the application. Vol. I at 331-33,
348-89, 431-63, 864-68.
But the Coulson weren't the only high -dollar contributors to Commissioner Donnelly's
campaign committee. During the 2016 election, the campaigncommittee received the following
campaign contributions of $5,000 or more:
a. $10,000 from Ken Coulson and Dick Coulson ($5,000 each);
b. $7,500 combined from the Lind family (Martin and Viki) and Vima Partners, LLC;
6
c. $5,000 combined from the Gerrard family (Gary, Mary, Nathan);
d. $5,000 combined from the McWhinney family (Chad and Troy); and
e. $5,000 from Lori Graves.
The 2016 election featured a rematch between Commissioner Donnelly and Karen Stockley.
For her part, she received campaign contributions totaling $19,027.10. Board MSJ at Ex. F. As the
above campaign -contribution figures show, Commissioner Donnelly outraised Ms. Stockley by a
ratio of almost 3-to-1. Commissioner Donnelly won the 2016 election for County Commissioner by
a margin of 55.16% (99,191 votes) to 44.84% (80,647 votes). Board MSJ Ex. G.
When Coulson's application came before the Board on February 26, 2018, Commissioner
Donnelly subjectively believed that he could make a fair and impartial decision based on the review
standards and evidence. Ex. 3, Board's Ans. Reg. to Admit No. 9.
II. Applicable Legal Standards.
Under Colo. R. Civ. P. 56(c), summary judgment shall enter when "there is no genuine issue
as to any material fact and ... the moving party is entitled to a judgment as a matter of -law" "The
paramount purpose of summary judgment is to expedite litigation by.avoiding needless trials where
no genuine issue exists as to any material fact and the movant is entitled to judgment as a matter of
law." Dubois v Myers, 684 P.2d 940,943 (Colo. App.1984).
A party seeking summary judgment bears the initial burden of establishing that there is no
dispute regarding material facts. Pueblo W. Metro. Dist. v. Se. Colo. Water Conservancy Dist., 689 P.2d
594, 600 (Colo. 1984). A factual dispute is "material" if it'd affect the outcome of the case. W.
Innovations, Inc. v. Sonihvi Corp.,187 P.3d 1155,1158 (Colo. App. 2008). To meet that burden, the
moving party may rely on "pleadings, depositions, answers to interrogatories, ... admissions on file,
[and] affidavits." Colo. R. Civ. P. 56(c). While "the form of the evidence, such as an affidavit, need
W
not be admissible at trial, the content or substance of the evidence must be admissible." People ex rel
S.N. v, S N., 329 P.3d 276, 282 (Colo; 2014).
The moving party may satisfy its burden by showing the absence of evidence in the record to
support the nonmoving party's case. Id. If the moving party demonstrates no disputed material facts
exist, the burden shifts to the nonmoving party to demonstrate the existence of a disputed material
fact. Id.
The Court must give the nonmoving party all favorable inferences that reasonably may be
drawn from the evidence. Id But the nonmoving party can't use "pretense, or apparent formal
controversy," to avoid summary judgment. Id. Similarly, the nonmoving party cannot "merely
assert0 a legal conclusion without evidence to support it. Id.. When faced with an affidavit
affirmatively showing the absence of a triable issue of material fact, the nonmoving party cannot rely
on allegations or denials in the pleadings to avoid summary judgment. Id. Not may the nonmoving
party raise a genuine issue of material fact "simply by means of argument. Id.An affirmative
showing of specific facts; uncontradicted by any counter affidavits, leaves a trial court with no
alternative but to conclude that no genuine issue of material fact exists. Civil Service Com'n a Pinder,
812 P.24 645,649 (Colo.1991).
Further, evidence introduced to defeat or support a motion for summary judgment must be
sworn, competent and based .on personal knowledge, and, set forth .facts that would be admissible at
trial. Colo. R. Civ. P. 56(e). A "court must disregard documents .referred to to a motion for summary
judgment that are not sworn or certified." Cody Park a Harder, 251 P. 3d 1, 4 (Colo. App. 2009); see
also Simble P. Am. Family Ins. Co.,172 P,3d 950, 955 (Colo. App. 2007).
11
III. Conclusions of Law.
Under Colo. R. Civ. P. 57 the Court "shall have power to declare rights, status, and other
legal relations whether or not further relief is or could be claimed." Colo. R. Civ. P. 57(a). Such
declaration has the force and effect of a final judgment Id.
When "mere review of the record under [Colo. R. Civ. P.] 106(a)(4) would not afford
adequate relief to the aggrieved party, a declaratory judgment action under [Colo. R. Civ. P] 57 is
available and may be joined with a proceeding for [Colo. R. Civ. P.] 106(a)(4) review." Two Gs, Lrc. u
Kahn, 666 P:2d 129,133-34 (Colo.1983). Thus, where review of the record is an insufficient
remedy, "the plaintiff is not limited to the record, but may introduce other evidence relevant to the
issues presented. Tepley v. Pub. Employees Ret. Assn, 955 P.2d 573, 582 (Colo. App.1997) (citing Colo.
R. Civ. P. 57Ci) and (m)).
The parties seek summary judgment on Thompson's Rule 57 claims that: (1) the Code's USR
criteria are unconstitutionally vague; (2) the Code's conflict of interest rule is unconstitutionally
vague and permits unlawful spot zoning; and (3) the Code's conflict of interest rule violate due
process as -applied to the circumstances of this case. Naturally, the Board and Coulson disagree with
Thompson. The Court addresses each claim in turn.
A. Larimer County's Special Review Criteria are Facially Constitutional.
Thompson mounts a facial constitutional challenge on the Code's USR criteria on the
ground that they're unconstitutionally vague because critical terms are undefined in the Code.
Thompson also contends that the Board's approval of Coulson's USR application is akin to
upzoning a parcel for the narrow interests of a single land owner, at the detriment of all surrounding
12
neighbors $`The Board argues that because there is no factual dispute regarding the meaning and
understanding of the USR criteria, Thompson's argument fails. The Court agrees with the Board.
1. Vagueness Challenge.
The two provisions in the USR criteria that Thompson believes are unconstitutionally vague
are set forth in § 4.5.3. The provisions at issue state:
A. The proposed use will be compatible with existing and allowed uses
in the surrounding area and be in harmony with the neighborhood;
D. The proposed use will not result in a substantial adverse impact on
property in the vicinity of the subject property.
Code § 4.5.3(A), (D).
Facial challenges to statutes are extremely difficult to prevail on. As the United States
Supreme Court has put it, "[a] facial challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully, since the challenger must establish that no set of circumstances
exists under which the Act would be valid." United States P. Salerno, 481 U.S. 739, 745 (1987).
"Municipal ordinances, like statutes, are presumed constitutional." .lfrase v. Town o, f Castle
Rock,192 P.3d 591, 597 (Colo. App. 2008) (citing E-470 Public Highruay,4uthority v. Revenig, 91 P.3d
1038,1041 (Colo. 2004)). A party challenging the ordinance must prove beyond a reasonable doubt
that the Code its unconstitutionally vague in all possible applications. Id at 597 :98.
e Thompson objects to the Board's motion for summary judgment on theground that it
impermissibly seeks to reopen argument regarding Thompson's Colo. R. Civ. P. 57 facial challenge
to Larimer County's conflict of interest rules. Coulson similarly states that it understands the Coures
December 14, 2018 and March.11, 2019 orders as requiring briefing only on the as -applied due -
process challenge. Thompson and Coulson are incorrect, as the Court stated that it "expects the Ruk
57 claims to be resolved via cross -motions for summary judgment" and that "a discovery schedule to
adjudicate plaintiffs' Colo. R. Civ. P. 57 claims is appropriate." March 11, 2019 Case Mgmt. Ord., at
1, 6 (emphasis added). Thus, the Court will consider such claims by relying on the parties' existing
briefing on those claims.
13
"A statute or ordinance is unconstitutionally vague ... if persons of common intelligence
must necessarily guess as to its meaning and differ as to its application." Id (ntemal citations
omitted) (citing Watso a Cola DO't of Social Servs., 841 P.2d 299, 309 (Colo.1992)). The ordinance
must therefore provide "faivnotice and set forth sufficiently definite standards to ensure uniform,
nondiscriminatory enforcement." Id
"A law is void for vagueness where its prohibitions are not clearly defined." People v. Baer,
973 P.2d 1225,1233 (Colo.1999) (citing Grayned v. City of Rockford, 408 U.S.104,108 (1972);
Rickrtrrw P. People, 822 P.2d 505, 506-07 (Colo. 1991)). "Vague laws offend due process because they
(1) fail to give fair notice of the conduct prohibited, and (2) do not supply adequate standards for
those who apply them in order to prevent arbitrary and discriminatory enforcement." Id (citing
People v. Holmes, 959 P.2d 406,414 (Colo. 1998).
Broad terms and generalities are not equivalent to vagueness and need not be defined with
"mathematical precision" to withstand a vagueness challenge, so long as the ordinance lends itself to
alternative —constitutional —constructions. Kmse, 192 P.3d at 597 :(citing Stamrtt v. City & Corrnty of
Denver, 856 P.2d 54, 56 (Colo. App. 1993)). Moreover, there's no mandate that each word in an
ordinance be specifically defined, and the Court may look to dictionaries and case law to determine
the probable legislative intent. Id
The Court has a duty to give language used in regulations its generally accepted meaning and
to interpret language "in a reasonable and practical manner so as to impart a rational and cogent
meaning to it." Id. Thus, the Court may not adopt hyper -technical readings of statutes where a fair
outcome can be achieved through "[a] common sense reading of the statute." Americans U#ited for
Sejtaration of Chmrch & State Fund, Inc. v. State, 648 P.2d 1072,1086 (Colo. 1982) (quoting People u
Garcia, 595 P.2d 228,231 (Colo.1979)).
14
Thompson contends that the Codeis unconstitutionally vague in permitting and
encouraging de facto spot zoning through an unreasonably subjective and ill-defined USR process.
Specifically, Thompson argues that the terms "be in harmony with the neighborhood," "will not
result," "substantial adverse impact," and "in the vicinity" aren't defined in the Code and are so
ambiguous and subjective to the extent that they.give the Board unchecked discretion. In
considering all of the applications of the language in question, the Court is left with the firm
conclusion that the language passes constitutional muster.
Here, the § 4.5.3 standards aren't constitutionally vague for several reasons. First, while the
terms aren't specifically defined in the Code, substantially similar language frequently appears in
regulations, which have been found constitutionally definite. See C & M Sand & Gravel, Div. of C d�
M Ready .Mix Concnve Co. of Boulder v. Bd of Co. Cowes rs f Boulder Cty., 673 P.2d 1013,1018 (Colo.
App. 1983). In C&M, the Court of Appeals held that a zoning regulation setting out general
standards for special use requirements were sufficient, including. "(1) [the use] will be in harmony and
compatible with the character of the surrounding areas and neighborhood; ... (4) will not have a
material adverse effect on community capital improvement programs; ... (6) wdl not result in undue traffic
congestion or traffic hazards; (7) will not cause significant air, water, or noise pollution; ... and (9)
will not otherwise be detrimental to the health, safety, or welfare of the present or future inhabitants
of the county." Id (emphasis added).
Second, the challenged terms aren't unconstitutionally vague because any party may look to a
term's generally accepted meaning if it is not specifically defined in a code. to glean definiteness.
Kruse,192 P.3d at 599. Doing so here renders the terms at issue sufficiently definite. "Harmony," :for
instance, means "in agreement or accord; or conformity." Harmony, BI.AcWs LAW DICTIONARY
(1Oth ed. 2014). Read in context with the accompanying language of § 4.5.3, being in harmony with
the neighborhood means that the use is in conformity or in agreement with the neighborhood. For
15
"will not result" the Court need look no further than the plain meaning of the words to understand
them. See St. Vrain Valley Seh. Dist. RE-1J v .A.RL by & thrarggh Loveland, 325 P.3d 1014,1019 (Colo.
2014) (the Court gives "effect to the statute's plain and ordinary meaning when the language is
unambiguous.').
While such terms are undoubtedly "somewhat uncertain in the abstract, [they] may be
upheld when shown to be sufficiently definite in the context of actual application." Wilkinson v. Bd of
Co. Con1n1`rs ofPitkin Cty., 872 P.2d 1269,1278 (Colo. App. 1993). In Wilkinson, the Court of
Appeals found a zoning ordinance wasn't impermissibly vague because "the contested county
policies [were] sufficiently definite to be upheld in view of evidence presented to support their
application. Id Those policies, which dealt with, among others, compatibility with existing adjacent
neighborhoods, were sufficiently definite when the trial court determined the record contained data
on the potential impact of the proposed development to wildlife, recreation, and neighboring land.
Id
Here, as in Wilkinson, the general terms "in the vicinity" and "substantial adverse impact" are
also sufficiently definite upon review of the Board's Findings and Resolution. 872 P.2d at 1278. The
Board effectively demonstrates that "in the vicinity" involves the property which is or may be
impacted by the proposed use. See Vol. IV at 6-7. For instance, the Board considered the
professional noise study's conclusion that the noise generated from the Proposed Mine "will be less
than 55dba at any surrounding residential property line." Id at 7. The Board also considered that
"[f]urther review of the application indicted the technical standards required for the approval of this
application and demonstrated that it will not result in a substantial adverse impact:" Id Thus,
sufficient evidence exists in the record to further clarify the meaning of "in the vicinity" and
"substantial adverse impact" and to render it constitutionally definite.
16
Accordingly, the Court concludes that the challenged terms aren't unconstitutionally vague
and judgment will enter in the Board's favor on this claim.
2. Spot Zoning.
Thompson argues that the Board's decision amounted to unlawful spot zoning. Thompson's
argument doesn't hold water. Colorado law prohibits unlawful spot zoning which "creates a small
island of property with restrictions on its use different from those imposed on the surrounding
property." WhiW= v. Denver City Coondl, 405 P.3d 433, 445 (Colo. App. 2017) (citing Link v.
Winbont, 518 N.W.2d 384, 387 (Iowa 1994)). "Property owners have the right to rely on existing
zoning regulations when there has been no material change in the character of the neighborhood
which may require re -zoning in the public interest." Clark v. City of Boulder, 362 P.2d 160,163 (Colo.
1961).
As applied here, Clark does no more than state that the property owners could rely on the
existing zoning regulations to understand what uses were permissible on the property. As noted
above, the existing use is FA — Farming, which has multiple uses by right, but it also permits other
uses by special review. Code g 4.1.1; Compl., ¶ 43; Coulson Ans.,143; Board Ans., T 1. Thus, the
Code makes clear that no rezoning is occurring, the land is still FA — Farming. While the changed
circumstances of land surrounding the site nsigbtwarrant a rezoning, no such proceeding was
undertaken. Indeed, the record is clear that over the course of the application's life, there were
repeated notices that the land was likely to be mined.
Accordingly, given the undisputed material facts, the Court concludes that the USR
provisions in question are not unconstitutionally vague, and that the decision doesn't amount to
unlawful spot zoning, therefore the Board is entitled to judgment as a matter of law on this issue.
17
B. Latimer County's Voluntary Conflict of Interest Rule is Facially
Constitutional.
Thompson next contends that the County's conflict of interest regulation set forth in the
Code is unconstitutionally vague and violated Thompson's due -process rights by permitting
Commissioners to subjectively determine whether they have a conflict of interest.' The Board and
Coulson disagree, arguing principally that the Code section is constitutionally valid.
The legal principles from the preceding subsection apply here, too. As with § 4.5.3, the
conflict -of -interest provision (Code § 2-67(10)) is unconstitutional only if it provides no standard of
conduct at all. See Rocky Mountain Retail Mgwt., LLC P. City of Northglenn, 393 P.3d 533, 539 (Colo.
2017). The Court gives language used in regulations its generally accepted meaning, id, and begins
with the presumption that the Code is constitutional. Dolan P. Fire and Police Pension Assn, 413 P.3d
279, 286 (Colo. App. 2017). Thus, for Thompson to succeed on its facial challenge that the
provision is void for vagueness, they must show, beyond a reasonable doubt, that there is no
application in which it's constitutional —something they can't do. See Kruse,192 P.3d at 598.
Because the constitutional vagueness challenge also depends on the interpretation and
meaning of § 2-67(10), the Court will apply canons of statutory interpretation. When statutory
interpretation is at issue, the Court's "primary objective is to ascertain and effectuate the intent of
the General Assembly." Specialty Rests Corp. a Nelson, 231 P.3d 393, 397 (Colo. 2010). To do so, the
Court's initial task is "to determine whether the statutory language has a plain and unambiguous
meaning." Fisebbaeb a HolZberlein, 215 P.3d 407, 409 (Colo. App. 2009). The Court gives "effect to
the statute's plain and ordinary meaning when the language is unambiguous." St. Vrain Valley, 325
' As with the previous claim, Thompson objects to the Board's motion for summary judgment
arguing that the motion impermissibly seeks to reopen argument regarding Thompson's Colo. R.
Civ. P. 57 facial challenge to Latimer County's conflict of interest rules. The Court overrules that
objection for the same reasons cited above.
M
P.3d at 1019. So, "if the statutory language is clear," the Court applies it as written. Denver Port Corp.
P. Ritter, 255 P.3d 1083,1089 (Colo. 2011).
The Court determines a provision's plain meaning by considering "the language itself, the
specific context in which that language is used, and the broader context of the statute as a whole."
Sheep Mountain.All. a Bd o, f Cty. CmiWkr, Montrose Cty., 271 P.3d 597, 601 (Colo. App. 2011). The
Court may look to the dictionary for assistance in understanding the plain meaning of the terms
used. People a TVoth, 312 P.3d 144,149 (Colo. 2013). Moreover, the Court gives effect to legislative
intent by construing all parts of a statute as consistent, harmonious, and sensible. St. Vrain Valley,
325 P.3d at 1019.
The Code prohibits a commissioner's participation —thus requiring recusal—in any quasi-
judicial determination in which he determines that he cannot be fair and impartial or in which he has
a conflict of interest
A member of the board of county commissioners who, in their sole opinion, believe
they have a conflict of interest or for any other reason believes that they cannot
make a fair and impartial decision in a legislative or quasi-judicial decision, will recuse
themselves from the discussion and decision. Any recusal will be made prior to any
board discussion of the issue and the board member will leave the room for the
remainder of the discussion of the issue.
Code § 2-67(10).
The Court is troubled that the Code has failed to define the key terms "conflict of interest,"
"£air," or "impartial" and, as if that weren't enough, it has failed to provide any further guidance to a
commissioner on how to interpret those seemingly crucial terms.' Such a deficiency appears to leave
' Contrast the Code's minimally sufficient approach with the Colorado Code of Judicial Conduct's
provisions on recusal or disqualification. While the Court understands that Code of Judicial Conduct
doesn't apply to commissioners, a comparison is useful for present purposes. For instance, the Code
of Judicial Conduct is exceedingly thorough in prescribing the instances in which a judge must
disqualify himself from a case. See C J.C.R. 2.11(A) ("A judge shall disqualify himself or herself in
any proceeding in which the judge's impartiality* might reasonably be questioned, including but not
limited to the following circumstances...'). That provision lists at least five areas in which
19
a commissioner to his or her own devices when considering recusal. Indeed, the Code doesn't even
direct the commissioner to seek legal advice on the issue. But the Supreme Court directs that this
Court supply the common meaning of those terms to determine whether the provisions are
unconstitutionally vague. Voth, 312 P.3d at 149.
The terms' plain and ordinary meanings demonstrate the provisions are not
unconstitutionally vague. A "conflict of interest" is a "real or seeming incompatibility between one's
private interests and one's public or fiduciary duties." Conflict of Interest, BLACK'S LAW DICTIONARY
(11 th ed. 2019), "Fair" means "[c]haracterized by honesty, impartiality, and candor; just; equitable;
disinterested" or "[gree of bias or prejudice". Fair, BLACK'S LAW DIMIONARY (11th ed. 2019).
"Impartial" means "[n]ot favoring one side more than another; unbiased and disinterested;
unswayed by personal interest." Itoartial, BLACK'S LAW DICTIONARY (11th ed. 2019). Thus, a
commissioner has a "conflict of interest" when. she has a real or seeming incompatibility of personal
interests and public duty. The commissioner cannot remain "fair and impartial" when he or she
cannot act honestly, impartially, justly or in an equitable and disinterested manner and cannot avoid
favoring one side more than another or being swayed by personal interest.
Another nearby provision of the Code related to the same subject provides insightful
language and direction to a commissioner who maybe considering recusal. Subsection 2-71(1)
provides that commissioners must represent with "unconflicted loyalty" the interests of all the
citizens of the county and that such loyalty supersedes any conflicting loyalty to anyone else,
including the commissioner's own personal interest:
Members of the board of county commissioners must represent unconflicted loyalty
to the interests of the citizens of the entire county. This accountability supersedes
any conflicting loyalty such as that to any advocacy or interest groups, .or
disqualification must occur; defines each of the terms with an asterisk, and then provides additional
comments on each specific ground for disqualification. By contrast, the Code offers no such
guidance to a commissioner who's considering recusal.
20
membership on other boards or staffs. This accountability also supersedes the
personal interest of any board member acting as an individual consumer of the
county government's services. Members of the board of county commissioners must
avoid any fiduciary conflict of interest, ex-parte communication or nepotism
conflicts.
Vol. V, p. 28 (citing Code § 2-71(1), (2)).
Both provisions are related to the same subject matter and the Court construes them in pari
materia. While § 2-67(10) deals with a commissioner's recusal due to a conflict of interest or her
inability to be fair and impartial, § 2-71(1) prescribes a general mantra with which a commissioner
must approach all of her official dudes: with "unconflicted loyalty" to her constituents. Statutes
"pertaining to the same subject matter are to be construed in pari niamia to ascertain legislative intent
and to avoid inconsistencies and absurdities." 11/algreen Co. a Cliames, 819 P.2d 1039,1043 (Colo.
1991) (citing Darnall P. City ofEngkwood, 740 P.2d 536, 537 (Colo. App.1987)). "The legislature is
also presumed to intend that the various parts of a comprehensive scheme are consistent with and
apply to each other, without being required to incorporate each by express reference in the other."
BPAmerieaPrad Co. P. Patterson,185 P.3d $11, 813 (Colo. 2008).
Read together, % 2-67(10) and 2-71(1) provide definite —albeit minimal —guidance to a
commissioner who's considering recusal and render the conflict of interest provision not
unconstitutionally vague.. Notwithstanding Thompson's contentions that the conflicts ordinance is
vague, § 2-67(10) lends itself to constitutional constructions, which the Court must adopt. See Knue,
192 P.3d at 597 (citing People ex rel City fArvada v. Nissen, 650 P.2d 547, 550 (Colo. 1982)).
When the provisions are construed in pari mateHa, several constitutional applications present
themselves. Let's say, for example, that a commissioner's spouse filed an application for USR for
certain land under county jurisdiction. Every reasonable commissioner who considered §§ 2-67(10)
and 2-71(10) would easily conclude that, he'd have a conflict of interestgivenhis close relationship
to the applicant. Undoubtedly, in this hypothetical, the commissioner couldn't reasonably "make a
21
fair and impartial decision in a ... quasi-judicial capacity," Code § 2-67(1.0), because doing so would
improperly place his personal iwerest in the matter above his "unconflicted loyalty" to the county's
citizens. Id § 2-71(10).
Let's take another example closer to the present circumstances. Assume that another
applicant —unrelated to our conflicted commissioner —with a different application pending before
the county, donated 100% of the total campaign contributions for the commissioner's re-election
campaign. Let's also assume that the commissioner won the election. Again, every reasonable
commissioner who considered both. provisions of the Code would conclude that she couldn't make
a fair and impartial decision on the application and would recuse herself Because the commissioner
would seemingly owe, in large part, her victory to the applicant's campaign contributions, the
commissioner would violate her duty of "unconflicted loyalty" 'to the county's citizens by
participating in, .or voting on, the application from her generous campaign donor.
In both hypothetical scenarios, the commissioner determined based on his or her "sole
opinion" that she has a conflict of interest and thus recuses herself from participating in the
proceeding. That commissioner, in the Coures view, acted reasonably. While generally that's a poor
approach to follow because the Code provides virtually no guidance, it nonetheless passes, by a hair,
constitutional muster because .of the key terms' plain meaning: Of course, that leaves all the
unreasonable hypothetical commissioners out there, who may not recuse themselves when
presented with such stark scenarios. But solely because § 2-67(10) "might be insufficient in some
particular circumstances," Salerno, 481 U.S. at 751, it doesn't follow that the provision is facially
unconstitutional.'
e The Court urges the Board to adopt a more precise recusal provision that includes both specific
definitions for each of the key terms in § 2-67(10) and an objective —rather than a subjective —
standard that relies solely on the "sole opinion" of the commissioner who faces a potential conflict
of interest
W
Moreover, that the decision rests in the commissioner's "sole opinion" doesn't render the
provision unconstitutionally vague. That's not unlike a disqualification decision for a judge, who
must herself decide whether recusal is necessary. Indeed, if the Commissioner doer have a conflict,
the Commissioner must recuse him or herself. The Code language itself provides that the
Commissioner "will recuse themselves from the discussion and decision." Code § 2-67(10) (emphasis
added). The Court construes ,will,, as "must" in this context. And, at a minimum, "will" is the
equivalent of "shall" here, meaning that the commissioner is required or is obligated to recuse himself.
Plains Metro. Dist. a Ken -Caryl ,ranch Metro Dist., 250 P.3d 697,699 (Colo. App. 2010).
Further, it's wrong, as Thompson contends, that no recourse exists to a commissioner's
refusal to recuse even in the most blatant of circumstances. Indeed, the Constitution itself provides
the necessary "floor" by which to determine whether a commissioner violated a party's due -process
rights in making a quasi-judicial :decision. See City ofManassa P. Iiu , 235 P.3d 1051,1057 (Colo.
2010). When a commissioner acts as a+quasi-judicial decision_maker, as is 'the case here, "the
fundamental protections of neutrality and fairness [ ] apply." Id It is also conceivable that Colo. R.
Civ. P.106(a)(4) might provide a similar backstop in instances where a record sufficiently addresses
a conflict of interest issue.
In sum, the language of Code § 2-67(10) and case law are specific enough to provide a
person of common intelligence with notice of when that particular code provision may be violated.
See People a Shell,148 P.3d 162,173 (Colo. 2006) (citing People P. Hickman, 988 P.2d 628, 644 (Colo.
1999)). Accordingly, the conflict of interest provision is not facially void for vagueness and judgment
will enter in the Board's favor on this claim.
C. Latimer County's Voluntary Conflict of Interest Rule As Applied to the
circumstances of this case violated Thompson7s Due Process Right.
While § 2-67(10) is facially constitutional, Thompson also challenges on due -process
grounds Commissioner Donnelly's failure to recuse himself from participating in Coulson's
23
application. Because the undisputed material evidence .establishes beyond a reasonable doubt that
Commissioner Donnelly's failure to recuse posed a risk of actual bias or prejudgment on Coulson's
application, Thompson has shown a due -process violation and is entitled to judgment as a matter of
law. Accordingly, judgment shall enter in'Thompson's favor on this claim. The Board's decision is,
therefore, vacated and the matter is remanded to the Board to hold another hearing on Coulson's
application with Commissioner Donnelly recused.
The Coures analysis of Thompson's as -applied challenge begins with two threshold issues
raised by Coulson :and the Board. They jointly argue that the campaign contributions didn't violate
Thompson's due process rights because (1) Thompson waived its objection on the issue of bias
related to the campaign contribution, removing the Court's authority to review the claim; and (2)
that the campaign contributions are not a direct, personal, substantial, or pecuniary interest in the
pending matter. The Court rejects these contentions, each of which is addressed in turn.
1. Thompson did not waive its objection on the issue of bias related to the
campaign contribution.
The Board treads old ground, arguing that Thompson waived its objection on the issue of
bias related to campaign contributions, thus depriving the Court of jurisdiction to review the claim.
Thompson responds that the Court has already ruled on this issue, concluding that Thompson
properly preserved the issue. The Court sees no reason to amend its prior ruling.
The Court construes the Board's argument as seeking reconsideration of a prior Order.
While the request is untimely, the Court will nevertheless consider it Motions for reconsideration
are "disfavored." Colo. R. Civ. P.121, § 1-15(11). "A party moving to reconsider must show more
than a disagreement with the coures decision. Such a motion must allege a manifest error of fact or
law that clearly mandates a different result or other circumstance resulting in manifest injustice." Id
The Board failed to make the required showing under Rule 121 § 1-15(11). Reconsideration
isn't appropriate because there's no error of law that mandates a different result nor will manifest
24
injustice result As the Court discussed in its prior Order Denying Defendants'.Motion For
Summary Judgment, Thompson timely raised the issue of Commissioner Donnelly's potential
conflict of interest three months before the Board's hearing and final decision on Coulson's
application: `
It's undisputed that Thompson Area .raised the conflicts issue well in advance
of the Board's hearing and requested that any decisionmaker with a conflict recuse
himself. And Thompson Area did so again, two days before the formal decision, by
pointing to Commissioner Donnelly's potential conflict.
Order at 13--15; see also Vol. I at 298-99; 326.
That ruling is supported by the record evidence and is correct. Accordingly, the Board's
request is denied.
2. Thompson's Complaint Includes an As -Applied Due. Process Challenge to
Code § 2-67(10).
Coulson levies another attack against Thompson's as applied due -process :challenge to § 2-
67(10), stating that the challenge must fail as a matter of law because the Code "mirrors due
process" and the recusal requirement is not voluntary. Coulson contends that the claim at issue here
is not an as -applied constitutional challenge. because it is a "factual determination [which] rerulted in a
constitutional violation, which is not an as -Applied challenge to the statute itself." Coulson Mtn. at
10. As the argument goes, merely asserting that someone misapplied the statute is not an as -applied
challenge to the statute itself Coulson's arguments are without merit.
Generally, to succeed in a facial challenge, the plaintiff must show that there are no
circumstances under which the statute can be applied in a constitutional manner. People P. Trujillo,
369 P.3d 693, 696 (Colo. App. 2015). By contrast, as -applied challenges allege "the statute is
unconstitutional as to the specific circumstances under which a defendant acted" Id (citing Penple P. Gardner,
250 Pad 1262,1268 (Colo. App. 2010)).
Here, while the Court concluded that § 2-67(10) wasn't facially unconstitutional, that
conclusion doesn't preclude the Court -from determining the statute might be unconstitutional as
applied to a particular set of facts. See Tmjillo, 369 P.3d at 697. Nevertheless, Coulson contends that
because the recusal rule —Code S 2-67(10)—is consistent with due process, it can't be
unconstitutional as -applied. That argument is plainly illogical.
For one, solely because a statute is facially valid, meaning that it's constitutional in at least
one application, it doesn't follow that the same statute will be valid as applied against a different
factual scenario. While a statutory provision "might be insufficient in some particular
circumstances," Salerno, 481 U.S. at 751, a court shouldn't strike down the provision in toto when at
least some constitutional applications exist —that is, don't throw out the baby with the bath water.
Besides, if Coulson were correct, it would render all as -applied challenges meaningless, at the
expense of the general policy that favors hearing as -applied challenges over facial ones. See e.g., Indep.
Inst. v. Cofnran, 209 P.3d 1130, 1136 (Colo. App. 2008) (citing Wash. State Grange a Wash. State
Republican Party, 552 U.S. 442, 449-52 (2008)) (a provision may be unconstitutional on its face or as-
applied, but "[f)acial challenges are disfavored because (1) courts may be forced to rely on
speculation, (2) there is a risk of premature statutory interpretation, (3) courts may have to anticipate
questions of constitutional law when unnecessary, (4) courts may have to formulate constitutional
rules broader than those required by the precise facts to which they would be applied; and .(5) they
may prevent the. implementation of laws that embody the will of the people'). indeed, Coulson
admits as much, citing caselaw for the premise that the as -applied constitutional challenge requires
the party to establish that "the statute is uneonstitu oval under the circumstances in which the plaintiff
has acted or proposes to act." Coulson Mtn. at 9 (citing Maxwell, 401 P.3d at 520). Thus, a challenge
may be brought to the constitutionality of a statute as it was applied under the circumstances of this
case:
26
Here, Thompson contends that even if the statute is generally constitutional, it operated
unconstitutionally as to Thompson because of the circumstances in which Commissioner Donnelly
failed to recuse himself This is consistent with an as -applied constitutional challenge. See Trajillo, 369
P.3d at 696. It's plausible to assert an as -applied due -process violation under circumstances when, as
here, a decisionmaker has an objective conflict of interest —notwithstanding that decision -maker's
subjective belief to the contrary —and the rule does nothing to stop that a commissioner from
continuing to participate in the decision. Such an outcome falls below the constitutional floor
required by the Due Process Clause. See City o(Manassa, 235 P.3d at 1057.
Coulson's contentions to the contrary are unpersuasive for two reasons. First, the case
Coulson cites to General OwdoorAdveriising Co. P. Goodman .doesn't directly addressed as -applied
challenges, and instead only deals with a facial attack. 262 P.2d 261, 263 (Colo. 1953). Second,
Coulson's arguments that governments need not enact legislation which is duplicative of protections
afforded by the constitution are correct, but inapposite. As the Court concludes below, the Code as -
applied in this .circumstance fell below the constitutional floor. Thus, the Court rejects Coulson's
argument that Thompson's as -applied due -process challenge fails as a matter of law.
3. Coulson's campaign contributions to Commissioner Donnelly created a
significant risk of bias under the circumstances.
"To prevail on an as -applied constitutional challenge, the challenging party trust establish
that the statute is unconstitutional under the circumstances in which the plaintiff has acted or
proposes to act." People a Maxwell, 401 P.3d 518, 520 (Colo. App. 2017) (citingQwestSerys. Corp. v.
Blood, 252 P.3d 1071,1085 (Colo. 2011). In holding a statute unconstitutional as applied, its future
application in a similar context is prohibited, but it does not render the statute inoperative." Id.
A statute is presumed constitudonal, and the party challenging the statute has the burden of
proving unconstitutionality beyond a reasonable doubt. People P. Baer, 973 P.2d 1225,1230 (Colo.
27
1999). The principle applies regardless of whether the challenge is facial or as -applied to a specific
set of circumstances. Trujillo, 369 P.3d at 696 9
Under Colorado law, a localgovernmenes land -use determinations are considered quasi-
judicial for the purposes of judicial review. Margolis V. Dist. Court, In &ForArapahoe Cry., 638 P.2d
297, 305 (Colo.1981). Those serving in quasi-judicial capacities are presumed to act with integrity,
honesty, and impartiality. Scott v City ofEnglewood, 672 P.2d 225, 227 (Colo. App.1983).
A quasi-judicial proceeding violates due process only if the presumption of honesty and
integrity is overcome by a showing of a conflict of interest on the part of the decision -maker. Id.
What constitutes a conflict of interest reflects different policy considerations based on the context.
City ofMana w, 235 P.3d at 1055. Such conflicts arise where the decision -maker has a personal,
financial, or official stake in the outcome of the matter, Scott, 672 P.2d at 227-28, or when the
decision -maker's interest "poses such a risk of actual bias or prejudgment that the practice must be
forbidden if the guarantee of due process is to be adequately implemented." Caperton, 556 U.S. at
884.
The burden of rebutting this presumption rests on the party challenging the quasi-judicial
decision. Scott, 672 P.2d at 227. A parry challenging a quasi-judicial decision must show substantial
prejudice which invalidates the agency action to rebut the presumption. Whitelaw, 405 P.3d at 438.
Nevertheless, quasi-judicial decision -makers are not held to the same disqualification standards as
judges, City (Mauarsa, 235 P.3d at 1057, and most matters regarding judicial disqualification do not
' Colorado appellate decisions are divided on the burden of proof necessary as -applied constitutional
challenges. Cf. Sanger v. Dennis, 148 P.3d 404, 410-11 (Colo. App. 2006) (as applied challenges must
show only a reasonable probability that the statute is unconstitutional); with People v. Slaughter, 439
P.3d 80, 83 (Colo. App. 2019); Trrgillo, 369 P.3d at 696 (the burden of proof for as -applied
challenges is beyond a reasonable doubt). The Court concludes that the burden of proof is beyond a
reasonable doubt.
28
rise to a constitutional level. Caperton, 556 U.S. at 876 (citing FTC P. Cement Institute, 333 U.S. 683,
702 (1948)).
The Due Process Clause of the Colorado Constitution protects people from a deprivation of
"life, liberty or property, without due process of law." COLO. CONST. art II, § 25. The fundamental
protections of neutrality and fairness provided by the Due Process Clause apply to decision -makers
acting in quasi-judicial capacities. City of Manassa, 235 P.3d at 1057; Scott, 672 P.2d at 227. It's a
longstanding principle that a fundamentally fair trial in a fair tribunal is a basic requirement of due
process. In re Murchison, 349 U.S. 133,136 (1955). That requirement of fairness and neutrality "in
adjudicative proceedings entitles a person to an impartial and disinterested decision -maker." City of
Manassa, 235 P.3d at 1056.
In City of Manassa, the Colorado Supreme Court adopted the test under Caperton. Under that
test, the decision -maker must recuse him or herself when "a direct, personal, substantial, pecuniary
interest" exists in a case before that decision -maker. C*erton, 556 U.S. at 876. Thus, the decision -
maker cannot have an interest in the outcome based on the circumstances and relationships
involved. See In reMarcbuon, 349 U.S.. at 136.
Yet, it's not necessary for the Court to determine whether the decision -maker is in fact
influenced by those circumstances or relationships; instead, due process requires an objective inquiry
into whether under all the circumstances "would offer a possible temptation to the average ... judge
to ... lead him not to hold the balance nice, clear and true." Caperton, 556 U.S, at 879, 885 (citing
Tmmey v. State of Ohio, 273 U.S. 510, 532 (1927)). Thus, the Court "asks not whether the judge is
actually, subjectively biased, but whether the average judge in his position is 'likely' to be neutral, or
whether there is an unconstitutional `potential for bias."' Id at 881.
"The ultimate due process question is whether, under a realistic appraisal of psychological
tendencies and human weakness, the interest poses such a risk of actual bias or prejudgment that the
29
practice must be forbidden if the guarantee of due process is to be adequately implemented." City of
Manassa, 235 P.3d at 1057 (nternal quotations omitted) (citing Caperton, 556 U.S. at 129).
A serious risk of actual bias occurs, based on objective and reasonable perceptions, when a
person with a personal stake in the case has a significant and disproportionate influence in placing
the judge on the case by raising funds when the case is pending or imminent. Caperton, 556 U.S. at
884. Several factors go into this inquiry in the election context. `The inquiry centers on the
contribution's relative size in comparison to the total amount of money contributed to the
campaign, the total amount spent in the election, and the apparent effect such contribution had on
the outcome of the election." Id But the temporal relationship between the campaign contributions,
the justice's election, and the pendency of the case are also critical. Id at 886 C It was reasonably
foreseeable, when the campaign contributions were made, that the pending case would be before the
newly elected justice').
The Court concludes that the undisputed material evidence establishes beyond a reasonable
doubt that Commissioner Donnelly's failure to recuse himself in Coulson's application posed a
serious risk of actual bias or prejudgment and that Thompson has shown a due -process violation,
entitling it to judgment as a matter of law." Several reasons support that conclusion.
First, the undisputed material evidence shows that Coulson's campaign contributions
objectively had a significant and disproportionate influence on Commissioner Donnelly's re-election,
10 The Court declines to wade into the actual -bias waters. See Caperton, 556 U.S. at 882. It's
undisputed that Commissioner Donnelly conducted his own determination of whether he had an
impermissible conflict and, subjectively, he found none. (It's unclear whether, in reaching that
determination, Commissioner Donnelly considered his "uncontested loyalty" to the county citizens.)
Moreover, the parties agree that no evidence presented demonstrates actual bias on the part of
Commissioner Donnelly. Thompson Resp. at 13; Board Mtn at 20-21; Coulson Reply at 6. Instead,
the question before the Court is an objective one: would an average commissioner in Commissioner
Donnelly's position likely have been neutral or did the commissioner's participation in and vote on
Coulson's application presented an rnrconslitutional risk of actual bias? Caperton, 556 U.S. at 881.
30
placing him in a position to vote on the USR application of his largest donors' company. See id at
884. In August and September of 2016, the Coulsons, who own Coulson, contributed a total of
$10,000.00 to Commissioner Donnelly's re-election campaign. Those contributions amounted to
18.6% of Commissioner Donnelly's $53,580.00 total new election contributions in the 2016 election
cycle, and 17.7% of the total amount his committee spent on his bid for re-election. The Coulsons'
contributions, ly thenuelm, allowed Commissioner Donnelly to raise more than half of the total
funds raised by his opponent in the 2016 election." While it's undisputed that Commissioner
Donnelly had other large contributions, including a combined donation of $7,500 and several others
of $5,000 per family, none of those individuals (or entities) had a matter "pending or.imminent"
before the Board. See Caperton, 556 U.S. at 884. Coulson was the only entity that did have such a
matter.
Second, the temporal relationship between the Coulsons' campaign contributions in 2012
and 2016, Commissioner Donnelly's 2016 election, and the status of the application all support a
conclusion of a serious risk of actual bias or prejudgment. Id. at 886 ("It was reasonably foreseeable,
when the campaign contributions were made, that the pending case would be before the newly
elected justice'). It's undisputed that Coulson didn't actively pursue its refiled USR application
between 2010 and 2015.12 Coulson's first communication in almost six years.with the Latimer
t1 Commissioner Donnelly's opponent was Karen Stockiey, who received campaign contributions
totaling $19,027.10.
12 During that time period, Coulson completed a noise study in 2015 and a flood plain analysis in the
fall of 2016. Vol. I at 433. Ken Coulson admitted that because of the "recession in 2008, [Coulson]
decided they had adequate reserves and had other pits that they were mining at the time" and that
"[t]he permitting process started back up in 2015 with new analyses and reports." VoL I at 434
(Peter Wayland noted that a noise study was conducted in 2015, consistent with Ken Coulson's
statement). Considering the evidence in favor of Coulson, People ex ref S.N, 329 P.3d at 282, the only
evidence is that the application was dormant from 2010 and 2015, and that the application was
pursued in earnest following the status update which coincided with their campaign contributions to
Commissioner Donnelly.
31
County Planning Department was in September 2016, when it submitted a status .update to the
county. Vol. I at 39(-92. At about the same tune in August and September of 2016—the
Coulsons jointly contributed $10,000.00 to Commissioner Donnelly's re-election bid. Vol. I at-300,
303. Commissioner Donnelly ultimately won reelection in November 2016. Thus, it was reasonably
foreseeable, at the time the Coulson made their respective contributions, that the renewed
application would come before the Board, and Commissioner Donnelly in particular, should he win
reelection. Indeed, within 18 months from date of the Coulsons' contributions, Commissioner
Donnelly provided the deciding vote to approve the application.13
Third, the Coulson' campaign contributions and their timing in making them, created an
objective and reasonable perception of bias by seeking to ensure that Commissioner Donnelly
remain as a decision maker the USR application. See Caperton, 556 U.S. at 884. Several undisputed
facts show that objective and reasonable perception. For one, Commissioner Donnelly knew
Coulson well, having performed surveying work for the company for nearly six years. And, between
the Coulsons' 2012 election contributions and the 2016 election contributions to Commissioner
Donnelly, there was a 10, fold increase in those contributions ($1,000 in 2012 and $10,000 in 2016).
Temporally, the one material: difference is that at a time that Coulson didn't actively pursue its
application with the county, the Coulsons contributed $1,000 ($500 each) to Commissioner
Donnelly's campaign. But for the 2016 election, when Coulson sought a hearing before the Planning
Commission (a pre -requisite before the application going to the Board), the Coulson together
donated $10,000 to Commissioner Donnelly.
13 The Board contends that this characterization is inaccurate because the order of voting is mere
happenstance. The Court rejects the Board's facetious attempt to hide the obvious. Commissioner
Donnelly's vote was the "deciding" vote not because of the order in which he voted, but because
the USR permit wouldn't have been granted but for Commissioner Donnelly's vote. Code § 2-67(7)
(suggesting that Board decisions require majority vote).
32
Fourth, the Coulson' influence on the election, given all circumstances, would offer a
temptation to the average commissioner not to "hold the balance nice, clear, and true." See Caperton,
556 U.S. at 885. While the Court need not divine whether the Coulsons' contributions were a
necessary and sufficient cause of Commissioner Donnelly's victory, it's undisputed that
Commissioner Donnelly won, receiving 99,191 votes compared with 80,647 votes for his opponent
Karen Stockley.
Commissioner Donnelly was the incumbent entering the 2016 election cycle. But as he
acknowledged, "my [2012] reelection race was very close and I need[ed] to run a strong campaign to
win again." Ans. Rog No. 1. Thus, re-election was not assured, and it was essential for
Commissioner Donnelly to obtain more support. Indeed, Commissioner Donnelly raised well over
twice the amount of Karen Stockley, and he won the 2016 election for County Commissioner by 10
percentage points-55.16% (99,191 votes for Donnelly) to 44.840/o (80,647 votes for Karen
Stockley). Considering Coulson's proportionally large contribution, the timing of that -contribution
in relation to the election, and the relatively close margin of victory the Court finds that the totality
of the circumstances demonstrates a significant and disproportionate effect on re-electing
Commissioner Donnelly.
Fifth, important policy considerations support campaign -contribution limits in local
elections, and those considerations align with the Court's conclusion here. See City efManasm, 235
Pad at 1055 ("conflict of interest" is a term of art "reflecting a host of different policy
determinations, depending on the context in which it operates'). In particular, the Colorado General
Assembly recently passed, and the Governor signed, HB19-1007 which creates campaign -
contribution limits of $1,250 for certain county -wide elections. Previously, no campaign -
contribution limits existed for county elections. HB19-.1007 (revising Colo. Rev. Stat. § 1-45-103.7;
and adding Colo. Rev:. Stat. § 30-10-113). One of the chief concerns the bill sought to address was
33
contributions in county commissioner elections. Representative Emily Sirota, the sponsor of the bill,
stated that it's "probably unwise that we don't have any limits ... in our county races," and that "we
regularly see contributions of $5,000 dollars, and many examples of extremely large contributions, in
particular, in our county commissioner races in the amounts of $10,000, $30,000, even $40,000.st4
House Chambers Discussion of HB 19-1007 (Feb.14, 2019) at 1:26:57. Thus, the purpose of the bill
was to preserve integrity of electoral process, keep candidates accountable, and avoid the appearance
of quid pro quo or impropriety. Id Those are salutary goals.
In sum, given the Coulson's significant and disproportionate influence in Commissioner
Donnelly's re ;election and the temporal relationship between those contributions, the election, and
the pending application, the average commissioner would have been tempted "not to hold the
balance nice, clear and true." Caperton, 556 U.S. at 885.
Coulson presses several points in opposition to Thompson's motion, but none of them has
merit. Initially, it contends that the standard in Caperton was only met there because (1) the $3 million
donations exceeded the judge's total other campaign contributions by 300%; (2) the $3 million
exceeded by $1 million both candidates' campaigns combined; and (3) the donations helped unseat
an incumbent in a close election and place a new judge on the court just before it heard the donor's
appeal" Coulson Mtn. at 18. But that argument misstates the holding in Caperton, which isn't limited
to its facts. Indeed, Caperton didn't set a specific dollar figure or percentage to reach, or require that
the campaign contributions result in the ousting of an incumbent, in order to establish a due -process
violation. Instead, each of the facts that Coulson presents were relevant in establishing that an
1° Moreover, an earlier version of the bill was introduced in 2017, HB17-1260 passed the house, but
was suspended indefinitely in the Senate's State, Veterans, & Military Affairs Committee. At the
Committee hearing, the concern of very large contributions to county commissioners was cited as a
primary concern, which could create "an appearance of quid pro quo corruption."
34
objective conflict of interest existed and weren't meant to be sine qua non requirements in other cases.
Caperton, 556 U.S. at 886.
Coulson also points the Court to several cases that distinguish the circumstances in Caperton
and attempt to establish a baseline in Colorado. The Court finds these cases distinguishable from the
circumstances here for several reasons. For one, in City ofManassa the Colorado Supreme Court
found that a decision -maker receiving 25% of his income from the insurer of one of the parties
didn't amount to an exceptional circumstance creating an unconstitutional risk of bias. City of
Manassa, 235 P.3d at 1052-53. But while City ofManassa effectively ties CaperMn to Colorado law, the
specific circumstances in that case are distinguishable.
In City ofManassa, a non -elected licensed physician bound by separate regulatory and
professional requirements, was hired by Pinnacol to render independent medical examination
opinions in workers' compensation cases. Id at 1053. The Supreme Court concluded that the
physician didn't have an objective conflict of interest in large part because highly restrictive
safeguards existed with which the physician had to comply. See id at 1053-54. Those safeguards
included a rule of procedure in workers' compensation cases that "prohibits a physician from
evaluating a claimant if there is even the appearance of a conflict of interest" Id at 1054. And that
rule contained multiple guidelines to determine whether a conflict or the appearance of a conflict of
interest existed. Id at 1054 n.3. Those guidelines are analogous to the Code of Judicial Conduct's
disqualification provisions. Compare C J.C.R 2.11(A) and comments, ndtb Div. of Workers'
Compensation R of P. 11-2(H).
By contrast, here no such safeguards exist to protect against an objective conflict of interest
by a commissioner. As the Court noted above, Code § 2-67(10) has constitutionailybare tr inimum
requirements and offers little, if any, guidance to determine whether a commissioner has a conflict
of interest.
35
The Court also rejects Coulson's contention that its application wasn't "pending or
imminent" because it didn't resolve the referral agency and planning department issues until
November 2017 and it wasn't before the Board at the time of the Coulson' campaign contributions.
Caperton itself rejects Coulson's overly narrow construction. All that's required is a .reasonable
foreseeability that the case will end up before the decision maker. In Caperton, the state supreme court
didn't hear the case until November 2007, abnost threeyears after Blankenship made his contributions
that resulted in the unconstitutional risk of bias. See Caperton, 556 U.S. at 872 (Blankenship made his
contributions in the 2004 judicial elections, after the initial jury verdict but before filing the appeal).
Thus, merely because the case is not set for a hearing before the Board, it doesn't mean the case was
not pending or imminent. Moreover, even when necessary pre -requisites haven't been met —such as
the filing of an appeal —the case may still be pending or imminent when it is reasonably foreseeable
that it will be heard by the decision -maker. Id. at 886.
Here, Coulson's application was pending or imminent because it was reasonably foreseeable
that the Board, and Commissioner Donnelly in particular, would eventually hear it at the time the
Coulson made their 2016 election contribution. Based on Coulson's own status update in
September 2016, it requested that a hearing be scheduled with the Planning Commission because
most of the preliminary work or studies to get the matter before that commission had been
completed. Vol I. at 390-92; Vol. I at 433. The parties agree that once the USR applicant resolves
referral agency and Planning Department comments, the case proceeds to a hearing before the
Planning Commission which, regardless of whether it recommends approval or denial of the
application, forwards the application to the Board. Thus, at the time of the Coulson' campaign
contributions, Coulson actively pursued its application, which was in the middle of a process whose
natural and reasonably foreseeable conclusion would be a vote by a commissioner whose re-election
the Coulsons helped secure. Caperton, 556 U.S. at 886 ("Although there is no allegation of a quid pro
36
quo agreement, the fact remains that [the donors] extraordinary contributions were made at a time
when he had a vested stake in the outcome [of the election].').
Indeed, as noted above, between the 2012 to the 2016 election cycle, the Coulson'
contributions dramatically increased. In the 2012 election, it was 3.15% of Commissioner Donnelly's
total new contributions, while in the 2016 election it was 18.66%. That represents an almost 500%
increase in the percentage the Coulsons gave in proportion to Commissioner Donnelly's total
campaign contributions. It's undisputed that Commissioner Donnelly knew of the contributions by
the time he voted in favor of the application at the February 26, 2018, hearing. Board Rog. at 5 ("On
February 26, 2018,1 ... voted to approve Coulson's USR application. T did not believe that I had a
conflict of interest ... simply beau a Coulsons had supported my cav*aign." (emphasis added)). Thus, given
the timing of the contributions in the lifetime of the application, it was reasonably foreseeable that
Commissioner Donnelly would vote on Coulson's application.
Coulson also contends that its First Amendment rights would be infringed if Commissioner
Donnelly were disqualified merely because he received campaign contributions. That argument
misses the mark, the applicable legal standard, and the Coures holding above. The Supreme Court
has stated that, "[s]pending large sums of money in connection with elections, but not in connection with
an effort to control the exenise of an eceboA*r's official duties, does not give rise to quid pro quo corruption.
Nor does the possibility that an individual who spends large sums may gamer `influence over or
access to' elected officials or political parties." McCutcheon a Fed Election Coww'n, 572 U.S. 185, 208
(2014) (emphasis added) (citing Citizens United v. Federal Election Conrm'n, 558 U.S. 310, 359 (2010)).
While it's generally impermissible to restrict campaign contributions, the government has a
legitimate interest in restricting such contributions when they're made "in connection with an effort
to control the exercise of an officeholder's official duties." Id.
37
But, "ay, there's the rub," to quote the Dane. William Shakespeare, Hamlet act 3, sc.1.
Because the Court determined that the Coulson' contributions had a significant and
disproportionate impact on placing Commissioner Donnelly in a position where he'd vote on
Coulson's application, it thus created a significant risk of bias in violation of Thompson's due -
process rights. Caperton, 556 U.S. at 884. That is, in the parlance of McCiatheon, the Coulsons spent
"large sums of money in connection with an effort to control the exercise of an officeholder's
official duties." 572 U.S. at 208. And the First Amendment doesn't protect such conduct.
Coulson also points to California and Hawaii Supreme Court decisions for the principle that
the mere receipt of funds for a political campaign doesn't create a conflict of interest, and that to
hold otherwise infringes upon the First Amendment. See Woodland Hi11r Residents Assn., Inc. a City
Council, 609 P.2d 1029,1032-33 (Cal.1980); see also Life of the Land, Inc. u. City Council of City & Cty. of
Honolulu, 606 P.2d 866, 902 (Haw.1980). The Court finds those decisions generally inapposite, but
notes that much like McCiacheon, the California Supreme Court acknowledged campaign
contributions can serve as grounds for disqualification when the evidence shows bribery or a conflict
of interest. Woodland Hills Residents Assn., Inc., 609 P.2d at 1032 C Absent a showing of bribery or cotflct of
interest, the law does not render it improper for members of (the council) to vote on projects of
developers who have given campaign contributions to committees controlled by those members"
(emphasis added)). As our Supreme Court noted, the term "conflict of interest" is a term of art
"reflecting a host of different policy determinations, depending on the context in which it operates"
City ofManassa, 235 P.3d at 1055. Thus, the Court perceives no First Amendment concerns in its
ruling.
Accordingly, the Court concludes that Thompson's due -process rights were violated when
Code § 2-67(10) as -applied under the circumstances failed to protect Thompson from
Commissioner Donnelly's objective serious risk of bias.
U3
The Court's decision in no way prevents Coulson or the Coulson from making campaign
contributions to their preferred political candidate. They may .continue to do so, consistent with the
applicable campaign -contribution limits. But when their chosen candidate —who is generally a
legislator (making laws) —acts as a quasi -judge (making adjudicative decisions), the Due Process
Clause requires that candidate to be "an impartial and disinterested decision -maker," free of bias and
a conflict of interest. City ofManaua, 235 P.3d at 1056. Indeed, no party may "chooses the judge in
his own cause." Caperton, 556 U.S. at 886.
IV. Conclusion.
For the reasons set forth above, the Board's motion for summary judgment is granted as to
Thompson's facial attacks on §§ 2-67(10) and 4.5.3 of the Code. Judgment shall enter in the Board's
favor and against Thompson on these claims.
The Board and Coulson's motion for summary judgment, however, is denied as to
Thompson's Rule 57 as -applied due -process challenge. Thompson's motion:seeking judgment as to
that claim is granted and judgment shall enter in Thompson's favor. The. Court concludes that
because Commissioner Donnelly participated in both the hearing and discussions related to
Coulson's application, that participation violated Thompson's due -process rights to an impartial
decision -making body.
Accordingly, the Board's decision approving Coulson's application is vacated and this matter
is remanded to the Board to hold the hearing on Coulson's application again. Commissioner
Donnelly will be recused from participating in any part of that hearing or decision -making process
under Code § 2-67(10).15
15 The Court's decision to remand is a final judgment. Scott, 672 P.2d at 226 (citing Cline v. City of
Boulder, 532 P.2d 770 (Colo. App.1975)).
39
SO ORDERED on August 12,2019.
Em
BY THE COURT:
jtv& SENOR
Distdct Court Judge
ETATUrNe'll-ff
March 6, 2020
Ei Yes Ei No City Charter Article IV, Section 9(b)(3) — prohibits participation
when official has a FINANCIAL INTEREST
ci Yes o No City Charter Article IV, Section 9(b)(3) — prohibits participation
when official has a PERSONAL INTEREST
Ei Yes E:i No Section 24-18-103, C.R.S. generally states ethical standard of
conduct concerning activities that could allow covered individuals
to improperly benefit financially from their public office (no specific
standard or rule stated), and permits enforcement by the district
attorney.
Ei Yes o No 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.
Ei Yes Ei No Section 24-18-105(2), C.R.S. prohibits acquiring or holding an
interest in any business or, undertaking which official 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
official has substaintial authority.
Ei Yes Ei No Section 24-18-105(4), C.R.S. prohibits an official act directly and
substaintially affecting a business or other undertaking to its
economic detriment when official has a substantial financial
interest in a competing firm or undertaking.
Ei Yes Ei No Section 24-18-109(2)(b), C.R.S. - prohibits, an official act directly
and substantially affecting to its economic benefit a business or
other undertaking in which official either has a substantial
financial interest or is engaged as counsel, consultant,
representative or agent
Ei Yes c No Section 24-18-1019(3), C.R.S. — requires official with a personal or
private interest in any matter prop,olsed or pending before the
governing body to disclose Such interest and refrain from
participating in the decision unless necessary to obtain a quorum.
EXHIBIT
ETHICS REVIEW BOARD -- REVIEW CHECKLIST FOR WADE TROXELL
March 6, 2020
** If any of the "YES" boxes are checked, the Ethics Review Board must then consider the facts
alleged related to that item and whether those facts are reliable and sufficient to warrant
further investigation.
Agenda Item 3b
MM
Carrie Daggett, City Attorney
W"14*1
Consideration in accordance with City Code Section 2-569(d)(1) of whether a complaint filed on
January 21, 20�20, by Rory Heath, alleging that Mayor Pro Terry Kristin Stephens has, a financial and
personal interest in the Hughes Stadium annexation property rezoning decision, warrants
investigation,
EXECUTIVE SUMMARY
The purpose of this item, is to complete the initial screening by the Ethics Review Board of a complaint
filed with the Board under City Code Section 2-569(d), as described below. The Complaint and other
materials referenced are provided as attachments to the Agenda Item Summary for Item 3 (overall),
and that information is incorporated into this subpart by reference.
STAFF RECOMMENDATION
Staff recommends that the Board consider the Complaint and determine whether to proceed with an
investigation of the Complaint.
BACKGROUND / DISCUSSION
Under City Code Section 2-569(d), any person who believes a Councftember or board or commission
member has violated any provision of state law or the City Charter or City Code pertaining to ethical
conduct may file a complaint with the City Clerk. After notice to the complaining party and the subject
of the complaint, the Ethics Review Board then considers the complaint and whether it should be
further investigated.
The Complaint:
The Board wiill consider a complaint lodged with the Board through the City Attorney on January 21,
2020, by Rory Heath, (the "Complainant"), a Fort Collins resident, against Mayor Pro Tern Kristin
Stephens (as well as against Mayor Wade Troxell and Councilmember Ken Summers). The
Complaint alleges Mayor Pro Tern Stephens has a conflict of interest in the form of a financial
interest and a personal interest in the Hughes Stadium, annexation property rezoning decision in light
of her employment at Colorado State University (CSU), which owns, the property. Mr. Heath further
alleges that Mayor Pro Tern Stephens is a representative and employee of: CSU and that as a result
her participation in the Hughes Rezoning "results in a very clear violation of nearly each applicable
[law]."
The following is an excerpt from the Complaint summarizing Mr. Heath's concern (from page 11 of
the Complaint):
Agenda ftern 3b
Fort Collins Mayor Wade Troxell and Fort Collins City Councilmember Kristin Stephens
are both employees of Colorado State University, the very same entity seeking favorable
re -zoning so that the sale of a large 165-acre parcel of land may be successfully sold to
Lennar Homes, a developer.
Ill. The actions of all three individuals, as it pertains to all related activities relating to the
consideration of Fort Collins Ordinance No. 138, 2019 (including all related Ethics
Complaints hearings), are in direct violation of State and Municipal Ethical and Conflict of
Interest Laws, All three individuals have also failed in performing their fiduciary duty to the
people of Colorado, a duty ingrained within their public service, and in the case of Troxell
and Stephens, their employment by Colorado State University.
I V. A consistent effort to minimize the representation of the public's wishes regarding the end
use of the parcel of land in consideration has been continually undertaken by city staff
and City Elected Officials.
The Complaint goes on to request that the Ethics Review Board do the following:
0 investigate all ethics violations made by Wade Troxell, Kristin Stephens, and Ken Summers;
• carry this out using all tools and options at its disposal and "do so by taking to heart the
public's explicit, expressed, and continual wishes regarding one of the most important pieces
of land to Fort Collins' Identity;" and
• remove Wade Troxell, Kristin Stephens and Ken Summers from all interactions with the
decision -making process, and take "severe remediation actions" to address "the harm to the
process already caused."
(The Complaint provides argument and additional description of the concerns of the Complainant not
repeated in this Summary.)
City Ethics Provisions:
Generally, the ethics provisions established by the City include City Charter Article IV, Section 9, and
City Code Section 2-568.
State Ethics Provisions:
In addition, various state laws are commonly considered ethics laws. These include:
• Sections 24-18-101 through -105, Colorado Revised Statutes (C.R.S.);
• Section 24-18-109, C.R.S.;
• Sections 24-18-201 through -206, C.R.S.;
• Sections 18-8-302 through -308, C.R.S.; and
• Sections 18-8-402 through -409, C.R.S.
Agenda Item 3b
(The language of Article XXIX of the Colorado constitution — also referred to as "Amendment 41,"
provides that home rule municipalities that have adopted local ethics provisions addressing the
topics in that provision are exempt from its application.)
The Board Determination:
The Board is required under the Code to evaluate the Complaint and determine by majority vote
whether to formally investigate the Complaint. In doing so, the Board should consider:
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 the Board may consider relevant.
If the Board determines that the Complaint does not warrant investigation, the Board then directs
staff to send written notice to the complainant of that determination and the reasoning behind it. A
copy of that notice is also sent to the subject of the Complaint and the City Council.
Factual Allegations in the Complaint:
The interests of CSU in the Hughes Rezoning is likely undisputed, so the detailed assertions in that
regard in the Complaint are not recited here.
The Complaint asserts the following basic facts regarding Mayor Pro Tern Stephens's relationship to
CSU, as more fully explained in the Complaint itself:
1. She is employed by CSU as the Graduate Coordinator of the Department of Statistics and
Program II Assistant in the Department of Statistics.
2. She has taken an Oath to CSU as a condition of her employment. [The oath requires
academic faculty members and administrative professionals to swear to uphold the
Constitution of the United States and the Constitution of the State of Colorado, and to
faithfully perform the duties of their position at CSU.]
3. She has collected a paycheck from CSU as consideration for past and future services.
4. "Though currently listed as a Graduate Coordinator and a Program Assistant," she "could
conceivably be promoted to a position with better career opportunities, research authorizing
possibilities or a myriad of other benefits."
The Complaint contains a number of assertions and statements related generally to the input the
City Council has received from members of the public regarding the Hughes Rezoning asserting that
voting contrary to members of the public's opposition to the Hughes Rezoning suggests a vote
intended to benefit CSU.
It further asserts a number of psychological studies and makes assertions related to inherent bias
from employment ties.
**Screening Review Steps**
1. Whether the Complaint Alleges a Violation of City or State Ethics Provisions:
K
Agenda Item 3b
1. City Ethics Provisions: The City Charter and City Code prohibit members of the City
Council from participating in a decision, if the Councilmember has a financial interest
or a personal interest in the decision.
1. A financial interest is an interest in the Hughes Rezoning that is equated with money
or its equivalent.
i. If the councilmember is an emploVee of an affected business, but the Council
decision entails NO FORESEEABLE, MEASUREABLE FINANCIAL BENEFIT
to the Councilmember, the employee relationship does not create a financial
interest.
2. A personal interest is any interest (other than a financial interest) by reason of which
an officer or employee would, in the judgment of a reasonably prudent person, realize
or experience:
i. some direct and substantial benefit or detriment,
[direct = resulting immediately and proximately from the circumstances
and not from an intervening cause.]
[substantial = more than nominal in value, degree, amount or extent.]
[benefit = an advantage or gain.]
[detriment = disadvantage, injury, damage or loss.]
ii. different in kind from that experienced by the general public.
[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.]
3. The Ethics Review Board must evaluate whether the facts as asserted in the
Complaint (assuming they are true) support the allegation that Mayor Pro Tern
Stephens has either a financial interest or a personal interest.in the Hughes
Rezoning.
2. State Ethics Provisions:
1. For the purpose of the statutory ethics provisions:
i. Councilmembers are "local government officials" (as defined in Section 24-
18- 102 (6), C. R. S.).
ii. Financial interest means a substantial interest held by an individual which is
(in relevant part):
1. An employment or prospective employment for which negotiations
have begun; or
2. A directorship or officership in a business.
(Section 24-18-102(4), C.R.S.).
Agenda Item 3b
iii. Business means any corporation, limited liability company, partnership, sole
proprietorship, trust or foundation, or other individual or organization carrying
on a business, whether or not operated for profit. (Section 24-18-102(1),
C.R.S.).
iv, Terms not defined in the statutes are considered to have, their commonly
understood mearnng, and they are generally interpreted with he aid of
reference to common resources such as a: standard dictionary.
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.
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. (Emphasis added.)
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.)
As noted above, "business" is defined as "any corporation, limited liability company,
partnership, sole proprietorship, trust or foundation, or other individual or organization
carrying on a business, whether or not operated for profit." As commonly understood,
"business" is means a "commercial or industrial enterprise."
An "undertakind' is not defined in the statutes; the term is commonly understood to
mean "something undertaken" like a "business, work or a project."
In at least one formal advisory opinion issued by the Colorado Independent Ethics
Commission (IEC), which is authorized to issue opinions concerning the state's ethics
statutes, the IEC observed that public entities and bodies are not a "business or
other undertaking" under Section 24-18-109(2)(b) (IEC Advisory Opinion 17-04,
which is attached to the Item 3 Agenda Item Summary for reference).
CSU is established under,Article VII1, Section.5 of_the Colorado Constitution as a
"state institution of =higher education" and, ;as_sUbh _is not a" business.or. other
undertaking",under Sectign.24-18 105(2)
is while, employment is defined;as a "financial interest" under Section 24-18-
?(4)(c); employmentm th a public entity like CSU is not. ernploymerit with. a
14
Agenda Item 3b
5. Section 24-18-109, C.R.S., provides that
L a local government official shall not (in relevant part) 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));
As discussed above in relation to the limitation in Section 24-18-105(2), CSU is
established under Article VI II, Section 5 of the Colorado Constitution, as a "state
institution of higher education" and, as such, is not a "business or other
undertaking" under Section 24-18-109(2)(b).
Thus, while employment is defined as a "financial interest" under Section 24-18-
102(4)(c), employment with a public entity like CSU is, not employment with a
"business or other undertaking" to which Section 24-18-109(2)1(b) applies.
ii. 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 governingi body
shall disclose such interest and refrain from participating in the decision unless
necessary to obtain a quorum (§ 24-18-109(3));
1. The statutes don't define the term "personal or private interest" and
there is no directly relevant guidance interpreting this provision.
a. The Colorado lndependent Ethics Commission ("IEC"), which is
authorized to issue opinions concerning the state's ethics
statutes) has applied this provision in considering a complaint
against a local official related to that official's interest in a
regulatory decision of the body she was a member of. The IEC
did not specifically interpret the term "private interest"
while focusing on the direct and substantial benefit to the
official. (IEC Advisory Opinion 16-05, which is attached to
the Item 3, Agenda Item Summary for reference).
b. A common explanation found consistently in the review of
provisions of this sort suggests that a "personal or private
interest" is one that tends to impair a persona's independence of
judgment in the performance of the person's duties, and this is
typically interpreted to relate to a financial interest of the person
or their relative in a private enterprise.
c. A local government official would likely be considered as having
a personal or private interest in any decision that would result in
the official receiving a direct and immediate pecuniary benefit
or result in the official receiving a non -pecuniary benefit or
suffering a non-pecurflary detrirrient that is direct, ininlecliate
and different in kind frorn that shared by the general public.
d. The City's local: provisions related to financial and personal
interests are essentially parallel to this formulation.
0
Agenda Item 3b
2. Applying this standard here, the Board must determine whether the City
Council's Hughes Stadium rezoning decision would likely result in
Mayor Pro Tern Stephens receiving a direct and immediate pecuniary
benefit or result in her receiving a non -pecuniary benefit or suffering a
non-pecunlary detriment that is direct, immediate and different in kind
from that shared by the general public.
Reliability and Sufficiencv of Facts Asserted:
if the Board determines that there may have been a violation, then the Board will need to evaluate
the facts asserted in the Complaint.
The Board may know information that contradicts the facts that were asserted in: the Complaint, or
there may not be enough information in the Complaint for you to form a reasonable suspicion that
the violation alleged in the Complaint occurred.
On this basis, the Board may determine that the facts asserted in the Complaint are not
reliable or sufficient and find the Complaint does not warrant further investigation.
111. Other Relevant Facts or Circumstances:
If there is additional information available or presented to the Board that leads the Board to
conclude that the Complaint does not merit further investigation, the Board may identify that
information and find the Complaint does not warrant further investigation on that basis.
;I IN ''Il IF 1111111 11111 11 1 1 111111 1111111 r1i 1111111 111111 11511 11 11
two
1. Review Checklist — Heath Complaint re Kristin Stephens
0
ETHICS REVIEW BOARD -- REVIEW CHECKLIST FOR KRISTIN STEPHENS
March 6, 20120
mr-MIANIM 4 kvine
Ei Yes Ei No City Charter Article IV, Section 9(b)(3,) — prohibits participation
when official has a FINANCIAL INTEREST
Ei Yes Ei No City Charter Article IV, Section 9(b)(3) — prohibits participation
when official has a PERSONAL INTEREST
i--i Yes Ej No Section 24-18-103, C.R.S. generally states ethical standard of
conduct concerning activities that could allow covered individuals
to improperly benefit financially from their public office (no specific
standard or rule stated), and permits enforcement by the district
attorney.
Ej Yes Ei No 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.
Ei Yes Ej No Section 24-18-105(2), C.R.S. prohibits acquiring or holding an
interest in any business or undertaking which official 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
official has substantial authority.
Ei Yes Ei No Section 24-18-105(4), C.R.S. prohibits an official act directly and
substantially affecting a business or other undertaking to its
economic detriment when official has a substantial financial
interest in a competing firm or undertaking.
Ej Yes o No Section 24-18-109(2)(b), C.R.S. - prohibits an official act directly
and substantially affecting to its economic benefit a business or
other undertaking in which official either has a substantial
financial interest or is engaged as counsel, consultant,
representative or agent
Ej Yes Ei No Section 24-18-109(3), C.R.S. — requires official with a personal or
private interest in any matter proposed or pending before the
governing body to disclose such interest and refrain from
participating in the decision, unless necessary to obtain a quorum.
EXHIBIT
I
ETHICS REVIEW BOARD -- REVIEW CHECKLIST FOR KRISTIN STEPHENS
March 6, 2020
** If any of the "YES" boxes are checked, the Ethics Review Board must then consider the facts
alleged related to that item and whether those facts are reliable and sufficient to warrant
further investigation.
Agenda Item 3c
Carrie Daggett, City Attorney
Consideration in, accordance with City Code Section 2-569�(d)(1) of whether a complaint filed on
January 21, 2020, by Rory Heath, alleging that Councilmember Ken Summers has a financial and
personal interest in the Hughes Stadium annexation property rezoning decision, warrants
investigation.
The purpose of this item is to complete the initial screening by the Ethics Review Board of a complaint
filed with the Board Linder City Code Section 2-569(d), as described below. The Complaint and other
materials referenced are provided as attachments to the Agenda Item Summary for Item 3 (overall),
and that information, is incorporated into this subpart by reference.
STAFF RECOMMENDATION
Staff recommends that the Board consider the Complaint and determine whether to proceed with an
investigation: of the Complaint.
BACKGROUND I DISCUSSION
Under City Code Section 2-569(d),, any person who believes a Councilmember or board or commission
member has violated any provision of state law or the City Charter or City Code pertaining to ethical
conduct may file a complaint with the City Clerk. After notice to the complaining party and the subject
of the complaint, the Ethics Review Board then considers the complaint and whether it should be
further investigated,
The Complaint:
The Board will consider a complaint lodged with the Board through, the City Attorney on January 21,
2020, by Rory Heath (the "Complainant"), a Fort Collins resident, against Councilmember Ken
Summers (as well as against Mayor Wade Troxell and Mayor Pro Tern Kristin Stephens). The
Complaint alleges Councilmember Summers has a conflict of interest in connection with the Hughes
Rezoning and related Ethics Review Board hearings in light of a webpage offering his services as, a
political consultant and lobbyist.
The following is an excerpt from the Complaint summarizing Mr. Heathi's concern (from page 11 of
the Complaint):
Agendaltein 3c
/L Fort Collins City Councilmember Ken Summers is Currently hosting on his website
kensummers.org, a page dedicated to his political consulting businessliobbyist business.
This page promises direct influence of legislative matters that can be interpreted to mean
either the influence of a third party, or of himself, in exchange for compensation of some
sort.
The actions of all three individuals, as it pertains to all related activities relating to the
consideration of Fort Collins Ordinance No. 138, 2019 (including all related Ethics
Complaints hearings), are in direct violation of State and Municipal Ethical and Conflict of
Interest Laws. All three individuals have also failed in performing their fiduciary duty to the
people of Colorado, a duty ingrained within their public service, and in the case of Troxell
and Stephens, their employment by Colorado State University.
IV. A consistent effort to minimize the representation of the public's wishes regarding the end
use of the parcel of land in consideration has been continually undertaken by city staff
and City Elected Officials,
The Complaint goes on to request that the Ethics Review Board do the following:
0 investigate all ethics violations made by Wade Troxell, Kristin Stephens, and Ken Summers;
• carry this out using all tools and options at its disposal and "do so by taking to heart the
public's explicit, expressed, and continual wishes regarding one of the most important pieces
of land to Fort Collins' Identity;" and
• remove Wade Troxell, Kristin Stephens and Ken Summers from all interactions with the
decision -making process, and take "severe remediation actions" to address "the harm to the
process already caused."
(The Complaint provides argument and additional description of the concerns of the Complainant not
repeated in this Summary.)
CitV Ethics Provisions:
Generally, the ethics provisions established by the City include City Charter Article IV, Section, 9, and
City Code Section 2-568.
State Ethics Provisions:
In addition, various state laws are commonly considered ethics laws. These include:
• Sections, 24-18-101 through -105, Colorado Revised Statutes (C.R.S.);
• Section 24-18-109, C.R.S.;
• Sections 24-18-201 through -206, C.R.S.;
• Sections 18-8-302 through -308, C,R.S.; and
• Sections 18-8-402 through -409, C.R.S.
0
Agenda Item 3c
(The language of Article XXIX of the Colorado constitution — also referred to as "Amendment 41,"
provides that home rule municipalities that have adopted local ethics provisions addressing the
topics in that provision are exempt from its application.)
The Board Determination:
The Board is required under the Code to evaluate the Complaint and determine by majority vote
whether to formally investigate the Complaint. In doing so, the Board should consider:
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 the Board may consider relevant.
If the Board determines that the Complaint does not warrant investigation, the Board then directs
staff to send written notice to the complainant of that determination and the reasoning behind it. A
copy of that notice is also sent to the subject of the Complaint and the City Council.
Factual Allegations in the Complaint:
The Complaint asserts the following basic facts regarding the allegations against Councilmember
Summers:
Ex.4):
Ken Summers, through his KGS Consulting, offers the following services via his website (see
• "Opening Doors"
• "Providing Access"
• Empowering Influence"
• "PERSONAL CONTACT WITH LEGISLATORS to inform them of your position on a bill
and why you support or oppose the legislation."
• "COMMUNICATION WITH DEPARTMENTS that interface with your business on the
writing and implementation of rules"
• `TOURS AND RECEPTIONS that provide legislators an opportunity to learn firsthand
about the work that you do"
• "Navigating through the maze of the political arena can be a challenge. That is why an
individual with experience working with you and advocating on your behalf can make a
difference."
The Complaint contains a number of assertions and statements related generally to the input the
City Council has received from members of the public regarding the Hughes Rezoning. The
Complaint asserts that when looked at in the context of a vote contrary to the public opposition to the
Hughes Rezoning outcome that had been expressed, "a vote against the public will, and instead in
line with a possible private commercial interest seems to have possibly occurred." (page 9).
3
Agenda Item 3c
"Screening Review Steps"
I. Whether, the Complaint, Alleges a Violation of City or State Ethics Provisions:
1, City Ethics Provisions: The City Charter and City Code prohibit members of the City
Council from participating in a decision if the Councilmember has a financial interest
or a personal interest in the decision.
1. A financial interest is an interest in the Hughes Rezoning that is equated with money
or its equivalent.
i. If the councilmember is an holder of an ownership interest in or an employee
of an affected business, but the Council decision entails NO FORESEEABLE,
MEASUREABLE FINANCIAL BENEFIT to the Councilmember, the business
relationship does not create a financial interest.
2. A personal interest is any interest (other than a financial interest) by reason of which
an officer or employee would, in the judgment of a reasonably prudent person, realize
or experience:
i. some direct and substantial benefit or detriment,
[direct = resulting immediately and proximately from the circumstances
and not from an intervening cause.]
[substantial = more than nominal in value, degree, amount or extent.]
MM
[detriment = disadvantage, injury, damage or loss.]
ii. different in kind from that experienced by the general public.
[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.]
3. The Ethics Review Board must evaluate whether the facts as asserted in the
Complaint (assuming they are true) support the allegation that Councilmember
Summers has either a financial interest or a personal interestin the Hughes
Rezoning.
2. State Ethics Provisions:
1. For the purpose of the statutory ethics provisions:
i. Cou:ncilmembers are "local government officials" (as defined in Section 24-
18-102(6)).
ii. A financial interest means a substantial interest held by an individual which
is (in relevant part):
1. An ownership interest in a business; or
2. A directorship or officership in a business.
51
Agenda Item 3c
iii. _Terms not defined:in the statutes are considered to have their commonly
understood meaning,, and they are generally interpreted with -the aid of
reference to common resources such as a_standard dictionary:
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.
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,"
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, C.R.S., provides that
i. a local government official shall not (in relevant part) 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));
ii. 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));
1. The statutes don't define the term "personal or private interest' and
there is no directly relevant guidance interpreting this provision.
a. The Colorado Independent Ethics Commission ("IEC"), which is
authorized to issue opinions concerning the state's ethics
statutes) has applied this provision in considering a complaint
against a local official related to that official's interest in a
regulatory decision of the body she was a member of. The IEC
did not specifically interpret the term "private interest"
while focusing on the direct and substantial benefit to the
official. (IEC Advisory Opinion 16-05, which is attached to
the Item 3 Agenda Item Summary for reference).
5
Agenda ltern3c
b. A common explanation found consistently in the review of
provisions of this sort suggests that a "personal or private
interest" is one that tends to impair a person's independence of
judgment in the performance of the person's duties, and this is
typically interpreted to relate to a financial interest of the person
or their relative in a private enterprise.
A local government official would likely be considered as having
a personal or private interest in any decision that would result in
the official receiving a direct and immediate pecuniary benefit
or result in the official receiving a non -pecuniary benefit or
suffering a non -pecuniary detriment that is direct, immediate
and different in kind from that shared by the generai public.
d. The City's local provisions related to financial and personal
interests are essentially parallel to this formulation.
2. Applying this standard here, the Board must determine whether the Clty
Council's Hughes Stadium, rezoning decision would, likely result in
Councilmember Summers receiving a direct and immediate pecuniary
benefit or result in him, receiving a non -pecuniary benefit or suffering a
non -pecuniary detriment that is direct, immediate and different in kind
from that shared by the general public.
Ill. Reliability and Sufficiency of Facts Asserted:
If the Board determines that there may have been a violation, then the Board will need to evaluate
the facts asserted in the Complaint,
The Board may know information that contradicts the facts that were asserted in the Complaint, or
there may not be enough information in the Complaint for you to form a reasonable suspicion that
the violation alleged in the Complaint occurred.
On this basis, the Board may determine that the facts asserted in the Complaint are not
reliable or sufficient and find the Complaint does not warrant further investigation.
Ill. Other Relevant Facts or Circumstances:
If there is additional information available or presented to the Board that leads the Board to
conclude that the Complaint does not merit further investigation, the Board may identify that
information and find the Complaint does not warrant further investigation on that basis.,
I ■ M1111IIII 1'',Illlllllllliiii 1171111 r Ill 11 1111111111111 �, 11111 iiiiiiiiii� ��11 111111111111 !111
FAMIMMRU1,416 MIMM F I I
. . ................. . . ................................................... .
1. Exhibit 4 to Heath Complaint (kensummers.orgwebsite screenshot)
2. Review Checklist — Heath Complaint re Ken Summers
KGS CONSUUI'ING
littp://keiistiiiinict-s.or,(,Y/?page id=1962
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The laws that are passed and the regulations that are established have a s�gnjficant impact on cjUzens and of all Get the latest post by emaJ1
types in Colorado Navigating through the maze of the political arena can be a challenge. That is why an individual
with experience working with you and advocating an your behalf can make a difference Enter your ernair address:
KGS Consulting provides you with a value-added partnership so you can be proactive on the issues that impact your
business. Here is how that is accorrpkshed:
• PROVIDING INSIGHT into the legislative process and political environment
• TRACKING LEGISLATION that impacts your business and helping you to take a formal position on those pieces
of legisia lion
• PERSONAL CONTACT WITH LEGISLATORS to inform them of your position on a bill and why you support or
oppose the legislation,
• PROPOSING NEW LEGISLATION! OR CHANGES IN CURRENT LAW
• ARRANGING FOR TEST4MONY ON BILLS before corrft1tees in collaboration wtlth others who share your
positron
• COMMUNICATION WITH DEPARTMENTS that interface with your business an the writing and implementation of
rules
• TOURS AND RECEPTIONS that provide legislators an opportunity to learn firsthand about the work that you do
• SERVING AS A SPOKESPERSON for your business at the capitol, with other industry groups and in the
community
• PROVIDING FEEDBACK AND UPDATES as needed to stay on the forefront of how bills are progressing through
the process
These are some of the ways that having a contact inside the capitol can work for you Some services may be more
appropriate than others depending on your needs and area of interest.
I took forward to devefoping a partnership where I can serve
you at the capitol by providing access, opening doors and
emporveong influence in the legislative PfOCOSSr YOU Call
make a difterimce and be a part of shaping public policy in
Colorado.
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One Comment
Ken
KGS Consulting * ken@kensummers,org
303.725-4766
am
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Julie Braswell
FEB 23, 2017 fP 15 04 32
Hi Ken,
I guess it is really a small world after all You rinet my teenaged son who is an intern for Senator LundbUrg
a couple of weeks ago. You most have made an impression on him because he came home and told me
all about the visit. I knew your name sounded familiar and when I googled you I realized that we had met
several years ago You officiated my uncle's hineral — his name was Bruce Jones,
Anyway Nathaniel told me you were running for city councti here in Fort Collins (which is where I live) That
is very exciting news as Fort Collins is in desperate need of conservative Christian leadership I signed up
for your newsletter and look forward to keeping up wAh your campaign.
Blessings,
Julie
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3 of 3 1/16/2020, 11:53 PM
ETHICS REVIEW BOARD -- REVIEW CHECKLIST FOR KEN SUMMERS
March 6, 20201
Ei Te s Ei 11, oi City Cha' rter Article IV, Section 9(b)(3) — prohibits participation
w1eit officiA Was a FIVA11CLAL INTEREST
o Tes Ei A o City Charter Article IV, Section 9(b)(3) — prohibits participation
when official l—ds-a-RMSON*t-WTEH�EST--
o Yes Ei No Section 24-18-103, C.R.S. generally states ethical standard of
conduct concerning activities that could allow covered individuals
to improperly benefit financially from their public office (no specific
standard or rule stated), and permits enforcement by the district
attorney.
Ei Yes o Nlo Section 24-18-104, C.R.S. prohibits disclosure o'r use of confidential
information acquired in the course of official duties and acceptance
of certain gifts.
o Yes Ei No Section 24-18-105(2), C.R.S. prohibits acquiring or holding an
interest in any business or undertaking which official has reason to
believe may be directly and substaintially affected to its economic
benefit by official action to be taken by ain agency over which
official has substantial authority.
Ei Yes o No Section 24-18-105(4), C.R.S. prohibits an official act directly and
substantially affecting a business or other undertaking to its
economic detriment when, official has a suibstantial financial
interest in a competing firm or undertaking.
Ei Yes o No Section 24-18-109(2)(b), C.R.S. - prohibits an official act directly
and substantially affecting to its economic benefit a business or
other undertaking in which official either has a substaintiail
financial interest or is engaged as counsel, consultant,
representative or agent
Ei Yes o No Section 24-18-109(3), C.R.S. — requires official with a personal or
private interest in any matter proposed or pending before the
governing body to disclose such interest and refrain from
participating in the decision, unless necessary to obtain a quorum.
ETHICS REVIEW BOARD -- REVIEW CHECKLIST FOR KEN SUMMERS
March 6, 2020
** If any of the "YES" boxes are checked, the Ethics Review Board must then consider the facts
alleged related to that item and whether those facts are reliable and sufficient to warrant
further investigation.