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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 08/20/2002 - SECOND READING OF ORDINANCE NO. 109, 2002, AMENDIN AGENDA ITEM SUMMARY ITEM NUMBER: 39 DATE: August 20, 2002 FORT COLLINS CITY COUNCIL FROM Steve Roy SUBJECT: Second Reading of Ordinance No. 109,2002, Amending Section 2-568 of the City Code Pertaining to Ethical Rules of Conduct. RECOMMENDATION: Staff recommends adoption of the Ordinance as amended on Second Reading. EXECUTIVE SUMMARY: Ordinance No. 109, 2002, which deals with ethical rules of conduct, was adopted 3-2 on First Reading on July 16, 2002. Several changes to this Ordinance are being recommended on Second Reading. The first such change clarifies that the term "officer or employee" does not include an officer or employee of an authority of the City that is established under state statute, is governed by state statutory rules of ethical conduct,and is expressly exempted from the City Charterconflict of interest rules. The second change to this ordinance on Second Reading would clarify (in Section 2 of the ordinance) that "confidential information" would not include information exchanged or discussed in an executive session if that same information is contained in a public record available to the general public under the provisions of the Colorado Open Records Act. (This concept is the same as under the original wording that was approved on First Reading. The original wording had suggested,however, that some affirmative action had to be taken to release such a document to the public before the executive session information could be disclosed. The third change to this ordinance, which appears in both Sections 3 and 4, would allow the disclosure of confidential information not only to officers or employees whose official duties are related to the subject matter of the confidential information but also to those officers or employees whose official duties entail maintaining official records of such information on behalf of the City. The fourth and final change to the ordinance addresses a concern raised by Councilmember Hamrick at the hearing on first reading. It would clarify in Section 3 that the prohibition against disclosing information discussed in executive session is not intended to prohibit Councilmembers from stating their positions or opinions with regard to such matters as long as such statements do not divulge confidential information received from others during the executive sessions. AGENDA ITEM SUMMARY ITEM NUMBER: 38 FORT COLLINS CITY COUNCIL DATE: July 16, 2002STAFF: Steve Roy SUBJECT: Items Relating to Confidential Communications and Open Meetings. RECOMMENDATION: Staff recommends adoption oCeOrdi ces Fadin EXECUTIVE SUMMARY: A. First Reading of Ordinance No. 109, 2002, Amending Section 2-568 of the City Code Pertaining to Ethical Ru o B. First Reading of Ordi cc No. 0, 2Qending er 2, Article VI, Division I of the City Code Pertainin R e Ethics Review Boards. C. First Reading of Ordinance No. 111, 2002, Amending Section 2-26 of the City Code Pertaining to Meetings of the City Council. These three Ordinances present for Council's consideration certain amendments to the City Code that would modify various substantive rules and rules of procedure pertaining to: (1) the receipt and disclosure of confidential information by Councilmembers; (2) the ability of a Councilmember to participate in an executive session if he or she has a conflict of interest; (3)opinions of an alternate ethics review board; and(4) e- ail c nic 'o g u ilmembers. BACKGROUND: �,, U r —L At two retreats earlier this year, the City Council discussed at some length a number of issues regarding confidential information, executive sessions and related topics. At the conclusion of its second retreat,the City Council directed the City Attorney to bring forward several proposed changes to the City Code. Three ordinances have been prepared which propose those changes. They are as follows: Ordinance No.109,2002,Amending Section 2-568 of the City Code Pertaining to Ethical Rules of Conduct. If approved by the City Council, this Ordinance would: DATE: 2002 2 I ITEM NUMBER: • Clarify that a member of the City Council is an "officer or employee" of the City within the meaning of Section 2-568 of the City Code and is subject to the ethical rules of conduct contained in that section. • Add a definition of"confidential information"to Section 2-568 of the Code to clarify the kind of information that should be considered to be confidential. • Specify the circumstances under which confidential information can be disclosed by an officer or employee of the City. • State that an Cerevie io f 68 (1) by a member of the City Council shoal d by a it ou ' ' ethics review board rather than being prosecu ipal a mild eanor criminal offense; and • Add a provision allowing the Council, by a two-thirds vote, to determine that a Councilmember should not receive confidential information or attend executive sessions pertaining to a particular topic if the Council first determines that the Councilmember has a conflict of interest with regard to that topic. Ordinance No. 110, 2002, Amending Chapter 2, Article VI, Division 1 of the City Code Pertaining to the Rules of Procedure for Alternate Ethics Review Boards. Under Section 2-569(d)(1)c. Cdwith de, a et s view board is to be convened by the Council if a complaint is Ma alleg an ethical violation on the part of four or more Councilmemberd o amend rocedures of such a board in the following respects: • The opinion and recommendation of the alternate ethics review board would be final and would not be submitted to the City Council for review or adoption by the Council; and • City Council and City staff would be required to make available to the alternate ethics review board all information in the possession of the City that is reasonably necessary tot o Ulaw n, t release of that information is prohibited by s e or fed ing discussing such information,the board would requi a y any 1 state or federal confidentiality requirements that fighto r it the re ease of such information to third parties. Ordinance No. 111,2002,Amending Section 2-26 of the City Code Pertaining to Meetings of the City Council. This ordinance would clarify that an electronic mail communication among City Councilmembers should not be considered a"meeting"of the City Council unless a quorum or three or more members of the Council or Council committee (whichever is fewer) arrange in advance to simultaneously participate in such communication, as in a "chat room" setting. The reason for this proposed amendment is that"meetings"of the City Council that are attended by four or more Councilmembers are subject to public notice requirements. Such requirements would be impractical if applied to e- mail communications. The public's interest in knowing the subject matter of e-mail communications DATE: 2002 3 I ITEM NUMBER: is satisfied by reason of the fact that a-mails are"public record"within the meaning of the Colorado Open Records Act, subject to the privileges and exceptions contained in the Act. In addition to the amendments to the City Code that would be made by these ordinances,City staff is continuing to process two other recommendations that emerged from the Council retreat. These are: • A protocol for going into and coming out of executive sessions, which will include admonitions about the permissible scope of,and procedures for, executive sessions; and • Ane-mailpoli which incl to p �res for creating and maintaining e-mail commu ations t also i lines for kinds of e-mail communications that are appropn Co a s. These topics will be discussed at the City Council Governance Committee meeting on July 16 and draft policies on these subjects,as approved by the Committee,will be subsequently presented to the full Council for its consideration. Attached to the Agenda Item Summary is a report from the City Attorney describing in greater detail the subjects addressed in the ordinances and proposed policies. • ORDINANCE NO. 109, 2002 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING SECTION 2-568 OF THE CITY CODE PERTAINING TO ETHICAL RULES OF CONDUCT WHEREAS, Section 2-568 of the City Code contains various rules of conduct governing officers and employees of the City; and WHEREAS, certain questions of interpretation have arisen with regard to such provisions, and the City Council believes it to be in the best interest of the City to amend Section 2-568 of the City Code so as to eliminate any ambiguity with regard to its provisions; and WHEREAS, in particular, the City Council wishes to: • clarify that a member of the City Council is an "officer or employee" of the City within the meaning of Section 2-568 who is subject to the ethical rules of conduct contained therein; • add a definition of "confidential information" to Section 2-568 so as to clarify the kind of information that should be considered to be confidential; • • specify the circumstances under which information received in confidence can be disclosed by an officer or employee of the City; 0 state that an alleged violation of Section 2-568(b)(1)by a member of the City Council should be reviewed by the City Council's Ethics Review Board rather than being prosecuted in Municipal Court as a misdemeanor criminal violation of the Code;and • add a provision allowing a majority of the Council,by a two-thirds vote,to determine whether a Councilmember has a conflict of interest for confidentiality purposes. NOW,THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That Section 2-568(a)(3)of the City Codeshonfd-beis hereby amended so that the definition of"officer or employee" contained therein shall read in its entirety as follows: (3) Officer or employee shall mean any person holding a position by election, appointment or employment in the service of the city,whether part-time or full-time, including any member of the City Council and any member of any authority,board, t.• �; r sa..; x� max^ �+ , .� <0t<:.s : committee or commission of the city atlte Chart a iq>kk y Ilt n (a) Established;�nder the provistott�yg�>he CplQrado Revised Statutes; (bj Gcavertied 1�4tate statuto,�rwYes,q€ethtcal_aa[]duct,and (c} jcl o€the City Charter by ©ititaticc „ µ , Section 2. That Section 2-568 of the City Code further amended so as to include a new subparagraph(a)(2)which shall read in its entirety as follows, with the existing subparagraphs (a)(2) and (a)(3) to be renumbered as (a)(3) and (a)(4) accordingly: (2) 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 WG,AViged qae 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 doctIMCLIt that has been LIMd available to the general public by a Verson properly atithmized to do styOulder the, Qom. R cPrtl$ 1�; 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. Section 3. That Section 2-568(b)(1)of the City Code is hereby amended so as to read in its entirety as follows: (b) Rules of conduct. (1) Use and disclosure of confidential information. The following rules shall apply to the use and disclosure of confidential information by officers and employees of the city. In the event of any conflict among these provisions, the more specific provision shall take precedence over the more general provision. a. No use for personal gain. An officer or employee shall not 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 confidential information shall be disclosed by an officer or • employee 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 �xt "tichiifotnt ,in„,�ehalf WSW,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 shall not be disclosed 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. Confidential information discussed in an executive session of shall not be disclosed to any erson who was not present during such discussion, withUttt the—prior sessiecrother than metnbers of sttIr had}rwha were unable to attend:the executivesession,without the prior knowledge and consent of the body holding,such.exectitive 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 eyot f that a tt; tie t scyssec c* eouttye'session comes : .' a:rf"a. 3"' hgL"YJ it'e(Cl as"is Yr befare tite""Ctjtatnezr aactttgdicptmtsSign of the city '" g"'b sucti.focmalaction forfonnalaetttlttat:huapenmeeing , is Of 1"' ate'd,ngtiiingheieinslt 1l�copstruedasprohibiting a mettibei'_of the,body#fiat.wrll.t;e taking such formal action from statittg`ius'ai ,Piet posttivit of opinion with regard to the matter;as.long a.!�sqi teitietbi c� ftQ dtuulge cortfi�lential ityi otnatign ,recett xt pe ptistng the _executive s4s obi' e. Certain distribution anddiscussionby City Manager and City Attorney permitted. Notwithstanding the provisions of . subparagraphs tiiiH61and fiv)-(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 City 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 11 on blehatf,6f,t1 a 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, § 9 of the Charter, or who has been determined by the City Council under the provisions of subparagraph (vii) 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 City Council committee or board or commission of the city, pertaining to said subject matter. g. The City Council may determine that a Councilmember shall not receive confidential information or attend executive sessions on a particular topic if the City Council first determines that said Councilmember has a conflict of interest in the subject matter of such confidential information and/or executive session. Any such determination by the City Council shall be made only after the City Council has received an advisory opinion and recommendation of the Ethics Review Board on the question,rendered in accordance with the provisions of Section 2-569. Section 4. That Section 2-568 of the City Code is hereby further amended to the addition of a new subparagraph(b)which shall read in its entirety as follows, with the existing subparagraph (b), as amended herein in Section 3 above, to be relettered as subparagraph (c): (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. Introduced and considered favorably on first reading and ordered published this 16th day of• July, A.D. 2002, and to be presented for final passage on the 20th day of August, A.D. 2002. Mayor ATTEST: City Clerk Passed and adopted on final reading this 20th day of August, A.D. 2002. Mayor ATTEST: City Clerk •