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HomeMy WebLinkAbout1995-089-06/20/1995-CAMPAIGN CONTRIBUTIONS ETHICS REVIEW BOARD OPINION 95-4 TOM HARTMANN COMPLAINT RESOLUTION 95-89 OF THE COUNCIL OF THE CITY OF FORT COLLINS ACCEPTING THE ADVISORY OPINION AND RECOMMENDATION NO. 95-4 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, an Alternative Ethics Review Board met on June 5, 1995, to consider a complaint presented by Tom Hartmann, wherein Mr. Hartmann expressed concerns that members of City Council who received campaign contributions from former Councilmember Gerry Horak had a conflict of interest in participating in the formulation or review of an Ethics Board opinion which dealt with a question presented by Mr. Horak; and WHEREAS, the Board has concluded that no conflict of interest existed on the part of the Councilmembers referenced in Mr. Hartmann's complaint and has issued Opinion No. 95-4 to that effect; 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 opinion and recommendation of the Board and wishes to adopt the same. NOW,THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that Opinion No. 95-4 of the Ethics Review Board,a copy of which is attached hereto and incorporated herein by this reference as Exhibit "A," has been submitted to and reviewed by the City Council, and theCouncil herebyadopts the opinion andrecommendation containedtherein. Passed and adopted at a regular meeting of the Council of i of Fort lins h d this 20th day of June, A.D., 1995. or ATTEST: s � -v City Clerk - " �,J i Exhibit A 95-4 OPINION OF THE ALTERNATE ETHICS REVIEW BOARD OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS June 5, 1995 On May .16, 1995, the City Council formed an alternate Ethics Review Board to review a complaint filed by Mr. Tom Hartmann with Mayor Ann Azari. In his complaint, Mr. Hartmann expressed concerns about the participation of certain Councilmembers in the preparation and review of an advisory opinion of the Ethics Review Board. The opinion in question is Opinion . No. 95-3, a copy of which is attached. The alternate Ethics Review Board ("the Board") formed by the Council consisted of Councilmembers Alan Apt, Bob McCluskey and Chris Kneeland, together with Rick Goodale, a member of the Downtown Development Authority, and Diane Shannon, a member of the Zoning Board of Appeals. In attendance at the meeting of the Board were Councilmembers McCluskey and Kneeland, as well as board and commission members Rick Goodale and Diane Shannon. Also in attendance were Tom Hartmann, Mayor Ann Azari, and Councilmember Chuck Wanner. The following represents theadvisory opinion-and-recommendation-of theBoarcl.- BACKGROUND: In Opinion 95-3, the Ethics Review Board stated its belief that former Councilmember Gerry Horak is not prohibited, under the relevant provisions of the City Charter, from obtaining employment with the City as a referee or umpire for City-sponsored athletic events, even if that employment occurred within one year of the date that Mr. Horak ceased to be a Councilmember. Mr. Hartmann, in his complaint, expressed concern that Councilmembers who received campaign contributions from Gerry Horak should not have participated in the preparation or review of the above-referenced advisory opinion of the Ethics Review Board or that, in the alternative, such Councilmembers should have disclosed the fact that they had received campaign contributions from Mr. Horak. The records of the City Clerk indicate that Mayor Azari and Councilmembers Will Smith and Chuck Wanner received campaign contributions from Mr. Horak. Therefore, the Mayor and-these-two-Councilmembers-fled conflict ofinterest disclosure statements-and-have- refrained from participating in the processing of Mr. Hartmann's complaint. RELEVANT PROVISIONS OF LAW: State Statute The state statutes whiclr may be-applicable to this question provide as follows: 24-18-109. Rules of conduct for local government officials and employees. (1)proot-beyond a reasonable doubt of commission of any act enumerated in this Ethics Opinion 95-4 June 5, 1995 Page 2 section is proof that the actor has breached his fiduciary duty and the public trust. . . . (3) (a)A member of the governing body of a local government who has a personal or private interest in any matter proposed or pending before the governing body shall disclose such interest to the governing body and shall not vote thereon and shall refrain from attempting to influence the decisions of the other members of the governing body in voting on the matter. (b) A member of the governing body of a local government may vote notwithstanding paragraph (a) of this subsection (3) if his participation is necessary to obtain a quorum or otherwise enable the body to act and if he complies with the voluntary disclosure procedures under Section 24-18-110. (Emphasis added.) 24-18-110. Voluntary disclosure. A member of the general assembly, a public officer, a local government official, or an employee t1 , prior to acting in a manner which may impinge on his fiduciary duty and the public trust, disclose the nature of his private interest. Members of the general assembly shall make disclosure as provided in the rules of the house of representatives and the senate, and all others shall make the disclosure in writing to the secretary of state, listing the amount of his financial interest, if any, the purpose and duration of his services rendered, if any, and the compensation received for the services or such other information as is necessary to describe his interest. If he then performs the official act involved, he shall state for the record the fact and summary nature of the interest disclosed at the time of performing the act. Such disclosure shall constitute an affirmative defense to any civil or criminal action or any other sanction. (Emphasis added.) City Charter The City Charter provisions pertaining to conflicts of interest define two kinds of potential interests that an officer or employee of the City may have in a City decision. The first is a financial interest, which is defined as follows: Financial interest means any interest equated with money or its equivalent. (There are various exceptions not relevant to this inquiry). The second kind of interest recognized by the Charter is a personal interest, which is defined as follows: Ethics Opinion 95-4 June 5, 1995 Page 3 Personal interest means 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. Under the Charter, if an officer or employee of the City has either a financial or personal interest in a decision, he or she is obligated, upon discovery thereof, to disclose such interest by filing a conflict of interest disclosure statement with the City Clerk, and is thereafter required to refrain from voting on, attempting to influence, or otherwise participating in such decision in any manner as an officer or employee. City Code Provisions The election provisions of the City Code establish a limitation of $50 on the amount of contribution that any person or entity may make in support of or in opposition to any candidate on the ballot at any City election. ANALYSIS AND OPIMON OF THE BOARD: The-central question presented by Mr. Hartmann's complaint is whether Mr. Horak'scontribution of$50 in support of the candidacy of the three Councilmembers in question created a financial or personal interest on their part, so that they should not have participated in the formulation or review of the Ethics Board opinion pertaining to Mr. Horak, or so that they should have disclosed the fact of those contributions and their relationship with Mr. Horak before any such participation. The state statute does not define a "personal or private interest." As noted above, however, there is a definition of both financial interest and personal interest in the City Charter. Turning first to the question of a "financial" interest, it is clear from the City Clerk's records that Mr. Horak's contributions were made to the Councilmembers well in advance of the Ethics Review Board opinion. The contributions were reported as having been made prior to March 22 (in the case of Will Smith) and March 29 (in the case of Ann Azari and Chuck Wanner). The question was reviewed by the Ethics Review Board on April 11, 1995, and was presented to the City Council at an adjourned meeting on April 25, 1995. Given this sequence of events, the Board believes that it is clear that none of the Councilmembers named in the complaint would have had a financial interest in the rendering of the Ethics Review Board opinion. Since the maximum amount of contribution that could be made under the City Code had already been made, there was no possibility that a "favorable" opinion by the Ethics Review Board could have resulted in additional campaign contributions by Mr. Horak to any of the Councilmembers. Ethics Opinion 95-4 June 5, 1995 Page 4 Turning then, to the question of a "personal" interest, several opinions of the Ethics Review Board have focused on the question of how "close" a relationship or association must be in order to create a conflict of interest. In Opinion 94-2, the Ethics Review Board established certain guidelines to be used in determining whether a Councilmember's social or political contacts create a conflict of interest. The opinion cites various factors to be considered in determining whether a particular political, social or business relationship is close enough to create a conflict of interest. These include the frequency and nature of the contact, the number of people who share the same relationship with the Councilmember in question, and the likelihood that an adverse decision by the Councilmember-would have a significant impact-on his or-her-relationship witlrthe affected party. The opinion also utilizes a definition of the term "close" which has proved to be helpful. "Close" has been defined to mean, "bound by mutual interests, loyalties or affections; intimate." This definition emphasizes that the mere sharing of similar interests, loyalties or affections is generally not sufficient to create a conflict of interest. Instead, a conflict would appear to exist under this definition only when a social or political relationship is close enough that the parties feel bound by loyalty to one another to such an extent that if one makes a decision contrary to the other's interests, a reasonable person would expect that decision to undermine or have a serious adverse effect on the relationship. In Opinion 94-2, the Ethics Review Board has taken the position that: ". . .the mere fact of a financial contribution does not, in itself, evidence a conflict of interest. The City Code limits such contributions to a maximum of$50. The very purpose of this limitation is to avoid creating any sense of obligation between a Councilmember and those who contributed to the Councilmember's campaign. Other kinds of more active involvement in a Councilmember's campaign could create a conflict of interest, however, depending upon the nature and extent of that involvement. For example, a Councilmember's campaign manager or treasurer might well be viewed as sufficiently "close" to the Councilmember that a conflict of interest would exist by reason of that relationship.- Therms may also_be�other ways in which an individual can become so actively involved in a Councilmember's campaign that a conflict of interest could be created." (Emphasis added.) The Board believes that the question presented by Mr. Hartmann is resolved by Opinion 94-2. The Board agrees with the conclusion expressed therein that the mere fact of a financial contribution does not, in itself, evidence a conflict of interest on the part of any Councilmember. There is no indication that Mr. Horak played any larger role in the management of the election campaign of any of the Councilmembers to whom he made campaign contributions. Under these circumstances, and in view of the fact that Opinion 94-2 had been rendered by the City Council at the time that the Board and Council formulated and reviewed the opinion pertaining to Mr. Ethics Opinion 95-4 June 5, 1995 Page 5 Horak's inquiry, there would have been no reason for any of the Councilmembers involved in the formulation or review of that opinion to have disclosed any conflict of interest prior to participating in such deliberations. Therefore, the Board believes that there was no conflict of interest on the part of any of the Councilmembers who participated in the formulation or review of Ethics Review Board Opinion 95-3 in question, and that no further action should be taken with regard to Mr. Hartmann's complaint. This advisory opinion was reviewed and approved by Bob McCluskey and Chris Kneeland, regular members of the Ethics Review Board, and Rick Goodale, a member of the Downtown Development Authority, and Diane Shannon, a member of the Zoning Board of Appeals. 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 June, 1995. Step e J. Roy, City"Attorne SJR:meg