HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 10/21/2014 - ITEMS RELATING TO ETHICS REVIEW BOARD CODE CHANGESAgenda Item 9
Item # 9 Page 1
AGENDA ITEM SUMMARY October 21, 2014
City Council
STAFF
Carrie Daggett, Interim City Attorney
SUBJECT
Items Relating to Ethics Review Board Code Changes
EXECUTIVE SUMMARY
A. First Reading of Ordinance No. 144, 2014, Amending Section 2-569 of the City Code Pertaining to
Procedures of the Ethics Review Board.
B. First Reading of Ordinance No. 145, 2014, Amending Section 2-568(a) of the City Code Pertaining to
Definitions Applicable to Ethical Rules of Conduct.
The purpose of the first ordinance is to adopt revisions to the City Code to simplify and expedite the process of
initiating Ethics Review Board review of ethics complaints and to update provisions related to alternative
composition of the Board in the event members of the Board are themselves the subject of a complaint. The
second ordinance is intended to incorporate into the City Code the definitions related to conflicts of interest that
are specified in the City Charter, and to add new definitions to assist in the interpretation and application of the
conflicts of interest provisions in the City Charter and City Code.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinances on First Reading.
BACKGROUND / DISCUSSION
Introduction
The Ethics Review Board (the “Board”) met on June 11, 2014, to discuss possible amendments to City Code
Sections 2-568 and 2-569. It met again on September 19, 2014, and voted to recommend to Council the
amendments to Section 2-568 and 2-569 as set out in the proposed ordinances.
Code Section 2-568 establishes certain “ethical rules of conduct” that apply to the City’s councilmembers,
board and commission members, and employees. Subparagraph (a) of Section 2-568 defines several of the
words and terms used in both Sections 2-568 and 2-569.
Code Section 2-569 creates the Board and defines its duties and procedures in providing advisory opinions
concerning conflicts of interest and other ethical matters that pertain to councilmembers and board and
commission members that arise under the City’s Charter and Code and under state law. The Board does not
hear complaints related to employees.
Proposed Amendments
A. First Reading of Ordinance No. 144, 2014, Amending Section 2-569 of the City Code Pertaining to
Procedures of the Ethics Review Board.
Agenda Item 9
Item # 9 Page 2
The amendments proposed for Section 2-569 relate primarily to changing the Board’s procedures for
considering an ethics complaint and how that process would be initiated:
The proposed process would eliminate the currently required review of each complaint by the City
Council prior to consideration by the Board. Instead, the City Clerk would notify the chairperson of the
Board, the persons (Councilmembers or board and commission members) named in the complaint,
and the City Council of the complaint.
Then the Board would meet (after notice of at least three days to the complainant and subjects of the
complaint, and after required public notice of the meeting) within ten days to determine whether to
formally investigate the complaint, based on whether the allegations, if true, would constitute an ethics
violation, the reliability and sufficiency of the supporting facts, and any other relevant facts or
circumstances.
If the Board determines that an investigation is not warranted, written notice of the determination and
the Board’s reasoning for it would be provided to the complainant, the subjects of the complaint, and
the City Council.
If the Board determines that a formal investigation is warranted, the Board would proceed to review
and investigate the complaint as in the past.
Ordinance No. 144 also adds a clear statement of the Board’s power to compel by subpoena the attendance
and testimony of witnesses and production of documents. It also provides for the appointment of an alternate
Board in the event that members of the Board are the subject of an ethics complaint.
B. First Reading of Ordinance No. 145, 2014, Amending Section 2-568(a) of the City Code Pertaining to
Definitions Applicable to Ethical Rules of Conduct.
The amendments proposed for Section 2-568 add several new definitions to subparagraph (a) of the section.
These new definitions will help clarify and facilitate the enforcement of the conflicts-of-interest provisions in
Section 9 of Article IV of the City Charter. More specifically, they are intended to reduce the difficulty the
Board and Council have experienced in the past in understanding and applying the term “personal interest” as
it is used in Section 9(b)(3) of Charter Article IV. It is therefore also being proposed that Code Section 2-568
be amended to expressly provide that the new and existing definitions in Section 2-568(a) be applied to the
conflicts-of-interest provisions in Section 9 of Charter Article IV.
Personal Interest
Section 9(b)(3) of Charter Article IV makes it a misdemeanor offense for any councilmember, board or
commission member, or City employee to vote on, attempt to influence, or otherwise participate in any manner
as a City official in any decision of any City body or office of which he or she is member or to which he or she
makes recommendations if he or she, or a “relative”, has a “personal interest” in that decision. If convicted
under Section 9(b)(3), the maximum penalties are a $2,650 fine or 180 days imprisonment, or both such fine
and imprisonment. In addition, the convicted City official is deprived of his or her office or employment and is
ineligible for any City office or employment for two years after conviction.
“Personal interest” is defined in Section 9(a) of Charter Article IV to mean “any 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.” The words and terms in this definition in bold that have
created the difficulty in understanding and applying Section 9(b)(3). Consequently, it is for these words and
terms that definitions have been proposed for adoption in Section 2-568(a).
It should also be noted that two of the new definitions are terms used in the second of the three exceptions to a
“personal interest” as set out in Section 9(a). This second exception excludes from the definition of “personal
interest” the interest a City official, or his or her 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.”
Approach To Drafting Definitions
Agenda Item 9
Item # 9 Page 3
The approach that has been followed in drafting the proposed definitions has been to give the defined words
and terms the meaning that the Colorado courts are likely to give them. Since the newly defined words and
terms from the “personal interest” definition that are being proposed are words and terms used, but not
defined, in the City Charter, the meaning given to them are hopefully consistent with how the Colorado courts
would interpret and apply them. In other words, the proposed amendments define these words and terms in
the “personal interest” definition in a way consistent with how the courts would likely define or use them.
Recommended Definitions
Based on the foregoing, the Board and the City Attorney’s Office are recommending the following new
definitions be added to Code Section 2-568(a). (Because “public services” and “similarly situated citizens,” are
the key terms used in the second exception to the “personal interest” definition, definitions for these terms
have also been recommended.)
• Benefit shall mean an advantage or gain.
• Different in kind from that experienced by the general public shall 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.
• Direct shall mean resulting immediately and proximately from the circumstances and not from an
intervening cause.
• Detriment shall mean disadvantage, injury, damage or loss.
• Public services shall mean city services provided to or made available for the public’s benefit.
• Similarly situated citizens shall mean citizens in like circumstances having comparable legal rights and
obligations.
• Substantial shall mean more than nominal in value, degree, amount or extent.
ATTACHMENTS
1. Ethics Review Board minutes, June 11, 2014 (PDF)
2. Ethics Review Board minutes, September 9, 2014 (PDF)
ATTACHMENT 1
ATTACHMENT 2
- 1 -
ORDINANCE NO. 144, 2014
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING SECTION 2-569 OF THE CODE OF THE CITY OF FORT COLLINS
PERTAINING TO PROCEDURES OF THE ETHICS REVIEW BOARD
WHEREAS, Section 2-569 of the Code of the City of Fort Collins establishes the Ethics
Review Board (the “Review Board”) and establishes the procedures under which the Review
Board operates, including the process for considering and making advisory recommendations to
the City Council regarding ethics complaints; and
WHEREAS, the Review Board has met and discussed the process for initiating and
considering complaints pursuant to Section 2-569, and has developed recommendations for
modifying the process for initiating complaints to expedite and simplify the initial review to
determine whether a Review Board investigation of the complaint is warranted, along with other
process improvements; and
WHEREAS, the Review Board discussed specific revisions to Section 2-569 at meetings
on June 11, 2014, and September 19, 2014, and on both occasions recommended that the Council
adopt the proposed amendments to the City Code, as set forth herein; and
WHEREAS, the City Council therefore finds and intends that these amendments be
adopted to further the purposes of Section 9 and to facilitate the enforcement of its provisions
and the provisions of the City Code.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS that Section 2-569 of the Code of the City of Fort Collins is hereby amended to
read as follows:
Sec. 2-569. Board of ethics.
(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 elected 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) Subject to the provisions of Subsection (d) below, the duties and responsibilities
of the Review Board shall be as follows:
- 2 -
(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:
(1) Complaints.
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, Mayor, 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. placed on the agenda
for the next special or regular City Council meeting for review and
possible action by the City Council. No more than ten (10) working days
after the date of filing of the complaint, the Review Board shall meet and
consider the complaint. 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, City Council shall decide by majority
vote whether to submit the complaint to the Review Board for an advisory
opinion as to formally investigate whether the violation alleged in 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
- 3 -
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.
has occurred and, if so, the action, if any, that should be taken with regard
to such violation. In the event that such complaint is not submitted to the
Review Board, the City Council may decide what, if any, other action
pertaining to the same is appropriate.
c. In the event that a complaint is filed with the City Clerk Mayor
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), four (4) or more Councilmembers, such complaint shall not be
referred to the regular Review Board City Council for review but shall
instead be submitted to an alternate Review Board consisting . Said Board
shall consist of all any remaining Councilmembers who are not named in
the complaint; provided, however, that if five (5) or more
Councilmembers are named in the complaint, and 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
bBoard 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 Mayor. 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 below, 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,
without a conflict of interest, and are able 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
bBoard'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
- 4 -
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 or complaint 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 placed on the agenda for
the next special or submitted to city Council at a regular City Council meeting, at
which time the City Council shall determine whether to adopt the same. Any
Councilmember having a personal or financial interest in whose conduct or
circumstance is the subject of the opinion shall refrain from participating in any
deliberations of the City Council regarding the same 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.
- 5 -
Introduced, considered favorably on first reading, and ordered published this 21st day of
October, A.D. 2014, and to be presented for final passage on the 4th day of November, A.D.
2014.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
Passed and adopted on final reading on the 4th day of November, A.D. 2014.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
- 1 -
ORDINANCE NO. 145, 2014
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING SECTION 2-568(a) OF THE CODE OF THE CITY OF FORT COLLINS
PERTAINING TO DEFINITIONS APPLICABLE TO ETHICAL RULES OF CONDUCT
WHEREAS, Section 2-568(a) of the City Code currently defines a number of words and
terms as they are used in the ethical rules of conduct set out in Section 2-568(c) and as they are
used in City Code Section 2-569, which establishes the Ethics Review Board (the “Review
Board”) and sets out the procedures under which the Review Board operates; and
WHEREAS, after reviewing the definitions contained in Section 2-568 of the City Code,
the Review Board believes that several new definitions should be added to this Section to clarify
the meaning of “personal interest” as this term is used in Section 9(a) of Article IV of the City
Charter and in Section 2-569; and
WHEREAS, the City Council therefore finds and intends that these new definitions be
applied to and used in Section 9 of Article IV of the City Charter to further the purposes of
Section 9 and to facilitate the enforcement of its provisions.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS that Section 2-568(a) of the Code of the City of Fort Collins is hereby
amended to read as follows:
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) Benefit shall mean an advantage or gain.
(12) Board and commission member shall mean a member of any appointive
board or commission of the City.
(23) 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
- 2 -
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.
(34) Councilmember shall mean a member of the City Council.
(5) Different in kind from that experienced by the general public shall 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.
(6) Direct shall mean resulting immediately and proximately from the
circumstances and not from an intervening cause.
(7) Detriment shall mean disadvantage, injury, damage or loss.
(8) 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
equivalent. 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;
- 3 -
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. 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.
(49) 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, 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.
(10) 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;
- 4 -
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.
(11) Public body shall have the meaning given to this term in Section 9(a) of
Charter Article IV, which states:
Public body means the Council or any authority, board, committee,
commission, service area, department or office of the city.
(12) Public services shall mean city services provided to or made available for
the public’s benefit.
(13) 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.
(14) Similarly situated citizens shall mean citizens in like circumstances having
comparable legal rights and obligations.
(15) Substantial shall mean more than nominal in value, degree, amount or
extent.
. . .
Introduced, considered favorably on first reading, and ordered published this 21st day of
October, A.D. 2014, and to be presented for final passage on the 4th day of November, A.D.
2014.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
- 5 -
Passed and adopted on final reading on the 4th day of November, A.D. 2014.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk