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HomeMy WebLinkAboutAgenda - Mail Packet - 12/13/2022 - Ethics Review Board Meeting Agenda – December 14, 2022City Attorney 300 LaPorte Avenue PO Box 580 Fort Collins, CO 80522 970.221.6520 | Office 970.221.6327 | Fax fcgov.com AGENDA Ethics Review Board Meeting December 14, 2022 3:30 p.m. Via Zoom Meeting https://fcgov.zoom.us/j/96880340754 Or One tap mobile: US: +17209289299,,96880340754# or +12532158782,,96880340754# Or Telephone: Dial (for higher quality, dial a number based on your current location): US: +1 720 928 9299 or +1 253 215 8782 or +1 346 248 7799 or +1 312 626 6799 or +1 646 558 8656 Webinar ID: 968 8034 0754 International numbers available: https://fcgov.zoom.us/u/awFmy70aq 1. Call to Order 2. Roll Call 3. Selection of Presiding Officer for Ethics Review Board as it considers the pending complaint. 4. Review and Approval of the October 12, 2022 Minutes of the Ethics Review Board. 5. Initial screening of a November 18, 20220F 1 ethics complaint filed by Brian Carnahan alleging that Planning and Zoning Commissioner Michele Haefele behaved unethically with respect to an application for a lot line adjustment at 3006 Rockborough Court when she: 1) had a conflict of interest at the August 18, 2022 appeal hearing due to a personal relationship with the appellant; and 2) made biased statements against the applicants at the August 11th work session. 6. Other Business. 7. Adjournment. 1 The written complaint is dated November 17, 2022 and was submitted via email to the City Clerk’s Office on November 18, 2022. Ethics Review Board Meeting Minutes October 12, 2022, Meeting Via Zoom Ethics Review Board members in attendance: Mayor Jeni Arndt, Councilmembers Julie Pignataro, Councilmember Susan Gutowsky. Staff in attendance: Carrie Daggett, City Attorney; Briana McCarten, Paralegal Other Attendees: Kevin Jones, Fort Collins Chamber of Commerce A meeting of the City Council Ethics Review Board (the “Board”) was held on Wednesday, October 12, 2022, at 3:00 p.m. Board chair Gutowsky called the meeting to order at 3:02 pm. The Board reviewed the Agenda which contained the following items: 1. Call to Order 2. Roll Call 3. Review and approval of the May 2, 2022, Minutes of the Ethics Review Board 4. Consideration of draft proposals for ethics complaint screening and investigation process and possible recommendation to Council. 5. Review of materials previously provided regarding conflicts of interest related to employment relationships and discussion of next steps on this issue, if any. 6. Other Business 7. Adjournment Paralegal Briana McCarten took roll call for the Board. All members were in attendance. Councilmember Pignataro made a motion to approve the May 2, 2022, Minutes. Mayor Arndt seconded the motion. The Minutes were approved by unanimous vote. Next, Item 4 was up – consideration of draft proposals for ethics complaint screening and investigation process and possible recommendation to Council. City Attorney Daggett presented draft revisions to City Code Section 2-569 regarding the screening process for complaints against Councilmember(s) and using an outside expert for the process. Draft revisions have only been made to sections about complaints made against councilmembers; processes relating to complaints against boards and commission members remain as is. Some longer paragraphs have simply been broken out into pieces to make them easier to read. Subsection (d)(1) addresses inquiries against Councilmembers and part (2) addresses complaints. The provisions call for arrangement in advance to have one or more screening attorneys selected in case a complaint is filed. The proposed change to subsection (d)(2)(d) provides that once a complaint comes in and notice has gone out, the City Attorney then provides the complaint to one of the screening attorneys for screening the complaint and making a determination as to whether the complaint warrants further investigation. Ethics Review Board Meeting Minutes October 12, 2022, Meeting Via Zoom Councilmember Pignataro commented that the draft revisions look fine and asked if City Attorney Daggett would like to point out any specific proposed revisions. City Attorney Daggett presented draft revisions that provide for a time limit within which the screening attorney must make a determination. Ms. Daggett went on to explain that under the draft revisions, if the screening attorney decides that a complaint warrants an investigation, the City Attorney will arrange for the investigation. Presumably, the screening attorney would also oversee the investigation, but in the event that attorney is unable to do it, the City Attorney will assign a different attorney to complete the investigation. Councilmember Pignataro asked about the proposed time constraints. City Attorney Daggett stated that the 30-day time limit by which to do the screening has not changed from the previous version. Councilmember Pignataro asked about the 14-day enlargement of time for the Board to meet and render an opinion on the screening attorney’s determination proposed under subsection (d)(2)(d)(vii) and suggested that leaving the time frame open might be more practical. City Attorney Daggett said that she will change the language to eliminate the 14-day extension of time and instead reflect that the meeting must happen as soon as is reasonably practicable. Councilmember Pignataro asked about a time limit for the investigation. City Attorney Daggett clarified that the draft revisions do not provide such a time limit and allow for the investigation to take as long as is needed given the variation in circumstances that may arise. Ms. Daggett stated that when the City Attorney’s Office engages outside counsel for any issue, she usually considers the attorney’s ability to see to the issue timely. Councilmember Pignataro asked about subsection (d)(2)€’s alternate review procedures for when a complaint is filed against five or more Councilmembers. City Attorney Daggett clarified that the process will remain the same except for that final review by the alternate Board, which is based on outside counsel’s recommendation. Ms. Daggett further clarified that it is the City’s practice to split complaints against multiple councilmembers and/or that involve multiple distinct issues out in a way that makes the most sense, and that optional language specifying that requirement can be retained in the final draft. Councilmember Gutowsky stepped away briefly. City Attorney Daggett then moved on to address proposed changes to the screening criteria in subsection (d)(2)(f). Ms. Daggett consulted with other jurisdictions’ screening criteria and suggested that the screening process will be more effective if the criteria are more specific and cover more possible reasons a complaint may not need to move forward. City Attorney Daggett pointed out that under the current Code, because the Board is responsible for the screening step and because any Board meeting is public, historically the meeting at which Ethics Review Board Meeting Minutes October 12, 2022, Meeting Via Zoom the Board would screen a complaint would often turn into something resembling a hearing. Having the screening go to an attorney will prevent that from happening. Councilmember Gutowsky appreciated that the proposed changes will save a lot of time. City Attorney Daggett pointed out that if most complaints get screened out, the Board won’t have to be very involved with councilmember complaints. Councilmember Gutowsky asked if the proposed revisions apply to all boards and commissions or only City Council. City Attorney Daggett confirmed that the process for boards and commissions remains the same. Ms. Daggett went on to suggest that if, after it has been implemented for a period of time, City Council likes the new process they could have it apply to all boards and commissions. Right now, if the Board determines that further investigation of a complaint is not warranted, the Board sends a letter to the complainant and subject to that effect. If the Board determines that further investigation is warranted, then the Board holds a hearing, considers evidence, and determines if a violation has occurred. The City Attorney then drafts a formal opinion. Once the Board signs off on the opinion, they will bring it to City Council for adoption by resolution. City Council typically adopts the Board’s opinions. Councilmember Gutowsky asked about how often investigations of ethics complaints are warranted. Ms. Gutowsky declined City Attorney Daggett’s offer to gather data. There was discussion about how there are stretches of time when there are very few complaints and stretches when there are a lot of complaints. Mayor Arndt asked if the proposed revisions to Section 2-569 were ready to be taken to City Council. City Attorney Daggett will put the proposed revisions into ordinance form for the City Council to consider adopting as an amendment to the City Code. The Board can recommend that City Council adopt the changes. City Attorney Daggett asked if further discussion with Council, at a work session, for example, would be helpful. Board members indicated that additional processing would not be necessary. City Attorney Daggett and Mayor Arndt agreed that this should be slated for a discussion item. City Attorney Daggett will work with the City Manager to propose a time to add this to a Council meeting agenda. City Attorney Daggett addressed a proposed revision providing that each complaint name only one officer as its subject and suggested that alternatively the Code could allow for including two officers together in one complaint if the allegations are identical. Mayor Arndt stated that each complaint should only focus on one officer because facts will never be completely identical. Ethics Review Board Meeting Minutes October 12, 2022, Meeting Via Zoom By unanimous consent, the ERB recommended bringing the proposed revisions to Section 2-569 to City Council for adoption. City Attorney Daggett brought up the cost of outside counsel for screening and investigating complaints and indicated it may not be necessary at the outset to set up a budgeted amount for that expense, given that it’s unknown if it will be needed and what the cost would be, although it would likely be somewhere in the five-figure range. Mayor Arndt stated that City Council has a budget line for these kinds of expenses already and that any charges can come from there. The Board then moved on to Item number 5 – review of materials previously provided regarding conflicts of interest related to employment relationships and discussion of next steps on this issue, if any. City Attorney Daggett explained the Board’s previous interest in revising the standards in the Charter to define conflicts of interest arising from the interests of a Councilmember’s employer. Councilmember Gutowsky stated that because any past conflict of interest issues related to a Councilmember’s employment have been resolved through consultation and the existing processes, there is no need to look at revisions to the Charter at this time. Councilmember Pignataro agreed and stated that every councilmember has their own responsibility and takes their own risk with respect to conflicts of interest. All members of the Board expressed the view that employment-related conflicts of interest are not a concern requiring further action at this time and that they are comfortable leaving the Charter provisions as is. City Attorney Daggett will remain aware of the issue and bring it up in the future if it appears it may be beneficial to discuss it further. Councilmember Gutowsky asked when the Board should meet next. It was agreed the Board will continue to meet as needed. There are no other pending matters so no additional meetings will be scheduled unless something new for consideration arises. Meeting adjourned at 3:45 pm City Council ERB Agenda Item Summary – City of Fort Collins Page 1 of 5 Agenda Item 4 December 14, 2022 AGENDA ITEM SUMMARY City Council – Ethics Review Board STAFF Carrie Daggett, City Attorney SUBJECT Consideration in accordance with City Code Section 2-569(d)(1) of whether a complaint filed on November 18, 2022 by Brian Carnahan alleging that Planning and Zoning Commissioner Michele Haefele: 1) had a conflict of interest in the appeal of the approval of a lot line adjustment at 3006 Rockborough Court and violated the City’s ethics provisions when she did not refrain from participating in the appeal hearing; and 2) abused her power by making unfavorable statements during a work session (the “Complaint”). EXECUTIVE SUMMARY The purpose of this item is to complete the initial screening by the Ethics Review Board (the “Board”) of a complaint filed with the Board under City Code Section 2-569(d), as described below. STAFF RECOMMENDATION Staff recommends that the Board consider the Complaint and determine whether to proceed with an investigation of the Complaint. BACKGROUND / DISCUSSION Under City Code Section 2-569(d), “[a]ny person who believes a Councilmember or board and commission member has violated any provision of state law or the Charter or Code pertaining to ethical conduct may file a complaint with the City Clerk . . . “ (emphasis added). After notice to the complaining party and the subject of the complaint, the Board then considers the complaint and whether it should be further investigated. The Complaint: The Board will consider the Complaint lodged with the Board through the City Clerk on November 18, 2022 by Brian Carnahan (the “Complainant”), a Fort Collins resident, against Planning and Zoning Commissioner Michele Haefele (“Haefele”). The Complaint alleges Haefele: 1) Had a conflict of interest in the appeal of the lot line adjustment decision involving Complainant’s property in light of Haefele’s personal relationship with the appellant; and 2) Abused her power by making biased statements attacking Complainant during the work session for the appeal. The following excerpts are from Mr. Carnahan’s Complaint: Commissioner Haefele stated at the beginning of the hearing that she had a personal relationship with the Appellant. City code prohibits officers from participation when there is a conflict of interest. However, she chose not to City Council ERB Agenda Item Summary – City of Fort Collins Page 2 of 5 recuse herself and subsequently demonstrated a very clear bias in favor of the appellant during the work session and hearing. This was dishonest, unethical, and it created an unfair advantage for the appellant in violation of city code Chapter 2, Article VII Section 2-568 (c) (3). Ms. Haefele seemed to believe that by acknowledging her conflict of interest, she was cleared of the responsibility of impartiality. The vote was ultimately unanimous in our favor . . . . Her reluctant vote for approval does not undo the prejudice she showed during these discussions. * * * During the work session on August 11th, Commissioner Haefele made a reference to specific characteristics of our yard that was not part of the application documents and could only have been known if she had prior discussions about the application with the appellant or another neighbor. Other comments made during the hearing included unfair criticism of us, the applicants, and the city procedures we followed including statements that we “shoved this proposal through by trying to avoid public input”, and that we “manipulated the process to avoid a public hearing.” At the peak of her frustration, Ms. Haefele went so far as to state that our proposal “is just smelly.” . . . Once it was clear our proposal had the support of every other Commissioner, Ms. Haefele again crossed the line with a last-ditch proposal to place a permanent building restriction on our home at 3006 Rockborough Court! Not only was this proposal unfair,it was entirely malicious and obviously outside the purview of Planning and Zoning as was quickly pointed out by the entire commission including Brad Yatabe. The Board Determination: The Board is required under the Code to evaluate the Complaint and determine by majority vote whether to formally investigate the Complaint. In doing so, the Board should consider: 1. Whether the allegations in the Complaint, if true, would constitute a violation of state or local ethical rules; 2. The reliability and sufficiency of any facts asserted in support of the allegations; and 3. Any other facts or circumstances the Board may consider relevant. If the Board determines that the Complaint does not warrant investigation, the Board then directs staff to send written notice to the Complainant of that determination and the reasoning behind it. A copy of that notice is also sent to the subject of the Complaint and the City Council. Whether Allegations Would, If True, Constitute a Violation: The screening step is intended to determine whether the Complaint alleges actions that would, if true, constitute a violation of City or state ethics provisions. In this case, the Complainant generally asserts that Haefele had a conflict of interest (personal interest) and abused her power. Outline of Relevant City Ethics Provisions: Generally, the ethics provisions established by the City include City Charter Article IV, Section 9, and City Code Section 2-568. As a City officer under the ethics provisions, Commission member Haefele is required to disclose upon discovery using the appropriate form any personal interest in a Commission decision and to refrain from voting on, attempting to influence or otherwise participating in such decision in any manner as a City officer. City Council ERB Agenda Item Summary – City of Fort Collins Page 3 of 5 The City Charter (Article IV, Section 9(a)) defines the key term personal interest as “any interest (other than a financial interest) by reason of which an officer or employee, or a relative of such officer or employee, would, in the judgment of a reasonably prudent person, realize or experience some direct and substantial benefit or detriment different in kind from that experienced by the general public. Related definitions in Code Section 2-568(a) include: Different in kind from that experienced by the general public means of a different type or nature not shared by the public generally and that is not merely different in degree from that experienced by the public generally. Direct means resulting immediately and proximately from the circumstances and not from an intervening cause. Benefit means an advantage or gain, while detriment means disadvantage, injury, damage or loss. Substantial means more than nominal in value, degree, amount or extent. Outline of Relevant State Ethics Provisions: In addition, various state laws are commonly considered ethics laws. It is unclear whether the Complaint intended to allege violations of any of these state law provisions; however, they were not noted and it may these may not be within the scope of the Complaint. The statutes that may be relevant in light of the “abuse of power” allegation in the Complaint include: 1. Breach of Fiduciary Duty: Section 24-18-103, Colorado Revised Statutes (“C.R.S.”), establishing public office as a public trust requiring that duties be carried out for the benefit of the people, and establishing liability for the breach of this trust (including the collection of improperly gained funds); Other related statutory provisions in Section 24-18-104, -105, and -109 suggest that the breach of public trust provision is aimed most specifically at actions resulting in personal gains and economic benefit to the official or the official’s relative or business undertakings. 2. First Degree Official Misconduct: Section 18-8-404, establishing a class 2 criminal misdemeanor offense as follows: (1) A public servant commits first degree official misconduct if, with intent to obtain a benefit for the public servant or another or maliciously to cause harm to another, he or she knowingly: (a) Commits an act relating to his office but constituting an unauthorized exercise of his official function; or (b) Refrains from performing a duty imposed upon him by law; or (c) Violates any statute or lawfully adopted rule or regulation relating to his office; and 3. Second Degree Official Misconduct: Section 18-8-405, establishing a class 1 petty offense as follows: (1) A public servant commits second degree official misconduct if he knowingly, arbitrarily, and capriciously: (a) Refrains from performing a duty imposed upon him by law; or (b) Violates any statute or lawfully adopted rule or regulation relating to his office. The official misconduct provisions are criminal statutes and it is unclear whether they have been applied in cases of where an official was not alleged to be seeking a direct pecuniary gain or other significant benefit. City Council ERB Agenda Item Summary – City of Fort Collins Page 4 of 5 Violations of these laws are prosecuted by the District Attorney in the State Court system. Analysis: The Complaint alleges Commissioner Haefele had a “personal interest” in the outcome of the appeal at issue based on her personal relationship with the appellant. • If the Board finds that the existence of the personal relationship alleged is sufficient to potentially result in some direct and substantial benefit or detriment different in kind from that experienced by the general public so as to constitute a personal interest under the ethics provisions, then this matter likely warrants further investigation. • Alternatively, if the allegation of a personal relationship with someone who is not a relative or related entity is not sufficient to potentially result in some direct and substantial benefit or detriment different in kind from that experienced by the general public so as to constitute a personal interest under the ethics provisions, then the Board may find that this matter does not warrant further investigation. If Commissioner Haefele had a conflict of interest, the Complaint raises the possibility that she violated both the requirement to disclose the conflict and the requirement to refrain from attempting to influence the Commission’s decision, and further investigation of the facts related to these requirements may be warranted. The Complaint acknowledges that, despite Haefele’s comments during the work session and public meeting, she voted to deny the appellant’s appeal, contrary to the interest asserted in the Complaint. Reliability and Sufficiency of Facts Asserted: The Board may also determine that no further investigation is needed based on an evaluation of the facts asserted in the Complaint. The Board may know information that contradicts the facts that were asserted in the Complaint or there may not be enough information in the Complaint for you to form a reasonable suspicion that the violation alleged in the Complaint occurred. On this basis, the Board may determine that the facts asserted in the Complaint are not reliable or sufficient and find the Complaint does not warrant further investigation. Other Relevant Facts or Circumstances: If there is additional information available or presented to the Board that leads the Board to conclude that the Complaint does not merit further investigation, the Board may identify that information and find the Complaint does not warrant further investigation on that basis. CITY FINANCIAL IMPACTS Not applicable. BOARD / COMMISSION / COMMITTEE RECOMMENDATION Not applicable. City Council ERB Agenda Item Summary – City of Fort Collins Page 5 of 5 PUBLIC OUTREACH Not applicable. ATTACHMENTS 1. November 18, 2022 Carnahan Complaint 2. Minutes from August 18, 2022 Planning and Zoning Commission Meeting 3. City Code Section 2-568 4. Colorado Revised Statutes sections 24-18-103, -104, -105, -109 Brian Carnahan 3006 Rockborough Ct. Fort Collins, CO 80525 November 17, 2022 Ethics Review Board Fort Collins City Council 300 Laporte Avenue, Fort Collins, CO 80521 Ethics Review Board Members: I am writing in regard to Planning and Zoning Commissioner Michele Haefele. My intent with this letter is to make you aware of objectionable and unethical conduct by Ms. Haefele during the hearing on August 18th, 2022, as well as the associated work session. During this hearing, there was only one proposal on the discussion agenda – an appeal to a Director’s decision. Ms. Haefele’s conduct at this meeting clearly demonstrated a conflict of interest in violation of the city’s Ethical Rules of Conduct (under Article VII, Section 2-568) due to her personal relationship with the appellate, Kathryn Dubiel. This letter will summarize some of my objections to Commissioner Haefele’s conduct, but a letter can only say so much. I would urge the ethics board to simply watch the recording of the August 18th meeting while considering two points: (1) The trivial nature of the appeal and (2) the fact that Commissioner Haefele personally knows the appellate. During the meeting, the Commission heard an appeal to the approval of a basic lot line adjustment my wife and I submitted for 3006 Rockborough Ct., our home for nearly seven years. Our proposal simply shifted the lot line between our yard and the two adjacent (rear) residential properties that we also own. The purpose of the modification, as was stated many times, was simply to enlarge our narrow backyard to a more usable space for our young family while also improving the odd property angles that existed from the original cul-de-sac subdivision layout. Our proposal only affected properties we own, it met all zoning codes, was supported by every adjacent property owner, was recommended for approval by staff, and subsequently approved by the Director. Following the approval, however, the decision was appealed by a property owner (Ms. Dubiel) who lives within the 800-foot neighborhood notification radius. The appeal forced our proposal to go before the Planning and Zoning Commission on August 18th. Commissioner Haefele stated at the beginning of the hearing that she had a personal relationship with the Appellant. City code prohibits officers from participation when there is a conflict of interest. However, she chose not to recuse herself and subsequently demonstrated a very clear bias in favor of the appellant during the work session and hearing. This was dishonest, unethical, and it created an unfair advantage for the appellant in violation of city code Chapter 2, Article VII Section 2-568 (c) (3). Ms. Haefele seemed to believe that by acknowledging her conflict of interest, she was cleared of the responsibility of impartiality. The vote was ultimately unanimous in our favor, but Commissioner Haefele’s vote was made only after it became obvious she had failed to persuade a single other member to support the absurd arguments of her friend Ms. Dubiel. Bias was demonstrated in Commissioner Haefele’s statements made during the work session and hearing. Her reluctant vote for approval does not undo the prejudice she showed during these discussions. During the work session on August 11th, Commissioner Haefele made a reference to specific characteristics of our yard that was not part of the application documents and could only have been known if she had prior discussions about the application with the appellant or another neighbor. Other comments made during the hearing included unfair criticism of us, the applicants, and the city procedures we followed including statements that we “shoved this proposal through by trying to avoid public input”, and that we “manipulated the process to avoid a public hearing.” At the peak of her frustration, Ms. Haefele went so far as to state that our proposal “is just smelly.” Planning and Zoning Commissioners must understand the city planning processes better than Ms. Haefele does, or at least understand that applicants do not get to choose the process, and therefore should not be penalized for it! Once it was clear our proposal had the support of every other Commissioner, Ms. Haefele again crossed the line with a last-ditch proposal to place a permanent building restriction on our home at 3006 Rockborough Court! Not only was this proposal unfair, it was entirely malicious and obviously outside the purview of Planning and Zoning as was quickly pointed out by the entire commission including Brad Yatabe. To my wife and I (and many of our neighbors listening), it felt like an abuse of power. But for sure, Commissioner Haefele’s tantrum at the end of the hearing was an embarrassment to the Commission and the city. This appeal took advantage of a P&Z process that is disproportionately costly to a small, trivial lot line adjustment like ours. The process was vulnerable to a baseless objection by a community activist who has no interest or stake whatsoever in our private property application. It was frustrating enough to have to deal with a lengthy appeal process through the Planning and Zoning Commission. But it was a whole new level of frustration to realize that the activist-appellant had a friend on the Commission in Ms. Haefele who gave legitimacy to the frivolous appeal and then proceeded to make biased, insulting statements toward our proposal, attacked our motivations, and even attempted to apply a permanent building restriction on our property all so Ms. Dubiel could score another P&Z ‘win’ for her resume. Horrible experiences like this will only deter other citizens who want to make positive improvements from doing things the right way. My wife and I feel fortunate the P&Z Commission has a fantastic majority who spoke up in our defense. Although we would like to put the experience behind us, I find myself writing this letter out of concern that Commissioner Haefele’s extreme viewpoints and questionable motivations might continue unaddressed. Respectfully, I ask the Ethics Board to review the statements made during both the work session and hearing on August 11th and 18th. Commissioner Haefele’s behavior should not be allowed to continue. Sincerely, Brian Carnahan briancarnahan@gmail.com ph. 417-540-5619 Planning & Zoning Commission August 18 , 2022 Page 2 of 6 Consent Agenda: 1. Draft Minutes from June 16, 2022 , P&Z Hearing 2 . Peakview Annexation No . 1 Public Input on Consent Agenda: None noted. Chair Katz did a final review of the items on consent and reiterated that those items would have a separate presentation unless pulled from the consent agenda . Commissioner Stackhouse made a motion that the Planning and Zoning Commission approve the Consent agenda for the August 18, 2022, Planning and Zoning Commission hearing as originally advertised. Vice Chair Shepard seconded the motion. Vote: 5:0. Discussion Agenda: 3. Appeal of 3006 Rockborough Court Project Description: The purpose of this item is to consider an appeal of a staff decision to approve a Basic Development Review and affiliated modification request to replat the parcels addressed as 3006 Rockborough Court , 2937 Eindborough Drive and 3001 Eindborough Drive. A Minor Subdivision process is required to replat existing residential lots when no more than one new lot is created . Minor Subdivisions are processed as a Basic Development Review applications . As part of the request, a modification to reduce the minimum rear setback for the dwelling at 2937 Eindborough Drive was proposed . Recommendation: Approval Commissioner Haefele disclosed she is socially acquainted with one of the appellants; however, she did not believe it will affect her decision Vice Chair Shepard disclosed he briefly drove around the neighborhood that afternoon ; however, he did not get out of his car or speak to anyone. Brian Carnahan , 3006 Rockborough Court, introduced himself as the applicant. Kathryn Dubiel introduced herself as an appellant. Chair Katz noted this item is considered a de novo hearing; therefore, new information can be heard. Staff and Applicant Presentations Planning Manager Rebecca Everette stated this project is being processed as a basic development review and she discussed the applicable Land Use Code sections. She stated this is a replat of existing property that does not create any new lots and it is located in the low-density residential, or RL , zone district. She noted the request also includes a modification of standard to reduce a portion the rear setback below the 15-foot standard. Everette stated the basic development review minor subdivision was approved by City staff in May of 2022, after which an appeal was filed by a party-in-interest in June. She noted the applicant owns all three properties that are part of the replat which would increase the size of the applicant's main residence and decrease the lot sizes for the other two properties . Additionally, the lot size increase aligns with existing fences on the three properties . Shar Manno stated staff received five emails of support and one email in opposition to the proposed replat. Brian Carnahan, applicant , thanked the City staff for their work on this project. He discussed his history of ownership of the property at 3006 Rockborough Court and commented on the lack of maintenance of the two Planning & Zoning Commission August 18, 2022 Page 3 of 6 properties to the rear. He stated he and his wife purchased the properties at 2937 and 3001 Eindborough Drive to improve the properties and bring them up to the standards of the neighborhood. He stated he and his wife personally renovated the properties with the goal of attracting good tenants and neighbors , which has occurred. He noted neighbors who have expressed support for this replat have lived in the area for years. He discussed the rep lat which would give the property at 3006 Rockborough a deeper and more usable yard and eliminates the narrow corner angles. He stated this proposal is not detrimental to any party and meets all Land Use Code requirements with one modification of standard for an 18-inch reduction of the rear setback in a single location which has been out of compliance since the fence was constructed. Mr. Carnahan stated the property lines are not located haphazardly and he commented on moving a fence which occurred during the lease renewal period for tenants and after receiving approval from the City for the replat in May . He stated he was unaware of the appeal period and could not have imagined an appeal would occur . He stated the property lines were carefully located in conjunction with City planners , engineers, and multiple utility companies. He stated making modifications to the project at this point are not inconsequential financially. Kathryn Dubiel , appellant, stated she does not consider this a trivial matter and it represents a permanent change to the properties. She stated the item being appealed is staff's approval of a modification of standard for the rear yard setback. She noted the phrase 'detrimental to the public good' does not have a set of objective criteria for evaluation. She stated the establishment of minimum setbacks exists as a public good and they establish and maintain what becomes the character of a neighborhood. Ms. Dubiel stated Article 1, the general provisions of the Land Use Code, specifically Section 1.2.2, is foundational to this appeal. She stated she does not agree with the nominal and inconsequential claim of the rear yard setback reduction. She discussed the placement of fences and suggested the staff report be amended to not say the condition of preexisting fences caused the replat configuration, which she contended is false. She made suggestions for modifying the proposal and stated as is, it is detrimental to the public good as it creates an unnecessary encroachment on an existing building. She stated the required rear yard setback can be maintained. Everette discussed staff's analys is of the proposal and provided a diagram of the proposed property boundary line changes. She outlined the modification of standard requirements and stated the request for the reduction in setback represents a ten percent reduction in the 15-foot rear setback for a portion of the rear property line which staff found to be nominal and inconsequential and not detrimental to the public good . She reviewed the proposal's compliance with applicable Article 4 standards and outlined the brief decision letter issued by staff for basic development review proposals. She stated a full staff report is not issued because a public hearing is not required for those projects. Everette requested the Commission provide staff and the applicant with suggestions on acceptable revisions should it decide to uphold the appeal. Commissioner Schneider asked if fences could be placed anywhere on the three properties given they are owned by the same person. Everette replied in the affirmative and stated the fence locations are not relevant to _the staff analysis of whether there is compliance or whether the criteria for a modification of standard has been met. Commissioner Haefele asked if the setback is measured from the property line or the fence . Everette replied it is measured from the property line. Commissioner Shepard asked why the setback issue did not go before the Land Use Review Commission and why it ended up as part of the basic development review. Everette replied that Commission reviews variances that are associated with building permits primarily, in addition to other types of variances. In the case of a replat such as this , the development review process is used . Chair Katz asked if there is an existing fence along the proposed north-south oriented lot line between 3006 and 3001. Mr. Carnahan replied the fence was moved shortly after he purchased the property in 2020 with the purpose of beginning the restoration of the yard . Planning & Zoning Commission August18 ,2022 Page 4 of 6 Public Input (3 minutes per person) Vicki Reinke, 5203 Hialeah Drive , Windsor, owner of the property next door to 3001 Eindborough , stated she has no objections to the proposal. Commissioner Haefele asked about the original three lot sizes . Commissioner Shepard replied 3006 was 8,330 square feet , 2937 was 8,204 square feet , and 3001 was 8,556 square feet. Commission Questions/ Deliberation Commissioner Schneider stated he does not see how this is detrimental to the public good , especially given the owners own all three properties . He stated he would like setback measurements to be made clearer in the Land Use Code so as to avoid them being arbitrary and capricious. Commissioner Haefele stated it seems as though there should have been a public hearing for the setback variance request. She stated it is detrimental to the public good when projects continually request va riances and any diminishment of regulations that are in place for the public good is detrimental. However, she concurred this modification is not going to practically make much of a difference . Commissioner Stackhouse stated she believes the request is nominal and she understands why the ten percent number is being referenced as there are no other standards to consider. Additionally , she stated the proposed property lines do not result in a change of the character of the neighborhood . Commissioner Shepard stated the Code needs to be further refined in terms of whether setbacks should be measured in a perpendicular line from a build ing wall or from a building corner; however, he stated the key word is 'building ' setback , which means a wall or a roof. He also commented on appreciating the staff reliance on Code Section 2.2 .10 related to the var iance procedu re and the ability for the administrator to make a decision based on the ten percent number. He also stated he does not believe this change will result in a change in neighborhood character. Commissioner Haefele proposed a condition of approval that 3006 Rockborough not ever be granted any setback variance or any variance associated with the lot size. Chair Katz acknowledged the appellant's desire to preserve neighborhood character; however, he does not believe it is changed by th is proposal. Additionally , he stated the ability for modifications of standard to occur is an important part of the Code . He stated he will support approval of the basic development review and that Commissioner Haefele's suggestion is outs ide the purview of the Commission . Commissioner Shepard stated he will also not support the suggested condition because it is not central to the issue being debated . Commissioner Stackhouse concurred. Commissioner Shepard asked if the ema il received since the packet went out in support the appeal is from an abutting property. Everette replied the person who opposed the project in April was at 2931 Brookwood Drive, which is not an abutting property . Commissioner Shepard noted no abutting properties oppose the proposed basic development review. Mr. Yatabe requested the Commissioners further detail opinions regarding whether the modification is detrimental to the public good and which of the four standards is applicable if it is not. Chair Katz stated the modification is not detrimental to the public good because it does not change the character of the neighborhood. Additionally , as it is not clear how the setback measurement should be taken, no precedent is set and the level of variance being less than ten percent can be deemed inconsequential. Commissioner Schneider concurred and stated he does not believe the setback is being judged properly because it is not perpendicular to the building structure , which if done , would mean a modification would not be necessary. Planning & Zoning Commission August 18, 2022 Page 5 of 6 Commissioner Shepard concurred the modification is not detrimental to the public good as is does not change the character of the neighborhood. Additionally , it is nominal and inconsequential when considered from the perspective of the entire development plan , whether that be the entire neighborhood or this specific development plan. Commissioner Stackhouse also concurred . Commissioner Haefele expressed concern the applicant's have a plan to increase the size of the house at 3006 Rockborough and have arranged the lot lines as proposed so that plan will not require a setback variance. Additionally, she expressed concern these homes will eventually be sold and the other two properties will have much smaller lots. Chair Katz opposed putting a condition on a potential future situation. Commissioner Schneider agreed. Mr. Yatabe commented on the ability of the Commission to make a condition such as that suggested by Commissioner Haefele. Commissioner Haefele expressed concern about this item going through a basic development review process . Everette clarified the dimensions that were proposed for the rear setbacks did not determine the process; the project would have been a minor subdivision process regardless and it would have been a basic development review regardless. Commissioner Schneider made a motion that the Fort Collins Planning and Zoning Commission approve the requested modification of standard to Land Use Code Section 4.4(D)(2)(c) regarding the rear setback in the low-density residential zone district to allow the reduction of setback from 15 feet to 13 feet, 6 inches, as depicted in the agenda materials. The Commission finds that this modification would not be detrimental to the public good and the modification satisfies only the following Land Use Code Section: 2.8.2(H)(4), the plan as submitted will not diverge from the standards in Section 4.4(D)(2)(c) except in a nominal and inconsequential way when considered in the perspective of the entire development and the plan will continue to advance the purpose of the Land Use Code as contained in Section 1.2.2. This decision is based upon the agenda materials and information and materials presented during the work session and this hearing, and the Commission's discussion tonight. Further, this Commissioner hereby adopts information, analysis, findings of fact, and conclusions regarding the modification of standard contained in the staff report included in the agenda materials for this hearing based on this being a basic development review. Commissioner Shepard seconded. Commissioner Haefele stated she will reluctantly support this given the proposal is legal. Vote: 5:0. Commissioner Stackhouse made a motion that the Fort Collins Planning and Zoning Commission uphold the administrative decision and approve the 3006 Rockborough Court Basic Development Review BDR220001. The Commission finds in consideration of the approved modification of standard, that the basic development review satisfies all of the applicable Land Use Code requirements. This decision is based upon the agenda materials with the understanding that references to the project development plan in the agenda materials should have referred to basic development review, the information and materials presented during the work session and this hearing, and the Commission's discussion on this item. Further, this Commissioner hereby adopts information, analysis, findings of fact, and conclusions regarding this basic development review contained in the staff report included in the agenda materials for this hearing. Commissioner Schneider seconded. Vote: 5:0. For more complete details on this hearing , please view our video recording located here: https://www.fcgov.com/fctv /video-archive.php?search=PLANNING%20ZONING 12/8/22, 1:15 PM Fort Collins, CO Municipal Code about:blank 1/8 (a) (1) (2) (3) (4) a. b. c. (5) (6) (7) (8) (9) a. Sec. 2-568. - Ethical rules of conduct. Definitions. The following words, terms and phrases, when used in this Section, Section 2-569 and in Section 9 of the Charter Article IV, shall have the following meanings: Attempt to influence or influence, as it pertains to this Section, shall mean take any action intended to impact, shape, control, sway, bias or prejudice. Benefit shall mean an advantage or gain. Board and commission member shall mean a member of any appointive board or commission of the City. Confidential information or information received in confidence shall mean: Information contained in any writing that may properly be withheld from public inspection under the provisions of the Colorado Open Records Act and that is marked "confidential" when provided to the officer or employee; All information exchanged or discussed in any executive session properly convened under § 2-31 or 2-71 of the Code, except to the extent that such information is also contained in a public record available to the general public under the provisions of the Colorado Open Records Act; or All communications between attorneys representing the City and officers or employees of the City that are subject to the attorney-client privilege, whether oral or written, unless the privilege has been waived. Councilmember shall mean a member of the City Council. Different in kind from that experienced by the general public shall mean of a different type or nature not shared by the public generally and that is not merely different in degree from that experienced by the public generally. Direct shall mean resulting immediately and proximately from the circumstances and not from an intervening cause. Detriment shall mean disadvantage, injury, damage or loss. Financial interest shall have the meaning given to this term in Section 9(a) of Charter Article IV, which states: Financial interest means any interest equated with money or its equivalent. Financial interest shall not include: the interest that an officer, employee or relative has as an employee of a business, or as a holder of an ownership interest in such business, in a decision of any public body, when the decision financially benefits or otherwise affects such business but entails no foreseeable, measurable financial benefit to the officer, employee or relative; 12/8/22, 1:15 PM Fort Collins, CO Municipal Code about:blank 2/8 b. c. d. e. f. g. h. (10) a. b. c. (11) the interest that an officer, employee or relative has as a nonsalaried officer or member of a nonprofit corporation or association or of an educational, religious, charitable, fraternal or civic organization in the holdings of such corporation, association or organization; the interest that an officer, employee or relative has as a recipient of public services when such services are generally provided by the city on the same terms and conditions to all similarly situated citizens, regardless of whether such recipient is an officer, employee or relative; the interest that an officer, employee or relative has as a recipient of a commercially reasonable loan made in the ordinary course of business by a lending institution, in such lending institution; the interest that an officer, employee or relative has as a shareholder in a mutual or common investment fund in the holdings of such fund unless the shareholder actively participates in the management of such fund; the interest that an officer, employee or relative has as a policyholder in an insurance company, a depositor in a duly established savings association or bank, or a similar interest-holder, unless the discretionary act of such person, as an officer or employee, could immediately, definitely and measurably affect the value of such policy, deposit or similar interest; the interest that an officer, employee or relative has as an owner of government-issued securities unless the discretionary act of such owner, as an officer or employee, could immediately, definitely and measurably affect the value of such securities; or the interest that an officer or employee has in the compensation received from the city for personal services provided to the city as an officer or employee. Officer or employee shall mean any person holding a position by election, appointment or employment in the service of the City, whether part-time or full-time, including any member of the City Council and any member of any authority, board, committee or commission of the City, other than an authority that is: Established under the provisions of the Colorado Revised Statutes; Governed by state statutory rules of ethical conduct; and Expressly exempted from the provisions of Article IV of the City Charter by ordinance of the City Council. Personal interest shall have the meaning given to this term in Section 9(a) of the Charter Article IV, which states: 12/8/22, 1:15 PM Fort Collins, CO Municipal Code about:blank 3/8 a. b. c. (12) (13) (14) (15) (16) (17) Personal interest means any interest (other than a financial interest) by reason of which an officer or employee, or a relative of such officer or employee, would, in the judgment of a reasonably prudent person, realize or experience some direct and substantial benefit or detriment different in kind from that experienced by the general public. Personal interest shall not include: the interest that an officer, employee or relative has as a member of a board, commission, committee, or authority of another governmental entity or of a nonprofit corporation or association or of an educational, religious, charitable, fraternal, or civic organization; the interest that an officer, employee or relative has in the receipt of public services when such services are generally provided by the city on the same terms and conditions to all similarly situated citizens; or the interest that an officer or employee has in the compensation, benefits, or terms and conditions of his or her employment with the city. Public body shall have the meaning given to this term in Section 9(a) of Charter Article IV, which states: Public body means the Council or any authority, board, committee, commission, service area, department or office of the city. Public services shall mean city services provided to or made available for the public's benefit. Purchases from the city, as described in Section 9(b)(2) of Charter Article IV, shall not include payments by an employee to the city pursuant to an agreement for housing in which such employee is required to live as a condition of employment with the city. Related entity shall mean any corporation, limited liability company, partnership, sole proprietorship, joint venture, trust, estate, foundation, association, business, company or any other organization, whether or not operated for profit, with respect to which an officer or employee, or a relative of the same, has a substantial ownership interest in, is employed by, is an agent for or otherwise represents in any legal capacity. Relative shall have the meaning given to this word in Section 9(a) of Charter Article IV, which states: Relative means the spouse or minor child of the officer or employee, any person claimed by the officer or employee as a dependent for income tax purposes, or any person residing in and sharing with the officer or employee the expenses of the household. Routine City matter shall mean a usual and ordinary registration, reservation, or other request or application, within a program or for public services or City approval, such as a registration for a recreation class, reservation of a park shelter, request for standard utility 12/8/22, 1:15 PM Fort Collins, CO Municipal Code about:blank 4/8 (18) (19) (b) (c) (1) a. b. c. d. services or application for a building permit, development approval or variance, or an appeal, provided that the same is carried out using a routine process or system or in a manner consistent with standard practices. Similarly situated citizens shall mean citizens in like circumstances having comparable legal rights and obligations. Substantial shall mean more than nominal in value, degree, amount or extent. Notwithstanding the provisions of § 1-15 of the Code, an alleged violation of the provisions of this Section by a member of the City Council shall not be prosecuted in the Municipal Court as a misdemeanor criminal offense but shall instead be referred to the Ethics Review Board for an advisory opinion and recommendation under the provisions of § 2-569. Rules of conduct. Use and disclosure of confidential information. The following rules shall apply to the use and disclosure of confidential information by officers and employees of the City. In the event of any conflict among these provisions, the more specific provision shall take precedence over the more general provision. No use for personal gain. No officer or employee shall knowingly use information received in confidence as an officer or employee to advance the financial or personal interests of the officer or employee or others. Disclosure of confidential information, generally. No officer or employee shall knowingly disclose any confidential information to any person who is not an officer or employee or to an officer or employee whose official duties are unrelated to the subject matter of the confidential information or to maintaining an official record of such information on behalf of the City, unless such disclosure is reasonably necessary to protect the City from the gross mismanagement of public funds, the abuse of governmental authority, or illegal or unethical practices. Disclosure of confidential information provided to the City Council. All information received in confidence by the City Council shall remain confidential, and no officer or employee shall knowingly disclose any such confidential information to any person to whom such information was not originally distributed by City staff unless and until the City Council has, by majority vote, consented to its release, unless such disclosure is reasonably necessary to protect the City from the gross mismanagement of public funds, the abuse of governmental authority, or illegal or unethical practices. Disclosure of information discussed in executive session. No officer or employee shall knowingly disclose any confidential information discussed in an executive session to any person who was not present during such discussion, other than members of such body who were unable to attend the executive session, without the prior knowledge and 12/8/22, 1:15 PM Fort Collins, CO Municipal Code about:blank 5/8 e. f. g. (2) consent of the body holding such executive session, unless such disclosure is reasonably necessary to protect the City from the gross mismanagement of public funds, the abuse of governmental authority, or illegal or unethical practices. In the event that a matter discussed in executive session comes before the City Council or a board or commission of the City for formal action at an open meeting, or if such formal action is anticipated, nothing herein shall be construed as prohibiting a member of the body that will be taking such formal action from stating his or her position or opinion with regard to the matter, as long as such statements do not divulge confidential information received from others during the executive session. Certain distribution and discussion by City Manager and City Attorney permitted. Notwithstanding the provisions of Subparagraphs c. and d. above, the City Manager and City Attorney may further distribute confidential information provided to the City Council and may disclose confidential information discussed in any executive session of the City Council, or of a Council committee, to such staff members and/or board and commission members as they may consider reasonably necessary to enable them to fully advise the City Council or to implement any direction given by the City Council or to advise other officers and employees of the City whose official duties are related to the subject matter of the confidential information or to maintaining a record of the same on behalf of the City. No disclosure of confidential information to officer or employee having conflict of interest. No officer or employee who has filed a statement of conflict of interest with the City Clerk under Article IV, Section 9 of the Charter, or who has been determined by the City Council under the provisions of Subparagraph g. below to have a conflict of interest, shall knowingly elicit, accept or inspect any confidential information pertaining to the subject matter of such conflict of interest, nor shall any such officer or employee attend or participate in an executive session of the City Council, or of a Council committee or board or commission of the City, pertaining to said subject matter. The City Council may determine that a Councilmember shall not receive confidential information or attend executive sessions on a particular topic if the City Council first determines that said Councilmember has a conflict of interest in the subject matter of such confidential information and/or executive session. Any such determination by the City Council shall be made only after the City Council has received an advisory opinion and recommendation of the Ethics Review Board on the question, rendered in accordance with the provisions of § 2-569. With respect to any matter regarding which a Councilmember has declared a conflict of interest, said Councilmember is prohibited from discussing with, or otherwise attempting in any capacity to influence, directly or indirectly, any City officer or employee, and from representing any person or interest before the City Council or any board of commission of the City or in dealing with any City officer or employee, except that such Councilmember may 12/8/22, 1:15 PM Fort Collins, CO Municipal Code about:blank 6/8 (3) a. b. c. 1. 2. 3. d. (4) a. represent with any City employee or before the City Council or a board or commission of the City his or her own interest or that of a relative provided said Councilmember does not violate Section 2-568(c)(5) or (c)(6). In any action in which a member of a City board or commission ("member") declares a conflict of interest or is prohibited from participation pursuant to subsection (7) below, or for any other reason, such member shall not communicate to or attempt to influence such board or commission regarding such item, in any capacity, except that: the member may communicate with said board or commission to protect a strictly personal interest, in the same or similar ways in which the public is permitted to communicate with the board or commission. the member may prepare materials on behalf of another for a project in the normal course of business or operation, so long as the purpose of those materials is not directly and substantially related to advocacy before said member's board or commission. Those materials may be included in materials submitted by another to said member's board or commission so long as they fall within this exception. For illustrative purposes, such materials may include, but are not necessarily limited to architectural plans, technical studies, and engineering designs. if a member is precluded from participating in or influencing the decision of their board or commission, they may request a variance from the limitations of this subsection from the City Council in the following circumstances, and in the following manner: The member must submit a request for a variance to the City Clerk on a form provided by the City Clerk for such purpose. The member must demonstrate that without the variance, they would suffer an exceptional hardship, and that no reasonable alternative exists that would allow for that hardship to be avoided or substantially mitigated; The City Council must act by resolution to approve or disapprove the requested variance. This limitation does not apply to persons other than the member who are affiliated with that member's firm or entity, and such other persons, but not the member, may continue to work on the project and may advocate to such member's board or commission, provided that the member complies with the applicable requirements and limitations. All officers and employees shall refrain from accepting payment for any speeches, debates or other public events and shall further refrain from accepting any gift or favor which, in the judgment of a reasonably prudent person, would tend to impair the officer's or employee's independence of judgment in the performance of his or her official duties. The following shall not constitute prohibited gifts or favors under this Section: Campaign contributions reported as required by Chapter 7, Article V of this Code; 12/8/22, 1:15 PM Fort Collins, CO Municipal Code about:blank 7/8 b. c. d. e. f. (5) (6) (7) a. A nonpecuniary award publicly presented by a nonprofit organization in recognition of public service; Payment of or reimbursement for actual and necessary expenditures for travel and subsistence for attendance at a convention or other meeting at which an officer or employee is scheduled to participate; Reimbursement for or acceptance of an opportunity to participate in a social function or meeting which is offered to an officer or employee which is not extraordinary when viewed in light of the position held by such officer or employee; Items of perishable or nonpermanent value that are insignificant in value, including, but not limited to, meals, lodging, travel expenses or tickets to sporting, recreational, educational or cultural events; and Payment of salary from employment, including other employment in addition to that earned from being an officer or employee. No officer or employee shall request on his or her own behalf, or for or through a relative or related entity, from any other officer or employee, or grant to any other officer or employee, or relative or related entity of the same, any consideration, treatment or advantage in the interpretation, administration or enforcement of the Charter, Code, any City regulation, policy or program or in the provision of public services, that is substantially different from that available to other persons in the same circumstances or having the same need. If any Councilmember contacts an officer or employee regarding a request in connection with that contacted officer's or employee's role and in relation to a matter that is not a routine City matter and is not within the Councilmember's role as an officer of the City, said Councilmember shall no later than 5:00 p.m. on the next business day after such contact deliver a written disclosure to the City Clerk and the City Manager and to all other members of City Council. The written disclosure must describe the date, time and general subject matter of the contact, together with the identity of the officer or employee contacted. Any private or confidential information, such as tax, utility account, or other personal information may be excluded or redacted from such disclosure. Disclosure by means of an electronic message shall be deemed to constitute written disclosure for purposes of this provision. Additional limitations on participation. No member of a Quasi-Judicial Commission, as defined in Article III of this Chapter 2, who has participated or intends to participate as a member of the public, or on behalf of another person or entity, to provide input or public comment as part of a City process about a particular proposal or project for which a City review, permit or approval is 12/8/22, 1:15 PM Fort Collins, CO Municipal Code about:blank 8/8 1. 2. b. c. required (such as, for example, speaking at a neighborhood meeting for a development project or appearing at an administrative hearing for a project), is allowed to participate in that process in their role as a board or commission member. In the event such input or public comment has been provided, or is expected to be provided, the commission member must promptly provide written notice to the City Clerk that they are required to refrain from participation in their role as a commission member in the City process or decision. The commission member must also provide the required notice to the chair of the commission of which they are a member. The prohibitions and requirements of this subsection (7) apply whether or not a conflict of interest is presented or has been declared and are in addition to, and not in place of, the requirements applicable to any officer or employee in the event of a conflict of interest. No member of a Quasi-Judicial Commission, as defined in Article III of this Chapter 2, may provide input or public comment on behalf of that commission as part of a City process about a particular proposal or project for which a City review, permit or approval is required, except as expressly authorized and directed by such commission. (Ord. No. 112, 1989, § 1, 8-1-89; Ord. No. 162, 2000, § 2, 11-21-00; Ord. No. 109, 2002, §§ 1—4, 8-20-02; Ord. No. 145, 2014, 11-4-14 ; Ord. No. 159, 2014, §§ 1—3, 11-18-14 ; Ord. No. 037, 2017 , §§ 2, 3, 3-7-17; Ord. No. 167, 2017 , § 2, 12-19-17; Ord. No. 057, 2020 , § 2, 4-21-20; Ord. No. 072, 2021 , §§ 2, 3, 7-20-21) § 24-18-103. Public trust--breach of fiduciary duty, CO ST § 24-18-103 © 2022 Thomson Reuters. No claim to original U.S. Government Works.1 West's Colorado Revised Statutes Annotated Title 24. Government--State Administration Article 18. Standards of Conduct (Refs & Annos) Part 1. Code of Ethics (Refs & Annos) C.R.S.A. § 24-18-103 § 24-18-103. Public trust--breach of fiduciary duty Currentness (1) The holding of public office or employment is a public trust, created by the confidence which the electorate reposes in the integrity of public officers, members of the general assembly, local government officials, and employees. A public officer, member of the general assembly, local government official, or employee shall carry out his duties for the benefit of the people of the state. (2) A public officer, member of the general assembly, local government official, or employee whose conduct departs from his fiduciary duty is liable to the people of the state as a trustee of property and shall suffer such other liabilities as a private fiduciary would suffer for abuse of his trust. The district attorney of the district where the trust is violated may bring appropriate judicial proceedings on behalf of the people. Any moneys collected in such actions shall be paid to the general fund of the state or local government. Judicial proceedings pursuant to this section shall be in addition to any criminal action which may be brought against such public officer, member of the general assembly, local government official, or employee. Credits Added by Laws 1988, H.B.1133, § 1. Notes of Decisions (8) C. R. S. A. § 24-18-103, CO ST § 24-18-103 Current through the Second Regular Session, 73rd General Assembly (2022). Some statute sections may be more current. See credits for details. End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works. § 24-18-104. Rules of conduct for all public officers, members..., CO ST § 24-18-104 © 2022 Thomson Reuters. No claim to original U.S. Government Works.1 West's Colorado Revised Statutes Annotated Title 24. Government--State Administration Article 18. Standards of Conduct (Refs & Annos) Part 1. Code of Ethics (Refs & Annos) C.R.S.A. § 24-18-104 § 24-18-104. Rules of conduct for all public officers, members of the general assembly, local government officials, and employees Effective: August 8, 2012 Currentness (1) Proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his fiduciary duty and the public trust. A public officer, a member of the general assembly, a local government official, or an employee shall not: (a) Disclose or use confidential information acquired in the course of his official duties in order to further substantially his personal financial interests; or (b) Accept a gift of substantial value or a substantial economic benefit tantamount to a gift of substantial value: (I) Which would tend improperly to influence a reasonable person in his position to depart from the faithful and impartial discharge of his public duties; or (II) Which he knows or which a reasonable person in his position should know under the circumstances is primarily for the purpose of rewarding him for official action he has taken. (2) An economic benefit tantamount to a gift of substantial value includes without limitation: (a) A loan at a rate of interest substantially lower than the commercial rate then currently prevalent for similar loans and compensation received for private services rendered at a rate substantially exceeding the fair market value of such services; or (b) The acceptance by a public officer, a member of the general assembly, a local government official, or an employee of goods or services for his or her own personal benefit offered by a person who is at the same time providing goods or services to the state or a local government under a contract or other means by which the person receives payment or other compensation from the state or local government, as applicable, for which the officer, member, official, or employee serves, unless the totality of the circumstances attendant to the acceptance of the goods or services indicates that the transaction is legitimate, the terms are fair to both parties, the transaction is supported by full and adequate consideration, and the officer, member, official, or § 24-18-104. Rules of conduct for all public officers, members..., CO ST § 24-18-104 © 2022 Thomson Reuters. No claim to original U.S. Government Works.2 employee does not receive any substantial benefit resulting from his or her official or governmental status that is unavailable to members of the public generally. (3) The following are not gifts of substantial value or gifts of substantial economic benefit tantamount to gifts of substantial value for purposes of this section: (a) Campaign contributions and contributions in kind reported as required by section 1-45-108, C.R.S.; (b) An unsolicited item of trivial value; (b.5) A gift with a fair market value of fifty-three dollars or less that is given to the public officer, member of the general assembly, local government official, or employee by a person other than a professional lobbyist. (c) An unsolicited token or award of appreciation as described in section 3(3)(c) of article XXIX of the state constitution; (c.5) Unsolicited informational material, publications, or subscriptions related to the performance of official duties on the part of the public officer, member of the general assembly, local government official, or employee; (d) Payment of or reimbursement for reasonable expenses paid by a nonprofit organization or state and local government in connection with attendance at a convention, fact-finding mission or trip, or other meeting as permitted in accordance with the provisions of section 3(3)(f) of article XXIX of the state constitution; (e) Payment of or reimbursement for admission to, and the cost of food or beverages consumed at, a reception, meal, or meeting that may be accepted or received in accordance with the provisions of section 3(3)(e) of article XXIX of the state constitution; (f) A gift given by an individual who is a relative or personal friend of the public officer, member of the general assembly, local government official, or employee on a special occasion. (g) Payment for speeches, appearances, or publications that may be accepted or received by the public officer, member of the general assembly, local government official, or employee in accordance with the provisions of section 3 of article XXIX of the state constitution that are reported pursuant to section 24-6-203(3)(d); (h) Payment of salary from employment, including other government employment, in addition to that earned from being a member of the general assembly or by reason of service in other public office; (i) A component of the compensation paid or other incentive given to the public officer, member of the general assembly, local government official, or employee in the normal course of employment; and § 24-18-104. Rules of conduct for all public officers, members..., CO ST § 24-18-104 © 2022 Thomson Reuters. No claim to original U.S. Government Works.3 (j) Any other gift or thing of value a public officer, member of the general assembly, local government official, or employee is permitted to solicit, accept, or receive in accordance with the provisions of section 3 of article XXIX of the state constitution, the acceptance of which is not otherwise prohibited by law. (4) The provisions of this section are distinct from and in addition to the reporting requirements of section 1-45-108, C.R.S., and section 24-6-203, and do not relieve an incumbent in or elected candidate to public office from reporting an item described in subsection (3) of this section, if such reporting provisions apply. (5) The amount of the gift limit specified in paragraph (b.5) of subsection (3) of this section, set at fifty-three dollars as of August 8, 2012, shall be identical to the amount of the gift limit under section 3 of article XXIX of the state constitution, and shall be adjusted for inflation contemporaneously with any adjustment of the constitutional gift limit pursuant to section 3(6) of article XXIX. Credits Added by Laws 1988, H.B.1133, § 1. Amended by Laws 1992, H.B.92-1333, § 103, eff. Jan. 1, 1993; Laws 1994, H.B.94-1341, § 4, eff. Jan. 1, 1995; Laws 2012, Ch. 93, § 1, eff. April 12, 2012; Laws 2012, Ch. 167, § 4, eff. Aug. 8, 2012. C. R. S. A. § 24-18-104, CO ST § 24-18-104 Current through the Second Regular Session, 73rd General Assembly (2022). Some statute sections may be more current. See credits for details. End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works. § 24-18-105. Ethical principles for public officers, local..., CO ST § 24-18-105 © 2022 Thomson Reuters. No claim to original U.S. Government Works.1 West's Colorado Revised Statutes Annotated Title 24. Government--State Administration Article 18. Standards of Conduct (Refs & Annos) Part 1. Code of Ethics (Refs & Annos) C.R.S.A. § 24-18-105 § 24-18-105. Ethical principles for public officers, local government officials, and employees Effective: April 12, 2012 Currentness (1) The principles in this section are intended as guides to conduct and do not constitute violations as such of the public trust of office or employment in state or local government. (2) A public officer, a local government official, or an employee should not acquire or hold an interest in any business or undertaking which he has reason to believe may be directly and substantially affected to its economic benefit by official action to be taken by an agency over which he has substantive authority. (3) A public officer, a local government official, or an employee should not, within six months following the termination of his office or employment, obtain employment in which he will take direct advantage, unavailable to others, of matters with which he was directly involved during his term of employment. These matters include rules, other than rules of general application, which he actively helped to formulate and applications, claims, or contested cases in the consideration of which he was an active participant. (4) A public officer, a local government official, or an employee should not perform an official act directly and substantially affecting a business or other undertaking to its economic detriment when he has a substantial financial interest in a competing firm or undertaking. (5) Public officers, local government officials, and employees are discouraged from assisting or enabling members of their immediate family in obtaining employment, a gift of substantial value, or an economic benefit tantamount to a gift of substantial value from a person whom the officer, official, or employee is in a position to reward with official action or has rewarded with official action in the past. Credits Added by Laws 1988, H.B.1133, § 1. Amended by Laws 2012, Ch. 93, § 2, eff. April 12, 2012. C. R. S. A. § 24-18-105, CO ST § 24-18-105 Current through the Second Regular Session, 73rd General Assembly (2022). Some statute sections may be more current. See credits for details. § 24-18-105. Ethical principles for public officers, local..., CO ST § 24-18-105 © 2022 Thomson Reuters. No claim to original U.S. Government Works.2 End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works. § 24-18-109. Rules of conduct for local government officials..., CO ST § 24-18-109 © 2022 Thomson Reuters. No claim to original U.S. Government Works.1 KeyCite Yellow Flag - Negative Treatment Proposed Legislation West's Colorado Revised Statutes Annotated Title 24. Government--State Administration Article 18. Standards of Conduct (Refs & Annos) Part 1. Code of Ethics (Refs & Annos) C.R.S.A. § 24-18-109 § 24-18-109. Rules of conduct for local government officials and employees Effective: August 9, 2017 Currentness (1) Proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his fiduciary duty and the public trust. (2) A local government official or local government employee shall not: (a) Engage in a substantial financial transaction for his private business purposes with a person whom he inspects or supervises in the course of his official duties; (b) Perform an official act directly and substantially affecting to its economic benefit a business or other undertaking in which he either has a substantial financial interest or is engaged as counsel, consultant, representative, or agent; or (c) Accept goods or services for his or her own personal benefit offered by a person who is at the same time providing goods or services to the local government for which the official or employee serves, under a contract or other means by which the person receives payment or other compensation from the local government, unless the totality of the circumstances attendant to the acceptance of the goods or services indicates that the transaction is legitimate, the terms are fair to both parties, the transaction is supported by full and adequate consideration, and the official or employee does not receive any substantial benefit resulting from his or her official or governmental status that is unavailable to members of the public generally. (3)(a) A member of the governing body of a local government who has a personal or private interest in any matter proposed or pending before the governing body shall disclose such interest to the governing body and shall not vote thereon and shall refrain from attempting to influence the decisions of the other members of the governing body in voting on the matter. (b) A member of the governing body of a local government may vote notwithstanding paragraph (a) of this subsection (3) if his participation is necessary to obtain a quorum or otherwise enable the body to act and if he complies with the voluntary disclosure procedures under section 24-18-110. § 24-18-109. Rules of conduct for local government officials..., CO ST § 24-18-109 © 2022 Thomson Reuters. No claim to original U.S. Government Works.2 (4) It shall not be a breach of fiduciary duty and the public trust for a local government official or local government employee to: (a) Use local government facilities or equipment to communicate or correspond with a member's constituents, family members, or business associates; or (b) Accept or receive a benefit as an indirect consequence of transacting local government business. (5)(a) Notwithstanding any other provision of this article 18, it is neither a conflict of interest nor a breach of fiduciary duty or the public trust for a local government official who is a member of the governing body of a local government to serve on a board of directors of a nonprofit entity and, when serving on the governing body, to vote on matters that may pertain to or benefit the nonprofit entity. (b)(I) Except as provided in subsection (5)(b)(II) of this section, a local government official is not required to provide or file a disclosure or otherwise comply with the requirements of subsection (3) of this section unless the local government official has a financial interest in, or the local government official or an immediate family member receives services from, the nonprofit entity independent of the official's membership on the board of directors of the nonprofit entity. (II) A local government official who serves on the board of directors of a nonprofit entity shall publicly announce his or her relationship with the nonprofit entity before voting on a matter that provides a direct and substantial economic benefit to the nonprofit entity. Credits Added by Laws 1988, H.B.1133, § 1. Amended by Laws 2012, Ch. 93, § 3, eff. April 12, 2012; Laws 2017, Ch. 291, § 1, eff. Aug. 9, 2017. C. R. S. A. § 24-18-109, CO ST § 24-18-109 Current through the Second Regular Session, 73rd General Assembly (2022). Some statute sections may be more current. See credits for details. End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.