HomeMy WebLinkAbout1995-091-06/20/1995-CHUCK WANNER CONFLICT OF INTEREST EASTSIDE WESTSIDE ETHICS REVIEW BOARD GINA JANETT NEIGHBORHOOD GUI RESOLUTION 95-91
OF THE COUNCIL OF THE CITY OF FORT COLLINS
ACCEPTING THE ADVISORY OPINION AND RECOMMENDATION
NO. 95-6 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 June 14, 1995, to consider whether Councilmembers Gena
Janett,Will Smith and Chuck Wanner have a conflict of interest in participating in the City Council's
decision regarding the Eastside and Westside Neighborhood Guidelines; and
WHEREAS, the Board has issued Opinion No. 95-6 with regard to the foregoing issue; 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. 95-6 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 the Council hereby adopts the opinion and recommendation contained therein.
Passed and adopted at a regular meeting of t=A-011fez�-
May--ors held this
20th day of June, A.D., 1995.
A7 i EST:
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�� rty Cierk
95-6
OPINION OF THE ETHICS REVIEW BOARD
OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS
June 14, 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 Councilmember
Chuck Wanner. Also affected by Councilmember Warmer's inquiry are Mayor Pro Tern Gina
Janett and Councilmember Will Smith. The question presented is whether these
Councilmember(s)' residency or ownership of property in the area to be governed by the proposed
Eastside and Westside Neighborhood Guidelines ("the Guidelines) creates a conflict of interest
which would prevent them from participating in the Council's review of the Guidelines.
BACKGROUND INFORMATION:
The Guidelines have been developed-to-help-ensure that the-renovation of existing structures, as
wellas new construction, in the older core commercial and residential areas of the City maintain
the character and uniqueness-of these areas. The recommendations contained in the Guidelines
also identify three potential historic/landmark districts which, if designated, would be subject to
additional regulation by the City.
Councilmember Wanner resides in one of the proposed historic districts, Councilmember Smith
intends to purchase a rental property in one of those districts and Councilmember Janett resides
in the Eastside neighborhood. It is estimated that there are approximately 3,000 residences in the
City which will be affected by the Guidelines, approximately 1,300 of which are situated in the
three proposed historic districts. Councilmembers Wanner and Janett were elected from districts
which will be affected by the Guidelines. Councilmember Smith's district is not within that area.
RELEVANT CHARTER PROVISIONS:
As you know, the City Charter defines two kinds of interests which can create a conflict of
interest: financial and personal. These are defined as follows:
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.
Financial interest means any interest equated with money or its equivalent.
Ethics Opinion 95-6
June 14, 1995
Page 2
ISSi1FS PR SENT .D:
It is possible that the ownership of property within an area affected by proposed zoning regulations
(or residency within that area) can create either a financial or personal interest on the part of a
Councilmember. In the past, the Ethics Review Board has rendered two advisory opinions on this
subject. Copies of those opinions are attached.
In Opinion 92-6, the Board concluded that Councilmember Dave Edwards had a personal conflict
of interest in participating in Council deliberations regarding amendments to a zoning ordinance
that modified the zoning district boundaries in the 400 block of West Mountain Avenue/Oak Street
vicinity. This was because Councilmember Edwards owned certain real property at 402 West
Mountain Avenue, and the properties affected by the rezoning were in close geographic proximity
to the Edwards property. Moreover, the Board believed that the rezoning created a "close"
business concern for Mr. Edwards because it affected the suitability of the neighboring properties
for rental purposes, and the availability of additional rental properties in the area might have
affected Mr. Edwards' own property. In that Opinion, the Board concluded that Councilmember
Edwards did nQt have a conflict of interest in participating in Council decision-making regarding
the Westside Neighborhood Plan and the zoning of the Westside neighborhood,_because those
decisions affected a larger geographic area and the overall rezoning did not have the same
potential impact on the Edwards property.
Similarly, in Opinion 93-3, the Board rendered an opinion that Councilmember McCluskey would
not have a conflict of interest in participating in Council deliberations regarding the establishment
of storm drainage utility fees that would affect property owned by Councilmember McCluskey in
the storm drainage basin in question. The Board reasoned that Councilmember McCluskey had
the same kind of interest in the establishment of those fees as approximately 4,000 or so other
property owners in the basin. The Board did agree with Councilmember McCluskey's conclusion
that he should not participate in the City Council's decision whether to adopt the storm drainage
plan for the basin, since the plan entailed potential storm drainage improvements immediately
adjacent to his property. Here, the Board reasoned that although the monetary impact of the
proposed improvements on the McCluskey property was unknown, the group of property owners
immediately and directly affected by the proposed improvements was relatively small. Thus, the
decision on the Storm Drainage Plan in question focused in part on Councilmember McCluskey's
individual interest.
In rendering Opinion 93-3, the Board established certain factors to be considered in determining
whether a reasonably prudent person would believe that a Councilmember's interest in a particular
decision creates a conflict of interest. Those factors are as follows:
Ethics Opinion 95-6
June 14, 1995
Page 3
! • The extent to which the decision "focuses" on the individual Councilmember;
• The magnitude of the potential financial or personal impact of the decision on the
individual Councilmember; and
• The need for the Councilmember to participate in the decision as an elected
representative.
In applying these factors, as well as the reasoning of the Board in the other two situations, the
Board believes that Mayor Pro Tern Gina Janett and Councilmembers Chuck Wanner and Will
Smith do not have a conflict of interest in participating in Council's deliberations regarding the
Guidelines. This is primarily because there are thousands of people who are similarly situated in
terms of their property ownership and the affect that the Guidelines would have on these
properties. Additionally,_there is no indication that the adoption of the proposed Guidelines would
have a substantial financial or personal impact on the properties owned by the Councilmembers.
Finally, two of the Councilmembers are elected representatives of individuals residing in the areas
to be affected by the Guidelines and, if those Councilmembers had to declare a conflict of interest
in this matter, those persons would be left without a representative voice in Council's decision as
to whether their properties should be regulated by the Guidelines.
The Board does believe, however, that if future Council decisions focus more directly on the
particular properties owned or occupied by any of the Councilmembers, those Councilmembers
should continue to be alert to the possibility of a conflict of interest. For example, if the
particular areas in which Councilmembers Wanner and Smith own (or intend to purchase)
properties are proposed for actual designation as local landmark districts, then the question of
conflict of interest should be revisited and the factors described above applied again to determine
the extent to which those properties may be directly affected by such subsequent Council action.
This advisory opinion was reviewed and approved by Ann Azari and Bob McCluskey, members
of the Ethics Review Board. Pursuant to Section 2-569(e) of the City Code, this opinion and
recommendation is to be immediately filed with the City Clerk and made available for public
inspection.
Dated this 'day of June, 1995.
tephen . Roy, City Attorney
SIR:meg
92-6
OPINION OF THE ETHICS REVIEW BOARD
OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS
August 11, 1992
The Ethics Review Board ("the Board") met on the above-referenced
date at the request of Councilmember Edwards and pursuant to the
provisions of Section 2-569 of the' City Code to consider the
complaint dated August 5, 1992 ("the Complaint") filed by Mr. Joe
Bastian with Mayor Pro Tem Ann Azari. The Complaint alleges a
conflict of interest on the part of Councilmember Edwards and
specifically states as follows:
In September and October, 1991, the City Council
considered a variety of ordinances collectively known as
the West Side Neighborhood Rezoning. During the October
15, 1991 Council meeting, Councilmember Edwards
introduced an amendment to Ordinance No. 113, 1991, that
modified the zoning listrict boundaries in the 400 block
in the Mountain Avenue/oak street vicinity. Because
Councilmember Edwards owns the property at 402 West
Mountain Avenue and all 16 properties affected by his
amendment are within one and one-half block of his
property, I maintain that he had both a personal and
financial interest (as defined by the City Charter) in
this action. It was therefore impossible for him to
perform his duties as a member of the Council in an
unbiased and impartial manner.
The question presented to the Ethics Review Board for consideration
is whether Councilmember Edwards was possessed of a conflict of
interest with regard to the above-referenced matter sufficient to
prohibit him from voting, attempting to influence or otherwise
participating in the rezoning decision which is the subject of the
Complaint.
APPLICABLE CHARTER PROVISIONS
The City Charter prohibits councilmembers from voting on,
attempting to influence or otherwise participating_ in decisions in
which they have either a financial or a personal interest, and also
requires that councilmembers make disclosure of any financial or
personal interest creating a conflict with respect to any decision
of the City Council.
A- financial interest is defined as follows:
Financial interest means any interest equated with
money or its equivalent. Financial interest shall not
include:
1.
1;
Ethics Opinion 92-6
August 11, 1992
Page 2
(1) 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; .
(Emphasis added. )
A personal interest is defined as follows:
. any interest (other than a financial interest1_
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. (Emphasis added. )
BOARD'S OPINION REGARDING THE CONFLICT
Personal Conflict of Interest.
After considering the Complaint, statements made to the Board by
Mr. Bastian and statements made to the Board by Councilmember
Edwards, the Board concluded that Councilmember Edwards was
possessed of a personal conflict of interest in participating in
the Council deliberations and vote on the amendments to the
ordinance, because those amendments related specifically to areas
in the West Side Neighborhood located in close geographic proximity
to property owned by Councilmember Edwards. (The Board did not
believe that Councilmember Edwards was possessed of a conflict of
interest in generally participating in Council decision-making
regarding the West Side Neighborhood Plan and zoning of the West
Side Neighborhood, but that when amendments were proposed
pertaining to property in close geographic proximity to his
property, Councilmember Edwards should have recognized a conflict
of interest, disclosed the conflict and refrained from any further
participation. )
Made in Good Faith.
After consideration of the information presented to the Board, the
Board concluded that Councilmember Edwards' oversight in failing to
recognize or. disclose his conflict of interest was not motivated by
self interest and was made in good faith, triggered by
Councilmember Edwards' desire to respond to neighborhood input at
the Council meeting and his close involvement in the development of
the East Side and West Side Neighborhood Plans, dating back to his
membership on the Planning and Zoning Board.
Ethics Opinion 92-6
August 11, 1992
Page 3
No Financial Conflict of Interest.
The Board further considered the question of whether Councilmember
Edwards was possessed of a financial conflict of interest. (The
Board concluded that Co:.-cilmember Edwards was possessed of a
personal conflict of interest because his ownership of property in
the area under consideration by reason of the amendments to
ordinance No. 113 , 1991, created a close business concern which
would, in the judgement of a reasonably prudent person, tend to
impair independence of judgment or action in the performance of his
official discretionary duties. ) The Board did not believe that it
was reasonable to conclude, without undue speculation, that
Councilmember Edwards was possessed of a financial conflict of
interest, because the Board was unable to determine with any
certainty whether any financial benefit which might have accrued to
Councilmember Edwards was "foreseeable or measurable."
Accordingly, the Board concluded that Councilmember Edwards was
possessed of a personal conflict of interest but not a financial
conflict of interest.
BOARD RECOMMENDATION REGARDING THE ZONING DECISION
Since the Board concluded that Councilmember Edwards was possessed
of a conflict of interest in participating in the zoning decision
as it relates to the amendments that were proposed to ordinance No.
113, 1991, the Board recommends that Council consider whether the
zoning established for the strip of land which was the subject of
the amendments (the so-called "buffer strip") is the appropriate
zone for that strip of land. The Board does not believe that the
zoning for the entire West Side area needs to be considered again
as to its appropriateness, but only that the zoning for the buffer
strip be readdressed by the City Council.
This advisory decision was reviewed and approved by Councilmember
Maxey and Councilmember Fromme, regular members of the Ethics
Review Board, and by Councilmember Azari, as an alternate member of
the Ethics Review Board, who was appointed to serve because the
questions addressed pertain to the third regular member of the
Ethics Review Board, Councilmember Edwards. This decision is to be
distributed to the members of the City Council and filed with the
City Clerk, to be maintained in the permanent file of findings for
the Ethics Review Board.
Dated this day of August, 1992.
W. Paul Eckman, Deputy City Attorney
WPE:whm
93-3
OPINION OF THE ETHICS REVIEW BOARD
OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS
May 28, 1993
The Ethics Review Board ("the Board") met on the above-referenced
date to render an advisory opinion in response to an inquiry
initially presented by Councilmember Bob McCluskey, which was
referred to the Ethics Review Board by Councilmember Alan Apt. The
question presented is whether Councilmember McCluskey would have a
conflict of interest in participating in Council decisions dealing
with the proposed Old Town Master Drainage Plan ("the Plan. )
BACRGRODND INFORMATION
According to the Plan, certain storm drainage improvements would be
constructed to alleviate flooding problems that have occurred in
the Old Town Drainage Basin ("the Basin") . As with other storm
drainage basins, the cost of the proposed improvements would be
allocated among the properties within the Basin. There are
approximately 4,000 such properties. The owners of those
properties would be assessed fees to fund the improvements. These
fees would be calculated proportionately among the properties
according to the size and amount of impervious surface of each
property.
Councilmember McCluskey is the president of Poudre Valley Creamery,
which owns properties within the Basin at the intersections of
Laporte and Howes and Pine and Jefferson Street. The improvements
proposed under the Plan would include an open drainage channel
behind the property owned by Poudre Valley Creamery at Laporte and
Howes.
Council's official involvement in these matters would be twofold.
First, it would be required to approve the Plan for inclusion in
Section 26-543 of the Code. This would establish the flood plain
areas in the Basin for regulatory purposes, and it would approve
certain capital improvements in the area. Secondly, Council would
determine the fees to be paid by the owners of the property in the
Basin pursuant to Section 26-511. While the formula for
calculating the total amount to be paid by each property owner is
established in the Code, Council would be called upon to determine
the period of time over which the amount would be paid; this, in
turn, would determine the amount of each property owner's monthly
installments.
ISSUES PRESENTED
The first question presented for the Board's consideration is
whether Councilmember McCluskey (or the other Councilmembers who
reside in the Basin) would have a conflict of interest in
participating in either of the Council decisions referenced above.
Ethics Opinion 93-3
May 28, 1993
Page 2
1. Applicable Standards.
Article IV, Section 9, of the City Charter essentially states that
any officer or employee of the City (including Councilmembers) who
has a personal or financial interest in any City decision must file
a conflict of interest disclosure statement and refrain from voting
on, attempting to influence or otherwise participating in such
decision in any manner as an officer or employee. The terms
"financial interest" and "personal interest" are defined as
follows:
Financial interest means any interest equated with money
or its equivalent. Financial interest shall not include:
. (3) The interest of a recipient of pudic 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 or
employee; . . .
The definition of a personal interest under the City Charter is as
follows:
. 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. )
2 . Council Decision Regarding Fees.
Under the foregoing standards, the Board does not believe that
Councilmember McCluskey's status as a potential fee payer in the
Basin creates a conflict of interest for him in participating in
Council's decision regarding the- establishment of storm- drainage
utility fees for the- Basin. In his- capacity as a- fee- payer-,-
Councilmember McCluskey has the same kind of interest in the
establishment of those fees as do all of the other 4,000 or so
property owners in the Basin. Even though the amount of each
person's fee will vary, all fees will be established on the same
terms and conditions, that is, they will be apportioned according
to the size and amount of impervious surface of each property.
Thus, it appears that, under the definition of a "financial
interest," Councilmembers owning property in the Basin would not be
considered to have a financial interest in the establishment of
fees for the Basin, nor would they appear to have any "personal
interest" in the fee decision.
I
Ethics opinion 93-3
May 28, 1993
Page 3
3 . Council Decision Reaardinc the Plan.
The next question is whether Councilmember McCluskey's property
ownership in the Basin would create a conflict of interest for him
in participating in council's deliberations about the adoption of
the Plan for the Basin. The Board views this as a closer question.
one of the improvements in question (an open drainage channel) is
to be constructed adjacent to one of the properties in which
Councilmember McCluskey holds an ownership interest. The purpose
of this channel is to alleviate some major flooding which has,
occurred in the immediate area of the properties owned by Poudre
Valley Creamery. In this respect, then, Councilmember McCluskeyIs
interest in the adoption of the Plan may be said to be different
from that of other property owners in the Basin.
When a Councilmember will be individually affected by a Council
decision, the Board believes that the Councilmember Is circumstances
must be considered on a case-by-case basis to determine whether a
reasonably prudent person would believe the Councilmember's
interest in the decision to be primarily personal in nature, so
that his or her independence of judgment on behalf of the City
might be compromised. Among the factors to be considered are the
following:
• The extent to which the decision "focuses" on the
individual Councilmember. If a Councilmember's interest
is like hundreds of others who are similarly situated,
then it is likely that the Councilmember can participate
in the decision. The smaller the group of affected
interests, the more likely it is that the Councilmember
who is a member of that group should not participate in
the decision.
• The magnitude of the potential financial or personal
impact of the decision on the individual Councilmember.
If the Councilmember will only be slightly impacted,
either financially or personally, by a Council decision,
then he or she is less likely to have a financial or
personal conflict of interest in the decision. on the
other hand, if the impact will be a very substantial one,
a conflict is mere- likely to- be found-:
• The need for the Councilmember to participate in the
decision as an elected representative. If the decision
is of substantial importance to a Councilmember's
constituents, either as a district representative or as
Mayor, then the Councilmember should carefully consider
whether his or her decision to declare a conflict of
interest would leave those constituents without a
Ethics opinion 93-3
May 28, 1993
Page 4
representative voice in the decision. The constituents'
entitlement to a representative voice must be balanced
against the . degree of personal interest which the
Councilmember may have in the decision.
In applying these principles to tics situation at hand-,
Councilmember McCluskey acknowledges that his primary concern about
the proposed drainage improvements adjacent to property owned by
Poudre Valley Creamery is personal in nature. Consequently, he
believes that he should not participate in Council's decision.
whether to adopt the Plan. The Board believes that Councilmember
McCluskey's decision is consistent with the application of the
foregoing criteria. In this instance, although the monetary impact
of the- proposed- improvements on the properties owned by Poudre
Valley Creamery is unknown, the group of property owners-
immediately and directly affected by these storm drainage
improvements is relatively small. Thus, the council's approval of
the Plan (including the particular improvements adjacent to these
properties) would be focused in part on Councilmember McCluskey's
individual interest. Additionally, this is not a situation in
which Councilmember McCluskey's constituency would be adversely
affected if he declared a conflict of interest and refrained from
participating in Council's review of the Plan. The proposed
improvements are to be constructed in the area in which Mr.
McCluskey's business is situated, but not in the district which
Councilmember McCluskey represents.
Therefore, the Board agrees with Councilmember McCluskey's
conclusion that he should declare a conflict of interest in this
matter.
ABILITY TO PARTICIPATE IN AN INDIVIDUAL CAPACITY
The next question is whether, notwithstanding the foregoing
conflict of interest, Councilmember McCluskey may participate in an
individual capacity in any neighborhood meetings which may
subsequently be held to elicit property owner input regarding the
Plan. In addressing this question, the Board notes that the City
Charter only requires that a Councilmember who has a conflict of
interest refrain from any official-capacity involvement in the
decision in question. Thus, the Charter does not prohibit the kind
of private capacity involvement that Councilmember McCluskey is
contemplating.
The state rules of ethical conduct do not distinguish between
personal and official capacity attempts to influence a decision in
which one has a conflict, but the prohibition in the state statute
is limited to attempts to influence the members of the governing
body (the Council) . There is no prohibition against talking to or
t
Ethics opinion 93-3
May 28, 1993
Page 5
attempting to influence other governmental employees involved in
the decision-making process. That state language reads as follows:
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
Iof the crovernina body in voting on the
matter. (Section 24-18-109[3] [a] , emphasis
added. )
Thus, neither the state nor local laws prohibit a Councilmember
from offering input to City staff as it private citizen regarding a
matter in which he or she would have a conflict of interest if
acting in an official capacity. Accordingly, the Board believes
that Councilmember McCluskey should be able to do so. To suggest
otherwise would be to unduly penalize Councilmembers by requiring
that they forego the exercise of their rights as private citizens
when they assume the office of Councilmember. The Board has two
recommendations in this regard, however. First, the conflict of
interest disclosure forms filed with the City Clerk should be
modified so as to clarify that Councilmembers declaring a conflict
of interest are free to participate in discussions with City staff
or others regarding the subject matter of the decision. Secondly,
Councilmembers who choose to exercise this right should, at the
time of making any public statements regarding matters in which
they have a conflict of interest, state that they are doing so in
a private capacity.
This advisory opinion was reviewed and approved by Mayor Azari,
Mayor Pro Tem Horak, regular members of the Ethics Review Board,
and Councilmember Apt, who was serving as an alternate member in
place of regular member McCluskey. This opinion is to be
distributed to the members of the City Council and filed with the
City Clerk, to be maintained in the permanent file of findings for
the Ethics Review Board.
Dated this �O day of June, 1993.
S ephen . Ro 4CitY orney
SJR:whm