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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 09/04/2018 - RESOLUTION NO. 2018-085 ACCEPTING ADVISORY OPINIONAgenda Item 15 Item # 15 Page 1 AGENDA ITEM SUMMARY September 4, 2018 City Council STAFF Carrie Daggett, City Attorney SUBJECT Resolution No. 2018-085 Accepting Advisory Opinion No. 2018-01 of the Ethics Review Board. EXECUTIVE SUMMARY The purpose of this item is to approve Ethics Review Board Opinion 2018-01 responding to a request under “Other Business” at the Council meeting on February 20, 2018, for the Board to discuss whether Councilmembers have conflicts of interest in matters involving: (1) outside bodies they have been appointed to represent the City on; or (2) organizations to which they have donated funds. STAFF RECOMMENDATION Staff recommends adoption of the Resolution. BACKGROUND / DISCUSSION Under City Code Section 2-569, City Councilmembers may present to the Council Ethics Review Board (the “Board”) inquiries regarding the application of state or local ethical rules to actual or hypothetical situations involving potential conflicts of interest. In response to a situation that arose at the February 20, 2018, Council meeting, several Councilmembers under the “Other Business” portion of the meeting asked that the Board consider whether Councilmembers have conflicts of interest in matters involving: (1) outside bodies they have been appointed to represent the City on; or (2) organizations to which they have donated funds. The Board met on July 25, 2018, and considered the questions presented and rendered an opinion, which is summarized in the attached Ethics Review Board Opinion 2018-01. The Board met again on August 28, 2018, and approved Opinion 2018-01, which opinion is attached to the Resolution. BOARD / COMMISSION RECOMMENDATION The Ethics Review Board recommends Council approve the Resolution. ATTACHMENTS 1. Ethics Review Board Minutes August 28, 2018 (PDF) 2. Ethics Review Board Minutes July 25, 2018 (PDF) Ethics Review Board Meeting Minutes August 28, 2018 5:00 p.m. Members in Attendance: Board members Ken Summers, Ray Martinez and Kristin Stephens. Staff in Attendance: Carrie Daggett, City Attorney, Jeanne Sanford, Paralegal, Tyler Marr, City Manager’s Office. Public in Attendance: None. A meeting of the City Council Ethics Review Board (“Board”) was held on Tuesday, August 28, 2018, in the City Attorney’s Office Large Conference Room, to consider an advisory opinion, No. 2018-01 regarding whether councilmembers have conflicts of interest in matters involving 1) outside bodies that have been appointed to represent the City on; or 2) organizations to which they have donated funds (pursuant to a request under “Other Business” at the Council meeting on February 20, 2018). The meeting began at 5:00 p.m. The Board reviewed the Agenda which contained the following items: 1. Review and Approval of the July 25, 2018 Minutes of the Ethics Review Board. 2. Consideration and possible adoption of Ethics Review Board Opinion 2018-01 whether Councilmembers have conflicts of interest in matters involving: 1) outside bodies they have been appointed to represent the City on; or 2) organizations to which they have donated funds (pursuant to a request under “Other Business” at the Council meeting on February 20, 2018). 3. Other Business. 4. Adjournment. Chair Martinez stated this was an Ethics Review Board Meeting on August 28, 2018 at 5:00 p.m. and after roll call, declared that a quorum of the Board was present. It was noted Councilmember Stephens was not present in the meeting at this time. Councilmember Ken Summers called for the approval of the July 25, 2018 Minutes and Chair Martinez seconded the motion, and the Board then adopted the minutes by unanimous consent. Chair Martinez discussed item two (2) from the Agenda which is the proposed Ethics Opinion. At 5:03, Councilmember Stephens arrived at the meeting. ATTACHMENT 1 City Attorney Daggett stated that included in the meeting packet, attached to the agenda item summary for the action item was a first draft of the Ethics Opinion that reviews the language of extenuating circumstances based on the discussion from the last meeting. Chair Martinez asked if the other Board members were okay with the language of the Opinion. Councilmember Summers replied that legal staff did a very good job providing detail with the Opinion. Councilmember Summers made a motion to approve Opinion 2018-01 and Councilmember Stephens seconded the motion. The Opinion was adopted by unanimous consent. City Attorney Daggett stated she should be able to get this matter on agenda for Sept 4, 2018 and the resolution will be straight-forward with the opinion attached. Chair Martinez made a motion to adjourn and Councilmembers Summers seconded the motion. The Board voted unanimously to adjourn the meeting. Meeting adjourned at 5:07 p.m. ____________________________________ Carrie M. Daggett, City Attorney Ethics Review Board Meeting Minutes July 25, 2018 3:30 p.m. Members in Attendance: Board members Ken Summers, Ray Martinez and Kristin Stephens. Staff in Attendance: Carrie Daggett, City Attorney; Jeanne Sanford, Paralegal, Joe Wimmer and Tyler Marr, City Manager’s Office. Public in Attendance: None. A meeting of the City Council Ethics review Board (“Board”) was held on Wednesday, July 25, 2018, in the City Attorney’s Office Large Conference Room, to consider whether councilmembers have conflicts of interest in matters involving 1) outside bodies they have been appointed to represent the City on; or 2) organizations to which they have donated funds (pursuant to a request under “Other Business” at the Council meeting on February 20, 2018). The meeting began at 3:32 p.m. The Board reviewed the Agenda which contained the following items: 1. Review and Approval of the November 7, 2017 Minutes of the Ethics Review Board. 2. Consider whether Councilmembers have conflicts of interest in matters involving: 1) outside bodies they have been appointed to represent the City on; or 2) organizations to which they have donated funds (pursuant to a request under “Other Business” at the Council meeting on February 20, 2018). 3. Other Business. 4. Adjournment. Chair Ray Martinez stated that this was an Ethics Review Board Meeting on July 25, 2018 at 3:32 p.m., and after roll call, declared that a quorum of the Board was present. Chair Martinez called for the approval of the November 7, 2017 Minutes. Councilmember Stephens moved approval and board member Summers seconded. The Board unanimously approved the November 7, 2018 Minutes. Chair Martinez discussed the next order of business which was to consider whether Councilmembers have conflicts of interest in matters involving: 1) outside bodies they have been appointed to represent the City on; or 2) organizations to which they have donated funds (pursuant to a request under “Other Business” at the Council meeting on February 20, 2018). City Attorney Carrie Daggett presented the information in the packet stating there really were two separate questions on Councilmember Overbeck’s request. The first question is addressed specifically in the City Code so that does not need too much discussion unless there is concern ATTACHMENT 2 Ethics Review Board Minutes from 7-25-2018 Page 2 of 5 among the Board. The question came up since Councilmember Overbeck is appointed to the Poudre River Heritage Alliance Board and a matter regarding some grant monies. Ms. Daggett explained there is a provision under City Code which specially references that, “Absent extraordinary circumstances which may be reviewed on a case-by-case basis, such appointments shall not be considered to create conflicts of interest for the members of the City Council or the members of City boards and commissions who are so appointed.” Ms. Daggett stated the concept is that you are there representing the City essentially on that board and when you are on the City council voting for something that relates to a board, that in and of itself does not give the individual a personal stake. City Attorney Daggett stated that the reason the Code states “absent extraordinary circumstances…” is that there could be a time when a Councilmember has a particular personal relationship or a personal involvement with an organization that might change the analysis a bit. As a hypothetical example, if Councilmember Overbeck donated $10 Million to the Poudre River Heritage Alliance for the construction of an amphitheater, the fact that he’s been appointed to be on that Board would not necessarily be the only issue that would need to be considered in evaluating potential conflicts – the interest triggered by the sizable donation and particular purpose of the donation would create an extraordinary circumstance to be considered. Chair Martinez asked if “absent extraordinary circumstances” was defined in the Code? Councilmember Stephens stated that would be a case by case situation and City Attorney Daggett stated that the conflicts would likely be triggered by unusual situations, and that is what is intended by “extraordinary circumstances.” Chair Martinez stated he felt the Code should define the terms. City Attorney Daggett stated it is then difficult to get out of a defining loop. One way to address this might be to change the words to say, “unless there are other circumstances that trigger a potential conflict” which is what that term means. Ms. Daggett explained, the fact that you are serving on the Board does not create a conflict; something else has to be going on to create a financial interest or personal interest. City Attorney Daggett asked if the Board wanted to modify the Code language due to a clarity problem? Chair Martinez stated he does not like the terms, “absent extraordinary circumstances”. Councilmember Summers suggested some language, “absent a financial or personal interest which may be reviewed on a case by case basis….” Ms. Daggett asked the Board if there is particular new language that would be acceptable to the Board. If the first 2 clauses were cut off, it would then say, “Such appointments shall not be considered to create conflicts of interest for the members of the City Council or the members of City boards and commissions who are so appointed.” Ethics Review Board Minutes from 7-25-2018 Page 3 of 5 Councilmember Summers suggested saying, “…. In the event the City Councilmembers or board or commission members determine from time to time on a case by case basis that a circumstance does create a conflict of interest ….”. Ms. Daggett stated that the current language attempts to provide clear guidance on the issue and may have defined the matter sufficiently, and it would be important to take care in tinkering with the language so as not to create new unintended implications or confusion. City Attorney Daggett also noted that there are a couple of instances where this comes up: one is the actions their role on the outside board and the other is their action as a Councilmember and the existing language helps to clarify that. Councilmember Summers stated this question was well intended and a good reason to revisit this issue, but at this point it is more of a philosophical conversation. City Attorney Daggett stated what may be the underlying tension is so many of these things are related to not a Councilmember’s personal business but to their policy preferences. Since all on Council have policy interests and preferences, and these interests are the heart of what Councilmembers do in their policymaking role, treating policy preferences as grounds for conflicts of interest would be problematic. Ms. Daggett continued that what underlies this is that the conflict provisions are aimed at people benefitting personally from the official power that they have and not so much aimed at limiting opportunities to advance policy interests and preferences. Ms. Daggett stated that Councilmember Overbeck’s question came up and there wasn’t a chance to call attention to the Code language, which directly addresses the question. She then stated it sounds like the Board would like to see editing done to this Code section with an Ordinance to change wording? Chair Martinez, Councilmembers Stephens and Summers each stated they were okay leaving the Code as is. Councilmember Summers stated it is fine the way it has been and maybe we make note of it and if anything arises in the future that leads to revisions to this part of the Code perhaps a look at editing this language would be appropriate at that time. Councilmember Stephens stated it would be good in councilmember on-boarding to discuss this provision and go over situations such as these to educate and remind folks. City Attorney Daggett stated she would put this on the City Attorney’s Office list of Code provisions to be considered for updating or correction. City Attorney Daggett then gave an overview on the 2 nd Question. Ms. Daggett explained the question as being specifically about organizations to which Councilmembers have donated funds, and whether that creates a conflict of interest for the Councilmember when a decision comes to Council that relates to that organization? Ms. Daggett explained that this is one of those “it depends” questions, because the range of fact situations is so broad and varied. Ms. Daggett referred to the example of a Councilmember donating $10 to the ACLU, and noted that a donation of that size is highly unlikely to lead to a situation in which a Council decision would result in a Ethics Review Board Minutes from 7-25-2018 Page 4 of 5 “direct and substantial benefit or detriment different in kind from the general public” – the definition of “personal interest.”. However, if as described in the hypothetical example earlier, a Councilmember donated $10 Million to Poudre Heritage Alliance for an amphitheater, there may still be Council decisions related to Poudre Heritage Alliance that the Councilmember had no conflict in, while there would be a high potential for a personal interest (or potentially a financial interest, if there was some financial gain to be experienced by the Councilmember) in Council decisions regarding the amphitheater. Because the analysis of any particular situation is very circumstance driven, it’s difficult to resolve this question fully as a general matter. However, most of time donations are unlikely to substantial enough or directly enough tied to particular outcomes to trigger a potential for a direct and substantial benefit to the councilmember. There was general discussion among the Board regarding this explanation and personal and financial interests in this regard. City Attorney Daggett stated that in connection with any of these situations, it would be necessary to evaluate whether there is a financial interest as well as whether there is a personal interest, as those terms are defined in the Charter and Code. A financial interest is somewhat easier to resolve since there is actual money or similarly determinable financial gain involved and this is easier to discern. Personal interest is a little less objectively measurable and intended to capture interests that are not as black and white – a personal interest is any interest other than financial interest by reason which the officer or a relative of an officer would, in the judgment of a reasonable and prudent person, realize or experience some direct and substantial benefit detriment different in kind from that experienced by the general public. Ms. Daggett further explained that it is pretty hard, without getting in the realm of donations targeted for particular uses, to envision most organizational memberships triggering personal interests, but it could happen in certain instances. Chair Martinez and Councilmembers Summers and Stephens stated they think the information as discussed covers the issue adequately. City Attorney Daggett suggested this process: Ms. Daggett would write up summary of this discussion for the Board in the form of a draft ethics opinion for the Board to review and consider for adoption. Chair Martinez and Councilmembers Summers and Stephens agreed to this process. Councilmember Stephens made a motion for Carrie Daggett to write a summary of this discussion on the 1 st question re: Code language and the 2nd question to review and consider whether to bring it forward as an ethics opinion. Councilmember Summers seconded the motion and the Board voted unanimously to adopt Councilmember Stephens’ Motion. Ms. Daggett then stated she will schedule a brief meeting to vote to approve the draft opinion and suggested scheduling that at 5:00 on a Tuesday, giving the Board a copy to review in advance in Council packet. Ms. Daggett then stated that the next step after action by the Board would be presentation of the Ethics Opinion to the Council for adoption by Resolution. Ethics Review Board Minutes from 7-25-2018 Page 5 of 5 Chair Martinez made a motion to adjourn and Councilmembers Summers seconded the motion. The Board voted unanimously to adjourn the meeting. Meeting adjourned at 4:20 p.m. ________________________________________ Carrie M. Daggett, City Attorney -1- RESOLUTION 2018-085 OF THE COUNCIL OF THE CITY OF FORT COLLINS ACCEPTING ADVISORY OPINION NO. 2018-01 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 July 25, 2018, and August 28, 2018, to review and approve the draft Ethics Opinion 2018-01, responding to an inquiry by Councilmember Overbeck requesting that the Board consider whether Councilmembers have conflicts of interest in matters involving: (1) outside bodies they have been appointed to represent the City on; or (2) organizations to which they have donated funds (pursuant to a request under “Other Business” at the Council meeting on February 20, 2018); and WHEREAS, the Board has issued Ethics Opinion 2018-01, concluding that: (1) City Code Section 2-570(b) provides clear guidance regarding the question of whether service on an outside board as an appointee of the City Council raises a conflict of interest, and no further explanation or formal guidance is required, and (2) while no definite general determination may be made regarding whether donations by a councilmember give rise to a conflict of interest for that councilmember in a City Council decision of interest to the donee organization, except in the case of a sizable or very particularly purposed donations, it is unlikely a conflict will arise, although each circumstance must be evaluated based on the specific facts and circumstances involved, applying the definitions of “financial interest” and “personal interest” as set forth in the City Charter and City Code, as noted in that Opinion; and WHEREAS, the City Council 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. 2018-01 of the Ethics Review Board, a copy of which is attached hereto as Exhibit “A” and incorporated herein by this reference, has been submitted to and reviewed by the City Council, and the Council hereby adopts the opinion contained therein. -2- Passed and adopted at an adjourned meeting of the Council of the City of Fort Collins this 4th day of September, A.D. 2018. _________________________________ Mayor ATTEST: _____________________________ City Clerk