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HomeMy WebLinkAbout1995-057-04/25/1995-COMMISSION DEVELOPMENT CORPORATION ETHICS REVIEW BOARD GERRY HORAK GINA JANETT HISTORIC FORT COLLINS RESOLUTION 95-57 OF THE COUNCIL OF THE CITY OF FORT COLLINS ACCEPTINGTHE ADVISORY OPINIONS AND RECOMMENDATIONS NO. 95-2 AND NO. 95-3 OF THE ETHICS REVIEW BOARD WHEREAS, the City Council has established an Ethics Review Board ("the Board"), consisting of three members of the City Council; and WHEREAS, the Board is empowered under Section 2-569 of the City Code to render advisory opinions and recommendations regarding actual or hypothetical situations of Councilmembers or board and commission members of the City; and WHEREAS,the Board met on April 11, 1995,to consider questions presented by Mayor Pro Tem Gina Janett and former City Councilmember Gerry Horak; and WHEREAS, after a review of the relevant facts and the standards contained in the City Charter,the Board rendered advisory opinions and recommendations on the foregoing questions; and WHEREAS; Section 2-569(e) of the City Code provides that all advisory opinions and recommendations of the Board be placed on the agenda for the next special or regular City Council meeting, at which time the City Council shall determine whether to adopt such opinions and recommendations; and WHEREAS, the City Council has reviewed the opinions and recommendations of the Board and wishes to adopt the same. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that Opinions No. 95-2 and No. 95-3 of the Ethics Review Board, copies of which are attached hereto and incorporated herein by this reference as Exhibits "A" and "B", have been submitted to and reviewed by the City Council, and the Council hereby adopts the opinions and recommendations contained therein. Passed and adopted at an adjourned meeting of the Coy t City of Fort Collins held this 25th day of April, A.D. 1995. ayor ATTEST: �tti+I�ity Clerk EXHIBIT "A" 95-2 OPINION OF THE ETHICS REVIEW BOARD OF THE CITY COUNCIL, OF THE CITY OF FORT COLLINS April 11, 1995 The Ethics Review Board ("the Board") met on the above-referenced date, pursuant to the provisions of Section 2-569 of the City Code, to consider a question presented by Mayor Pro Tern Gina Janett on behalf of Landmark Preservation Commission (,"LPC") members Jennifer Carpenter (Chair) and Ruth Weatherford (Vice-Chair). The question is whether Ms. Carpenter and Ms. Weatherford can participate in the decision-making process of the LPC regarding the designation of property for landmark status upon the nomination of the "Historic Fort Collins Development Corporation" ("Historic Fort Collins"). This question arises because Ms. Carpenter is the president of Historic Fort Collins and Ms. Weatherford serves on its Board of Directors. Historic Fort Collins has formed a special subcommittee which will make the actual presentation to the LPC, and neither Ms. Weatherford nor Ms. Carpenter will participate in the presentation. The presentation will essentially request that the Landmark Preservation Commission recommend designation of the property as an historic landmark. BACKGROIND INFORMATION 1. Historic Fort Collins Histwi -Fort_Collins is-a-membership organization which works with a broad range of public and private partners to undertake strategic projects that preserve the area's historic resources. It is a privately funded, non-profit corporation that came into existence in June of 1992 as a result of a consensus reached by conferees at a "National Trust for Historic Preservation Conference" which was held in Fort Collins, and sponsored by the City (including the LPC). The LPC, however, did not create Historic Fort Collins or take any action officially to request the establishment of Historic Fort Collins. Nonetheless, Historic Fort Collins does serve some of the same goals and purposes as does the LPC. For example, Historic Fort Collins intends to engage in some type of education/awareness program, perhaps through workshops, to raise the awareness of the citizenry of the importance of historic renovation. It also plans to enter into partnerships and joint ventures with the owners of historic properties to jointly redevelop those historic properties in an historically sensitive manner. Historic Fort Collins does not anticipate contributing money toward the redevelopment of these properties. Instead, its role in the partnership will most likely entail the contribution of historic expertise. Occasionally, Historic Fort Collins will also present to the LPC properties which it believes ought to be designated as historic landmarks. (This is the fact situation that gave rise to this issue.) Historic Fort Collins may, at some time in the future, even become the owner of an historic property which it will seek to redevelop. However, it does not intend to become a "for-profit" corporation. Ethics Opinion 95-2 April 11, 1995 Page 2 2. The Landmark Preservation Commission Under the City Code, the LPC has been established to perform certain duties relating to the preservation of historic landmarks and, more particularly, to designate sites, structures, objects or districts as landmarks and to review and approve or reject plans for the construction, alteration, demolition or relocation of any such site, structure, object or district. In addition, the LPC has taken on a number of other responsibilities related to historic preservation, including: (1) advising City Council with regard to its Historic Resources Preservation Program Plan; (2) overseeing the Landmark Rehabilitation Grant Program; (3) making recommendations with regard to expenditures from the Historic Resources Fund; (4) performing design review for applicants for the Colorado Historic Preservation Income Tax Credit; (5) working with City staff and advising the Council with regard to proposed design guidelines for various neighborhoods within the City; and (6) working with City consultants with regard to historic surveys and their contexts. APPLICARLF, STANDARDS The provisions of the City Charter pertaining to conflict of interest state that any officer or employee of the City who has a financial or personal interest in a decision of the City must file a disclosure statement with the City Clerk and must thereafter refrain from voting on, attempting to influence or otherwise participating in the decision in any manner as an officer or employee. A financial interest is defined in the Charter as any interest equated with money or its equivalent. A financial interest is specifically stated not to include: The interest of an employee of a business, or 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 employee or interest-holder;. . . .(City Charter, Article IV, Section 9.) The Charter defines a personal interest as: Any interest (other than a financial interest) arising from blood or marriage relationships or from close business, political or personal associations or concerns which would, in the judgment of a reasonably prudent person, tend to impair independence of judgment or action in the performance of official discretionary duties. (City Charter, Article IV, Section 9.) Ethics Opinion 95-2 April 11, 1995 Page 3 ANALYSIS 1. Knancial Interest Because board members Carpenter and Weatherford are not financially compensated for their service on the board of Historic Fort Collins, no financial interest is at issue. As indicated above, Historic Fort Collins is non-profit and its directors and officers serve without compensation. Therefore, there is no indication that a decision of the LPC to approve or disapprove the designation of an historic structure or district recommended by Historic Fort Collins would have any financial impact on Ms. Carpenter or Ms. Weatherford. 2. Personal Interest The existence of a personal conflict is not measured in monetary terms, which sometimes makes an analysis of whether a personal conflict exists more difficult. In analyzing the definition of a personal interest, one must first ascertain whether there exists an interest (in the context of this question) arising from "close business, political or personal associations." Secondly, if such an interest does exist, then, would a reasonably prudent person conclude that that interest tends to impair independence of judgment or action in the performance of official duties? Several prior opinions of the Ethics Review Board touched on these questions. Two opinions (Opinion 92-5 and 92-3) address the question of whether a Councilmember's service on other committees and organizations presents conflicts of interest for the councilmember in participating in decisions regarding City support or funding for the organizations with which the Councilmembers were involved. Opinion 92-5 pertained to Mayor Azari's involvement with "TEAM Fort Collins" and City funding regarding the DARE program. Opinion 92-3 involved Mayor Kirkpatrick's service on the initiating Committee of the Community Vision Coalition, and the question of her ability to participate in decisions regarding funding for the Coalition. In both circumstances, the Ethics Board concluded that no conflict of interest existed. These conclusions were based primarily upon the premise that the Councilmember's activities in support of the recipient organizations served a "bona fide public purpose," that the organizations did not exist primarily to advance interests which are personal or private in nature and that the organizations were not competing for City support. The Councilmembers' involvement in the organizations was prompted by a desire to further the goals of the organization and promote the public interest. Opinion 92-4 addressed the question of whether a CDBG Commission member who is closely affiliated with an agency that has applied for CDBG funding could participate in the funding decisions of the commission. It was concluded that the Commission member (Louise Stitzel), by reason of the relationship, would have a conflict of interest in participating in the funding decisions of the CDBG regarding the recipient agency ("TRAC") for which she served as a Ethics Opinion 95-2 April 11, 1995 Page 4 member of its Board of Directors, or other agencies which were competing with TRAC within the same funding category. These opinions of the Ethics Review Board do not give clear direction as to how the personal conflict of interest question in this case should be resolved. On the one hand, in applying the criteria cited in Opinions 92-3 and 92-5, one could argue that no conflict exists because: (1) Historic Fort Collins serves a bona fide public purpose and does not exist primarily to advance private interests, (2) the reason that Ms. Carpenter and Ms. Weatherford are involved with Historic Fort Collins does not have to do with any special benefit or return to them as individuals, and (3) Historic Fort Collins is not competing with any similar organizations for City support. On the other hand, if one follows the logic of Opinion No. 92-4, a number of similarities also exist: (1) both situations involve a boardmember rather than an elected official, (2) both involve a "close" association between the boardmember and the outside agency, and (3) Historic Fort Collins and TRAC, while serving legitimate public purposes which were closely associated with the purposes served by the respective boards and commissions, were not created by or at the request of either of t�hosse boards or commissions. MENDATIONS The Board believes that, because Historic Fort Collins is not competing for City support or funding, the involvement of LPC members with Historic Fort Collins is more closely analogous to the situations presented by Opinions 92-5 and 92-3. However, the Board is somewhat concerned about the precedential effect of extending this line of opinions. In the situation at hand, the Board believes that the interests of Historic Fort Collins and the LPC are sufficiently compatible with service on Historic Fort Collins that such dual membership may actually enhance the ability of LPC members to advance the purposes for which the LPC exists (although some of those purposes have not formally been articulated in the City Code). Because there is such an alignment of interests between Historic Fort Collins and the LPC, and because Historic Fort Collins is not in any sense competing for City support or funding, the Board believes that the participation of LPC members in Historic Fort Collins or similar non-profit organizations should not be construed as creating a conflict of interest and, in fact, should be encouraged. However, the Board recognizes that there may be other kinds of situations in which a board or commission member's participation in a non-profit, "public purpose" organization may impair that board or commission member's independence of judgment in deciding or making recommendations with regard to matters that are sponsored, or supported by, those outside organizations. Section 2-570(b) of the City Code presently states that Councilmembers who are appointed by the City Council to serve as City representatives to, or members of the boards of directors of, other governmental or private agencies will not generally be construed as having a conflict of interest Ethics Opinion 95-2 April 11, 1995 Page 5 by reason of such participation. This is because service on those associations is construed to be in the best interests of the City and compatible with the Councilmembers' performance of his or her official duties. The Board believes that it would be advisable to extend the application of this provision of the City Code to board and commission members who are involved with other agencies. "Authorized service" with such outside agencies should be limited, however, to those identified, either specifically or in general terms, in the Code sections which establish the functions of the City board or commission in question. Also, the Board believes that service of a board or commission member on such agencies may still present a conflict of interest if at any time the outside agency is competing for City support or funding. For the foregoing reasons, the Board recommends that: • Section 2-570 should be amended so that it applies to board and commission members, as well as Councilmembers; • Section 2-278 of the City Code, which describes the functions of the LPC, should be amended in two respects. First, the description of the LPC's functions should be expanded so as to include those functions described above which are presently being performed by the LPC and which are not presently stated in the Code. Secondly, a provision should be added to state that LPC members are authorized, but not required, to serve as City representatives to or members of the boards of directors of the Historic Fort Collins Development Corporation, the Poudre Landmarks Foundation, or other privately funded non-profit corporations that may be organized for the primary purpose of furthering the preservation of the community's historic resources. This advisory opinion was reviewed and approved by Mayor Azari and Councilmembers Bob McCluskey and Alan Apt, regular members of the Ethics Review Board. Pursuant to 2-569(e) of the City Code, this opinion and recommendation is to be immediately filed with the City Clerk and made available for public inspection. Dated this 13th day of April, 1995. St "he J. Ro , i4Attomm SJR:meg EXHIBIT "B" 95-3 OPINION OF THEETHICS_REVIEW BOARD OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS April 11, 1995 The Ethics Review Board_ ["the-Board") met- on the above-referenced date pursuant to the provisions of Section 2-569 of the City Code, to consider a question presented by former Councilmember Gerry Horak. The question presented is whether Mr. Horak is permitted, under the relevant provisions of the City Charter, to obtain employment with the City as a referee or umpire for City-sponsored athletic events, if that employment occurs within one year of the date that he ceased to be a Councilmember. The answer to Mr. Horak's question appears to be quite straightforward. The City Charter states in Article II, Section 2 that: No person shall be elected or appointed to any city office, position or employment for which the compensation was increased or fixed by the Council while such person was a member thereof until after expiration of one (1) year from the date when such person ceased to be a member of the Council." Less than one year will have expired between the date Mr. Horak resigned from Council and the date of his employment as a referee or umpire. However, under Section 2-566 of the Code, it is only the salaries of classified employees of the City-that are annually fixed by the Council-by ordinance. The position of referee or umpire is an hourly seasonal position and the persons employed in that capacity are not classified employees of the City. The only other employees whose salaries are directly determined by the City Council are the City Manager, City Attorney and Municipal Judge. It might be argued, in a very broad sense, that the City Council "fixes" the compensation of all City employees, including unclassified employees and hourly/seasonal employees, because the Council approves the funds necessary for those salaries as part of the annual appropriation ordinance. However, the City Charter further provides, (in Article V. Section 4), that this appropriation need not be itemized further than by fund (and that's the manner in which the appropriation occurs), and it states in Article V, Section 14 that during the budget year, the City Manager may transfer any unused budgeted amount or portion thereof from one budget category to any other budget category within the same fund. Therefore, for these other employees, it is the City Manager, rather than the City Council, that determines compensation. For the foregoing reasons, it is the opinion of the Board that the Charter provision in question does not prohibit Mr. Horak from seeking and holding employment as an hourly seasonal employee of the City, even though that employment will occur within one year from the date that he ceased to be a member of the Council. Ethics Opinion 95-3 April 11, 1995 Page 2 This advisory opinion was reviewed and approved by Mayor Azari and Councilmembers Bob McCluskey and Alan Apt, regular members of the Ethics Review Board. Pursuant to 2-569(e) of the City Code, this opinion and recommendation is to be immediately filed with the City Clerk and made available for public inspection. Dated this 13th day of April, 1995. tephe J. Roy, City AttWhey SJR:meg