HomeMy WebLinkAbout153 - 01/17/2023 - AMENDING CITY CODE TO UPDATE AND CLARIFY THE PROCESS FOR REVIEW OF ETHICS COMPLAINTSORDINANCE NO.153,2022
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING SECTION 2-569 OF THE CODE OF THE CITY OF FORT COLLINS
TO UPDATE AND CLARIFY THE PROCESS
FOR REVIEW OF ETHICS COMPLAINTS
WHEREAS,City Code Section 2-569 establishes an Ethics Review Board
comprised of three Councilmembers and an alternate,to consider ethics-related inquiries
and complaints;and
WHEREAS,Section 2-569(d)addresses the processes for review of ethics inquiries
and complaints;and
WHEREAS,in recent years questions have been raised as to how the screening and
investigation of complaints,particularly complaints against Councilmembers,are best
structured and carried out;and
WHEREAS,the Ethics Review Board met in November 2021,January 2022,May
2022 and October 2022 to consider the complaint process and options for modifying it to
provide an efficient,objective review of complaints;and
WHEREAS,based on those discussions,the Ethics Review Board voted
unanimously on October 12,2022,to recommend the amendments to City Code Section 2-
569 set out in this Ordinance;and
WHEREAS,in addition to establishing a new screening and investigation process
for complaints against Councilmembers,the amendments reorganize and clarify the
processes and requirements and provide additional considerations to guide the screening
of ethics complaints;and
WHEREAS,the Council finds these changes to advance the public’s interest in
effective and fair consideration of ethical action by Council and boards and commissions,
and desires to adopt and implement the new procedures for ethics complaints,if any,
received after first reading of this Ordinance.
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 2-569(d)of the Code of the City of Fort Collins is
hereby amended to read as follows:
Sec.2-569.Board of ethics.
d)Inquiries and complaints shall be submitted to the Review Board only according to
the following procedures:
1)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)(l),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.
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.
2)Complaints.
a.Any person who believes that a Councilmember or board or
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 or commission member named in the
complaint,the City Council and the City Attorney.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 determine 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 a complaint against a board or commission member:
i.The City Clerk shall schedule the complaint for
consideration by the Review Board as soon as reasonably
practicable.The Review Board will meet and consider the complaint
within thirty (30)working days after the date of filing of the
complaint.In the event extenuating circumstances arise in the
scheduling and preparation for such meeting the Review Board shall
meet to consider the complaint as soon as reasonably practicable.
ii.The City Clerk shall provide written notice of the scheduled
meeting for initial review of the complaint to the board or
commission member named in the complaint,as well as the
complainant,the chair of the board or commission of which the
subject of the complaint is a member,and the City Council,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.
iii.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 screening
criteria set out in this subsection (d)(2)f 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 the board or commission member named in the complaint,as well
as the chair of the board or commission of which the subject of the
complaint is a member,and 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 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.
d.For a complaint against a Councilmember:
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 the Councilmember named in the complaint,as
well as the complainant,within five (5)working days of receipt of
the complaint.
ii.The City Attorney shall forward the complaint to a review
attorney retained as described above in subsection (d)(2)b 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
subsection (d)(2)f 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 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 the Councilmember named in the
complaint,as well as the City Council and 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 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
investigating 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.
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 within thirty (30)working days
after receipt,or,as soon as reasonably practicable.The Review
Board shall meet to consider the determination and
recommendations and render a formal Review Board opinion based
upon the determination and in light of the recommendations,but
shall not be bound to follow the recommendation made.
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 to the
complainant,the Councilmember named in the complaint,and the
City Council and City Attorney,at least three (3)working days prior
to the meeting.The complaint and investigation attorney’s
determination and recommendations shall be provided with such
notice and 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 Councilmember 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.
i.In the event multiple complaints are filed with the City Clerk
under the provisions of this Subsection that allege a related violation
on the part of two (2)or more members of the Review Board
including the alternate)and are subject to investigation and a
decision by the Review Board,such complaints shall not be
considered by the regular Review Board but instead upon a
determination that the complaints warrant investigation,shall be
submitted to an alternate Review Board consisting of all remaining
Councilmembers who are not named in the complaints.
ii.In the event related complaints are filed naming five (5)or
more Councilmembers and upon review it is determined that an
investigation of complaints naming five (5)or more
Councilmembers is warranted,the alternate Review Board shall also
include as many members of City boards or commissions as are
necessary to constitute a seven-member board.Said Board or
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 by
the City Clerk.Any board or commission member selected by the
City Clerk who elects 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
subsections 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;
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).
Section 3.That Section 2-569(e)of the Code of the City of Fort Collins is
hereby deleted.
Section 4.That Section 2-569(f)of the Code of the City of Fort Collins is
hereby renumbered as Section 2-569(e)and amended as follows:
Sec.2-569.Board of ethics.
e)The City Attorney shall provide legal advice to the Review Board and shall prepare
and execute all advisory opinions and recommendations of the Review Board.
Section 5.That Section 2-569(f)of the Code of the City of Fort Collins is
hereby renumbered as Section 2-569(g):
Sec.2-569.Board of ethics.
g)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.
Section 6.That the processes and standards enacted in this Ordinance shall be
applied to any complaints filed subsequent to adoption of the Ordinance on first reading.
Introduced,considered favorably on first reading and ordered published this 20th
day of December,A.D.2022,andct5~bec’oresented for final passage on the 17th day of
January,AD.2023.
QI~
City Clerk
Passed and adopted on final reading this 17th day of January,A.D.
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