Loading...
HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 03/31/2020 - RESOLUTION 2020-029 ACCEPTING AND ADOPTING ETHICSAgenda Item 16 Item # 16 Page 1 AGENDA ITEM SUMMARY March 31, 2020 City Council STAFF Carrie Daggett, City Attorney SUBJECT Resolution 2020-029 Accepting and Adopting Ethics Opinion No. 2020-01 of the Ethics Review Board Finding No Violation of State or Local Ethics Provisions by Councilmember Ken Summers. EXECUTIVE SUMMARY The purpose of this item is consideration of the opinion of the Ethics Review Board to Council for its consideration and possible approval. STAFF RECOMMENDATION Not applicable. BACKGROUND / 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 of the City Charter or City Code pertaining to ethical conduct may file a complaint with the City Clerk. A Complaint was lodged with the Ethics Review Board through the City Attorney on January 21, 2020, by Rory Heath (the “Complainant”), a Fort Collins resident, against Councilmember Ken Summers and others, alleging that Councilmember Summers has a conflict of interest generally and 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. After notice to the complaining party and the subject of the complaint, an alternative Ethics Review Board consisting of Councilmembers Pignataro, Cunniff, Gorgol and Gutowsky met on March 6 to conduct an initial screening review of the Complaint to determine whether the Complaint asserted a factual basis for an alleged state or local ethics violation. At that time, the Board determined that further investigation was needed to make a determination regarding the allegation that lobbying and political consulting activities of Councilmember Summers violate state and local ethics laws. The alternate Ethics Review Board met on March 13, 2020, to conduct a hearing and investigate the allegation, taking evidence and testimony from the Complainant and from the subject of the Complaint, Councilmember Summers. The Board unanimously concluded that that there is no violation of state and local ethics and conflicts of interest laws pertaining to Councilmember Ken Summers’s political consulting/lobbying activities. Upon completion of its determination, the Board considered draft Ethics Opinion 2020-01, Finding No Violation of State or Local Ethics Provisions by Councilmember Ken Summers, and approved it unanimously. Section 2-569(c) provides for the opinions and recommendations of the Board to be submitted to the full Council for Council consideration and approval. -1- RESOLUTION 2020-029 OF THE COUNCIL OF THE CITY OF FORT COLLINS ACCEPTING AND ADOPTING ETHICS OPINION NO. 2020-01 OF THE ETHICS REVIEW BOARD FINDING NO VIOLATION OF STATE OR LOCAL ETHICS PROVISIONS BY COUNCILMEMBER KEN SUMMERS 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 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 WHEREAS, an alternate Ethics Review Board consisting of Councilmember Ross Cunniff, Councilmember Susan Gutowsky, Councilmember Julie Pignataro and Councilmember Emily Gorgol (the “Board”), met on March 13, 2020, to hear and consider evidence in connection with a complaint filed by Rory Heath alleging that that lobbying and political consulting activities and related website of Councilmember Ken Summers violate state and local ethics laws; and WHEREAS, at the conclusion of its hearing in this matter, the Board voted unanimously to determine that no evidence was presented showing an ethics violation under state or local law by Councilmember Summers, either specifically related to the Hughes Stadium rezoning matter or generally related to other Council decisions; and WHEREAS, the Board unanimously adopted and issued an ethics opinion, Ethics Opinion 2020-01, stating and explaining its finding of no violation of state and local ethics provisions by Councilmember Summers; 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 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. 2020-01 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 accepts and adopts the opinion contained therein. -2- Passed and adopted at an adjourned meeting of the Council of the City of Fort Collins this 31st day of March, A.D. 2020. _________________________________ Mayor ATTEST: _____________________________ City Clerk 2020-01 OPINION OF THE ETHICS REVIEW BOARD OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS March 13, 2020 Background. On January 21, 2020, a complaint was filed with the City Council via the City Attorney by Rory Heath (“Heath”). A copy of the Complaint, along with Exhibit 4 pertaining to the subject of this Opinion, is attached. The Complaint alleges that the webpage through which Councilmember Ken Summers (“Summers”) offers lobbying and political consulting services and such services violate state and local ethics laws, including the conflict of interest rules contained in the City Charter, because he improperly participated in Council decisions generally and in connection with the City Council’s rezoning of the Hughes Stadium annexation property and related matters. Under Section 2-569 of the City Code, the Complaint was first considered by an alternate Ethics Review Board comprised of Councilmember Ross Cunniff, Councilmember Susan Gutowsky, Councilmember Julie Pignataro and Councilmember Emily Gorgol (the “Board”), for initial screening pursuant to Section 2-569(d) to determine whether the Complaint warranted further investigation. At that time the Board determined that further investigation of this allegation of the Complaint was needed. Summary of Opinion and Recommendation. The information presented to us indicates that Ken Summers has not carried out any lobbying or political consulting activities during his time on City Council, which began in April 2017. While it is established that Summers has posted a webpage under the business name of KGS Consulting that offers consulting and lobbying services, the webpage is not related to any public decisions or actions absent actual clients or matters in which Summers is or has been engaged. The Board acknowledges that circumstances can be imagined under which a conflict of interest would arise for a Councilmember lobbying for others, most clearly if that lobbying related to a City issue, but also if it on Colorado Statehouse issues affecting the City. Nonetheless, there is not an inherent conflict of interest arising as a result of lobbying or political consulting activities, and in the complete absence of a lobbying or political consulting project, there is no relationship to any matters or interests coming before Summers as a City Councilmember that can even be evaluated. In addition, had Summers undertaken lobbying or political consulting activities, there would still need to be an identifiable relationship between those undertakings and the rezoning of the Hughes Stadium annexation property in order for a conflict of interest or other ethics violation to be present in regards to the Hughes Stadium item. As stated by the Complainant, there is no evidence suggesting that Summers has such a relationship. While Summers will need to consider carefully the potential for conflicts of interest should he take on the consulting or lobbying work suggested on his webpage, the Board finds there has been no evidence presented showing an ethics violation under state or local law by Summers. EXHIBIT A Opinion of the Ethics Review Board Opinion 2020-01 March 13, 2020 Page 2 of 3 The Information Presented to the Review Board. Information was presented to us with regard to the Complaint at our meetings on March 6 and 13, 2020. The Complainant, Rory Heath, presented information at both meetings; Summers appeared and presented information at the March 13 meeting. Approved minutes of the March 6 meeting and draft minutes of the March 13 meeting are attached. Besides the Complaint itself, and the exhibits provided with it, materials presented to the Board included copies of the City Charter, City Code and statutory provisions cited in the Complaint and applicable to this matter, as well as email communications from Heath, memos to the Board from Summers dated March 5 and March 7, 2020, financial disclosures by Summers in January and April 2017, April 2018 and May 2019, and a Lobbyist Summary regarding the lobbying registration of Kenneth G. Summers, printed from the Colorado Secretary of State’s website on March 7, 2020. Heath provided three additional exhibits, an apparent transcript of Summers comments at the January 21, 2020, Council meeting, and two printouts displaying lobbying activities reported by Summers, showing activity only in 2015 and 2016, dated March 12, 2020, from the Colorado Secretary of State’s webpage. Summers presented testimony and evidence, supported by the exhibits provided by Heath, document no lobbying activity by Summers since 2016. In addition, Heath has confirmed that he knows of no evidence or information showing or suggesting that Summers has a special relationship with Colorado State University, the owner of the Hughes Stadium property, or any other person, that would give cause to suspect Summers has a business or personal interest in the rezoning decision. Analysis of the Issue Presented. Whether Summers posting a website offering lobbying and political consulting services, or carrying out services, violates state or local ethics laws is must be analyzed based on the particular interests arising from that undertaking or business. Heath has expressed repeatedly his belief that the mere offering of such a website creates the possibility and the route for outside interests to influence the voting decision of Summers in the Hughes Stadium rezoning process. No evidence was offered that showed or even suggested any action or actual interest of Summers with an identifiable relationship to actions taken by Summers as a Councilmember or an identifiable relationship to the Hughes Stadium property or rezoning of it. There is no inherent or categorical conflict of interest that arises from specific employment or from lobbying or political consulting work. There was no indication of how any decision of the Council would have resulted in any immediate financial return to Summers or any direct and substantial benefit or detriment different in kind from that experienced by the general public. Accordingly, no facts were alleged or shown that support a finding that actions of Summers violated the City Charter’s prohibition against a Councilmember participating in decisions in which they have a financial or personal Opinion of the Ethics Review Board Opinion 2020-01 March 13, 2020 Page 3 of 3 interest. (City Charter Article IV, Section 9). Likewise, there was no evidence introduced showing that Summers took action as a Councilmember that would benefit him privately or would directly and substantially benefit a business or undertaking in which he had a substantial financial interest, or by which he is engaged as counsel, consultant, representative or agent. Thus, no facts have been shown that constitute a violation of state ethics laws. (Colorado Revised Statutes Sections 24-18-103 through -105, and Section 24-18-109). Because of the lack of evidence of any actions by Summers as a lobbyist or political consultant that would constitute a conflict of interest in his role as a City Councilmember, we find no state or local ethics violation has occurred. 1 Ethics Review Board Meeting Minutes March 6, 2020 5:00 p.m. Members in Attendance: Board members Julie Pignataro and Ross Cunniff; Councilmembers Susan Gutowsky, Emily Gorgol; Carrie Daggett, City Attorney; Jeanne Sanford, Paralegal, Delynn Coldiron, City Clerk. Public in Attendance: Mayor Wade Troxell; Mayor Pro Tem Kristin Stephens; Complainant Rory Heath and his attorney, Andrew Bertrand and approximately 30 members of the public. A meeting of the City Council Ethics Review Board (“Board”) was held on Friday, March 6, 2020, at 5:00 p.m. in the CIC Room, City Hall West. The meeting began at 5:00 p.m. The Board reviewed the Agenda which contained the following items: 1. Selection of Presiding Officer for Alternate Ethics Review Board as it considers the pending complaints. 2. Review and Approval of the December 16, 2019 Minutes of the Ethics Review Board. 3. Consider in accordance with City Code Section 2-569(d)(1) whether a complaint filed on January 21, 2020, by Rory Heath, making various allegations regarding the conduct of the Councilmembers below, warrants investigation: a. Mayor Wade Troxell b. Mayor Pro Tem Kristen Stephens; and c. Councilmember Ken Summers 4. Other Business. 5. Adjournment. The first item on the agenda, selection of a Chair, was discussed. Councilmember Ross Cunniff made a motion to approve Councilmember Pignataro as Chair. Councilmember Emily Gorgol seconded the motion. The motion to appoint Councilmember Pignataro as Chair was adopted by unanimous consent. The approval of the December 16, 2019 Minutes of the Ethics Review Board was next on the Agenda. Councilmember Cunniff made a motion to approve the December 16, 2019 Minutes and Councilmember Emily Gorgol seconded the motion. The Minutes of the December 16, 2019 Ethics Review Board were approved by unanimous consent. 2 City Attorney Daggett explained the background materials, including of Rory Heath’s Complaint, were provided with an introductory Agenda Item Summary (“AIS”), accompanied by three sections pertaining to each part of the Complaint. The allegations against Mayor Troxell were contained in AIS 3a, Mayor Pro Tem Kristen Stephens’s portion in AIS 3b and Councilmember Ken Summers’s portion in AIS 3c. The Board decided to give the Complainant and respondent 5 mins to speak in turn and allowed 5 minutes of rebuttal for each. City Attorney Daggett discussed the overview of the complaint and the structure of the materials presented. City Attorney Daggett explained supplemental materials received on March 5, 2020, were given to all members of Council and included Ken Summers’s statement and an email exchange with Complainant regarding his procedural concerns. These documents were also posted on the public website. Complainant Rory Heath introduced his attorney, Andrew Bertrand, and then spoke for 5 minutes, in which he asked the Board for consideration for a more judicious process. Mr. Heath stated he felt his complaint, along with all exhibits referenced and highlighted were not given to the Board. Councilmember Pignataro assured Mr. Heath they all received the complaint with highlighted exhibits the day he filed the complaint contained on a jump drive which was given to all Councilmembers. Mr. Heath stated he felt Council was not given the full scope and key ethics laws were not furnished by the City Attorney. Mr. Heath stated that Professor Wade Troxell is an employee of CSU which fits within all applicable Colorado Revised Statutes definitions highlighted in his materials. He asked the Board to consider outsourcing this Ethics Review Board as he felt the process was biased as was the checklist supplied by City Attorney Daggett. Mayor Troxell next spoke and pointed out previous documents related to conflict of interest with his employment at CSU. Mayor Troxell talked about City Council Resolution 2014-107 wherein he asked for a review regarding the CSU stadium issue. Mayor Troxell read one of the Whereas clauses in that Resolution which stated the attached advisory opinion concluded Mayor Troxell did not have a conflict of interest with the CSU stadium issue considering his employment by CSU. Mayor Troxell stated as it relates to the previous Ethics Review Board (in December, 2019), two determinations were made. The Board voted unanimously that further investigation of a complaint was not warranted and there was no financial or personal conflict of interest and no violation of any state or city violation of ethics. Mayor Troxell further stated that in this complaint, there is no financial benefit or detriment in this matter; this is a rezoning issue which is more administrative in nature. It does not fit within the definition of financial benefit. Regarding a personal benefit, Mayor Troxell stated he has no direct or substantial personal benefit. The state ethics provisions exclude institutions of higher education, so directorship means fiduciary member; Mayor Troxell stated he is only a faculty member. 3 In Mr. Heath’s rebuttal time, he stated he was glad Mayor Troxell brought up the previous ethical situation with the stadium as this speaks to a larger problem. Mr. Heath stated it would be of interest how a court of law would interpret this; it is unfair for Councilmembers to judge their peers. This is not fair as Mayor Troxell collects a paycheck which says CSU no matter how one wants to look at it. Mr. Heath explained this is a first piece of a larger piece if the zoning goes through. Andrew Bertrand spoke to the financial benefit per dwelling payment to CSU in the current development contract for this land being rezoned which is very different than the CSU stadium situation and should be considered as such. Mayor Troxell then gave his rebuttal, stating that Rory Heath had made no case and these broad allegations did not relate to him. Mayor Troxell asked if Mr. Heath was talking about the CSU system, CSU Fort Collins, or CSU Research Foundation. Mayor Troxell stated he is a faculty member of the College of Engineering and is not involved with the Board of Governors and these conversations. Mayor Troxell also spoke to Mr. Heath’s allegations regarding donations to his campaign, and noted there is nothing to substantiate that allegation. Mayor Troxell stated Mr. Health is factually wrong and his broad-based innuendos do not relate to him. Councilmember Pignataro brought the issue back to the Board. Ms. Pignataro stated the City Attorney’s Office will be coming to Council with ideas for a different Ethics Review Board structure to hear a complaint against a Councilmember sometime this summer. Ms. Pignataro asked City Attorney Daggett if the Board was missing the full ethics laws as Mr. Heath alleged. City Attorney Daggett stated she had a hard time picking out what statutes Mr. Heath was suggesting were not provided. She noted Colorado Revised Statutes Section 24-18-108 only applies to state officers and excludes City officials. City Attorney Daggett stated she did not provide that statute to Councilmembers as it did not apply and that she believed all others had been provided. Councilmember Ross Cunniff discussed Article XXIX to the State Constitution (also referred to as “Amendment 41”) regarding prohibiting an appearance of a conflict of interest. Mr. Cunniff stated the City needs to update its code to reflect this as he feels the City has not adequately addressed the issue of the appearance of conflict. City Attorney Daggett stated Amendment 41 adopting Article XXIX of the Colorado constitution was passed in 2006 and the City has not made amendments to its local provisions intended to match that provision. She noted the exception language allowing home-rule cities to adopt their own local ethics provisions, and further noted that the extent of this exception is currently being litigated. The Board discussed the best way to bring this issue to Council and asked the City Attorney to provide further information to Council on this for further consideration. 4 Councilmember Gutowsky stated she felt Councilmember Cunniff brought up a good point, expressing that optics and how things look are very important. She has listened to constituents’ comments and while this may not be against the Code of Ethics, people feel the way they feel, and it should be a natural decision to recuse yourself if your employer is involved in an issue. She hears the public’s voice; it is all about impression. The Board discussed the listed City and statutory ethics provisions, and in particular whether CSU was defined as a “business or other undertaking.” City Attorney Daggett stated the Colorado Independent Ethics Commission has specifically looked at the question of whether a public body is a “business or undertaking” and has found that a public body is not a “business or other undertaking.” Chair Pignataro then went through the checklist attached to the AIS 3a. Councilmember Cunniff made a motion that the Board find that having reviewed the allegations of Mr. Heath’s Complaint and the applicable laws, the Board has determined that the Complaint fails to allege that Mayor Troxell has a financial or personal interest or conflict related to the decision on the Hughes Stadium property rezoning and no further investigation is warranted. Councilmember Pignataro seconded the motion and the motion passed by unanimous voice vote. The Board moved to AIS 3(b) relating to Mayor Pro Tem Stephens. Rory Heath spoke that this was the same issue, different person. Mr. Heath stated he felt the materials from the City Attorney’s Office were very biased. Asked again that this issue be reviewed instead by an independent panel of outside experts. Andrew Bertrand spoke that this is very similar to the last argument and that Amendment 41 has been glossed over. The issue is about optics. Mr. Heath spoke about financial benefits and drew a correlation with UNC announcing possible layoffs. If the development deal does not go through, CSU can experience those same realities. Mr. Heath stated he feels CSU is a business or other undertaking. Mayor Pro Tem Stephens talked about the factual allegations and stated she does not take an oath to CSU. Ms. Stephens stated as far as Mr. Heath’s statement about career opportunities, this is not relevant. Mayor Pro Tem Stephens does not believe she has personal or financial interest in the CSU Hughes Stadium rezoning issue. Ms. Stephens insisted she is a state classified employee in the Statistics Department, and as a State classified employee, her pay is awarded by the state; CSU has no say in her pay raises. Rory Heath rebutted this as follows. Mr. Heath stated Mayor Pro Tem Stephens is an employee on a one-year contract renewal who has to “sing for her supper” every year. There is a method for reward – better position, etc. Andrew Bertrand stated based on public perception, Mayor Pro Tem Stephens should have recused herself. 5 Mr. Heath stated we need to fix this hole in the system before voting on this. We need to address it now, not in the future. Mayor Pro Tem Stephens’ rebutted his comments. Mayor Pro Tem Stephens stated she is not on a one-year contact. Mr. Heath’s facts are not true. Mayor Pro Tem Stephens stated she works for the State; there is no benefit or money involved in a rezoning and this is a City administration decision. Councilmember Cunniff stated the Ethics Review Board is not free to ignore the City Charter or Code or adopt State rules in lieu of a City process. Doing so would be a violation of our Code to shift this decision to a group of other people. While members of this Board have expressed sympathy, we have to change the Charter by a specific process. This Board is required to follow City Code, Charter and State laws as they now apply. Chair Pignataro directed the Board to go through the checklist attached to AIS 3b. Chair Pignataro then made a motion that the Board find that having reviewed the allegations of Mr. Heath’s Complaint and the applicable laws, the Complaint fails to allege that Mayor Pro Tem Stephens has a financial or personal interest or conflict related to the decision on the Hughes Stadium property rezoning and no further investigation is warranted. Councilmember Gorgol seconded the motion. The motion passed by unanimous voice consent. Chair Pignataro directed the Board to AIS 3c, relating to Ken Summers’s alleged personal, business-related conflicts of interest. A statement Councilmember Summers had submitted to the Board was noted. Chair Pignataro asked City Attorney Daggett to read the statement. Rory Heath stated this matter was a little more difficult. Councilmember Summers’ website advertises that he helps influence decisions. Mr. Heath stated the Board should subpoena the records of Councilmember Summers including any and all clients he has had. Mr. Heath stressed an investigation is needed here; this billboard is still up for the public to see. Andrew Bertrand stated he was not sure how anyone voted, but doesn’t care; he cares about how it looks. Now is the time to deal with it – not after Hughes gets decided. Councilmember Cunniff stated he would like to know if Councilmember Summers has received any revenue on this website. City Attorney Daggett explained it was unclear in Mr. Heath’s complaint if this was tied to Hughes Stadium or a more general complaint. Ms. Daggett explained if the complaint warrants further investigation, there will be a need to schedule a further hearing for more evidence to be presented. At that time, the Board would have power to subpoena more information if it chooses to. City Attorney Daggett explained that this process would next go to the hearing step where a decision would be made as to whether the Complaint alleges a violation specifically related to Hughes Stadium or otherwise. 6 The Board asked Rory Heath if this complaint was related to Hughes Stadium. Mr. Heath replied it was intended to include everything – including Hughes Stadium. The Board discussed next steps in this process. City Attorney Daggett stated the Board could continue its screening review if that would be helpful or find that the allegation warrants further investigations. Councilmember Cunniff stated the allegations of the Complaint are broader than Hughes and need further investigation, although regarding a specific complaint on Hughes, there is no evidence to sustain an allegation Councilmember Summers has acted unethically. Councilmember Gutowsky did not agree with this and stated the Complaint cast doubt in her mind. Councilmember Cunniff made a motion that the Board find that the allegation that political consulting and lobbying activities could constitute a potential ethics violation, if true, and that further Ethics Review Board investigation and review is warranted on the specific issue of whether Councilmember Summers has carried out political consulting or lobbying activities that constituted an ethics violation. Councilmember Gorgol seconded the motion. The motion was passed by unanimous voice consent. City Attorney Daggett discussed the timing of the next meeting to review the one remaining allegation and stated her office would get started on scheduling the next meeting. Under Other Business, the Board briefly discussed Amendment 41 of the State Constitution and stated this process was already in motion. Meeting adjourned at 7:56 1 Ethics Review Board Meeting Minutes March 13, 2020 5:00 p.m. Alternative Ethics Review Board members in attendance: Councilmembers Julie Pignataro, Ross Cunniff, Susan Gutowsky and Emily Gorgol. Staff in attendance: Carrie Daggett, City Attorney; Jeanne Sanford, Paralegal. Public in Attendance: Councilmember Ken Summers; Complainant Rory Heath and approximately 15 members of the public. A meeting of the City Council (alternate) Ethics Review Board (“Board”) was held on Friday, March 13, 2020, at 5:00 p.m. in the CIC Room, City Hall West. The meeting began at 5:00 p.m. The Board reviewed the Agenda which contained the following items: 1. Selection of Presiding Officer for Ethics Review Board as it considers the pending complaint. 2. Review and Approval of the March 6, 2020 Minutes of the Ethics Review Board. 3. Hearing and investigation in accordance with City Code Section 2-569(e) of a complaint filed on January 21, 2020, by Rory Heath, alleging that political consulting/lobbying activities of Councilmember Ken Summers violate state and local ethics provisions. 4. Other Business. 5. Adjournment. The first item on the agenda, selection of a Chair, was discussed. The Board unanimously consented to Councilmember Julie Pignataro continuing being the Chair. The approval of the March 6, 2020, Minutes of the Ethics Review Board meeting was next on the Agenda. Councilmember Gorgol made a motion to approve the March 6, 2020, Minutes and Councilmember Susan Gutowsky seconded the motion. The Minutes of the March 6, 2020, Ethics Review Board meeting were approved by unanimous consent. Chair Pignataro called up the next order of business, which was the discussion of the Complaint against Councilmember Summers. City Attorney Carrie Daggett ran through the suggested hearing process that was highlighted in the Agenda Item Summary. Chair Pignataro announced that each party would have a total of 15 minutes to speak and there was no objection from other members of the Board or either the Complainant or Councilmember Summers. City Attorney Daggett ran through the Agenda Item Summary with attachments provided in the public packet with the addition of an email from Rory Heath received on Friday. 2 For his opening remarks, Rory Heath stated Mr. Summers was not present for the last Ethics Review Board meeting, but the crux of the matter was his website, www.kensummers.org and the statements such as “opening doors, empowering influence”, etc. Mr. Heath stated the existence of the website and those statements along with Mr. Summers’s representation on Council were the big issue. Mr. Heath stated this was tip of the iceberg and if Councilmember Summers had nothing to hide, why wouldn’t he open up his bank records for KGS? For his opening remarks, Councilmember Summers stated Mr. Heath’s allegations were baseless and silly. Councilmember Summers explained having a website that is inactive is not in violation of any code of ethics. Mr. Summers further explained there was no nefarious activities going on due to the fact that he has a tab on a personal website called KGS Consulting. Mr. Summers continued that Mr. Heath has abused this process for political purposes because he does not like the fact that CSU owns property that the City is obligated to zone. Mr. Summers further stated that Mr. Heath has one paragraph of a complaint that I “voted against the 655 pages of public comments” Mr. Summers stated he checked with City Clerk and there were approximately 140 pages, not 655. Councilmember Summers stated he was glad Mr. Heath made it up from Colorado Springs to this meeting, which is interesting to note his interest in Fort Collins matters. Mr. Summers explained that in 2014, he attempted to acquire some work through this business due to his West Nile Virus disability, but never secured a client in those efforts. Mr. Summers concluded that Mr. Heath has an obligation to identify an interest he has that is in conflict to the zoning before Council and he has offered none. For his presentation of evidence, Rory Heath stated he was glad Mr. Summers brought up his past. There was an interruption from Mr. Summers. Mr. Heath handed out some exhibits to the Board which included as Exhibit 1 a typed transcript of what was described as a statement by Councilmember Summers at the January 21, 2020, City Council meeting. Mr. Heath read Mr. Summers’s statement. Mr. Heath stated his Exhibit 2 was evidence of lobbying from the Secretary of State’s lobbyist website and his Exhibit 3 was client search results from the Colorado Secretary of State’s lobbyist registration and reporting website. The exhibits were handed out to the Board and to Mr. Summers. Mr. Heath stated these reports show there was lobbyist money and not only is Mr. Summers lying to all us, his website solicits work as a lobbyist, when he does not have a current lobbyist license. In response, and as part of his presentation of evidence, Councilmember Summers rebutted by saying Mr. Heath doesn’t understand what is involved as a lobbyist and explained he was a consultant on one bill in two sessions in the years 2015 and 2016. Mr. Summers explained his lobbying efforts ended in 2016 and he submitted his financial disclosures as all City Councilmembers have to submit. Mr. Summers stated he did not make money as a lobbyist while on City Council and the clear evidence points to that. In closing, Rory Heath stated in his rebuttal that without Councilmember Summers’s financial records, one is left with a grey area to take his word on this. Mr. Heath stated Councilmember Summers is not to be taken at his word and the things he has said are very scary. In closing, Mr. Heath stated the fact that Councilmember Summers’s LLC is still in operation and the website is still soliciting business, one can argue is negligence. He argued that the appearance of impropriety is an issue in and of itself and could be an offense. Mr. Heath finished by saying we do not have enough evidence as it relates to Hughes and how far this crime and dirt has gone; we need to look at every single action Councilmember Summers has 3 made so far. If Councilmember Summers has nothing to hide, then he should release his tax returns, bank statements and emails. In closing, Councilmember Summers rebutted by stating those requests were ludicrous, insulting, and way over the top for any reasonable person to expect. Mr. Summers continued by stating Mr. Heath has the audacity to suggest that he has been lying for over 3 years now because I knew the zoning of Hughes would come up in 2020 and would request recommendation from our City Staff. Councilmember Summers further stated in the original analysis of Rory Heath’s complaint, he wants opportunity for others to speak, no growth, walking trails only, etc. Those are statements of a lobbyist; He is lobbying without a license. Councilmember Summers stated he does not have a bank statement or a bank account for KGS Consulting. At the conclusion of the comments by Rory Heath and Councilmember Summers, Chair Pignataro brought the discussion back to Board for questions. She asked City Attorney Daggett to explain to the Board and for the record the financial disclosures that Councilmember Summers had provided (attached to the Agenda Item Summary) and the legal nature of those. City Attorney Daggett stated the financial disclosures are required by law and the statements follow a process required at the state level for state officials. She noted there is not a City process of investigation and/or checking that the reported income or other information is correct. Mr. Daggett did state there are legal consequences in filing an incorrect statement, but she did not have specific information about the nature of the consequences without further checking. City Attorney Daggett went over the form and read it to the Board and the public and stated the completed Financial Disclosures are public documents and filed in the City Clerk’s Office. Councilmember Cunniff directed a question to Mr. Heath and asked if his complaint against Councilmember Summers was regarding Hughes rezoning specifically or something nonspecific as well. Mr. Heath stated yes, it is within reason that the most critical of issues, Hughes rezoning, is intended to be within the scope of this complaint. Councilmember Cunniff directed a question to Councilmember Summers and asked if his financial disclosures were accurate and complete. Councilmember Summers replied yes, they were accurate and complete. Councilmember Cunniff asked City Attorney Daggett if there were any City Code prohibitions on Councilmembers having individual employment? City Attorney Daggett stated no. She explained, however, there might be challenges if a Councilmember’s employment was funded by the City. Councilmember Gutowsky asked City Attorney Daggett if there was problem with not having a license if one was a lobbyist. 4 City Attorney Daggett replied there is a state statute that lays out the requirements for registering as a lobbyist, which in some instances may be unclear; there are specific conditions that must be met or may create an exception. For example, there is a safe harbor provision for elected officials like councilmembers communicating with state officials that exempts them from having to register. Councilmember Cunniff asked City Attorney Daggett to explain some examples of lobbyist activities. City Attorney Daggett explained that generally, lobbying activities would include people getting paid by others to communicate with state officials within the administration of state government on behalf of payors on any policy or regulatory matters. Lobbyists are required to register and file reports on their activities. Ms. Daggett stated when someone is actually hired to lobby, that is a business relationship which is pretty clear. Councilmember Gutowsky asked City Attorney Daggett if “lobbying” would be considered a job. City Attorney Daggett responded by saying if there was no activity or income, it would be hard to call it a job. Councilmember Gutowsky asked if there was a conflict of interest with lobbying. City Attorney Daggett stated no, not by definition. Councilmember Gutowsky asked Councilmember Summers about his intentions with his webpage; he explained his website was just a placeholder to when he might come back to lobbying in the future; there was just no need to cancel the LLC now and restart it in the future. City Attorney Daggett asked a question of Mr. Heath in that she has not seen or heard any particular, factual evidence Mr. Heath has identified to tie Councilmembers Summers to CSU, Hughes, or Lennar (the builder), so again asked Mr. Heath if there was some specific thing that gave him a belief that Councilmember Summers had or has a relationship with one of those entities? Rory Heath replied it was too early in the investigation to be able to know, but it has the optics of impropriety. City Attorney Daggett was asked to clarify how Councilmember jobs and business interests affect their participation in matters before Council. She stated that Councilmembers are allowed to have jobs and business interests and can participate in matters where those interests are not involved, but are not allowed to participate in a decision that relates in a way that creates a conflict of interest. Councilmember Cunniff stated he has seen no evidence that anything specific happened with respect to Hughes and that is what the Ethics Review Board needs to look for -- specifics, not hypotheticals. Councilmember Cunniff then stated absent any specifics, he did not see how the Board could conclude there was a conflict of interest in this case. Chair Pignataro responded by stating that is why the Board is here tonight; we did not have evidence. Councilmember Summers has now offered evidence he did not have a conflict. Councilmember Gorgol made a motion that the Board find that, based on the evidence presented, Councilmember Summers has not engaged in the business of lobbying or political consulting during his 5 time on Council, and that the Board conclude for that reason that no state or local ethics violation has been shown. Councilmember Gutowsky seconded the motion and the Board approved the motion by unanimous vote. Councilmember Gorgol spoke about grey area and public trust and stated all councilmembers take their oaths very seriously and the Ethics Review Board is an important part of looking at that. Ms. Gorgol further stated that the idea that Councilmembers are lying and do not take these matters seriously, is offensive. Councilmember Cunniff stated regardless of emotions which are running high, the Board is charged with looking at the City Charter very narrowly and we did not see evidence of a financial or personal conflict largely because no income was earned during Ken Summers’s term on Council. Under Other Business, City Attorney Daggett suggested she could generate an Opinion quickly if the Board took a break and then if the Opinion was acceptable, City staff could get the item on the agenda for Council consideration next Tuesday night. The Board agreed to take a fifteen minute break. The Board reconvened at 6:28 pm and City Attorney Daggett brought a draft of Opinion 2020-01 for the Board to review and consider. City Attorney Daggett explained the next process, once the Board approves the Opinion, would be to schedule Council consideration of a Resolution for next Tuesday night, which would have the Opinion attached. City Council, minus Ken Summers, would vote on the Resolution to accept and adopt the Opinion. Councilmember Cunniff made a motion for the Board to approve the Opinion 2020-01 and Councilmember Gorgol seconded the motion. The motion was approved by unanimous vote. The Board inquired if there was any other business and with no replies, the meeting was adjourned at 6:38 pm. Agenda Item 15 Item # 15 Page 1 AGENDA ITEM SUMMARY March 31, 2020 City Council STAFF Carrie Daggett, City Attorney SUBJECT Resolution 2020-029 Accepting and Adopting Ethics Opinion No. 2020-01 of the Ethics Review Board Finding No Violation of State or Local Ethics Provisions by Councilmember Ken Summers. EXECUTIVE SUMMARY The purpose of this item is consideration of the opinion of the Ethics Review Board to Council for its consideration and possible approval. STAFF RECOMMENDATION Not applicable. BACKGROUND / 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 of the City Charter or City Code pertaining to ethical conduct may file a complaint with the City Clerk. A Complaint was lodged with the Ethics Review Board through the City Attorney on January 21, 2020, by Rory Heath (the “Complainant”), a Fort Collins resident, against Councilmember Ken Summers and others, alleging that Councilmember Summers has a conflict of interest generally and 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. After notice to the complaining party and the subject of the complaint, an alternative Ethics Review Board consisting of Councilmembers Pignataro, Cunniff, Gorgol and Gutowsky met on March 6 to conduct an initial screening review of the Complaint to determine whether the Complaint asserted a factual basis for an alleged state or local ethics violation. At that time, the Board determined that further investigation was needed to make a determination regarding the allegation that lobbying and political consulting activities of Councilmember Summers violate state and local ethics laws. The alternate Ethics Review Board met on March 13, 2020, to conduct a hearing and investigate the allegation, taking evidence and testimony from the Complainant and from the subject of the Complaint, Councilmember Summers. The Board unanimously concluded that that there is no violation of state and local ethics and conflicts of interest laws pertaining to Councilmember Ken Summers’s political consulting/lobbying activities. Upon completion of its determination, the Board considered draft Ethics Opinion 2020-01, Finding No Violation of State or Local Ethics Provisions by Councilmember Ken Summers, and approved it unanimously. Section 2-569(c) provides for the opinions and recommendations of the Board to be submitted to the full Council for Council consideration and approval. -1- RESOLUTION 2020-029 OF THE COUNCIL OF THE CITY OF FORT COLLINS ACCEPTING AND ADOPTING ETHICS OPINION NO. 2020-01 OF THE ETHICS REVIEW BOARD FINDING NO VIOLATION OF STATE OR LOCAL ETHICS PROVISIONS BY COUNCILMEMBER KEN SUMMERS 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 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 WHEREAS, an alternate Ethics Review Board consisting of Councilmember Ross Cunniff, Councilmember Susan Gutowsky, Councilmember Julie Pignataro and Councilmember Emily Gorgol (the “Board”), met on March 13, 2020, to hear and consider evidence in connection with a complaint filed by Rory Heath alleging that that lobbying and political consulting activities and related website of Councilmember Ken Summers violate state and local ethics laws; and WHEREAS, at the conclusion of its hearing in this matter, the Board voted unanimously to determine that no evidence was presented showing an ethics violation under state or local law by Councilmember Summers, either specifically related to the Hughes Stadium rezoning matter or generally related to other Council decisions; and WHEREAS, the Board unanimously adopted and issued an ethics opinion, Ethics Opinion 2020-01, stating and explaining its finding of no violation of state and local ethics provisions by Councilmember Summers; 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 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. 2020-01 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 accepts and adopts the opinion contained therein. -2- Passed and adopted at an adjourned meeting of the Council of the City of Fort Collins this 31st day of March, A.D. 2020. _________________________________ Mayor ATTEST: _____________________________ City Clerk 2020-01 OPINION OF THE ETHICS REVIEW BOARD OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS March 13, 2020 Background. On January 21, 2020, a complaint was filed with the City Council via the City Attorney by Rory Heath (“Heath”). A copy of the Complaint, along with Exhibit 4 pertaining to the subject of this Opinion, is attached. The Complaint alleges that the webpage through which Councilmember Ken Summers (“Summers”) offers lobbying and political consulting services and such services violate state and local ethics laws, including the conflict of interest rules contained in the City Charter, because he improperly participated in Council decisions generally and in connection with the City Council’s rezoning of the Hughes Stadium annexation property and related matters. Under Section 2-569 of the City Code, the Complaint was first considered by an alternate Ethics Review Board comprised of Councilmember Ross Cunniff, Councilmember Susan Gutowsky, Councilmember Julie Pignataro and Councilmember Emily Gorgol (the “Board”), for initial screening pursuant to Section 2-569(d) to determine whether the Complaint warranted further investigation. At that time the Board determined that further investigation of this allegation of the Complaint was needed. Summary of Opinion and Recommendation. The information presented to us indicates that Ken Summers has not carried out any lobbying or political consulting activities during his time on City Council, which began in April 2017. While it is established that Summers has posted a webpage under the business name of KGS Consulting that offers consulting and lobbying services, the webpage is not related to any public decisions or actions absent actual clients or matters in which Summers is or has been engaged. The Board acknowledges that circumstances can be imagined under which a conflict of interest would arise for a Councilmember lobbying for others, most clearly if that lobbying related to a City issue, but also if it on Colorado Statehouse issues affecting the City. Nonetheless, there is not an inherent conflict of interest arising as a result of lobbying or political consulting activities, and in the complete absence of a lobbying or political consulting project, there is no relationship to any matters or interests coming before Summers as a City Councilmember that can even be evaluated. In addition, had Summers undertaken lobbying or political consulting activities, there would still need to be an identifiable relationship between those undertakings and the rezoning of the Hughes Stadium annexation property in order for a conflict of interest or other ethics violation to be present in regards to the Hughes Stadium item. As stated by the Complainant, there is no evidence suggesting that Summers has such a relationship. While Summers will need to consider carefully the potential for conflicts of interest should he take on the consulting or lobbying work suggested on his webpage, the Board finds there has been no evidence presented showing an ethics violation under state or local law by Summers. EXHIBIT A Opinion of the Ethics Review Board Opinion 2020-01 March 13, 2020 Page 2 of 3 The Information Presented to the Review Board. Information was presented to us with regard to the Complaint at our meetings on March 6 and 13, 2020. The Complainant, Rory Heath, presented information at both meetings; Summers appeared and presented information at the March 13 meeting. Approved minutes of the March 6 meeting and draft minutes of the March 13 meeting are attached. Besides the Complaint itself, and the exhibits provided with it, materials presented to the Board included copies of the City Charter, City Code and statutory provisions cited in the Complaint and applicable to this matter, as well as email communications from Heath, memos to the Board from Summers dated March 5 and March 7, 2020, financial disclosures by Summers in January and April 2017, April 2018 and May 2019, and a Lobbyist Summary regarding the lobbying registration of Kenneth G. Summers, printed from the Colorado Secretary of State’s website on March 7, 2020. Heath provided three additional exhibits, an apparent transcript of Summers comments at the January 21, 2020, Council meeting, and two printouts displaying lobbying activities reported by Summers, showing activity only in 2015 and 2016, dated March 12, 2020, from the Colorado Secretary of State’s webpage. Summers presented testimony and evidence, supported by the exhibits provided by Heath, document no lobbying activity by Summers since 2016. In addition, Heath has confirmed that he knows of no evidence or information showing or suggesting that Summers has a special relationship with Colorado State University, the owner of the Hughes Stadium property, or any other person, that would give cause to suspect Summers has a business or personal interest in the rezoning decision. Analysis of the Issue Presented. Whether Summers posting a website offering lobbying and political consulting services, or carrying out services, violates state or local ethics laws is must be analyzed based on the particular interests arising from that undertaking or business. Heath has expressed repeatedly his belief that the mere offering of such a website creates the possibility and the route for outside interests to influence the voting decision of Summers in the Hughes Stadium rezoning process. No evidence was offered that showed or even suggested any action or actual interest of Summers with an identifiable relationship to actions taken by Summers as a Councilmember or an identifiable relationship to the Hughes Stadium property or rezoning of it. There is no inherent or categorical conflict of interest that arises from specific employment or from lobbying or political consulting work. There was no indication of how any decision of the Council would have resulted in any immediate financial return to Summers or any direct and substantial benefit or detriment different in kind from that experienced by the general public. Accordingly, no facts were alleged or shown that support a finding that actions of Summers violated the City Charter’s prohibition against a Councilmember participating in decisions in which they have a financial or personal Opinion of the Ethics Review Board Opinion 2020-01 March 13, 2020 Page 3 of 3 interest. (City Charter Article IV, Section 9). Likewise, there was no evidence introduced showing that Summers took action as a Councilmember that would benefit him privately or would directly and substantially benefit a business or undertaking in which he had a substantial financial interest, or by which he is engaged as counsel, consultant, representative or agent. Thus, no facts have been shown that constitute a violation of state ethics laws. (Colorado Revised Statutes Sections 24-18-103 through -105, and Section 24-18-109). Because of the lack of evidence of any actions by Summers as a lobbyist or political consultant that would constitute a conflict of interest in his role as a City Councilmember, we find no state or local ethics violation has occurred. 1 Ethics Review Board Meeting Minutes March 6, 2020 5:00 p.m. Members in Attendance: Board members Julie Pignataro and Ross Cunniff; Councilmembers Susan Gutowsky, Emily Gorgol; Carrie Daggett, City Attorney; Jeanne Sanford, Paralegal, Delynn Coldiron, City Clerk. Public in Attendance: Mayor Wade Troxell; Mayor Pro Tem Kristin Stephens; Complainant Rory Heath and his attorney, Andrew Bertrand and approximately 30 members of the public. A meeting of the City Council Ethics Review Board (“Board”) was held on Friday, March 6, 2020, at 5:00 p.m. in the CIC Room, City Hall West. The meeting began at 5:00 p.m. The Board reviewed the Agenda which contained the following items: 1. Selection of Presiding Officer for Alternate Ethics Review Board as it considers the pending complaints. 2. Review and Approval of the December 16, 2019 Minutes of the Ethics Review Board. 3. Consider in accordance with City Code Section 2-569(d)(1) whether a complaint filed on January 21, 2020, by Rory Heath, making various allegations regarding the conduct of the Councilmembers below, warrants investigation: a. Mayor Wade Troxell b. Mayor Pro Tem Kristen Stephens; and c. Councilmember Ken Summers 4. Other Business. 5. Adjournment. The first item on the agenda, selection of a Chair, was discussed. Councilmember Ross Cunniff made a motion to approve Councilmember Pignataro as Chair. Councilmember Emily Gorgol seconded the motion. The motion to appoint Councilmember Pignataro as Chair was adopted by unanimous consent. The approval of the December 16, 2019 Minutes of the Ethics Review Board was next on the Agenda. Councilmember Cunniff made a motion to approve the December 16, 2019 Minutes and Councilmember Emily Gorgol seconded the motion. The Minutes of the December 16, 2019 Ethics Review Board were approved by unanimous consent. 2 City Attorney Daggett explained the background materials, including of Rory Heath’s Complaint, were provided with an introductory Agenda Item Summary (“AIS”), accompanied by three sections pertaining to each part of the Complaint. The allegations against Mayor Troxell were contained in AIS 3a, Mayor Pro Tem Kristen Stephens’s portion in AIS 3b and Councilmember Ken Summers’s portion in AIS 3c. The Board decided to give the Complainant and respondent 5 mins to speak in turn and allowed 5 minutes of rebuttal for each. City Attorney Daggett discussed the overview of the complaint and the structure of the materials presented. City Attorney Daggett explained supplemental materials received on March 5, 2020, were given to all members of Council and included Ken Summers’s statement and an email exchange with Complainant regarding his procedural concerns. These documents were also posted on the public website. Complainant Rory Heath introduced his attorney, Andrew Bertrand, and then spoke for 5 minutes, in which he asked the Board for consideration for a more judicious process. Mr. Heath stated he felt his complaint, along with all exhibits referenced and highlighted were not given to the Board. Councilmember Pignataro assured Mr. Heath they all received the complaint with highlighted exhibits the day he filed the complaint contained on a jump drive which was given to all Councilmembers. Mr. Heath stated he felt Council was not given the full scope and key ethics laws were not furnished by the City Attorney. Mr. Heath stated that Professor Wade Troxell is an employee of CSU which fits within all applicable Colorado Revised Statutes definitions highlighted in his materials. He asked the Board to consider outsourcing this Ethics Review Board as he felt the process was biased as was the checklist supplied by City Attorney Daggett. Mayor Troxell next spoke and pointed out previous documents related to conflict of interest with his employment at CSU. Mayor Troxell talked about City Council Resolution 2014-107 wherein he asked for a review regarding the CSU stadium issue. Mayor Troxell read one of the Whereas clauses in that Resolution which stated the attached advisory opinion concluded Mayor Troxell did not have a conflict of interest with the CSU stadium issue considering his employment by CSU. Mayor Troxell stated as it relates to the previous Ethics Review Board (in December, 2019), two determinations were made. The Board voted unanimously that further investigation of a complaint was not warranted and there was no financial or personal conflict of interest and no violation of any state or city violation of ethics. Mayor Troxell further stated that in this complaint, there is no financial benefit or detriment in this matter; this is a rezoning issue which is more administrative in nature. It does not fit within the definition of financial benefit. Regarding a personal benefit, Mayor Troxell stated he has no direct or substantial personal benefit. The state ethics provisions exclude institutions of higher education, so directorship means fiduciary member; Mayor Troxell stated he is only a faculty member. 3 In Mr. Heath’s rebuttal time, he stated he was glad Mayor Troxell brought up the previous ethical situation with the stadium as this speaks to a larger problem. Mr. Heath stated it would be of interest how a court of law would interpret this; it is unfair for Councilmembers to judge their peers. This is not fair as Mayor Troxell collects a paycheck which says CSU no matter how one wants to look at it. Mr. Heath explained this is a first piece of a larger piece if the zoning goes through. Andrew Bertrand spoke to the financial benefit per dwelling payment to CSU in the current development contract for this land being rezoned which is very different than the CSU stadium situation and should be considered as such. Mayor Troxell then gave his rebuttal, stating that Rory Heath had made no case and these broad allegations did not relate to him. Mayor Troxell asked if Mr. Heath was talking about the CSU system, CSU Fort Collins, or CSU Research Foundation. Mayor Troxell stated he is a faculty member of the College of Engineering and is not involved with the Board of Governors and these conversations. Mayor Troxell also spoke to Mr. Heath’s allegations regarding donations to his campaign, and noted there is nothing to substantiate that allegation. Mayor Troxell stated Mr. Health is factually wrong and his broad-based innuendos do not relate to him. Councilmember Pignataro brought the issue back to the Board. Ms. Pignataro stated the City Attorney’s Office will be coming to Council with ideas for a different Ethics Review Board structure to hear a complaint against a Councilmember sometime this summer. Ms. Pignataro asked City Attorney Daggett if the Board was missing the full ethics laws as Mr. Heath alleged. City Attorney Daggett stated she had a hard time picking out what statutes Mr. Heath was suggesting were not provided. She noted Colorado Revised Statutes Section 24-18-108 only applies to state officers and excludes City officials. City Attorney Daggett stated she did not provide that statute to Councilmembers as it did not apply and that she believed all others had been provided. Councilmember Ross Cunniff discussed Article XXIX to the State Constitution (also referred to as “Amendment 41”) regarding prohibiting an appearance of a conflict of interest. Mr. Cunniff stated the City needs to update its code to reflect this as he feels the City has not adequately addressed the issue of the appearance of conflict. City Attorney Daggett stated Amendment 41 adopting Article XXIX of the Colorado constitution was passed in 2006 and the City has not made amendments to its local provisions intended to match that provision. She noted the exception language allowing home-rule cities to adopt their own local ethics provisions, and further noted that the extent of this exception is currently being litigated. The Board discussed the best way to bring this issue to Council and asked the City Attorney to provide further information to Council on this for further consideration. 4 Councilmember Gutowsky stated she felt Councilmember Cunniff brought up a good point, expressing that optics and how things look are very important. She has listened to constituents’ comments and while this may not be against the Code of Ethics, people feel the way they feel, and it should be a natural decision to recuse yourself if your employer is involved in an issue. She hears the public’s voice; it is all about impression. The Board discussed the listed City and statutory ethics provisions, and in particular whether CSU was defined as a “business or other undertaking.” City Attorney Daggett stated the Colorado Independent Ethics Commission has specifically looked at the question of whether a public body is a “business or undertaking” and has found that a public body is not a “business or other undertaking.” Chair Pignataro then went through the checklist attached to the AIS 3a. Councilmember Cunniff made a motion that the Board find that having reviewed the allegations of Mr. Heath’s Complaint and the applicable laws, the Board has determined that the Complaint fails to allege that Mayor Troxell has a financial or personal interest or conflict related to the decision on the Hughes Stadium property rezoning and no further investigation is warranted. Councilmember Pignataro seconded the motion and the motion passed by unanimous voice vote. The Board moved to AIS 3(b) relating to Mayor Pro Tem Stephens. Rory Heath spoke that this was the same issue, different person. Mr. Heath stated he felt the materials from the City Attorney’s Office were very biased. Asked again that this issue be reviewed instead by an independent panel of outside experts. Andrew Bertrand spoke that this is very similar to the last argument and that Amendment 41 has been glossed over. The issue is about optics. Mr. Heath spoke about financial benefits and drew a correlation with UNC announcing possible layoffs. If the development deal does not go through, CSU can experience those same realities. Mr. Heath stated he feels CSU is a business or other undertaking. Mayor Pro Tem Stephens talked about the factual allegations and stated she does not take an oath to CSU. Ms. Stephens stated as far as Mr. Heath’s statement about career opportunities, this is not relevant. Mayor Pro Tem Stephens does not believe she has personal or financial interest in the CSU Hughes Stadium rezoning issue. Ms. Stephens insisted she is a state classified employee in the Statistics Department, and as a State classified employee, her pay is awarded by the state; CSU has no say in her pay raises. Rory Heath rebutted this as follows. Mr. Heath stated Mayor Pro Tem Stephens is an employee on a one-year contract renewal who has to “sing for her supper” every year. There is a method for reward – better position, etc. Andrew Bertrand stated based on public perception, Mayor Pro Tem Stephens should have recused herself. 5 Mr. Heath stated we need to fix this hole in the system before voting on this. We need to address it now, not in the future. Mayor Pro Tem Stephens’ rebutted his comments. Mayor Pro Tem Stephens stated she is not on a one-year contact. Mr. Heath’s facts are not true. Mayor Pro Tem Stephens stated she works for the State; there is no benefit or money involved in a rezoning and this is a City administration decision. Councilmember Cunniff stated the Ethics Review Board is not free to ignore the City Charter or Code or adopt State rules in lieu of a City process. Doing so would be a violation of our Code to shift this decision to a group of other people. While members of this Board have expressed sympathy, we have to change the Charter by a specific process. This Board is required to follow City Code, Charter and State laws as they now apply. Chair Pignataro directed the Board to go through the checklist attached to AIS 3b. Chair Pignataro then made a motion that the Board find that having reviewed the allegations of Mr. Heath’s Complaint and the applicable laws, the Complaint fails to allege that Mayor Pro Tem Stephens has a financial or personal interest or conflict related to the decision on the Hughes Stadium property rezoning and no further investigation is warranted. Councilmember Gorgol seconded the motion. The motion passed by unanimous voice consent. Chair Pignataro directed the Board to AIS 3c, relating to Ken Summers’s alleged personal, business-related conflicts of interest. A statement Councilmember Summers had submitted to the Board was noted. Chair Pignataro asked City Attorney Daggett to read the statement. Rory Heath stated this matter was a little more difficult. Councilmember Summers’ website advertises that he helps influence decisions. Mr. Heath stated the Board should subpoena the records of Councilmember Summers including any and all clients he has had. Mr. Heath stressed an investigation is needed here; this billboard is still up for the public to see. Andrew Bertrand stated he was not sure how anyone voted, but doesn’t care; he cares about how it looks. Now is the time to deal with it – not after Hughes gets decided. Councilmember Cunniff stated he would like to know if Councilmember Summers has received any revenue on this website. City Attorney Daggett explained it was unclear in Mr. Heath’s complaint if this was tied to Hughes Stadium or a more general complaint. Ms. Daggett explained if the complaint warrants further investigation, there will be a need to schedule a further hearing for more evidence to be presented. At that time, the Board would have power to subpoena more information if it chooses to. City Attorney Daggett explained that this process would next go to the hearing step where a decision would be made as to whether the Complaint alleges a violation specifically related to Hughes Stadium or otherwise. 6 The Board asked Rory Heath if this complaint was related to Hughes Stadium. Mr. Heath replied it was intended to include everything – including Hughes Stadium. The Board discussed next steps in this process. City Attorney Daggett stated the Board could continue its screening review if that would be helpful or find that the allegation warrants further investigations. Councilmember Cunniff stated the allegations of the Complaint are broader than Hughes and need further investigation, although regarding a specific complaint on Hughes, there is no evidence to sustain an allegation Councilmember Summers has acted unethically. Councilmember Gutowsky did not agree with this and stated the Complaint cast doubt in her mind. Councilmember Cunniff made a motion that the Board find that the allegation that political consulting and lobbying activities could constitute a potential ethics violation, if true, and that further Ethics Review Board investigation and review is warranted on the specific issue of whether Councilmember Summers has carried out political consulting or lobbying activities that constituted an ethics violation. Councilmember Gorgol seconded the motion. The motion was passed by unanimous voice consent. City Attorney Daggett discussed the timing of the next meeting to review the one remaining allegation and stated her office would get started on scheduling the next meeting. Under Other Business, the Board briefly discussed Amendment 41 of the State Constitution and stated this process was already in motion. Meeting adjourned at 7:56 1 Ethics Review Board Meeting Minutes March 13, 2020 5:00 p.m. Alternative Ethics Review Board members in attendance: Councilmembers Julie Pignataro, Ross Cunniff, Susan Gutowsky and Emily Gorgol. Staff in attendance: Carrie Daggett, City Attorney; Jeanne Sanford, Paralegal. Public in Attendance: Councilmember Ken Summers; Complainant Rory Heath and approximately 15 members of the public. A meeting of the City Council (alternate) Ethics Review Board (“Board”) was held on Friday, March 13, 2020, at 5:00 p.m. in the CIC Room, City Hall West. The meeting began at 5:00 p.m. The Board reviewed the Agenda which contained the following items: 1. Selection of Presiding Officer for Ethics Review Board as it considers the pending complaint. 2. Review and Approval of the March 6, 2020 Minutes of the Ethics Review Board. 3. Hearing and investigation in accordance with City Code Section 2-569(e) of a complaint filed on January 21, 2020, by Rory Heath, alleging that political consulting/lobbying activities of Councilmember Ken Summers violate state and local ethics provisions. 4. Other Business. 5. Adjournment. The first item on the agenda, selection of a Chair, was discussed. The Board unanimously consented to Councilmember Julie Pignataro continuing being the Chair. The approval of the March 6, 2020, Minutes of the Ethics Review Board meeting was next on the Agenda. Councilmember Gorgol made a motion to approve the March 6, 2020, Minutes and Councilmember Susan Gutowsky seconded the motion. The Minutes of the March 6, 2020, Ethics Review Board meeting were approved by unanimous consent. Chair Pignataro called up the next order of business, which was the discussion of the Complaint against Councilmember Summers. City Attorney Carrie Daggett ran through the suggested hearing process that was highlighted in the Agenda Item Summary. Chair Pignataro announced that each party would have a total of 15 minutes to speak and there was no objection from other members of the Board or either the Complainant or Councilmember Summers. City Attorney Daggett ran through the Agenda Item Summary with attachments provided in the public packet with the addition of an email from Rory Heath received on Friday. 2 For his opening remarks, Rory Heath stated Mr. Summers was not present for the last Ethics Review Board meeting, but the crux of the matter was his website, www.kensummers.org and the statements such as “opening doors, empowering influence”, etc. Mr. Heath stated the existence of the website and those statements along with Mr. Summers’s representation on Council were the big issue. Mr. Heath stated this was tip of the iceberg and if Councilmember Summers had nothing to hide, why wouldn’t he open up his bank records for KGS? For his opening remarks, Councilmember Summers stated Mr. Heath’s allegations were baseless and silly. Councilmember Summers explained having a website that is inactive is not in violation of any code of ethics. Mr. Summers further explained there was no nefarious activities going on due to the fact that he has a tab on a personal website called KGS Consulting. Mr. Summers continued that Mr. Heath has abused this process for political purposes because he does not like the fact that CSU owns property that the City is obligated to zone. Mr. Summers further stated that Mr. Heath has one paragraph of a complaint that I “voted against the 655 pages of public comments” Mr. Summers stated he checked with City Clerk and there were approximately 140 pages, not 655. Councilmember Summers stated he was glad Mr. Heath made it up from Colorado Springs to this meeting, which is interesting to note his interest in Fort Collins matters. Mr. Summers explained that in 2014, he attempted to acquire some work through this business due to his West Nile Virus disability, but never secured a client in those efforts. Mr. Summers concluded that Mr. Heath has an obligation to identify an interest he has that is in conflict to the zoning before Council and he has offered none. For his presentation of evidence, Rory Heath stated he was glad Mr. Summers brought up his past. There was an interruption from Mr. Summers. Mr. Heath handed out some exhibits to the Board which included as Exhibit 1 a typed transcript of what was described as a statement by Councilmember Summers at the January 21, 2020, City Council meeting. Mr. Heath read Mr. Summers’s statement. Mr. Heath stated his Exhibit 2 was evidence of lobbying from the Secretary of State’s lobbyist website and his Exhibit 3 was client search results from the Colorado Secretary of State’s lobbyist registration and reporting website. The exhibits were handed out to the Board and to Mr. Summers. Mr. Heath stated these reports show there was lobbyist money and not only is Mr. Summers lying to all us, his website solicits work as a lobbyist, when he does not have a current lobbyist license. In response, and as part of his presentation of evidence, Councilmember Summers rebutted by saying Mr. Heath doesn’t understand what is involved as a lobbyist and explained he was a consultant on one bill in two sessions in the years 2015 and 2016. Mr. Summers explained his lobbying efforts ended in 2016 and he submitted his financial disclosures as all City Councilmembers have to submit. Mr. Summers stated he did not make money as a lobbyist while on City Council and the clear evidence points to that. In closing, Rory Heath stated in his rebuttal that without Councilmember Summers’s financial records, one is left with a grey area to take his word on this. Mr. Heath stated Councilmember Summers is not to be taken at his word and the things he has said are very scary. In closing, Mr. Heath stated the fact that Councilmember Summers’s LLC is still in operation and the website is still soliciting business, one can argue is negligence. He argued that the appearance of impropriety is an issue in and of itself and could be an offense. Mr. Heath finished by saying we do not have enough evidence as it relates to Hughes and how far this crime and dirt has gone; we need to look at every single action Councilmember Summers has 3 made so far. If Councilmember Summers has nothing to hide, then he should release his tax returns, bank statements and emails. In closing, Councilmember Summers rebutted by stating those requests were ludicrous, insulting, and way over the top for any reasonable person to expect. Mr. Summers continued by stating Mr. Heath has the audacity to suggest that he has been lying for over 3 years now because I knew the zoning of Hughes would come up in 2020 and would request recommendation from our City Staff. Councilmember Summers further stated in the original analysis of Rory Heath’s complaint, he wants opportunity for others to speak, no growth, walking trails only, etc. Those are statements of a lobbyist; He is lobbying without a license. Councilmember Summers stated he does not have a bank statement or a bank account for KGS Consulting. At the conclusion of the comments by Rory Heath and Councilmember Summers, Chair Pignataro brought the discussion back to Board for questions. She asked City Attorney Daggett to explain to the Board and for the record the financial disclosures that Councilmember Summers had provided (attached to the Agenda Item Summary) and the legal nature of those. City Attorney Daggett stated the financial disclosures are required by law and the statements follow a process required at the state level for state officials. She noted there is not a City process of investigation and/or checking that the reported income or other information is correct. Mr. Daggett did state there are legal consequences in filing an incorrect statement, but she did not have specific information about the nature of the consequences without further checking. City Attorney Daggett went over the form and read it to the Board and the public and stated the completed Financial Disclosures are public documents and filed in the City Clerk’s Office. Councilmember Cunniff directed a question to Mr. Heath and asked if his complaint against Councilmember Summers was regarding Hughes rezoning specifically or something nonspecific as well. Mr. Heath stated yes, it is within reason that the most critical of issues, Hughes rezoning, is intended to be within the scope of this complaint. Councilmember Cunniff directed a question to Councilmember Summers and asked if his financial disclosures were accurate and complete. Councilmember Summers replied yes, they were accurate and complete. Councilmember Cunniff asked City Attorney Daggett if there were any City Code prohibitions on Councilmembers having individual employment? City Attorney Daggett stated no. She explained, however, there might be challenges if a Councilmember’s employment was funded by the City. Councilmember Gutowsky asked City Attorney Daggett if there was problem with not having a license if one was a lobbyist. 4 City Attorney Daggett replied there is a state statute that lays out the requirements for registering as a lobbyist, which in some instances may be unclear; there are specific conditions that must be met or may create an exception. For example, there is a safe harbor provision for elected officials like councilmembers communicating with state officials that exempts them from having to register. Councilmember Cunniff asked City Attorney Daggett to explain some examples of lobbyist activities. City Attorney Daggett explained that generally, lobbying activities would include people getting paid by others to communicate with state officials within the administration of state government on behalf of payors on any policy or regulatory matters. Lobbyists are required to register and file reports on their activities. Ms. Daggett stated when someone is actually hired to lobby, that is a business relationship which is pretty clear. Councilmember Gutowsky asked City Attorney Daggett if “lobbying” would be considered a job. City Attorney Daggett responded by saying if there was no activity or income, it would be hard to call it a job. Councilmember Gutowsky asked if there was a conflict of interest with lobbying. City Attorney Daggett stated no, not by definition. Councilmember Gutowsky asked Councilmember Summers about his intentions with his webpage; he explained his website was just a placeholder to when he might come back to lobbying in the future; there was just no need to cancel the LLC now and restart it in the future. City Attorney Daggett asked a question of Mr. Heath in that she has not seen or heard any particular, factual evidence Mr. Heath has identified to tie Councilmembers Summers to CSU, Hughes, or Lennar (the builder), so again asked Mr. Heath if there was some specific thing that gave him a belief that Councilmember Summers had or has a relationship with one of those entities? Rory Heath replied it was too early in the investigation to be able to know, but it has the optics of impropriety. City Attorney Daggett was asked to clarify how Councilmember jobs and business interests affect their participation in matters before Council. She stated that Councilmembers are allowed to have jobs and business interests and can participate in matters where those interests are not involved, but are not allowed to participate in a decision that relates in a way that creates a conflict of interest. Councilmember Cunniff stated he has seen no evidence that anything specific happened with respect to Hughes and that is what the Ethics Review Board needs to look for -- specifics, not hypotheticals. Councilmember Cunniff then stated absent any specifics, he did not see how the Board could conclude there was a conflict of interest in this case. Chair Pignataro responded by stating that is why the Board is here tonight; we did not have evidence. Councilmember Summers has now offered evidence he did not have a conflict. Councilmember Gorgol made a motion that the Board find that, based on the evidence presented, Councilmember Summers has not engaged in the business of lobbying or political consulting during his 5 time on Council, and that the Board conclude for that reason that no state or local ethics violation has been shown. Councilmember Gutowsky seconded the motion and the Board approved the motion by unanimous vote. Councilmember Gorgol spoke about grey area and public trust and stated all councilmembers take their oaths very seriously and the Ethics Review Board is an important part of looking at that. Ms. Gorgol further stated that the idea that Councilmembers are lying and do not take these matters seriously, is offensive. Councilmember Cunniff stated regardless of emotions which are running high, the Board is charged with looking at the City Charter very narrowly and we did not see evidence of a financial or personal conflict largely because no income was earned during Ken Summers’s term on Council. Under Other Business, City Attorney Daggett suggested she could generate an Opinion quickly if the Board took a break and then if the Opinion was acceptable, City staff could get the item on the agenda for Council consideration next Tuesday night. The Board agreed to take a fifteen minute break. The Board reconvened at 6:28 pm and City Attorney Daggett brought a draft of Opinion 2020-01 for the Board to review and consider. City Attorney Daggett explained the next process, once the Board approves the Opinion, would be to schedule Council consideration of a Resolution for next Tuesday night, which would have the Opinion attached. City Council, minus Ken Summers, would vote on the Resolution to accept and adopt the Opinion. Councilmember Cunniff made a motion for the Board to approve the Opinion 2020-01 and Councilmember Gorgol seconded the motion. The motion was approved by unanimous vote. The Board inquired if there was any other business and with no replies, the meeting was adjourned at 6:38 pm.