HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 07/01/2003 - RESOLUTION 2003-083 ACCEPTING THE ADVISORY OPINION AGENDA ITEM SUMMARY ITEM NUMBER: 21
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DATE: July 1, 2003
FORT COLLINS CITY COUNCIL FROM:
Steve Roy
SUBJECT :
Resolution 2003-083 Accepting the Advisory Opinion and Recommendation No. 2003-1 of the
Ethics Review Board.
RECOMMENDATION:
Staff recommends adoption of the Resolution.
EXECUTIVE SUMMARY:
Section 2-569(e) of the City Code provides that all opinions and recommendations of the City
Council Ethics Review Board be submitted to the full Council for review and approval. The Ethics
410 Review Board met on June 23, 2003, to render an opinion on whether Councilmember Kastein
would have a conflict of interest in participating in Council's consideration of (1) a possible
amendment to the City's Harmony Corridor Plan (the "Plan) to allow for a life style center; and (2)
the possible review of a decision of the City's Planning and Zoning Board regarding a particular life
style center on the site of the Plan amendment. The question arises because of Councilmember
Kastein's employment at LSI Logic,which has entered into a contract to sell the site to the developer
of the life style center. The meeting of the Board resulted in the issuance of Opinion No. 2003-1
(Exhibit "A" to the Resolution).
Pursuant to the requirements of the Code, this opinion is being presented to the Council for its
review and possible approval.
RESOLUTION 2003-083
OF THE COUNCIL OF THE CITY OF FORT COLLINS
ACCEPTING THE ADVISORY OPINION AND RECOMMENDATION NO. 2003-1
OF THE ETHICS REVIEW BOARD
WHEREAS, the City Council has established an Ethics Review Board (the `Board")
consisting of three 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 of board and commission members of the City; and
WHEREAS, the Ethics Review Board met on June 23, 2003, to consider whether
Councilmember Kurt Kastein has a conflict of interest in participating in City Council's
consideration of(1)a possible amendment to the City's Harmony Corridor Plan(the"Plan")to allow
for a life style center; and (2) the possible review of a decision of the City's Planning and Zoning
Board regarding a particular life style center on the site of the Plan amendment; and
WHEREAS, the Board has issued an advisory opinion that Councilmember Kastein would
not have a conflict of interest in participating in Council's deliberations with regard to these matters;
• 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 and recommendations 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. 2003-1 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 and recommendation contained therein.
Passed and adopted at a regular meeting of the City Council held this 1st day of July, A.D.
2000.
Mayor
ATTEST:
City Clerk
MIBIT "A"
• 2003-1
OPINION OF THE ETHICS REVIEW BOARD
OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS
June 23, 2003
The City Council Ethics Review Board("the Board")met on June 23, 2003, to render an advisory
opinion on a conflict of interest question submitted to the Board by Councilmember Kurt Kastein.
The question presented is whether Councilmember Kastein would have a conflict of interest in
participating in the following upcoming decisions of the City Council:
(1) A possible amendment to the City's Harmony Corridor Plan(the"Plan")to allow for
a life style center; and
(2) The possible review of a decision of the City's Planning and Zoning Board regarding
a particular life style center on the site of the Plan amendment.
The question arises because Councilmember Kastein("Kastein")is employed by LSI Logic,and LSI
Logic has entered into a contract to sell the site of the proposed life style center (the "Site) to the
developer of the center. The Board is of the opinion that Kastein does not have a conflict of interest
. in this matter under the relevant provisions of the City Charter, as explained below.
THE FACTS.
The evidence presented to the Board indicates that Kastein is employed as a"project leader" at LSI
Logic. He is compensated on a salary basis and, in addition, holds shares of stock in LSI Logic.
Kastein's job entails serving as a design engineer who is responsible for directing a team of
engineers in designing particular projects. The division in which Kastein works at LSI Logic is not
involved in the sale of the Site. The contract for sale between LSI Logic and the developer of the
Site is not expressly contingent upon City approval of any development application. However, the
developer reportedly has the option to forfeit its earnest money and terminate the contract if City
approval is not forthcoming.
APPLICATION OF THE CITY CHARTER PROVISIONS.
The determination of this question is governed by the City's local conflict of interest provisions, as
contained in Art. IV, Sec. 9 of the City Charter(the "Charter"). These provisions require that any
Councilmember who has a financial or personal interest in a decision of the Council disclose such
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:
•
Ethics Opinion 03-1
June 23, 2003
Page 2
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 might fairly be said that the Council's decision with regard
to the Plan amendment and/or the development application would "affect" LSI Logic since an
adverse decision by the City Council would likely result in the loss of the sale of the Site to the
developer. There is no indication, however, that Kastein, as an individual, will receive any
"foreseeable, measurable financial benefit" as a result of the Council decision(s), either through
some form of compensation,or through any appreciation in the shares of common stock that he holds
as a shareholder in LSI Logic. Therefore, Kastein does not have a financial interest under the
Charter.
b. "Personal Interest"
The next inquiry is whether Kastein 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." (Charter, Art.
IV, Sec. 9(u)). This benefit or detriment need not be financial in nature, but it must be "direct and
substantial."
Clearly,Kastein is differently situated with regard to this matter than are the members of the general
public because of his position of employment with LSI Logic. 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 on either the Plan or a future application for development of the Site.
There is no evidence that Kastein's position of employment or the amount of his compensation would
be affected by his vote or Council's decision in that regard. In fact, Kastein's report of his
conversations with LSI officials and employees indicate to the contrary, that is, that there would be
no job related ramifications based upon the manner in which Kastein votes with regard to these
upcoming Council decisions. One can speculate that Kastein's vote might have some effect on his
employment or position of employment if the sale of the Site is lost because of Council's decision.
However, the Charter standard is that the potential benefit or detriment be "direct and substantial"
and not merely indirect or speculative.
As previously indicated in Opinion 2000-1 of the Board, the Board recognizes that the perception
of a conflict of interest may exist whenever a Councilmember is employed by,or closely associated
Ethics Opinion 03-1
June 23, 2003
Page 3
with, an organization that will be affected by a Council decision. This is especially true when the
Councilmember is employed by that organization. However, the Charter rules of ethical conduct
have been established to distinguish situations where Councilmembers and their employers may be
affected by or concerned about an upcoming Council decision, from those situations in which
Councilmembers themselves may somehow experience some personal gain or loss as result of the
Council decision. Under the Charter standards, a conflict of interest would exist in this situation
only if the potential personal gain or loss to Kastein was either"foreseeable and measurable"(in the
case of a financial interest) or "direct and substantial" (in the case of a personal interest). After
analyzing the situation presented by Councilmember Kastein, the Board does not believe that kind
of clear and direct benefit or detriment exists in this case. To recommend that Kastein declare a
conflict of interest in this situation would, in the Board's view, establish a very difficult precedent
that would require Councilmembers to regularly refrain from performing their duties as elected
officials even when the potential benefits or repercussions to them are merely hypothetical or
speculative.
This advisory opinion was reviewed and approved by Mayor Ray Martinez, Mayor Pro Tern Bill
Bertschy and Councilmember Marty Tharp, members of the Ethics Review Board of the City
Council. Pursuant to Section 2-569(e)of the City Code, this opinion and recommendation is to be
immediately filed with the City Clerk and made available for public inspection. Additionally, this
opinion shall be considered by the City Council at its meeting on July 1, 2003.
Dated this 23rd day of June, 2003.
�tephejh. Roy, Ci y Attorne
SJR:med
MINUTES
ETHICS REVIEW BOARD MEETING
June 23, 2003,4:30 p.m.
City Attorney's Office
The City Council Ethics Review Board ("the Board") met on June 23, 2003, to discuss a question
presented by Councilmember Kurt Kastein. The meeting was held in the conference room of the
City Attorney's office at City Hall West, 300 Laporte Avenue at 4:30 p.m. Present at the meeting
were the following Ethics Review Board members: Mayor Ray Martinez, Mayor Pro Tern Bill
Bertschy and Councilmember Marty Tharp(the alternate member substituting for Karen Weitkunat,
who was unavailable for the meeting). Also present were Councilmember Kurt Kastein, City
Manager John Fischbach and City Attorney Steve Roy.
The question presented for the Board's review was whether Councilmember Kastein should
participate in City Council deliberations regarding two items:
(1) A possible amendment to the City's Harmony Corridor Plan(the"Plan")to allow for
a life style center; and
(2) The possible review of a decision of the City's Planning and Zoning Board regarding
a particular life style center on the site of the Plan amendment.
The question was presented to the Board by Councilmember Kastein because of his employment
with LSI Logic which has entered into a contract to sell the site to the developer of the life style
center.
Councilmember Kastein presented information to the Board regarding his position of employment
with LSI Logic and responded to questions from Boardmembers.
At approximately 5:00 p.m., the Board voted unanimously to go into executive session to further
consider the questions presented and to discuss related legal issues, as permitted by Secs. 2-
31(a)(1)c. and (a)(2) of the City Code. The Board came out of executive session at approximately
5:15 p.m. The Board further discussed the questions presented and voted unanimously to direct the
City Attorney to prepare a draft opinion advising Councilmember Kastein that he does not, in the
Board's opinion, have a conflict of interest with regard to his participation in either of the above-
referenced Council decisions.
The meeting adjourned at approximately 5:20 p.m.
%tepheJ J. Roy, dity Attom
SJR:med