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HomeMy WebLinkAboutAgenda - Mail Packet - 10/11/2022 - Ethics Review Board Agenda - October 12, 2022ERB Meeting 10-12-2022 0001 AGENDA Ethics Review Board Meeting October 12, 2022 (3:00 – 4:15 p.m.) Via Zoom City Attorney’s Office 300 Laporte Avenue PO Box 580 Fort Collins, CO 80522 970.221.6520 970.221.6327 fcgov.com Members of the public who wish to join the meeting via Zoom may do so by calling in to the information below: Join Zoom Meeting Please click the link below to join the webinar: https://fcgov.zoom.us/j/94545865720 Or One tap mobile : US: +17209289299, 94545865720# or +12532158782, 94545865720# Or Telephone: Dial(for higher quality, dial a number based on your current location): US: +1 720 928 9299 or +1 253 215 8782 or +1 346 248 7799 or +1 312 626 6799 or +1 646 558 8656 Webinar ID: 945 4586 5720 International numbers available: https://fcgov.zoom.us/u/axTmtptoQ 1. Call to Order 2. Roll Call 3. Review and approval of the May 2, 2022, Minutes of the Ethics Review Board 4. Consideration of draft proposals for ethics complaint screening and investigation process and possible recommendation to Council. 5. Review of materials previously provided regarding conflicts of interest related to employment relationships and discussion of next steps on this issue, if any. 6. Other Business 7. Adjournment PUBLIC NOTICE ERB Meeting 10-12-2022 0002 City Attorney’s Office 300 Laporte Avenue PO Box 580 Fort Collins, CO 80522 970.221.6520 970.221.6327 fcgov.com ETHICS REVIEW BOARD MEETING An Ethics Review Board meeting will be held, Wednesday, October 12, 2022 from 3:00 p.m. - 4:15 p.m. Due to COVID-19, this meeting will be held remotely via Zoom. Members of the public who wish to join the meeting via Zoom may do so by calling in to the information below: Join Zoom Meeting Please click the link below to join the webinar: https://fcgov.zoom.us/j/94545865720 Or One tap mobile : US: +17209289299,,94545865720# or +12532158782,,94545865720# Or Telephone: Dial(for higher quality, dial a number based on your current location): US: +1 720 928 9299 or +1 253 215 8782 or +1 346 248 7799 or +1 312 626 6799 or +1 646 558 8656 Webinar ID: 945 4586 5720 International numbers available: https://fcgov.zoom.us/u/axTmtptoQ Ethics Review Board Meeting Minutes May 2, 2022 3:30 p.m. Meeting Via Zoom ERB Meeting 10-12-2022 0003 Ethics Review Board members in attendance: Mayor Jeni Arndt, Councilmembers Julie Pignataro, Councilmember Susan Gutowsky. Staff in attendance: Carrie Daggett, City Attorney; Paula Bishop, Paralegal Other Attendees: Kevin Jones, Fort Collins Chamber of Commerce; Melissa Rosas. A meeting of the City Council Ethics Review Board (“Board”) was held on Monday, May 2, 2022, at 3:30 p.m. via Zoom Meeting. The meeting started at 3:33 pm. The Board reviewed the Agenda which contained the following items: 1. Call to Order 2. Roll Call 3. Review and Approval of the January 31, 2022, Minutes of the Ethics Review Board 4. Discuss and consider options for the screening and review process for ethics complaints. 5. Discuss and consider alternate board options. 6. Other Business 7. Adjournment Paralegal Paula Bishop took roll call for the Board. All members were in attendance. Councilmember Pignataro made a motion to approve the November 15, 2021, Minutes. Mayor Arndt seconded the motion. The Minutes were approved by unanimous vote. Next, Item 4 was up - discuss and consider options for the screening and review process for ethics complaints. City Attorney Carrie Daggett summarized the previously discussed screening and investigative review process triggered when a Council Member complaint is made, the option of an alternate review board and the screening step that is currently in place. Ms. Daggett noted the Board had previously expressed interest in the idea of arranging in advance for an outside attorney, with expertise in ethics, to review complaints and make screening evaluation on whether an investigation is needed. Ms. Daggett suggested a non-local firm could avoid entanglements in local issues. Steamboat Springs’ process was given as an example as it uses an extensive screening process. There are benefits to building out our screening step, but we would need Code edits to update the process. The needed edits may not be extensive, though. Councilmember Pignataro asked to go over the current process for when a complaint against a Councilmember is made and noted her agreement that out of town outside counsel would be best. If outside counsel was asked to screen a complaint, the process would be as follows: complaint filed, outside counsel screens complaint, if they think it warrants a full investigation then the Ethics Review Board Meeting Minutes May 2, 2022 3:30 p.m. Meeting Via Zoom ERB Meeting 10-12-2022 0004 Board would review. She asked if outside counsel could do the full investigation; like the City Attorney’s Office did for a Boulder issue a few years ago. City Attorney Daggett explained that outside counsel could do the full investigation rather than the Board, with the Board then evaluating and deciding the matter based on the results of the investigation. Mayor Arndt noted she does not disagree with peer review. Outside counsel can do investigation and the Board can take findings and make recommendations or impose sanctions. It is the Board’s and Council’s responsibility to self-regulate and sanction. City Attorney Daggett noted that there is precedent in other cities for having outside counsel do the investigation. And it may be beneficial for outside counsel making the screening determination to carry out the investigation if one is needed. Councilmember Pignataro asked about complaints that are similar and spending money on outside counsel when similar complaints arise. City Attorney Daggett suggested the screening process can be updated to more specifically screen out duplicate complaints. Councilmember Gutowsky asked how screeners will be determined. City Attorney Daggett replied that the City Attorney’s Office would do a request for firms to express interest, gather information about the interested firms and line up a few law firms to be available to review complaints when received. Arranging for more than one would enable quick alternatives in case there is a conflict of interest raised by a particular complaint. Councilmember Gutowsky asked if Council would have opportunity to get to know who the firms are before hiring. City Attorney Daggett replied that she would provide a memo with law firm information to ensure Council was comfortable with who was being hired. The Board agreed that the Council or Board would have a hard time choosing who would be the best outside counsel and prefers a City Attorney selection process and selection, with notice to Council. Councilmember Gutowsky asked if these changes would come before Council. City Attorney Daggett noted this would require a Code change to modify the process. However, the hiring of the firm wouldn’t need to go before Council since it could be set up to be done administratively. The Board expressed consensus that using a third party to screen and investigate complaints is a good idea. Ethics Review Board Meeting Minutes May 2, 2022 3:30 p.m. Meeting Via Zoom ERB Meeting 10-12-2022 0005 City Attorney Daggett reminded the Board that this discussion has been focused only on complaints against Councilmembers and not complaints against board or commission members or the advisory opinion process. She will need to draft Code language changes and the Board will need to have one more meeting to review the Code language changes based on the discussion. Councilmember Gutowsky asked if the Board was going to further discuss the issue of conflicts of interest and Councilmember employers. Councilmember Pignataro noted the process changes may address the concerns that had been raised and was not sure the employment issue required further discussion. City Attorney Daggett noted that if there is interest, the Council could add employer-related restrictions to the City Code. She noted she would include previously-provided information about this issue in the packet for the next Board meeting. Councilmember Gutowsky asks if the Board should continue to meet on an “as-needed” basis? There was general consensus that the Board should meet on an “as-needed” basis. City Attorney Daggett will put together a draft for the complaint screening and investigation process. She will aim for a Board meeting in late August or early September. Board would like the Council consideration of ethics Code changes added to the 6-month calendar once they have been reviewed by the Board. Other Business: City Attorney Daggett noted that financial disclosure statements are due May 15th. Blank copies can be found with Clerk. Item 5 was briefly discussed - Discuss and consider alternate board options. Councilmember Pignataro says that since the Board has agreed on having outside counsel review and investigate complaints an Alternate Board would not be necessary. City Attorney Daggett reviewed the existing Alternate Board process for times when a majority of Council is named in a complaint. Sitting Board and Commissions members, that are willing to participate, would make up the Alternate Board when this process is triggered. The Board agrees that there is not much interest in further reviewing the Alternate Board model. Meeting adjourned at 4:27pm ERB Meeting 10-12-2022 0006 Item 4 October 12, 2022 AGENDA ITEM SUMMARY City Council – Ethics Review Board STAFF Carrie M. Daggett, City Attorney SUBJECT Consideration of draft proposals for ethics complaint screening and investigation process and possible recommendation to Council. EXECUTIVE SUMMARY The Ethics Review Board has in its November 2021, January 2022 and May 2022 meetings discussed options for improvements to the ethics complaint screening and review process, particular for complaints alleging ethics violations by City Councilmembers. Based on that discussion, draft revisions to City Code Section 2-569 have been prepared and are provided for Board review, discussion and possible recommendation to City Council. STAFF RECOMMENDATION N/A BACKGROUND / DISCUSSION The Board’s discussion has particularly focused on a proposal to retain one or more attorneys with ethics expertise to complete the initial screening of ethics complaints against Councilmembers and determine whether investigation of the complaint is warranted. If so, a retained attorney would also be responsible for investigating and making a determination and recommendation to the Board for a final determination as to whether an ethics violation had occurred. Also based on the Board’s discussion, a more extensive explanation of the considerations for screening of ethics complaints is included in this draft. A number of other edits required to incorporate these changes as well as to increase readability of this Section have also been made. The materials previously provided for the May 2, 2022, discussion about this topic are also attached here for the Board’s convenience. BOARD / COMMISSION / COMMITTEE RECOMMENDATION N/A ERB Meeting 10-12-2022 0007 CITY FINANCIAL IMPACTS N/A PUBLIC OUTREACH N/A ATTACHMENTS 1. Draft revisions to City Code Section 2-569 2. Related Ethics Review Board Agenda Materials from May 2, 2022. Created: 2022-07-15 15:31:30 [EST] (Supp. No. 143, Update 1) Page 1 of 6 ERB Meeting 10-12-2022 0008 DRAFT REVISIONS FOR ETHICS REVIEW BOARD REVIEW October 12, 2022 Sec. 2-569. Board of ethics. (a) In order to assist the Councilmembers and board and commission members in interpreting and applying the definitions, rules and procedures pertaining to ethics established by the Charter and Code and by the applicable provisions of state statute, there is hereby created a Board of the City to be known as the Ethics Review Board, hereafter referred to in this Division as the "Review Board." (b) The Review Board shall consist of three (3) Councilmembers elected by the City Council, one (1) of whom shall be elected by the Review Board to serve as a chairperson. One (1) alternate shall also be appointed by the City Council to serve in the event that a regular member of the Review Board is unavailable or in the event that any particular complaint or inquiry is directed towards a member of the Review Board. (c) Subject to the provisions of Subsection (d) below, the duties and responsibilities of the Review Board shall be as follows: (1) To review and investigate complaints of unethical conduct filed against Councilmembers or board and commission members by any person; (2) To review and investigate actual or hypothetical situations involving potential conflicts of interest presented by individual Councilmembers or board and commission members; (3) After review and investigation, to render advisory opinions or interpretations pertaining to such complaints or inquiries under the relevant provisions of the Charter and Code and the applicable provisions of state law, if any, and to make written recommendations to the City Council and any affected board or commission concerning the same; and (4) To propose any revisions to the provisions of the Charter or Code or other regulations, rules or policies of the City pertaining to ethical conduct as the Review Board may deem necessary and appropriate in the best interests of the City. (d) Inquiries and cComplaints and inquiries shall be submitted to the Review Board only according to the following procedures: (12) City Council inquiries. Any Councilmember may present directly to the Review Board any inquiry regarding the application of ethical rules of conduct under state statute or the Charter or Code to any actual or hypothetical situation of a Councilmember or board and commission member. a. In performing its review and investigation of any inquiry submitted in accordance with this Subsection (d)(1), the Review Board shall afford all affected board and commission members an opportunity to present their interpretations of the facts at issue and of the applicable provisions of law before rendering its advisory opinion and recommendation. b. It is not necessary for the Review Board to conduct a full public hearing and take public comment on an inquiry, although the Review Board may do so if it determines public input will assist the Board in its consideration of the inquiry. c. The Review Board may also request such additional materials or information from City staff or members of the public which it considers reasonably necessary or helpful to its deliberations. d. After consideration of an inquiry, the Review Board shall forthwith issue an advisory opinion and recommendation to the City Council, which shall immediately thereafter be filed with the City Clerk and be available for public inspection. Said advisory opinion and recommendation shall be submitted to city Council at a regular City Council meeting, at which time the City Council shall determine whether to adopt the same as a final ethics opinion of the Council. Created: 2022-07-15 15:31:30 [EST] (Supp. No. 143, Update 1) Page 2 of 6 ERB Meeting 10-12-2022 0009 DRAFT REVISIONS FOR ETHICS REVIEW BOARD REVIEW October 12, 2022 e. Any whose conduct or circumstance is the subject of the opinion shall refrain from participating in any deliberations of the City Council regarding the opinion. (21) Complaints. a. Any person who believes that a Councilmember or board and commission member has violated any provision of state law or the Charter or Code pertaining to ethical conduct may file a complaint with the City Clerk, who shall immediately notify the chairperson of the Review Board, the Councilmembers or board and commission members named in the complaint, and the City Council and the City Attorney. [POSSIBLY ADD: Each complaint shall name only one officer as its subject.] b The City Attorney shall periodically seek proposals and select and retain, after consultation with the Review Board, one or more qualified attorneys to review complaints filed against Councilmembers under this subsection (2) and make a determination as to whether the complaint warrants investigation in light of the applicable screening criteria and commonly known and documented facts and circumstances. Such review attorneys shall also function as investigators to develop the facts relevant to a complaint under investigation and interpret and apply the applicable state and local ethics provisions and, based on that investigation and evaluation, make a recommendation to the Review Board (or Alternate Review Board, if applicable) of such findings and determinations as may be appropriate in response to the complaint. c. For complaints against one or more board or commission members: i. The City Clerk complaint shall be promptly scheduled the complaint for consideration by the Review Board as soon as reasonably practicable. No more than thirty (30) working days after the date of filing of the complaint, the Review Board shall meet and consider the complaint. In the event extenuating circumstances arise in the scheduling and preparation for such meeting, the time for meeting shall be extended by fourteen (14) calendar days. ii. The City Clerk shall provide written notice of the scheduled meeting for initial review of the complaint to aAll Councilmembers or board and commission members named in the complaint, as well as the complainant, shall be given written notice of such meeting at least three (3) working days prior to the meeting. A notice of the complaint, including the identity of the complainant shall be posted along with the meeting notice. iiib. Upon receipt of any such complaint, the Review Board shall, after consultation with the City Attorney, decide by majority vote whether to formally investigate the complaint. In making such determination, the Review Board shall consider the following: (1) whether the allegations in the complaint, if true, would constitute a violation of state or local ethical rules; (2) the reliability and sufficiency of any facts asserted in support of the allegations; and (3) any other facts or circumstances that the Review Board may consider relevant.screening criteria set out in this subsection (2) below. If the Review Board determines that the complaint does not warrant investigation, the Review Board shall send written notice to the complainant of its determination and the reasoning behind that determination, and shall provide a copy of such notice, together with a copy of the complaint, to all Councilmembers or board or commission members named in the complaint, as well as the City Council. iv. If a complaint proceeds to investigation after the initial review, in performing its review and investigation of any complaint or inquiry submitted in accordance with Subsection (d)(2)c hereof, the Review Board shall afford all affected board and commission members an Formatted: Indent: Left: 0.99", Hanging: 0.2", Tab stops: 1.19", Left Formatted: Highlight Created: 2022-07-15 15:31:30 [EST] (Supp. No. 143, Update 1) Page 3 of 6 ERB Meeting 10-12-2022 0010 DRAFT REVISIONS FOR ETHICS REVIEW BOARD REVIEW October 12, 2022 opportunity to present their interpretations of the facts at issue and of the applicable provisions of law before rendering its opinion and recommendation. v. Prior to reaching a decision on the merits of a complaint, the Review Board shall provide the complainant an opportunity to present facts and argument in support of the complaint, however, it is not necessary for the Review Board to conduct a full public hearing and take public input on a complaint. vi. The Review Board may also request such additional materials or information from City staff or members of the public which it considers reasonably necessary or helpful to its deliberations. In addition, the Review Board shall have the power to compel by subpoena the attendance and testimony of witnesses and the production of such documents as the Review Board may consider necessary to its investigation. vii. After investigation, the Review Board shall forthwith issue an opinion and recommendation to the City Council, which shall immediately thereafter be filed with the City Clerk and be available for public inspection. Said opinion and recommendation shall be submitted to city Council at a regular City Council meeting, at which time the City Council shall determine whether to adopt the same as a final ethics opinion of the Council. viii. Any whose conduct or circumstance is the subject of the opinion shall refrain from participating in any deliberations of the City Council regarding the opinion. dc. For complaints against one or more Councilmembers: i. The City Clerk shall provide written notice of the complaint, including a copy of the complaint and brief explanation of the review process, to all Councilmembers named in the complaint, as well as the complainant within five (5) working days of receipt of the complaint. ii. The [City Attorney or City Clerk] shall forward the complaint to a review attorney retained as described above in this subsection (2) for review of the complaint. No more than thirty (30) working days after the date of filing of the complaint, subject to extenuating circumstances making delay reasonably necessary, the review attorney shall evaluate the complaint to determine whether it is sufficient and warrants investigation pursuant to the screening criteria set out in this subsection (2) below. The review attorney shall promptly provide to the City Clerk and City Attorney for distribution to the Review Board a written determination of whether the complaint warrants further investigation, including a brief explanation of the decision. iii. The [City Attorney or City Clerk] shall send written notice to the complainant of the review attorney’s determination and the reasoning behind that determination, and shall provide a copy of such notice, together with a copy of the complaint, to all Councilmembers or board or commission members named in the complaint, as well as the City Council and [City Clerk or City Attorney]. iv. If the review attorney has determined that the complaint does not warrant investigation, no further action will be taken on the complaint. If the review attorney has determined that the complaint warrants investigation, the City Attorney will arrange for investigation by the review attorney who completed the initial review or another retained review attorney, depending on availability and other related circumstances and considerations. v. If a complaint proceeds to investigation after the initial review, in their review and investigation of any complaint, the investigating attorney shall interview the complainant and Formatted: Indent: Left: 0.99", Hanging: 0.2", Numbered + Level: 1 + Numbering Style: i, ii, iii, … + Start at: 1 + Alignment: Left + Aligned at: 0.99" + Indent at: 1.49" Formatted: Indent: Left: 0.99", Hanging: 0.2" Formatted: Indent: Left: 1", Hanging: 0.19" Created: 2022-07-15 15:31:30 [EST] (Supp. No. 143, Update 1) Page 4 of 6 vi. Upon completion of the investigation the reviewing attorney shall interpret and apply the applicable state and local ethics provisions and, based on that investigation and evaluation, make a recommendation to the Review Board (or Alternate Review Board, if applicable) of such findings and determinations as may be appropriate in response to the complaint. vii. The City Clerk shall schedule the investigating attorney’s determination and recommendations on a complaint for consideration by the Review Board as soon as reasonably practicable. No more than thirty (30) working days after receipt of such determination and recommendations, the Review Board shall meet to consider it and render a formal Review Board opinion based upon it. In the event extenuating circumstances arise in the scheduling and preparation for such meeting, the time for meeting shall be extended by fourteen (14) calendar days. viii. The City Clerk shall provide written notice of the scheduled meeting for consideration of the investigating attorney’s determination and recommendations on a complaint at least three (3) working days prior to the meeting. The complaint and investigation attorney’s determination and recommendations shall be available with the agenda for the meeting. ix. Prior to reaching a final decision on the merits of a complaint, the Review Board shall provide the complainant an opportunity to present facts and argument in support of the complaint, and the subject of the complaint an opportunity to present facts and argument related to the complaint. However, it is not necessary for the Review Board to conduct a full public hearing and take public input on a complaint. x. After investigation, the Review Board shall forthwith issue an opinion and recommendation to the City Council, which shall immediately thereafter be filed with the City Clerk and be available for public inspection. Said opinion and recommendation shall be submitted to city Council at a regular City Council meeting, at which time the City Council shall determine whether to adopt the same as a final ethics opinion of the Council. xi. Any whose conduct or circumstance is the subject of the opinion shall refrain from participating in any deliberations of the City Council regarding the opinion. e. Alternate Review Procedures. ERB Meeting 10-12-2022 0011 DRAFT REVISIONS FOR ETHICS REVIEW BOARD REVIEW October 12, 2022 all affected or interested Councilmembers to learn their interpretations of the facts at issue and of the applicable provisions of law, may interview such other persons as the investigating attorney reasonably believes may have relevant or useful information pertinent to the investigation, and may request such additional materials or information from City staff or members of the public that the investigating attorney considers reasonably necessary or helpful to the investigation or determination. In addition, the investigation attorney shall have the power as vested in the Review Board to compel by subpoena the attendance and testimony of witnesses and the production of such documents as the investigating attorney may consider necessary to the investigation. i. In the event that a complaint is filed with the City Clerk under the provisions of this Subsection which alleges a violation on the part of two (2) or more members of the Review Board (including the alternate) and is subject to investigation and a decision by the Review Board, such complaint shall not be referred considered byto the regular Review Board for review but shall instead upon a determination that the complaint warrants investigation, shall be submitted to an alternate Review Board consisting of all remaining Councilmembers who are not named in the complaint. Formatted: Indent: Left: 1", Hanging: 0.19", Tab stops: 1.25", Left Formatted: Indent: Left: 0.99", Hanging: 0.2" Created: 2022-07-15 15:31:30 [EST] (Supp. No. 143, Update 1) Page 5 of 6 ERB Meeting 10-12-2022 0012 DRAFT REVISIONS FOR ETHICS REVIEW BOARD REVIEW October 12, 2022 ii. In the event a complaint names ; provided, however, that if five (5) or more Councilmembers and upon review it is determined that an investigation of five (5) or more Councilmembers is warrantedare named in the complaint, the alternate Review Board shall also include as many members of City boards and commissions as are necessary to constitute a seven-member board. Said Board and commission members shall be selected at random by the City Clerk within ten (10) working days of the date upon which the determination that further investigation is warranted is received bycomplaint is filed with the City Clerk. Any board and commission members selected by the City Clerk who elect not to serve on the alternate Review Board shall immediately so notify the City Clerk, who shall thereafter select as many additional board and commission members as are necessary to constitute the seven-member alternate Review Board. The procedures utilized by the alternate Review Board for reviewing and investigating the complaint and rendering an advisory opinion and recommendation shall be as provided in the applicable sSubsections (b) and (e) of this Section, except that: (i) the opinion and recommendation of such Board shall be final and shall not be submitted to the City Council for review or adoption by the City Council unless at least three (3) Councilmembers remain available to consider and take action on the opinion and recommendation; and (ii) the City Council and City staff shall, upon request by the alternate Review Board, make available to such Board all information in the possession of the city that is relevant to the Board's investigation, including, without limitation, tape recordings of any relevant executive sessions, unless the release of said information is prohibited by state or federal law; and, in reviewing and discussing such information, the Board shall abide by any local, state or federal confidentiality requirements that might limit or prohibit the release of such information to third parties. f. Screening criteria. The determination as to whether a complaint merits investigation and further action shall be made on the basis of one or more of the following considerations: i. The City Council has no jurisdiction over the individual(s) alleged to have violated the relevant ethics provision; ii. The alleged violation, even if true, would not constitute a violation of the relevant ethics provisions; iii. The allegations of the complaint were previously asserted in another complaint that is already being considered or was resolved by the Review Board and/or City Council; iv. The alleged violation, even if true, is minor in nature and fails to justify the use of public resources to investigate or prosecute; v. The allegations of the complaint involve actions or events that occurred more than one (1) year prior to the date of the filing of the complaint and, due to the passage of time and the likely unavailability of evidence, witnesses, and witnesses' recollections, investigation and prosecution of the complaint will not justify the use of public resources, except that complaints based on conduct resulting in a criminal conviction (regardless of the type of plea entered) or entry into a plea agreement subject to a deferred prosecution, deferred judgment, or deferred sentencing agreement may be referred to an appropriate enforcement agency; vi. The complaint is, on its face, frivolous, groundless, or brought for purposes of harassment; vii. The alleged violation is unlikely to be proven by the required standard of preponderance of the evidence due to the evidence consisting of conflicting oral testimony and unverifiable statements; Formatted: Indent: Left: 0.63", Hanging: 0.25" Formatted: Indent: Left: 1", Hanging: 0.19", Numbered + Level: 2 + Numbering Style: i, ii, iii, … + Start at: 1 + Alignment: Right + Aligned at: 1.49" + Created: 2022-07-15 15:31:30 [EST] (Supp. No. 143, Update 1) Page 6 of 6 ERB Meeting 10-12-2022 0013 DRAFT REVISIONS FOR ETHICS REVIEW BOARD REVIEW October 12, 2022 viii. The person who is the subject of the complaint has admitted wrongdoing and made or committed to make sufficient redress or remedy satisfactory to Review Board or City Council; ix. The matter has become or will become moot because the person who is the subject of the complaint is no longer a city official or will no longer be a city official prior to the conclusion of any consideration or investigation of the allegations in the complaint; x. The person who is the subject of the complaint previously obtained an advisory opinion under this code of ethics that identified the conduct as not being in violation of the code of ethics; or xi. The City Council has elected to refer the complaint to another agency with jurisdiction of the allegations of the complaint and such referral will better serve the public interest (e.g., law enforcement, district attorney, state or federal attorney general; or department of justice). (2) City Council inquiries. Any Councilmember may present directly to the Review Board any inquiry regarding the application of ethical rules of conduct under state statute or the Charter or Code to any actual or hypothetical situation of a Councilmember or board and commission member. (e) In performing its review and investigation of any complaint or inquiry submitted in accordance with Subsection (d) hereof, the Review Board shall afford all affected Councilmembers or board and commission members an opportunity to present their interpretations of the facts at issue and of the applicable provisions of law before rendering its opinion and recommendation. The Review Board may also request such additional materials or information from City staff or members of the public which it considers reasonably necessary or helpful to its deliberations. In addition, in the case of a complaint, the Review Board shall have the power to compel by subpoena the attendance and testimony of witnesses and the production of such documents as the Review Board may consider necessary to its investigation. After investigation, the Review Board shall forthwith issue an advisory opinion and recommendation to the City Council, which shall immediately thereafter be filed with the City Clerk and be available for public inspection. Said opinion and recommendation shall be submitted to city Council at a regular City Council meeting, at which time the City Council shall determine whether to adopt the same. Any whose conduct or circumstance is the subject of the opinion shall refrain from participating in any deliberations of the City Council regarding the opinion. (fe) The City Attorney shall provide legal advice to the Review Board and shall prepare and execute all advisory opinions and recommendations of the Rreview Bboard. (fg) Compliance with the applicable provisions of the Charter and Code and the provisions of state law, as well as decisions regarding the existence or nonexistence of conflicts of interest and the appropriate actions to be taken in relation thereto, shall be the responsibility of each individual Councilmember or board and commission member, except as provided in Subparagraph 2-568(c)(1)(g). An opinion adopted by the City Council under Subsection (e) of this Section shall constitute an affirmative defense to any civil or criminal action or any other sanction against a Councilmember or board or commission member acting in reliance thereon. (Ord. No. 112, 1989, § 1, 8-1-89; Ord. No. 17, 1993, 2-16-93; Ord. No. 64, 1993, 7-20-93; Ord. 132, 2001, § 2, 9-18- 01; Ord. No. 110, 2002, §§ 1—3, 8-20-02; Ord. No. 144, 2014, 11-4-14 ; Ord. No. 102, 2019 , § 2, 9-3-19) Formatted: Indent: Left: 0", First line: 0" Formatted: Indent: Left: 0.94", Numbered + Level: 1 + Numbering Style: i, ii, iii, … + Start at: 1 + Alignment: Right + Aligned at: 0.58" + Indent at: 0.83" Item 1 Page 1 City Council-Ethics Review Board ERB Meeting 10-12-2022 0014 AGENDA ITEM SUMMARY Item 4 May 2, 2022 STAFF Carrie M. Daggett, City Attorney SUBJECT Continued discussion of options for the screening and review process for ethics complaints. EXECUTIVE SUMMARY The Ethics Review Board met on November 15, 2021, and January 31, 2022, to discuss potential changes to the process for screening and review of ethics complaints that are filed against Councilmembers. This is a continuation of that discussion. BACKGROUND / DISCUSSION The Board initially met in November in response to a request at a Council meeting this summer under “Other Business” initiated by Councilmember Gutowsky in follow up to discussions by Council and the Ethics Review Board in 2020 and 2021. At its November meeting, the Board discussed various issues and ultimately focused on the issue of whether to modify the complaint screening process for complaints against Councilmembers to use outside expert resources. In follow up to the November discussion, staff has researched examples of ethics review processes in Colorado and in some other jurisdictions to identify ways that outside attorneys are used in the screening or complaint review. There is significant variation from city to city and no clear pattern in this respect. More detailed information related to this was provided for the Board’s meeting on January 31, 2022, and those materials for that meeting are attached for easy reference. Under the Code now, the Board reviews (screens) all complaints to evaluate and determine by majority vote whether to formally investigate the complaint based on the following: 1. Whether the allegations in the complaint, if true, would constitute a violation of state or local ethical rules; 2. The reliability and sufficiency of any facts asserted in support of the allegations; and 3. Any other facts or circumstances the Board may consider relevant. Under the current process, if the Board determines that a complaint does not warrant investigation, the Board then directs staff to send written notice to the complainant of that determination and the reasoning behind it. A copy of that notice is also sent to the subject of the complaint and the City Council, and the matter is closed. If the complaint is not screened out, the Board then proceeds with an investigation and hearing about the allegations in the complaint. Item 1 Page 2 ERB Meeting 10-12-2022 0015 The process elements to consider in formulating a recommended new process, with proposed approaches based on the Board’s discussion so far, include: 1. What parts of the process would the Board (or the Council) retain in connection with a complaint against a Councilmember? a. the decision whether to take action to admonish a violator or take other action; b. the final decision as to whether a violation occurred (Council on the recommendation of the Board); c. the application of the Charter and Code to determine of whether a violation occurred; d. the investigation and finding of facts related to the accusations; e. not the initial screening of a complaint for whether it merits investigation. 2. If an outside resource will be used, what type of expert or resource would be preferred? The Board expressed interest in using an outside attorney with expertise in ethics matters to carry out the screening step. 3. For parts of the process that will be carried out by others, would the Board prefer a standing appointment, a pool of appointees to be drawn upon, or an ad hoc appointment? The Board expressed a preference for having outside resources in place to be called upon as needed. 4. Would there be special considerations in making the appointment, such as whether the person is local, for example. The Board didn’t discuss this extensively. It may be beneficial to use outside counsel from outside the community to reduce the potential for existing relationships or involvement. 5. Who would select or appoint the outside resources? The Board seemed comfortable with the City Attorney selecting and making arrangements for the outside counsel for a screening process (with update information provided to the Council), although more discussion of this may be helpful. 6. Would the use of outside resources apply to all ethics complaints (including those about board and commission members as well as Councilmembers)? The Board discussed this and expressed a preference for limiting the special screening to only complaints against Councilmembers, since those raised the question about impartiality. To move forward in this direction, some changes to the City Code would be needed. In addition, it may be beneficial to more clearly outline considerations in the screening process to guide screening decisions both for the Board and for an outside screener. ATTACHMENTS January 31, 2022, Ethics Review Board Agenda Item Summary Item 1 Page 1 City Council-Ethics Review Board ERB Meeting 10-12-2022 0016 AGENDA ITEM SUMMARY January 31, 2022 STAFF Carrie M. Daggett, City Attorney SUBJECT Continued discussion of options for the screening and review process for ethics complaints. EXECUTIVE SUMMARY The Ethics Review Board first met on November 15, 2021, to initiate the Board’s work during this term. This meeting is a continued discussion from that meeting regarding potential changes to the process for screening and review of ethics complaints that are filed. BACKGROUND / DISCUSSION The City Code (Section 2-569) establishes an Ethics Review Board to assist Councilmembers and board and commission members in interpreting and applying the City’s ethics provisions. In addition to considering complaints and rendering advisory opinions, the Code also empowers the Board to “propose any revisions to the provisions of the Charter or Code or other regulations, rules or policies of the City pertaining to ethical conduct as the Review Board may deem necessary and appropriate in the best interests of the City.” The Board initially met in November in response to a request at a summer 2021 Council meeting under “Other Business” initiated by Councilmember Gutowsky in follow up to discussions by Council and the Ethics Review Board in 2020 and 2021. At its November meeting, the Board discussed various issues and ultimately focused on the issue of whether to modify the complaint screening process to use outside expert resources. The Board asked for additional information about this for further consideration and discussion at this meeting. In follow up to the November discussion, staff has researched examples of ethics review processes in Colorado and in some other jurisdictions to identify ways that outside attorneys are used in the screening or complaint review. There is significant variation from city to city and no clear pattern in this respect. Many city codes simply provide that the city council is responsible for hearing and resolving ethics complaints or establish a council board of ethics similar to the Fort Collins Ethics Review Board. Others assign that responsibility to the city attorney, sometimes with the use of outside counsel where appropriate. Item 1 Page 2 ERB Meeting 10-12-2022 0017 Here are some examples of systems in other jurisdictions that incorporate outside expert resources: 1. Arvada: a. City council is responsible for investigating, hearing and determining ethics violations and considering ethics complaints. b. The council may refer matters to appropriate law enforcement for investigation or refer the matter to an outside disinterested third person selected by the city council for investigation or hear the matter itself. 2. Aspen: a. The city attorney renders advisory opinions and may appoint neutral outside counsel to resolve issues raising significant controversy. b. The city council may remove any official who violates the Aspen code of conduct. c. If applicable, the city attorney may commence a civil action to recover anything of value upon a showing of a violation of the code of conduct. 3. Aurora: a. A panel of three judges (former judicial officials) hears ethics complaints and issues findings; b. The members of the panel are appointed in response to the complaint (not before); c. City attorney sets rules for the hearing process; and d. Final action is taken by the panel of judges. 4. Boulder: a. City attorney investigates ethics complaints and issues findings. City attorney may request that council appoint special counsel in the case of a conflict, professional ethics bar or appearance of impropriety. 5. Central City: a. The city council sitting as the board of ethics has the power to investigate ethics complaints. b. The council may order the city attorney to retain the services of an independent investigator to investigate the issues defined for investigation. 6. Colorado Springs: a. City council appoints a five-member independent ethics commission to issue advisory opinions on request and to make written recommendations to council in response to ethics complaints. b. Each member must have expertise in ethical matters acquired through education or experience. c. The city attorney is liaison and legal advisor to the commission and may also issue advisory opinions upon request. d. Complaints are filed confidentially; the commission may dismiss a complaint as frivolous. e. The commission investigates, deliberates and makes a recommendation of findings confidentially to council and then council by majority vote acts on the complaint. f. If council finds there was a violation, the subject is notified and may then request a public hearing. Item 1 Page 3 ERB Meeting 10-12-2022 0018 7. Denver: a. Based on at least three nominations from a board of ethics nominating committee, mayor and council appoint members of a board of ethics that consists of no more than one City officer/employee, at least one former judicial officer and at least one ethics expert; b. The board makes findings on a complaint by majority vote. 8. Durango: a. Council appoints five community members with expertise in ethics acquired through education or experience to serve on a board of ethics; three must be city residents and the other two may be non-city residents. b. The board of ethics issues advisory opinions and guidelines, and reviews and hears complaints and make recommendations to regarding penalties. c. The city attorney advises the board. d. The board’s powers include mediating and working to resolve disputes related to ethics complaints, conducting investigations and hearings, making findings and issuing an order setting out findings and recommendations, including proposing to the city council actions for the council to take. e. Council actions may include a written reprimand, order for remedial training, suspending or removing an elected or appointed officer, or issuing a public censure and apology letter or resolution for the benefit of an affected person. 9. Lone Tree: a. A board of ethics, advised by the city attorney, reviews ethics complaints. b. The board of ethics consists of two members of the city council (appointed by the city council) and the city manager (or delegee). c. The board may refer a complaint to another agency with jurisdiction. 10. Louisville: a. The city attorney/prosecutor receives complaints and forwards them to an advisory judge, requesting that the advisory judge appoint a qualified, disinterested attorney to serve as special prosecutor. If the advisory judge fails to act, the municipal judge instead makes the appointment. The special prosecutor investigates the complaint and takes enforcement action as they determine appropriate. b. The municipal judge keeps a list of one or more judges of other municipalities to provide advisory opinions on request. Those subject to the ethics provisions may seek an advisory opinion from the advisory judge on an ethics question. Advisory opinions are posted for the public unless the advisory judge determines it’s in the best interest of the city to delay public posting until no harm to the city will result. 11. Thornton: a. The municipal judge keeps a list of one or more judges of other municipalities to provide advisory ethics opinions as requested. b. Determinations of whether a violation has occurred are made as follows: i. For a councilmember, the remaining members of council decide by majority vote whether there are grounds for official reprimand; and Item 1 Page 4 ERB Meeting 10-12-2022 0019 ii. For a board member, the remaining members of the board or the city council decide by majority vote whether there are grounds for an official reprimand and council may remove such board member. Reviewing the examples found, there are some common elements to consider in formulating a recommended new process: 1. What parts of the process would the Board (or the Council) retain? This might include: a. the decision whether to take action to admonish a violator or remove an appointee from office (or take other action); b. the final decision as to whether a violation occurred (if another body or reviewer makes a recommendation); c. the application of the Charter and Code to determine of whether a violation occurred; d. the investigation and finding of facts related to the accusations; e. the initial screening of a complaint to determine whether it merits investigation. 2. If an outside resource will be used, what type of expert or resource would be preferred? This might include: a. An outside attorney (either from a fellow municipality under an IGA or retained from an outside firm); b. An outside judge (either from a fellow municipality under an IGA or separately arranged from another source); c. A retired judge or judicial officer; d. An outside ethics expert (who may or may not be an attorney); or e. An outside investigator. 3. For parts of the process that will be carried out by others, would the Board prefer a standing appointment, a pool of appointees to be drawn upon, or an ad hoc appointment? 4. Would there be special considerations in making the appointment, such as whether the person is local, for example. 5. Who would select or appoint the outside resources? Examples from other jurisdictions include: a. The Council; b. The Ethics Review Board; c. The City Manager; d. The City Attorney; e. The Chief Municipal Judge; f. The City Clerk; g. A nominating committee. 6. Would the use of outside resources apply to all ethics complaints (including those about board and commission members as well as Councilmembers)? Based on the Board’s discussion and preferences related to these elements, a draft outline of a proposed new process could be ready for the Board to consider at its next meeting. ERB Meeting 10-12-2022 0020 Item 5 October 12, 2022 AGENDA ITEM SUMMARY City Council-Ethics Review Board STAFF Carrie M. Daggett, City Attorney SUBJECT Review of materials previously provided regarding conflicts of interest related to employment relationships and discussion of next steps on this issue, if any. EXECUTIVE SUMMARY The Ethics Review Board (“Board”) met on May 2, 2022, to continue discussing options for the screening and review process for ethics complaints. During the meeting, the Board requested to see previously provided materials related to employment relationship conflicts of interest. This item is in response to that request. STAFF RECOMMENDATION N/A BACKGROUND / DISCUSSION The City Code (Section 2-569) establishes an Ethics Review Board to assist Councilmembers and board and commission members in interpreting and applying the City’s ethics provisions. In addition to considering complaints and rendering advisory opinions, the Code also empowers the Board to “propose any revisions to the provisions of the Charter or Code or other regulations, rules or policies of the City pertaining to ethical conduct as the Review Board may deem necessary and appropriate in the best interests of the City.” The Board initially met in November 2021 to discuss the potential interest in establishing new standards that would specifically define conflicts of interest arising from the interests of a Councilmember’s employer. This was in follow up to questions raised during the 2019-2021 period regarding matters coming to Council that pertained in some way to the interests of certain individual Councilmembers and the discussions that ensued about whether those Councilmembers had conflicts of interest under the City Charter and City Code, or State of Colorado ethics provisions. Rather than focus on this issue after the initial November discussion, the Board has considered potential improvements to the screening and investigation process for complaints against Councilmembers. Near the end of the Board’s meeting on May 2, 2022, Councilmember Gutowsky requested that the ERB Meeting 10-12-2022 0021 information previously provided be part of the Board’s packet in case there is interest in further discussion of the potential for new standards related to this. BOARD / COMMISSION / COMMITTEE RECOMMENDATION N/A CITY FINANCIAL IMPACTS N/A PUBLIC OUTREACH N/A ATTACHMENTS 1. November 15, 2021, Ethics Review Board Agenda Item Summary and Attachment 2.. November 15, 2021, Meeting Minute Excerpt 3. January 31, 2022 , Meeting Minute Excerpt Item 1 Page 1 City Council-Ethics Review Board ERB Meeting 10-12-2022 0022 AGENDA ITEM SUMMARY November 15, 2021 STAFF Carrie M. Daggett, City Attorney SUBJECT Initial discussion of conflicts of interest definitions related to employment relationships of Councilmembers. EXECUTIVE SUMMARY This is the initial meeting of the Ethics Review Board (“Board”) appointed in May 2021. This meeting was requested for the Board to discuss potential changes to conflicts of interest provisions and particularly when employment relationships of Councilmembers should constitute a conflict of interest. The Board may also identify other ethics matters it would like to address at future Board meetings. BACKGROUND / DISCUSSION The City Code (Section 2-569) establishes an Ethics Review Board to assist Councilmembers and board and commission members in interpreting and applying the City’s ethics provisions. In addition to considering complaints and rendering advisory opinions, the Code also empowers the Board to “propose any revisions to the provisions of the Charter or Code or other regulations, rules or policies of the City pertaining to ethical conduct as the Review Board may deem necessary and appropriate in the best interests of the City.” This meeting was scheduled in response to a request at a Council meeting this summer under “Other Business” initiated by Councilmember Gutowsky. The request was in follow up to discussions by Council and the Ethics Review Board in 2020 in response to several ethics reviews focused on the question of when a Councilmember’s employment relationship creates a conflict of interest in decisions of interest to the employer. General Background regarding Conflicts of Interest Article IV, Section 9(b)(3) of the City Charter requires any officer or employee who has, or whose relative has, a financial or personal interest in any decision of any public body of which they are a member or to which they make recommendations, to upon discovery disclose that interest in the manner described and refrain from voting on, attempting to influence, or otherwise participating in the decision as an officer or employee. Item 1 Page 2 ERB Meeting 10-12-2022 0023 The Charter defines “financial interest” and “personal interest” as follows (emphasis added): Financial interest means any interest equated with money or its equivalent. Financial interest shall not include: (1) the interest that an officer, employee or relative has as an employee of a business, or as a holder of an ownership interest in such business, in a decision of any public body, when the decision financially benefits or otherwise affects such business but entails no foreseeable, measurable financial benefit to the officer, employee or relative; (2) the interest that an officer, employee or relative has as a nonsalaried officer or member of a nonprofit corporation or association or of an educational, religious, charitable, fraternal or civic organization in the holdings of such corporation, association or organization; (3) the interest that an officer, employee or relative has as a recipient of public services when such services are generally provided by the city on the same terms and conditions to all similarly situated citizens, regardless of whether such recipient is an officer, employee or relative; (4) the interest that an officer, employee or relative has as a recipient of a commercially reasonable loan made in the ordinary course of business by a lending institution, in such lending institution; (5) the interest that an officer, employee or relative has as a shareholder in a mutual or common investment fund in the holdings of such fund unless the shareholder actively participates in the management of such fund; (6) the interest that an officer, employee or relative has as a policyholder in an insurance company, a depositor in a duly established savings association or bank, or a similar interest- holder, unless the discretionary act of such person, as an officer or employee, could immediately, definitely and measurably affect the value of such policy, deposit or similar interest; (7) the interest that an officer, employee or relative has as an owner of government-issued securities unless the discretionary act of such owner, as an officer or employee, could immediately, definitely and measurably affect the value of such securities; or (8) the interest that an officer or employee has in the compensation received from the city for personal services provided to the city as an officer or employee. Personal interest means any interest (other than a financial interest) by reason of which an officer or employee, or a relative of such officer or employee, would, in the judgment of a reasonably prudent person, realize or experience some direct and substantial benefit or detriment different in kind from that experienced by the general public. Personal interest shall not include: Item 1 Page 3 ERB Meeting 10-12-2022 0024 (1) the interest that an officer, employee or relative has as a member of a board, commission, committee, or authority of another governmental entity or of a nonprofit corporation or association or of an educational, religious, charitable, fraternal, or civic organization; (2) the interest that an officer, employee or relative has in the receipt of public services when such services are generally provided by the city on the same terms and conditions to all similarly situated citizens; or (3) the interest that an officer or employee has in the compensation, benefits, or terms and conditions of his or her employment with the city. Applying these definitions to determine whether an officer or employee (or that person’s relative) has a financial interest is generally a more objective inquiry, since it turns on whether there is a “foreseeable, measurable financial benefit” to the officer or employee. In contrast, evaluating whether an officer or employee (or that person’s relative) has a “personal interest” is generally more difficult, because there is more room for interpretation. The definition requires an evaluation of whether that person would, in the judgment of a reasonably prudent person: 1. realize or experience some direct and substantial benefit or detriment; 2. different in kind from that experienced by the general public. Opinions regarding whether these elements are met in any particular circumstance can vary widely and as a result this provision does not often provide clear guidance related to the commonly encountered issue of whether an employment relationship and an employer’s interests constitute a personal interest. Employment Relationships and Conflicts of Interest To define more specifically how the interest of an employer of a City officer gives rise to a conflict of interest, the simplest approach would be to add clarifying language to the personal interest definition. Because these definitions are in the Charter, proposing a Charter amendment for voter approval would be the mechanism for making such a change. This provision could be revised to make clear that a City official has a personal interest when that official is a direct employee of an entity or person that has a financial interest in a decision, or when the employer will experience from that decision a direct and substantial benefit or detriment different in kind from that experienced by the general public. Consistent with state ethics laws, such a provision may also need to include any person or organization with which the official is negotiating or has an arrangement concerning prospective employment. Some jurisdictions impute any financial or personal interest of an employer to the city official as though it were their own interest. These approaches would result in a relatively broad application of the personal interest standard. Item 1 Page 4 ERB Meeting 10-12-2022 0025 Alternatively, the official could be defined to have a personal interest only when the employer (or prospective employer) has a financial interest in the City decision. Either approach would impute the interests of the external employer to the City official, but to different degrees. Other distinctions that Council may want to consider in defining what constitutes a personal interest include: ➢ The size of the employer; ➢ The type of the employer (for-profit, not-for-profit, governmental); ➢ The number of organizational layers between the City official and the governing body, chief executive officer, president or owner of the entity that employs the official; ➢ Whether the official’s position is compensated or uncompensated; ➢ Whether it’s practical for the City official to maintain confidentiality of City confidential information from their employer in the decision-making process; and ➢ Whether the City official’s participation in the City decision will present conflicting loyalties for the City official. Next Steps The Board may wish to discuss these and other ideas and request further research and information for further discussion at an upcoming Board meeting. If the Board would like to recommend changes related to this issue and Council agrees to move these changes forward, Council would need to adopt an ordinance submitting a Charter amendment to the voters as a called special election (such as a coordinated November election) or a regular municipal election in an odd-year April. The next regular City election will be April 2023. Examples of how other jurisdictions address employment-related conflicts of interest are outlined in the attachment. ATTACHMENTS Summary of Selected Sample Provisions from Other Jurisdictions 1 ERB Meeting 10-12-2022 0026 Summary of Selected Sample Provisions from Other Jurisdictions Arizona Statute: Prohibits participation where officer or employee (or their relative) has a “substantial interest,” other than a “remote interest.” "Remote interest" means (among other things): (i) That of a public officer or employee, or that of a relative of a public officer or employee, unless the contract or decision involved would confer a direct economic benefit or detriment on the officer, the employee or his relative, of any of the following: (i) Another political subdivision. (ii) A public agency of another political subdivision. (iii) A public agency except if it is the same governmental entity. (j) That of a member of a trade, business, occupation, profession or class of persons consisting of at least ten members which is no greater than the interest of the other members of that trade, business, occupation, profession or class of persons. (k) That of a relative who is an employee of any business entity or governmental entity that employs at least twenty-five employees within this state and who, in the capacity as an employee, does not assert control or decision-making authority over the entity's management or budget decisions. Bellingham, Washington: Prohibits participation where board member of employee (or immediate family) has a financial interest unless it is a “remote financial interest.” “Remote financial interest” means: 2. That of an employee or agent of a contracting party where the compensation of the employee or agent consists entirely of fixed wages or salary and the contract is awarded by bid or by other competitive process; Bridgeport, Connecticut: Prohibits various forms of participation and dealings when a “financial interest” is present. "Financial interest" means any interest, other than an interest of a de minimis nature, that is not distinct from that of the general public, which shall yield a monetary or other material benefit to the official or employee or to any person employing or retaining the services of the official or employee. Chicago, Illinois: (2) To avoid even an appearance of impropriety, any member of the City Council who has any business relationship with a person or entity with a matter pending before the City Council 2 ERB Meeting 10-12-2022 0027 or any City Council Committee: (i) that creates a financial interest on the part of such member, or the domestic partner or spouse of such member, or (ii) from whom or which the member has derived any income or compensation during the preceding twelve months or from whom or which the member reasonably expects to derive any income or compensation in the following twelve months, shall publicly disclose in detail the nature of such business relationship or income or compensation, including when such relationship commenced, on the records of proceedings of the City Council and the City Council Committee, and shall also notify, with the same detail, the Board of Ethics of such relationship within 96 hours of delivery by the Clerk to the member, of the introduction of any ordinance, resolution, order or other matter in the City Council, or as soon thereafter as the member is or should be aware of such potential conflict of interest ....... The Board of Ethics shall post such disclosures, including any additional detail submitted by the member, on the Board of Ethics website, in a searchable format, immediately upon receipt. The member shall abstain from participating in any discussion concerning and voting on the matter but shall be counted present for purposes of a quorum. . . . Knoxville, Tennessee: Prohibits participation in matters where an officer has a personal interest, unless in the judgment of the law director such personal interest is de minimis. (b) Definition of personal interest. (1) For purposes of this section, "personal interest" means: a. Any financial, ownership, or employment interest in the subject of a vote by the council not otherwise regulated by state statutes on conflicts of interests; or b. Any financial, ownership, or employment interest in a matter to be regulated or supervised; or c. Any such financial, ownership, or employment interest of the city official's or employee's spouse, parent(s), stepparent(s), grandparent(s), sibling(s), child(ren), or stepchild(ren). (2) The words "employment interest" include a situation in which a city official or employee or a designated family member is negotiating possible employment with a person or organization that is the subject of the vote or that is to be regulated or supervised. Montpelier, Vermont: Requires recusal in the case of a direct or indirect financial benefit or conflict of interest. “A public officer shall not take any action on any matter in which she/he/they has an appearance of a conflict of interest unless in his or her own estimation, she/he/they is able to do so fairly, objectively and in the public interest in spite of the appearance of conflict of interest.” C. It is recognized that Montpelier may have a large number of Vermont State Employees as members of local public agencies. These individuals may generally participate in matters involving state government but should consider recusal or disclosure when matters involve their specific work responsibilities or employment unit. 3 ERB Meeting 10-12-2022 0028 Oregon Statute: Oregon state ethics law (ORS 244.020(3)4) defines “business with which the person is associated” as: • When, during the preceding calendar year, an appointee or relative has held a position as director, officer, owner, employee or agent of a private business or a closely held corporation in which the appointee or relative held or currently holds stock, stock options, equity interest or debt instrument over $1,000. • When, during the preceding calendar year, appointee or relative has owned or currently owns stock, equity interest, stock options or debt instruments of $100,000 or more in a publicly held corporation. • When the appointee or relative is a director or officer of a publicly held corporation. • When an appointee is required by ORS 244.050(5) to file an Annual Verified Statement of Economic Interest form and the business is listed as a source of household income. San Antonio, Texas: To avoid the appearance and risk of impropriety, a City official or employee shall not take any official action that he or she knows is likely to affect the economic interests of: (1) The official or employee; (2) His or her parent, child, spouse, or other family member within the second degree of consanguinity or affinity; (3) His or her outside client; (4) A member of his or her household; (5) The outside employer of the official or employee or of his or her parent, child (unless the child is a minor), spouse, or member of the household (unless member of household is a minor); . . . (9) A person or entity with whom, within the past twelve (12) months: a. The official or employee, or his or her spouse, directly or indirectly has: 1. Solicited an offer of employment for which the application is still pending; 2. Received an offer of employment which has not been rejected; or 3. Accepted an offer of employment; or 4 ERB Meeting 10-12-2022 0029 b. The official or employee, or his or her spouse, directly or indirectly engaged in negotiations pertaining to business opportunities, where such negotiations are pending or not terminated. Seattle, Washington: A covered individual may not engage in any of the following acts: A. Disqualification from acting on City business 1. Participate in a matter in which any of the following has a financial interest, except as permitted by Section 4.16.071: a. The covered individual; b. An immediate family member of the covered individual; c. An individual residing with the covered individual; d. A person the covered individual serves as an officer, director, trustee, partner, or employee; e. A person with whom the covered individual is seeking or has an arrangement concerning future employment. 2. Participate in a matter in which a person who employed the covered individual in the preceding 12 months, or retained the covered individual or the covered individual's firm or partnership in the preceding 12 months, has a financial interest; provided, however, that the Executive Director shall waive this subsection 4.16.070.A.2 when: a. The covered individual's appointing authority or the authority's designee makes a written determination that there is a compelling City need for the covered individual to participate in a matter involving a prior employer or client, and submits that determination with a written plan showing how the authority will safeguard the City's interests, and b. The Executive Director determines that the authority's plan is satisfactory. 3. Perform any official duties when it could appear to a reasonable person, having knowledge of the relevant circumstances, that the covered individual's judgment is impaired because of either (a) a personal or business relationship not covered under subsection 4.16.070.A.1 or 4.16.070.A.2, or (b) a transaction or activity engaged in by the covered individual. . . . Excerpt from pages 1-3 of Ethics Review Board Meeting Minutes November 15, 2021 ERB Meeting 10-12-2022 0030 Item 5 was discussed, the consideration of conflicts of interest related to employment agreements and the Board asked City Attorney Daggett to provide some background information on this item. Ms. Daggett explained the information provided to the Board was to give background on this topic. This topic came up under Other Business at a Council meeting several months ago. Ms. Daggett explained that in 2020, there were a number of complaints filed regarding Councilmembers’ employment and matters of interest to Councilmembers’ employer and evaluating the question of when an employment relationship creates a conflict of interest. The City’s Charter and Code do not specifically address an officer’s outside employment and each situation is evaluated based on the interpretation and application of the financial interest and personal interest provisions. The determination of whether there is a personal interest turns on whether, in the “judgment of a reasonably prudent person, direct and substantial benefit/detriment different in kind from the general public”. It was noted that this may have been of interest in suggesting that the Board discuss whether changes are needed. City Attorney Daggett explained that examples have been provided to the Board of other jurisdictions, other state and local laws defining the employer relationship. A few examples are fairly strict, very broad definition on employer having interest. One example, Montpelier, Vermont, gives a specific provision addressing State of Vermont employees. Former Mayor Wade Troxell provides an example of how the issue has typically been approached here – in connection with matters in the department he worked in or projects he was involved in, he would file a conflict of interest and stay out of the decision. But for general CSU matters, he did not. Ms. Daggett suggested that the Board review this information and consider if a change is needed. Then, if it is the Board’s desire to evaluate this issue further, based on the discussion and additional options would be provided on this issue. Councilmember Gutowsky asked, should the Board decide to recommend changes, would it be a charter change, ballot issue be initiated? City Attorney Daggett explained to change a definition of a conflict of interest would need to be in the Charter. This change could go to either a November or April election. Councilmember Pignataro provided further background on this issue explaining the majority of ethics complaints over the past two years were related to Hughes Stadium, CSU and former Mayor Troxell and former Councilmember Stephens’ employment status with CSU. Ms. Pignataro explained that a significant share of the issue of concern had been that when Councilmembers are tasked with evaluating an ethics complaint brought against another Councilmember, some in the community perceived a lack of objectivity in the process. Excerpt from pages 1-3 of Ethics Review Board Meeting Minutes November 15, 2021 ERB Meeting 10-12-2022 0031 Mayor Arndt observed that upon review the complaints fall away, demonstrating strong, clear policies, and noted that the Code lays out what to do in those instances. Mayor Arndt also noted the purpose of the Board is to help others work through ethical questions. Mayor Arndt noted it would be absurd to eliminate those who work for employers in this town and questioned where that would lead. She noted the purpose of the Ethics Review Board is to provide guidance on these issues. Councilmember Gutowsky noted her concerns about the difficulty in applying the “personal interest” provisions and indicated that the issue had arisen in late 2020 regarding the mobile home park updates and Mayor Pro Tem Emily Francis (then Councilmember Gorgol) who worked for an organization actively working with and advocating for mobile home park residents. City Attorney Daggett explained that the Ethics Review Board did a formal advisory review on the mobile home park rezoning question and produced an advisory opinion from the Board finding she did not have conflict in general but that it would be important to evaluate individual rezoning proposals in case she had been actively, directly involved with the situation of a particular affected property. The need for education and awareness on part of Councilmembers on the benefit of using the advisory process was discussed. Ideas on how to promote the advisory process were mentioned, including the idea of the Board reminding other councilmembers of the process. Mayor Arndt suggested adding information about this to Councilmember training and/or other on-boarding activities and education. Councilmember Pignataro noted that everyone has their own tolerance of risk which may not be the same for all and noted a desire to respect that as well. Some may not feel the need to seek an advisory opinion. Ms. Pignataro suggested that the Respectful Workplace policy training may offer a chance to remind Councilmembers of the advisory process. City Attorney Daggett circled back to the discussion in 2020 about this Ethics Review Board process, considering the complaints against Councilmembers. Ms. Daggett noted that although there has not been a lot of momentum, there may be interest in changing this process. There was a work session in December 2020 with a follow up memo summarizing the discussion. ERB Meeting 10-12-2022 0032 Excerpt from page 2 of Ethics Review Board Meeting Minutes January 31, 2022 The standard for evaluating what is a conflict of interest was discussed, in particular the issue that had been raised about councilmember employers and noting the issue that had been raised with former Mayor Troxell as an employee of CSU. City Attorney Daggett inquired if the definition of personal interest was satisfactory as is and there was interest in further discussing the definition of conflict of interest. City Attorney Daggett reminded the Board that this issue was teed up as a discussion topic in the November 15, 2021, meeting and asked if the Board would like to review that now? Ms. Daggett reminded the Board that our conflict of interest provision is in the Charter, so the actual definition of a conflict is voter-approved. The current Charter language was last updated in early 2000’s. The Board then discussed the definition of personal/financial interest. The Hughes stadium issue was discussed and Mayor Arndt stated, as an outsider back then, it looked like the Board handled the complaint situation very well. It was noted that it is Code language (and not Charter language) that creates the Ethics Review Board process, so Council can change that by ordinance.