HomeMy WebLinkAboutAgenda - Mail Packet - 2/7/2017 - Ethics Review Board Agenda - February 7, 2017Ft°boLL ns
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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)
February 7, 2017
(3:15 p.m.)
1. Review and Approval of the October 4, 2016 Minutes of the Ethics Review
Board.
2. Review and recommend City Code amendments in follow up to and as discussed
in Ethics Opinion 2016-01.
3. Consideration of an inquiry by Councilmember Campana requesting that the
Board consider and provide an advisory opinion regarding the question of
whether a Councilmember is allowed to discuss with City staff a matter regarding
which a conflict has been declared upon filing a conflict of interest disclosure.
4. Other Business.
5. Adjournment.
Fort Collins
`ram
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 Tuesday,
February 7, 2017, at 3:15 p.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 October 4, 2016 Minutes of the Ethics Review
Board.
2. Review and recommend City Code and Charter amendments discussed in Ethics
Opinion 2016-01.
3. Consideration of an inquiry by Councilmember Campana requesting that the
Board consider and provide an advisory opinion regarding the question of
whether a Councilmember is allowed to discuss with City staff a matter regarding
which a conflict has been declared upon filing a conflict of interest disclosure.
4. Other Business.
5. 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: February 2, 2017
(970) 221-6520
Ethics Review Board Meeting Minutes
October 4, 2016
11:00 a.m.
Members in Attendance: Board members Ray Martinez, Gino Campana and Kristin Stephens.
Staff in Attendance: Carrie Daggett, City Attorney, Jeanne Sanford, Paralegal, Jody Hurst,
Assistant City Attorney.
A meeting of the City Council Ethics Review Board ("Board") was held on Monday, October 4,
2016, in the City Attorney's Office Large Conference Room, for review and discussion of draft
City Code and Charter amendments in follow up to and as discussed in Ethics Opinion 2016-01.
The meeting began at 11:00 a.m. The Board reviewed the Agenda which contained the
following items:
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.
Board Chair Ray Martinez stated that this was an Ethics Review Board meeting on October 4,
2016, 11:00 a.m., and after a roll call, declared that all members of the Board were present.
Chair Martinez called for the approval of the July 25, 2016, Minutes of the Ethics Review Board.
Chair Martinez asked the Board if anyone had questions or motions.
Motion was made to approve the July 25, 2016, Minutes. The Board unanimously approved the
July 25, 2016, Minutes.
Chair Martinez called for the second agenda item, review and discussion of draft City Code and
Charter amendments discussed in Opinion 2016-01.
City Attorney Daggett stated she would run through the draft language of the Code and Charter
changes.
Chair Martinez stated he had found some issues in the Resolution he would like to address.
Councilmember Campana and City Attorney Daggett stated the Resolution has already been
approved and signed by the full Council.
1
City Attorney Daggett introduced Jody Hurst, Assistant City Attorney, to the Board.
Chair Martinez stated there may need to be more clarity on what is the definition of "attempting
to influence". He further stated that under state statute, it is a class 3 felony.
City Attorney Daggett explained the Code language changes currently being worked on offer an
opportunity to make the language more clear and further stated she would take notes on areas
Board members would like further elaboration on which she could do in a new draft.
City Attorney Daggett stated this language is intended to address what was briefly referenced in
the bottom line of the ethics opinion, and as to specific Code amendments concerning Code -
related items outlined on page 6 of the Ethics Opinion where it lays out different points discussed
this summer. City Attorney Daggett stated she took these things and put them into Code
language. She further pointed out on page 7 of the Ethics Opinion the discussion about the
Charter "Sales to the City" provision. The Board's agenda materials included on page 2 a
Charter edit that is provided for consideration as suggested in the Ethics Opinion. That is the
second piece of what the Board wanted to talk about.
City Attorney Daggett explained that the new conflict of interest provision starts with the
premise that once a member of a board or commission files a conflict, he/she is not allowed to
communicate or influence the board in any capacity. The draft then addresses exceptions. The
first exception is the one that was identified in the various ethics opinions over the years where
someone in their strictly personal capacity without an alternative way for their interest to be
represented could, in those circumstances, show up and talk to their board. The second
exception provides that a board or commission member is allowed to prepare material in the
normal course of business so long as the member is not directly or substantially related to
advocacy before his or her board.
Councilmember Campana asked a question regarding the meaning of "directly or substantially"
related to advocacy, for example, if you are an engineer working on a proposed development,
how are you not advocating for that development if you are proposing the design of the project?
City Attorney Daggett stated that the project design would be for the benefit of the developer
rather than for the purpose of the planning and zoning deliberation. City Attorney Daggett
recalled that this was the point in the discussion back and forth in the prior meeting upstairs in
the City Manager's conference room where Councilmember Cunniff discussed actively focusing
on preparation for persuasive presentation, and noted that the Ethics Opinion calls this out as
being not acceptable for board members. The suggested provision was intended to carve out the
separate purpose of allowing such materials to be provided, but not for persuading the Board,
rather, for an applicant to use them for the project.
Councilmember Stephens pointed out this is not part of persuasion, just preparing materials,
because if it were to become part of persuasion, then this would go right back to the ethical
dilemma.
2
Example situations were discussed to better explain the argument.
Councilmember Campana stated he thought the wording had probably captured it.
Chair Martinez stated with regard to the wording, "direct or substantial" that perhaps one of
those words could be deleted.
Assistant City Attorney Hurst explained that those were two pretty different terms defined in
code sections.
City Attorney Daggett explained that direct or substantial covers two different scenarios - one
where it is direct and one where it is substantial.
Councilmember Campana suggested changing the word, "or" to "and".
City Attorney Daggett stated she could change the word to "and" in that paragraph which would
make it narrower if the Board preferred that narrower approach.
Councilmembers Campana, Stephens and Martinez agreed with that suggested approach.
City Attorney Daggett called attention to romanette (iii) in the hand-out discussing the variance
process where she tried to cover two things, 1) how it would work; and 2) the standard to be
applied.
City Attorney Daggett ran through how the process would work: a request for a variance would
be submitted to the clerk; the clerk would generate a form to get Council the information
needed; Council would then consider the variance at a public hearing; the member would be
allowed to present his/her argument; and the public would be allowed to comment. Ms. Daggett
further explained this would be the normal process for an agenda item, but like in protest
hearings, the applicant would have a special chance to talk. City Attorney Daggett noted one
thing that could be added was a chance for rebuttal after citizen comments, if the Board thought
that would be desirable.
Councilmembers Campana and Stephens commented they liked that addition.
City Attorney Daggett stated she would add that positive addition to the language.
City Attorney Daggett discussed the 10 days' notice time frame.
Councilmember Stephens stated that because a variance usually allows for a hardship situation,
the time frame might be an issue.
City Attorney Daggett discussed adding a provision that the applicant could waive the time
requirement for notice, and all members of the Board agreed on that.
3
City Attorney Daggett then discussed that Council could grant the variance either by motion or
resolution. Ms. Daggett pointed out that by motion, the variance would be less transparent and
documented whereas resolutions are readily available for public viewing.
Councilmember Campana stated that a resolution would be the better way to handle it.
Councilmembers Campana and Stephens agreed the resolution was the way to go.
City Attorney Daggett stated the only other thing about a variance was the standard that
subsection two lays out, which was the test that the member must have an "exceptional
hardship". Ms. Daggett stated she wanted to make sure the Board was comfortable with that.
Councilmembers Stephens and Campana noted they were good with that as written.
City Attorney Daggett stated that the Clerk's office generally will prepare a guidance document
and will work with people so they know what all they will have to do to apply for a variance.
Chair Martinez discussed using the words "shall" and "may" in the Code language. Chair
Martinez further stated that under romanette (i), it makes more sense to say "is permitted". Also,
he asked for confirmation that under romanette (iii), the language will define what "influence"
means.
City Attorney Daggett stated she would work on the definition and then will send out to
members of the Board for review, with perhaps a follow-up discussion.
Chair Martinez and Councilmember Stephens stated email would be preferable.
City Attorney Daggett and Assistant City Attorney Hurst discussed the legal issues around using
the words, "shall" and "must". Asst. City Attorney Hurst stated that "must" is becoming the
standard terminology in legal writing for mandatory provisions.
City Attorney Daggett asked if everyone wanted to talk about the fairly minimal changes to the
Charter language. The changes respond to the question that had been raised about the current
language prohibiting a City officer being involved in a sale to the City if the officer affects the
decision making authority or exercises supervisory authority over services. Ms. Daggett
explained that has never been interpreted to mean, for example, that a water board member with
a catering business that caters the food for the Parks and Recreation Board, could not supervise
the performance of that service. Ms. Daggett explained the question came up because there was
room for interpretation in the Charter language and the feeling was that it would be beneficial to
have the Charter be clear that the prohibition is about the person in a supervisory role for the
City, not the person's role as service provider. Ms. Daggett stated that the conflict of interest
provision (in deciding which caterer to use), still applies, but this eliminates the blanket
prohibition for someone who actually has nothing to do with the City in connection with the
services they are providing. This addressed the problem that if you read the current language
broadly, you could interpret it to restrict much more than was probably intended.
4
Councilmember Campana questioned how it applies to real or personal property too. Mr.
Campana explained, for example, you have gravel pit and you're on the Cultural Resources
Board, the City could not buy gravel from you; we need to fix that.
Chair Martinez states that was a good point.
City Attorney Daggett stated that this is a challenge for Councilmembers because there is a
blanket prohibition for Councilmembers in paragraph A, but B and C is never actually applied in
a strict way, so these changes would more clearly document provisions and how it has been read.
Ms. Daggett explained that it would be beneficial as it would eliminate the argument on what the
provisions mean; B covers non services. Council is covered under A, and it is clear and blanket
strict.
Councilmember Stephens stated that it kind of needs to be strict.
City Attorney Daggett pointed out that personal services is completely excepted, because we are
all providing personal services to the City.
Councilmember Campana asked what about personal service as a consultant?
City Attorney Daggett stated she will need to look at the Code, but the term is not a contractual
relationship.
Councilmember Campana stated maybe we need to clear that up unless you have that already
defined somewhere.
Asst. City Attorney Hurst stated that was not defined in Section 9.
City Attorney Daggett stated the difference would be an employment relationship vs. contractual
relationship or an independent contractor, which is what a vendor typically would be.
City Attorney Daggett discussed how this situation is challenging since Council is the ultimate
decision maker on how much money is to be spent on things, so it is hard to take Council out of
the decision -making for anything because ultimately, Council is appropriating the money and
budgeting and that is the logic behind it, whereas other City employees are out of the decision
making chain.
Councilmembers and City Attorney Daggett discussed different scenarios and how this would
play out, i.e., as an Uber driver, CSU employee, etc.
City Attorney Daggett stated the Board's materials under Tab 1 and 2 contain the financial
interest definition. Ms. Daggett stated that the Charter definition is the one we should look at
since the Code tracks the Charter. Ms. Daggett read the definition of financial interest. The first
exception in that definition is a big one, as there are a lot of times when, for example, if it is CSU
or another big entity that does business with the City, the employee with CSU is not likely to
5
have a conflict because there usually is a really low foreseeable, measurable benefit. Paragraph
8a in the Code section tracks what Ms. Daggett was reading in the Charter.
Chair Martinez and Councilmember Campana felt that cleared the issue up.
City Attorney Daggett added that on the conflict rules, an alternative way to approach this as it
relates to Councilmembers (and obviously, she stated, she was not advocating for this, but just
something to think about), there are times when a Councilmember or board of directors for a
corporation might have an interest they cannot avoid and in that instance, the Charter could
provide that they must stay out of the decision, but could still allow them to have transactions
with the organization, just no input in the decision.
Councilmember Campana stated that he felt the biggest challenge was real property sale. There
is no easy way with that.
Councilmember Stephens added that you would want to make sure Council is protected in that
regard.
Councilmember Campana stated that the way Council has dealt with this issue in the past is if
it's in the ordinary course of business, it would be allowed.
City Attorney Daggett stated because all real property is unique in the eyes of the law, it is true
that real estate is most difficult to deal with, because if the City wants or needs a property,
sometimes there would be no way to substitute a different property and avoid the
Councilmember issue.
Chair Martinez asked the Board if there were any other issues.
City Attorney Daggett stated that she would like to talk about process. Ms. Daggett stated she
will revise the latest version and send it out so that the Board could make sure it captures what
the Board was hoping for. Ms. Daggett added that she could schedule another meeting if needed
and would redline the changes for the Board. The sense of the Board was to wait and see if
another meeting would be helpful.
The Board voted unanimously to adopt Chair Martinez's Motion to adjourn the meeting.
Meeting Adjourned at 11:52 a.m
Carrie M. Daggett, City Attorney
6
City of
Fort Collins
TO: Ethics Review Board
FROM: Jeanne Sanford, Paralegal
DATE: February 2, 2017
City Attorney's Office
300 Laporte Avenue
PO Box 580
Fort Collins, CO 80522
970.221.6520
970.221.6327
fcgov.com
RE: Agenda Item 2 — Review and Recommend City Code Amendments as discussed
in Ethics Opinion 2016-01
Enclosed please find the following:
1. Copy of Ordinance No. 003, 2017 approving Amendment to Section 9 of Article IV of
the City Charter pertaining to conflicts of interest and certain prohibited sales to the City;
2. Copy of Opinion 2016-1; and
3. Draft of Ordinance amending Section 2-568 of the City Code.
ORDINANCE NO. 003, 2017
OF THE COUNCIL OF THE CITY OF FORT COLLINS
SUBMITTING TO A VOTE OF THE REGISTERED ELECTORS OF THE CITY OF
FORT COLLINS A PROPOSED AMENDMENT TO SECTION 9 OF ARTICLE IV
OF THE CITY CHARTER PERTAINING TO CONFLICTS OF INTEREST
AND CERTAIN PROHIBITED SALES TO THE CITY
WHEREAS, Article IV, Section 8 of the Charter of the City of Fort Collins ("Charter")
provides that the Charter may be amended as provided by.the laws of the State of Colorado; and
WHEREAS, Section 31-2-210, Colorado Revised Statutes, provides that Charter
amendments may be initiated by the adoption of an ordinance by the City Council submitting a
proposed amendment to a vote of the registered electors of the City of Fort Collins; and
WHEREAS, during 2016 the Ethics Review Board met several times to review and
discuss questions related to conflicts of interest for City officers and employees, culminating in
Ethics Opinion 2016-01, which as accepted by the City Council on July 26, with the adoption of
Resolution 2016-058; and
WHEREAS, Ethics Opinion 2016-01 included a recommendation that the provision of
the Charter prohibiting City officers and employees from having a financial interest in a sale to
the City be clarified to eliminate confusion as to scope of certain elements of the prohibition; and
WHEREAS, in particular, the Ethics Review Board and the Council indicated that
limitations arising from an officer's or employee's role in directing or supervising the work are
triggered by the officer's or employee's role and authority as an officer or employee of the City;
and
WHEREAS, accordingly, Council desires to submit to the voters the Charter amendment
below making these clarifying changes.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That the following proposed changes to Section 9(b)(1) of Article IV of
the City Charter shall be submitted to the registered electors of the City as "Proposed Charter
Amendment No. 3" at the regular municipal election to be held on Tuesday, April 4, 2017:
-1-
1
ARTICLE IV.
GENERAL PROVISIONS
Section 9. Conflicts of interest.
(b) 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 ariy
supervisory authority in his or her role as a city officer or employee over
the services to be rendered to the city.
Section 3. That the following ballot title and submission clause are hereby adopted
for submitting Proposed Charter Amendment No. 3 to the voters at said election:
CITY -INITIATED
PROPOSED CHARTER AMENDMENT NO: 3
Shall Section 9(b)(1) of Article IV of the Charter of the City of Fort Collins,
pertaining to conflicts of interest and prohibited sales to the City, be amended to
clarify that officers or employees, and their relatives, are prohibited from having a
financial interest in a sale to the city if such officer or employee exercises
decision -making authority on behalf of the city, or exercises supervisory
authority, in his or her role as a city officer or employee, over the services
provided?
Yes/For
No/Against
J
-2-
,
Introduced, considered favorably on first reading, and ordered published this 3rd day of
January, A.D. 2017, and to be presented for final passage on the 17th day of January, A.D. 2017.
City Clerk
Passed and adopted on final reading on the 17th day of January, A.D. 2017.
ATTEST:
. Mayor
-3-
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 emulovee 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
(1) 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. attemptine to influence, or otherwise participating in such
decision in anv 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."
Application 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 firni 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 was 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 DISCUSSION — SUBJECT TO ADDITIONAL REVIEW AND REVISION
ORDINANCE NO. XXX, 2017
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING SECTION 2-568 OF THE CODE OF THE CITY OF FORT COLLINS
PERTAINING TO ETHICAL RULES OF CONDUCT
WHEREAS, Article IV, Section 9(b) of the Charter of the City of Fort Collins establishes
rules of conduct concerning conflicts of interest; and
WHEREAS, Section 2-568 of the Code of the City of Fort Collins establishes the ethical
rules of conduct for officers and employees of the City of Fort Collins; and
WHEREAS, the Ethics Review Board has met and discussed the need to clarify the
activities that are prohibited for City board and commission members and Councilmembers when
they have a conflict of interest in a City matter, along with establishing a variance procedure by
which Council could, in certain circumstances, authorize a board or commission member to
actively participate in a matter that he or she otherwise would be prohibited from participating in
due to a conflict of interest; and
WHEREAS, the Ethics Review Board discussed specific revisions to Article IV, Section
9(b) of the Charter of the City of Fort Collins and Section 2-568 of the Code of the City of Fort
Collins at meetings on July 25, 2016, and October 4, 2016; and
WHEREAS, on January 17, 2017, City Council adopted on second reading the Ordinance
No. 003, 2017, submitting to the voters at the regular City election in April the question of an
amendment to the City Charter to clarify the scope of the prohibition on sales to the City; and
WHEREAS, this Ordinance amends the City Code as recommended by the Ethics
Review Board at its February 7, 2017, meeting, consistent with the terms of Ethics Opinion
2016-001, adopted by the City Council in July, 2016.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That Section 2-568(a) of the Code of the City of Fort Collins is hereby
amended by the addition of a new definition "Attempt to influence or influence" which reads in
its entirety follows:
(1) Attempt to influence or influence, as it pertains to this Section, shall mean take
any action calculated to impact, shape, control, sway, bias or prejudice.
Section 4. That Section 2-568(c) of the Code of the City of Fort Collins is hereby
amended by the addition of a new subparagraph (3) to read as follows, by renumbering
accordingly of all subsequent subparagraphs:
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DRAFT FOR DISCUSSION - SUBJECT TO ADDITIONAL REVIEW AND REVISION
(3) In any action in which a member of a City board or commission member
("member") declares a conflict of interest, such member shall not communicate to or
attempt to influence such board or commission regarding such item, in any capacity,
except that:
a. 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.
b. 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.
c. 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;
3. The City Council must act by resolution to approve or disapprove
the requested variance.
d. 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.
Introduced, considered favorably on first reading, and ordered published this day of
, A.D. 2017, and to be presented for final passage on the day of , A.D.
2017.
-2-
DRAFT FOR DISCUSSION — SUBJECT TO ADDITIONAL REVIEW AND REVISION
Mayor
ATTEST:
City Clerk
Passed and adopted on final reading on this day of , A.D. 2017.
ATTEST:
City Clerk
-3-
Mayor
February 7, 2017
Ethics Review Board Agenda Item 3
Summary of Question:
Councilmember Campana has inquired whether a Councilmember may discuss a matter
regarding which a conflict has been declared with City staff (recognizing that communicating
with Council/Councilmembers is prohibited).
Background for Board Consideration:
The following are City Charter and City Code provisions that relate to this question:
1. The City Charter and City Code address the limitations that apply in the event of a declared
conflicts of interest. In Ethics Opinion 2016-01, approved by the City Council in July 2016,
it was clarified that the language of Article IV, Section 9(b)(3) of the City Charter is best
read to apply to restrict only actions taken "as an officer or employee," meaning, not in a
personal capacity, but in an official or formal one.
Here's the language of that section, with highlighting added:
(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.
2. City Code Section 2-568(c)(2) restricts Councilmember representing any interest before City
Council or any board or commission of the City; it does not address Councilmember
communication with City staff on a matter for which a conflict has been declared. Section 2-
568(c)(2) reads as follows (highlighting added):
(2) No Councilmember shall represent any person or interest before the City Council or
any board or commission of the City.
3. In 2014, the City Council adopted City Code Section 2-568(c)(4), regarding requests for
special treatment. That Section provides as follows (highlighting added):
(4) 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.
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February 7, 2017
Ethics Review Board Agenda Item 3
4. City Charter Article II, Section 13 limits Councilmembers' latitude to discuss matters with
City staff "except for purposes of inquiry" without working through the City Manager, and
precluded Councilmembers from giving orders, publicly or privately, to subordinates of the
City Manager. This provision does not express a distinction between Councilmember
contacts in an official capacity and Councilmember contacts in an individual capacity. Here
is the text of that Section:
Section 13. - Council not to interfere with administrative service.
Except for purposes of inquiry, the Council and its members shall deal with the
administrative service of the city solely through the City Manager, and neither the
Council nor any member shall give orders to any subordinates of the City Manager either
publicly or privately.
In light of these provisions, and considering the Council -approved interpretation of the conflict
of interest language and any other relevant information, the Ethics Review Board should
consider whether a Councilmember is free in his or her personal and private capacity to discuss
(but not request consideration, advantage or special treatment in the interpretation of) City
policies with City staff.
2