HomeMy WebLinkAboutAgenda - Mail Packet - 10/4/2016 - Ethics Review Board Meeting Agenda - October 3, 2016of
Fort \
City Attorney's Office
300 Laporte Avenue
PO Box 580
Fort Collins. CO 80522
970.221.6520
970.221.6327
fcgov. com
AGENDA
Ethics Review Board Meeting
City Attorney's Large Conference Room
Garden Level, City Hall (300 Laporte Avenue)
October 3, 2016
(11:00 a.m.)
1. Review and Approval of the July 25, 2016 Minutes of the Ethics Review Board.
2. Review and discussion of draft City Code and Charter amendments in follow up
to and as discussed in Ethics Opinion 2016-01.
3. Other Business.
4. Adjournment.
of
Fort`'Collins
PUBLIC NOTICE
City Attorney's Office
300 Laporte Avenue
PO Box 580
Fort Collins, CO 80522
970.221.6520
970.221.6327
fcgov.com
Notice is hereby given that the City Council Ethics Review Board will meet on Monday,
October 3, 2016, at 11:00 a.m., in the City Attorney's Large Conference Room at City Hall,
located at 300 Laporte Avenue, City Hall West, Fort Collins, Colorado. The purpose of the
meeting will be discuss and address the following agenda items:
1. Review and Approval of the July 25, 2016 Minutes of the Ethics Review Board.
2. Follow up discussion regarding City Code and possible Charter amendments
discussed in Ethics Opinion 2016-01.
3. Other Business.
4. Adjournment.
As the majority of Council may attend this meeting, the meeting is also being regarded as
a meeting of the City Council for the purposes of this notice.
The City of Fort Collins will make reasonable accommodations for access to City
services, programs, and activities and will make special communication arrangements for
persons with disabilities. Please contact the City Attorney's Office to arrange for such services
at 970-221-6520. Auxiliary aids and services are available for persons with disabilities. V/TDD:
Dial 711 for Relay Colorado.
Fort Collins City Attorney
Posted: September 29, 2016
(970) 221-6520
Ethics Review Board Meeting Minutes
July 25, 2016
9:30 a.m.
Members in Attendance: Board members Ray Martinez, Gino Campana, Kristin Stephens and
Ross Cunniff (alternate)
Staff in Attendance: Carrie Daggett, City Attorney; Jeanne Sanford, Paralegal
A meeting of the City Council Ethics Review Board ("Board") was held on Monday, July 25,
2016, in the City Attorney's Office Large Conference Room, to continue consideration of the
following issue:
That the Board consider and provide an advisory opinion regarding the question of whether
under the City Charter board and commission members, after declaring and disclosing a conflict
of interest in a matter, may participate in that matter on behalf of an interested stakeholder (for
example, as a technical professional providing advice to any applicant), so long as they do not
personally appear before the board to advocate on behalf of another person. The inquiry also
requested that the Board consider the same question as it relates to Councilmembers.
The meeting began at 9:34 a.m. The Board reviewed the Agenda which contained the following
items:
1. Review and Approval of the July 12, 2016 Minutes of the Ethics Review Board.
2. Review and Approval of the July 19, 2016 Minutes of the Ethics Review Board.
3. Review and Approval of draft Ethics Opinion 2016-01, with continued consideration
of an inquiry by Council member Campana requesting that the Board consider and
provide an advisory opinion regarding the question of whether under the City Charter
board and commission members, after declaring and disclosing a conflict of interest
in a matter, may participate in that matter on behalf of an interested stakeholder (for
example, as a technical professional providing advice to an applicant), so long as they
do not personally appear before the board to advocate on behalf of another person.
The inquiry also requested that the Board consider the same question as it relates to
Councilmembers.
4. Review and Approval of draft Resolution 2016-058 scheduled for review by City
Council on July 26, 2016.
5. Adjournment.
Board Chair Ray Martinez stated that this was an Ethics Review Board meeting on July 25, 2016
9:30 a.m., and after a roll call, declared that all members of the Board were present.
1
Chair Martinez called for the approval of the July 12, 2016, Minutes of the Ethics Review Board.
Chair Martinez asked the Board if anyone had questions or motions.
Councilmember Campana stated the Minutes looked good; however, he did not receive a
redlined version and would like to review that before approval.
A copy of the redlined July 12, 2016, Minutes was provided for review.
Chair Martinez noted he did not receive a copy or a link to the training video he had requested at
the July 12th meeting.
City Attorney Daggett apologized, indicating that she had not requested that from the Clerk's
Office, but would follow up.
Chair Martinez asked if there were any questions on the next agenda item, namely the July 19,
2016, Minutes.
The Board approved the July 19, 2016, Minutes by unanimous consent.
Chair Martinez called for the third agenda item, review of Ethics Opinion 2016-01, and asked if
there were any questions, feedback or discussion?
Councilmember Campana stated first, that this was a much better rework and it more closely
captured what the Board was working towards. Mr. Campana stated there could be a little better
clarity on three areas having to do with Councilmembers representing themselves in a personal
interest situation and Mr. Campana stated he thought he understood where the issue had landed,
but if one was to go to the bottom line at page 1 of the clean version — last sentence says starting
with the words, the "Board recommends" (Councilmember Campana then read the sentence),
Mr. Campana stated he understood it, but it is not crystal clear with regard to personal interest.
Mr. Campana then noted a statement in the Opinion at page 6, section 3, 3`d paragraph down,
starting with "nevertheless may preclude" (Mr. Campana read the sentence) and stated he thinks
the Opinion is stating that a Councilmember may present on behalf of his or her own personal
interest.
City Attorney Daggett stated that the referenced provision only notes that this could be an issue.
It is unclear whether a Councilmember could make a claim that constitutionally he or she is
entitled to act, regardless of what Code or state law says about representing their own interests.
Ms. Daggett indicated her desire to be clear as to whether the Board intends to make a change to
current Code, if that would permissible under state law, or if the Board is interpreting what is
under the Code. Ms. Daggett stated the current Code provision states that no Councilmember
may represent any person or interest before Council.
Councilmember Cunniff added a suggestion with the intent to clarify the situation that both
sentences preclude a councilmember from personally defending his/her own interests and the
2
other one is because of the codified provisions on the Councilmember's personal presentation
and personal interest. Mr. Cunniff asked the Board if that helped clarify things.
Councilmember Campana agreed.
City Attorney Daggett summarized the issues to add clarity and to make sure she was capturing
what the Board agreed on. Ms. Daggett will add the word, "personally" before the word,
"defending" at the end of the third paragraph under Section 3 and will add, in the last line of the
fourth paragraph, "personal". Ms. Daggett stated she was hopeful that she could be clear enough
with the wording changes so the Board is comfortable approving the Opinion with those
changes so she can publish as approved.
Councilmember Campana stated there was other discussion about the restrictions on
Councilmembers in the case of financial or personal interest which is confusing as well.
City Attorney Daggett stated it is very difficult to talk about Councilmembers representing
interests generically. Because if Councilmembers are talking about concerns of youth in
community, for example, theoretically they are representing the interests of that portion of the
community. Ms. Daggett stated she was concerned about stating these limits carefully so they do
not raise a question about a Councilmember functioning in that way.
The Board discussed who would be adding the clarifying Code language that goes to Council.
Councilmember Cunniff summarized it in that this could happen three different ways. The first
is to wait to forward the Opinion until Council has had a chance to review the Code changes, or
secondly, to have the Board adopt this Opinion, then have a debate about it at the Council
meeting and have Council do the heavy lifting, working with the City Attorney on wording or
thirdly, this could transpire as a hybrid of the first two, with this Opinion going forward now and
suggest that the Board consider and recommend Code changes to be presented for Council
adoption.
Councilmembers Campana and Cunniff stated they liked the third option noted above because a
change in Code provisions could take weeks.
City Attomey Daggett stated she would add a sentence, under Section 3 after the words, "as
defined in Charter", that the Board will meet further to discuss and develop recommendations to
Council regarding proposed Code language for this purpose.
Councilmember Campana stated that this was good work and something that comes up
frequently with certain Boards.
Chair Martinez asked if there was other business.
3
Councilmember Campana stated he had two more comments. At Section 2, page 5, at the last
portion of the sentence where it says, "should be avoided", Mr. Campana would like to see
stronger language used so we don't revisit this issue again.
Councilmember Campana discussed his last issue and he wasn't sure if this was the right time to
bring it up, but under page 1 of the background, there is a summary of Article 4 which the Board
has had prior discussion about, regarding sales to the City. Mr. Campana stated for reason of full
disclosure — and he stated he could step out if need be or he could bring this issue up on a
different meeting - but he has a current project mandated to sell land to the City but he is not able
to do so because of his Council affiliation, so the entire neighborhood suffers. Mr. Campana
stated he felt this was a good opportunity to also evaluate that piece of it — or the Board could do
so later if that is too much right now.
City Attorney Daggett asked Councilmember Campana if it would be consideration of a
proposed Charter change.
Councilmember Campana stated yes.
Councilmember Cunniff stated it would be best to bring that up as a separate inquiry.
City Attorney Daggett stated that issue came up in an early dialogue of inquiry, under subsection
C (Ms. Daggett read the section). There has been discussion on how broadly the term, "sales to
the City" has been interpreted. It has been interpreted routinely as affecting role of services
where a person, in their role as an officer/employee, supervises the services — meaning a City
employee who selects contractors and manages contracts for say road work, if that person also
had a contracting business and did road work, they would have supervisory authority over the
services to be rendered to the City. Ms. Daggett explained that is how it has been interpreted, so
the question came up if you have a board member whose firm is working on something and a
person in the firm working on the project for City is supervised by a board member, does that
violate this? Generally this provision has not been interpreted that way — because it's really
intended to protect the City from City actors in their City role from benefitting themselves by
how they are selecting or overseeing a contractor as opposed to a board member/employee
having a relationship with somebody providing services if they don't have involvement as a City
official in the project. That's really the consequence of it and that prompted the question and
concern among board members on conflict issues.
Chair Martinez asked if that required a Charter change.
City Attorney Daggett stated it does not really require a Charter change, but the Board may want
to make a clarifying statement to confirm the language.
Councilmember Cunniff stated the question as, should this Board author an opinion on Section C
with respect to a non-councilmember officer/employee— and their supervisory role in a business
rendering services to the City.
4
City Attorney Daggett stated she thinks the question is focused on "exercising supervisory
authority" and whether that is in the role as a City officer or employee or in the role as an outside
provider.
Councilmember Cunniff asked Councilmember Campana if this was his understanding that this
was a concern of the Board.
Councilmember Campana stated he thought so in beginning.
City Attorney Daggett stated she thinks when the Landmark Preservation Committee started their
discussion, a member whose firm does a lot of architecture work for the City raised a question
as to whether that meant he could not supervise anyone in his firm if they were doing a project
for the City since he's on the Commission. Ms. Daggett stated that triggered the ethics
discussion currently underway. The July 12, 2015, Minutes talk about a contact that came to
Councilmember Campana about Landmark Preservation Committee members, and the language
they used was about board commission members saying if they cannot do work for the City,
they cannot remain on the Board. They were concerned about this issue, although the question
has been fairly consistently interpreted over the years and there has not been a lot of
disagreement of interpretation.
Ms. Daggett then discussed the best place to insert this language into the Opinion for Board
review. Ms. Daggett stated she would add in language to the effect that the Board did look at
this provision 1C and agreed that intent and proper interpretation of that section is with reference
to supervisory authority being exercised on behalf of the City; The focus of the review is on
"supervisory authority".
Chair Martinez stated he felt it is okay for the Board to interpret, but he believes the way to
address the issue is to change the Charter language to avoid interpretation being changed every
time the wind blows.
Ms. Daggett stated she would break for 5 minutes to type up the wording for the Board to
review. The Board agreed and stated they would review the redlined Minutes while she was
doing that.
City Attorney Daggett came back and circulated her proposed language to the Board. The Board
discussed the distinction between purchases from the City in contrast to sales to the City. Ms.
Daggett stated that sales to the City is the issue currently discussed on the Board.
Chair Martinez asked if the paragraph was acceptable to the Board.
The Board affirmed the language captured their intent.
City Attorney Daggett then indicated that if the Board was comfortable with reviewing and
approving the Opinion, she would revise and email it out to the board members.
5
The Board discussed the agenda for the Council meeting Tuesday night.
Councilmember Campana moved and Councilmember Stephens seconded a motion that the
Board approve the general Ethics Opinion 2016-01 with revisions. The motion was approved
unanimously.
City Attorney Daggett stated she could run through those revisions pretty quickly. Ms. Daggett
discussed there will be an edit at the end first paragraph under 2 at page 5, and an edit at page 6
at end of section 3. Ms. Dagggett stated that under recommendations, she will be adding a #5
which will have the Ethics Review Board further review the issues under sections 2 and 3 and
recommend specific Code changes to Council. Ms. Daggett also discussed adding in an
appropriate place the discussion related to sales to the City, which would most likely be placed
at the beginning.
Chair Martinez asked if the Board needed to approve the draft Resolution.
City Attorney Daggett stated the Board did not need to approve the Resolution, but it is in the
packet. Ms. Daggett explained the Resolution is very general so it will probably would not need
to change but that she could add a reference in the third whereas clause about sales to the City.
Ms. Daggett will substitute the updated Opinion and the Resolution and send those to Council for
Tuesday night.
Councilmember Campana asked for a redlined and clean copy to be provided to him.
City Attorney Daggett stated that she would be giving all board members the documents with the
changes — within an hour and a half - and would send by end of day by email updated packets to
all Councilmembers. An alternative was the Board could wait until tomorrow to receive the
information.
Chair Martinez Martinez stated no, that would be too much information to read tomorrow.
Chair Martinez asked if there was other business.
Councilmember Campana suggested that the Board wait to schedule its next meeting and City
Attorney Daggett agreed that would be an appropriate way to proceed.
The Board voted unanimously to adopt Chair Martinez's Motion to adjourn the meeting.
Meeting Adjourned at 10:30 a.m.
Carrie M. Daggett, City Attorney
6
RESOLUTION 2016-058
OF THE COUNCIL OF THE CITY OF FORT COLLINS
ACCEPTING ADVISORY OPINION AND RECOMMENDATION
NO. 2016-01 OF THE ETHICS REVIEW BOARD
WHEREAS, the City Council has established an Ethics Review Board (the "Board")
consisting of designated members of the City Council; and
WHEREAS, the Board is empowered under Section 2-569 of the City Code to render
advisory opinions and recommendations regarding actual or hypothetical situations of
Councilmembers or board and commission members of the City; and
WHEREAS, the Ethics Review Board met on July 12, 2016, July 19, 2016, and July 25,
2016, to review and approve the draft Ethics Opinion 2016-01, with continued consideration of
an inquiry by Councilmember Campana requesting that the Board consider and provide an
advisory opinion regarding whether under the City Charter, board and commission members,
after declaring and disclosing a conflict of interest in a matter, may participate in that matter on
behalf of an interested stakeholder (for example, as a technical professional providing advice to
an applicant), so long as they do not personally appear before the board to advocate on behalf of
another person, as needed, and how the same question applies to Councilmembers; and
WHEREAS, the Board has issued an advisory opinion with regard to this matter
concluding that in the case of a conflict of interest the Charter prohibits City board and
commission members from participating in any way as a board or commission member in the
decision of interest, but allows participation in a professional or personal capacity; and
WHEREAS, in light of this, the Board has also recommended that the Council adopt
Code language to establish and clarify the limits on board and commission member participation
in as a representative and in a personal capacity, which in general should allow participation
other than direct advocacy on behalf of others, and provide for a variance process for
consideration of exceptions to this limit on direct advocacy in cases of special hardship, and
intends to further review this issue and recommend Code amendments for Council consideration;
and
WHEREAS, the Board has further concluded that a board or commission member is not
prohibited from having a financial interest in a sale of services to the City unless her or she
supervises the services on behalf of the City, and recommended that Council propose a Charter
change in this regard; and
WHEREAS, the Board has also reaffirmed that stricter limits apply to Councilmembers,
in light of current Code and statutory provisions, and concluded that Councilmembers are
precluded from personally representing any person or interest in front of the Council or any City
board or commission, and intends to further review this issue and recommend Code amendments
for Council consideration; and
-1-
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. 2016-01 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 adopts the opinion contained therein.
Passed and adopted at an adjourned meeting of the Council of the City of Fort Collins
this 26th day of July, A.D
Mayor
ATTEST:
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City Clerk
2016.1
OPINION OF THE ETHICS REVIEW BOARD
OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS
July 25, 2016
The City Council Ethics Review Board ("the Board") met on July 12, 19 and 25, 2016, to consider
and render an advisory opinion on a question submitted to the Board by Councilmember Gino
Campana. The question presented is the extent to which a member of a City board or commission
(together referred to as "boardmember") may take action as a private citizen (and not as a
boardmember) to influence the decision of his or her board after declaring a conflict of interest in
that decision. The pending inquiry also requests review of the question as it relates to City
Councilmembers.
Bottom Line.
• The Board interprets Article IV, Section 9(b)(1)c to prohibit an officers or employee from
providing services to the City when he or she supervise those services for the City.
• The Board interprets Article IV, Section 9(b)(3) of the City Charter to prohibit any officer
or employee of the City from acting as an officer or employee in connection with a
decision in which he or she has a financial or person interest. The Board recommends that
Council adopt City Code provisions to establish and clarify the limitations on direct
communications by boardmembers in a representative capacity in regard to that decision,
as well as a variance procedure to allow the granting of variances for more direct
involvement in the case of a special hardship (as outlined on pages 5 and 6).
• The Board recommends that City Councilmembers continue to be limited from
representing any persons or interests before the Council or other City board or commission,
but notes that this limitation does not prevent a Councilmember's firm from appearing
before and advocating to Council in a matter, so long as the Councilmember has recused
himself or herself from the matter and does not personally participate in it.
• The Board intends to consider specific Code amendments related to the Code -related
items, in order to make specific recommendations to Council.
Background.
In contrast to the questions commonly before the Ethics Review Board for consideration, this
inquiry relates not to whether a conflict of interest must be declared, but rather to what limits apply
to a boardmember or Councilmember once a conflict has been declared.
Article IV, Section 9(b) of the City Charter states as follows (emphasis added):
•
.
.
(b) Rules of conduct concerning conflicts of Interest.
Ethics Opinion 2016-1
July 25, 2016
Page 2
(I) Sales to the city. No officer or employee,' or relative2 of such officer or employee, shall
have a financial interest in the sale to the city of any real or personal property, equipment,
material, supplies or services, except personal services provided to the city as an officer or
employee, if:
a. such officer or employee is a member of the Council;
b. such officer or employee exercises, directly or indirectly, any decision -making authority
concerning such sale; or
c. in the case of services, such officer or employee exercises any supervisory authority over
the services to be rendered to the city.
(2) Purchases from the city. No officer, employee or relative shall, directly or indirectly,
purchase any real or personal property from the city, except such property as is offered for
sale at an established price, and not by bid or auction, on the same terms and conditions as to
all members of the general public.
(3) Interests in other decisions. Any officer or employee who has, or whose relative has, a
financial or personal interest in any decision of any public body of which he or she is a member
or to which he or she makes recommendations, shall, upon discovery thereof, disclose such
interest in the official records of the city in the manner prescribed in subsection (4) hereof,
and shall refrain from voting on. attempting to influence, or otherwise participating in such
decision in any manner as an officer or employee.
(4) Disclosure procedure. If any officer or employee has any financial or personal interest
requiring disclosure under subsection (3) of this section, such person shall immediately upon
discovery thereof declare such interest by delivering a written statement to the City Clerk, with
copies to the City Manager and, if applicable, to the chairperson of the public body of which
such person is a member, which statement shall contain the name of the officer or employee,
the office or position held with the city by such person, and the nature of the interest. If said
officer or employee shall discover such financial or personal interest during the course of a
meeting or in such other circumstance as to render it practically impossible to deliver such
written statement prior to action upon the matter in question, said officer or employee shall
1 The Charter defines "officer or employee" to mean "any person holding a position by election,
appointment or employment in the service of the city, whether part-time or full-time, including a member of
any authority, board, committee, or commission of the city, other than an authority that is:
(1) established under the provisions of the Colorado Revised Statutes;
(2) governed by state statutory rules of ethical conduct; and
(3) expressly exempted from the provisions of this Article by ordinance of the Council."
Charter Art. IV, § 9(a).
2 The Charter defines "relative" to mean: `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." Charter Art. IV, § 9(a).
Ethics Opinion 2016-1
July 25, 2016
Page 3
immediately declare such interest by giving oral notice to all present, including a description of
the nature of the interest.
(5) Violations. Any contract made in violation of this Section shall be voidable by the city. If
voided within one (1) year of the date of execution thereof, the party obtaining payment by
reason of such contract shall, if required by the city, forthwith return to the city all or any
designated portion of the monies received by such individual from the city by reason of said
contract, together with interest at the lawful maximum rate for interest on judgments.
Past ethics opinions evaluating the Charter limitations on boardmembers with a conflict of interest
have distinguished between representing the interests of others before a boardmember's board (not
allowed where a conflict has been declared), and representing personal interests before that board
(allowed in the interests of preserving personal rights of boardmembers). This distinction has
raised concerns in recent months in part because some City boards include, or are required under
the Code to include, professionals in fields related to that board's functions. There are challenges
posed by a bar on appearing in front of that board by boardmembers, particularly those who are
sole practitioners and do not have colleagues who can work on client matters as needed. In these
situations, while the boardmember does not participate as a member of the board, there is a
question as to the extent to which he or she must avoid any participation as an advocate or
representative for an applicant or other party.
In addition to these Charter limitations on Councilmembers with conflicts of interest, Section
2-568(c)(2) of the Fort Collins Municipal Code provides that "No Councilmember shall represent
any person or interest before the City Council or any board or commission of the City."
Annlication of City Charter Provisions.
1. Sales to the City.
A question underlying this inquiry is the interpretation of Section 9(b)(1)c of Article IV of the
Charter (provided above, entitled "Sales to the City") which prohibits an officer or employee from
having a financial interest in a sale to the City if he or she exercises "any supervisory authority
over the services to be rendered to the city." The Board has considered this question, and has
found that the proper interpretation and application of this provision is as referencing supervisory
authority exercised on behalf of the City (in a City role), rather than supervisory authority
exercised outside of and unrelated to the officer or employee's role for the City. To read this
provision otherwise would broadly prohibit any person involved in providing services to the City
from participating in City government in any way, regardless of how unrelated that participation
may be to that individual's role as a service provider. The language of this provision is
ambiguous and susceptible to at least two interpretations. There is no indication in the legislative
history of this provision or elsewhere that such a comprehensive effect was intended when this
Ethics Opinion 2016-1
July 25, 2016
Page 4
provision was added to the Charter. The Board recommends that the Council propose to the
voters a clarifying change to the Charter that would avoid future uncertainty related to this
provision.
2. "As an Officer or Employee."
A Council -adopted "Policy Statement on Ethics," in place from 1988 until it was superseded by
the adoption of the conflicts provisions in the Charter in 1989, prohibited boardmembers from
acting in a representative capacity for compensation to influence a decision of his or her board.
In contrast, the relevant Charter language, adopted by the voters in March 1989, prohibits a
boardmember with a conflict of interest in a board decision from "attempting to influence, or
otherwise participating in such decision in anv manner as an officer or employee." (City Charter
Article IV, Section 9(b)(3) (emphasis added)). This prohibition extends to attempting to
influence or participating in decisions of boards and commissions that make recommendations to
the board that an individual serves on.
This Charter provision has been specifically addressed in three Ethics Opinions:
• Ethics Opinion 91-2 distinguished between boardmembers addressing their own personal
interests and boardmembers representing the interests of others:
The Board believes that members of City boards or commissions, as
non -elected citizen volunteers, should not be required to give up the right to
protect their personal interests when they might be directly affected by a
board or commission, even if they serve on that board or commission.
This right should not extend, however, to representing interests other than
their own individual interests. For example, while a member of the Zoning
Board of Appeals should be able to argue in favor of a variance for his or
her private residence, that same board member should not be permitted to
serve in a representative capacity, with or without compensation, and make
presentations to the Zoning Board of Appeals on behalf of another person or
entity, such as a developer or neighborhood association. (Ethics Opinion
91-2, page 2).
• Ethics Opinion 91-3, citing to Ethics Opinion 91-2, indicated that the limits on a
Councilmember's participation did not extend to that Councilmember's spouse, so long as
the Councilmember declared a conflict of interest and did not participate in any way in the
subject Planning and Zoning Board decision. (Ethics Opinion 91-3, page 4).
Ethics Opinion 2016-1
July 25, 2016
Page 5
• Ethics Opinion 98-1, which was approved by the City Council in Resolution 98-53,3
addressed the question of personal appearances by a boardmember on behalf of a client
where the boardmember had declared a conflict of interest and was not participating as a
member of the board. That opinion, also citing to Ethics Opinion 91-2, concluded that
such appearances before one's own board in a representative capacity would not be
allowed, but did not address whether other means of advocating to the board, or providing
other materials for consideration by the board, on behalf of a client would also be
prohibited. (Ethics Opinion 98-1, pages 3-4).
After a thoughtful review of these prior ethics opinions, the Board has carefully considered the
language of the Charter, and is concerned that applying the Charter language to activities not
carried out by an individual in his or her role "as an officer or employee" goes beyond the intended
meaning and proper interpretation of the language of the Charter. (Please note that different
considerations apply to the activities of Councilmembers, in contrast to boardmembers, as
described below.)
The Board recognizes there is a need to carefully govern both the involvement of boardmembers
where they have declared a conflict, and to avoid any appearance of impropriety that might result
from boardmember advocacy to said member's own board. However, the Board believes it
would be more appropriate for the Council to adopt City Code provisions establishing and
clarifying the extent to which boardmembers may participate in a matter once a conflict has been
identified, rather than rely on a broad reading of the Charter provision. The Board also
recommends an exception or variance process that allows certain participation in circumstances of
hardship or other special circumstances, provided that the decision making board could continue to
carry out its decision making role properly.
3. "Attempting to Influence."
In addition, the Board has considered the question of what constitutes "attempting to influence" a
decision. The Board concluded that participating in discussion of a particular matter as a
boardmember is indistinguishable from "attempting to influence," and is prohibited by the
Charter.
Many board decisions of significance are quasi-judicial matters that do not allow for ex parte
communications or discussion with stakeholders outside of the hearing process. In those
circumstances, the potential for confusion regarding the role in which an individual is acting is
very limited.
3 In July 1993, the City Council adopted Ordinance No. 064, 1993, which changed the process for
adoption of ethics opinions so as to require Council review and approval.
Ethics Opinion 2016-1
July 25, 2016
Page 6
The Board believes guidelines are needed to set out the limits on and types of interactions that are
permissible where a conflict of interest is present. For example the guidelines could:
• Expressly allow boardmembers to be involved (in a representative or personal capacity;
not as a boardmember) in matters that come before their board for decision.
o When participating in a personal capacity, the type of communication would not
be limited.
o When participating in a representative capacity, permissible involvement would
including preparation of materials, plans, studies and designs, that are prepared in
the normal course of development of the project and that may be presented to and
considered by that board but are not made for the primary purpose of
communicating with or advocating to the board or a board that will make a
recommendation to the boardmember's board on a matter related to the
boardmember's work);
• Prohibit boardmembers from appearing or communicating directly with their board in a
representative capacity regarding a decision in which they have a conflict, except when a
variance has been granted because special hardship or other special circumstances create
unfairness for the boardmember or other persons;
• Establish a variance process by which the Council may consider on a case -by -case basis
and grant variances that would permit participation in the form of direct communications,
presentations, and advocacy, in the event a boardmember has an unusual hardship or other
special circumstance (such as illness or incapacity of a professional firm colleague, or
unavailability of others as a result of sole proprietorship);
• Address whether limitations should be imposed regarding a boardmember's participation
in and communications with boards or commissions that make recommendations to the
board the boardmember serves on;
• Clarify that although a boardmember may have a conflict of interest because his or her
firm is actively working on a project, this means that the firm is not disqualified from the
project so long as the boardmember recuses himself or herself as a boardmember; and
• Establish a disclosure process for a boardmember to use when the boardmember must
appear before his or her board to protect a personal interest.
4. Councilmember Appearances.
As noted above, express Code language governs concerning the second question (may a
Councilmember appear before Council, after declaring and disclosing a conflict of interest, and
Ethics Opinion 2016-1
July 25, 2016
Page 7
participate on behalf of an interested stakeholder if they do not personally appear before Council to
advocate on behalf of another person).
Section 2-568(c)(2) of the Fort Collins Municipal Code provides that "No Councilmember shall
represent any person or interest before the City Council or any board or commission of the City."
In addition, Colorado statute requires that members of local government governing bodies abstain
from any matter in either a personal or an official capacity in the event of a conflict in order to
avoid a breach of fiduciary duty and public trust. (Section 24-18-109(3)(a), C.R.S.).
In light of these provisions, the Board agrees it is appropriate to hold Councilmembers to a higher
standard and limit more strictly Councilmember participation in any decision in which that
Councilmember has a conflict of interest. Nevertheless, in extreme circumstances this may
preclude a Councilmember from personally defending his or her own personal interests.
The Board also agreed that although a Councilmember may have a conflict of interest because his
or her firm is actively working on a project, the firm is not disqualified from the project so long as
the Councilmember recuses himself or herself from the matter. This is because the codified
prohibition is on the Councilmember's personal representation (as opposed to a relative or
colleague's representation) of any person or interest.
Board Conclusions and Recommendations:
1. The language of Article IV, Section 9(b)(1)c is most reasonably interpreted to prohibit an
officer or employee from exercising supervisory authority on behalf of the City (in a City role)
over services to the City, as opposed to exercising supervisory authority outside of and unrelated to
the officer or employee's role for the City. To resolve this ambiguity otherwise results in an
unreasonably broad prohibition on participation in City government. The Board recommends that
the Council propose to the voters a clarifying change to the Charter to avoid future uncertainty
related to this provision.
2. The language of Article IV, Section 9(b)(3) of the City Charter is most reasonably
interpreted to limit the actions of a City officer or employee only in his or her capacity as an officer
or employee, and not outside of that role.
3. The Council should adopt City Code provisions to establish and clarify what actions
boardmembers are allowed to take, in a representative capacity and in a personal capacity (outside
of the boardmember role) in connection with matters in which they have a conflict of interest, as
described in Section 2 on pages 5 and 6, above. The Board recommends adoption of a variance
process through which the Council may on a case -by -case basis allow boardmembers to actively
participate through direct communications, presentations, and advocacy in a matter (as a
Ethics Opinion 2016-1
July 25, 2016
Page 8
representative or a stakeholder) when hardships or other special circumstances create unfairness
for the boardmember or other persons.
4. The restriction on Councilmember representation of any persons or interests before the
Council or a City board or commission should remain in place, although it may be beneficial to
clarify this language to distinguish between representation where a Councilmember has a financial
or personal interest (as defined in the Charter). The Board interprets However, this prohibition to
extend only to a Councilmember personally, and not to the Councilmember's firm or relatives,
consistent with prior Ethics Opinions.
5. If this Opinion is adopted by the City Council, to the extent this Opinion conflicts with
prior Ethics Opinions of the Ethics Review Board, such prior Opinions shall be superseded.
6. If this Opinion is adopted by the City Council, the Board intends to consider proposed City
Code revisions to address recommendations 3 and 4, above, and to recommend specific Code
revisions upon completion of that review.
This advisory opinion vas reviewed and approved by Councilmembers Ray Martinez, Gino
Campana, and Kristin Stephens, as the designated regular members of the Ethics Review Board.
Under Section 2-569(e) of the City Code, this opinion and recommendation is to be immediately
filed with the City Clerk and made available for public inspection. This opinion will be considered
by the City Council at its adjourned meeting on July 26, 2016.
Dated this 25th day of July, 2016.
Carrie M. Daggett, City
DRAFT FOR ETHICS REVIEW BOARD DISCUSSION
September 29, 2016
Sec. 2-568. - Ethical rules of conduct.
(c) Rules of conduct.
Add new subsection (c)(3)
(3). In any action in which a member of a City board or commission member ("member") declares
a conflict of interest, such member may not communicate to or attempt to influence such board or
commission regarding such item, in any capacity, except that:
i. 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 would be permitted to
communicate with the board or commission.
ii. 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
or 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.
iii. If a member has declared a conflict of interest in a matter in accordance with the City
Charter and Code and so is precluded from participating in or influencing the decision of
his or her board or commission, he or she may request a variance from the limitations of
this subsection from the City Council in the following circumstances, and in the following
manner:
1. The member must submit a request for a variance to the City Clerk on a form
provided by the City Clerk for such purpose.
2. The member must demonstrate that without the variance, he or she would suffer
an exceptional hardship, and that no reasonable alternative exists that would allow for
that hardship to be avoided or substantially mitigated;
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DRAFT FOR ETHICS REVIEW BOARD DISCUSSION
September 29, 2016
3. The City Council will consider the requested variance in a public hearing at
which the member will be allowed to present his or her arguments for the variance, and
other members of the public will be allowed to comment on the requested variance;
4. The City Clerk will provide no Tess than ten (10) days' notice to the member
requesting the variance of the scheduled hearing; and
5. The City Council will act by motion to approve or disapprove the requested
variance.
iv. This limitation does not apply to other members, partners, or other parties of the
member's or firm or entity, who may continue to work on the project and may advocate
to such member's board or commission, provided that the member has declared the
conflict and refrains from participating in the matter consistent with the application
limitations.
Charter of the City of Fort Collins
Article IV Section 9(b)(1)
Rules of conduct concerning conflicts of interest .
(1) Sales to the city. No officer or employee, or relative of such officer or employee, shall
have a financial interest in the sale to the city of any real or personal property, equipment,
material, supplies or services, except personal services provided to the city as an officer or
employee, if:
a. such officer or employee is a member of the Council;
b. such officer or employee exercises, directly or indirectly, any decision -making
authority on behalf of the City concerning such sale; or
c. in the case of services, such officer or employee exercises any supervisory
authority in his or her role as a City officer or employee over the services to be
rendered to the city.
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