HomeMy WebLinkAbout2013-075-08/20/2013-ACCEPTING ADVISORY OPINION AND RECOMMENDATION NO. 2013-03 OF THE ETHICS REVIEW BOARD RESOLUTION 2013-075
OF THE COUNCIL OF THE CITY OF FORT COLLINS
ACCEPTING ADVISORY OPINION AND RECOMMENDATION NO. 2013-03
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 Ethics Review Board met on July 23, 2013, to consider whether members
of City boards and commissions who own property within the notice zone of a proposed land use
project should utilize the same guidelines as Councilmembers in deciding, on a case-by-case basis,
whether to recuse themselves from participating in quasi-judicial decisions related to such projects,
or whether they should instead routinely recuse themselves from those decisions unless an opinion
is rendered by the Board that they need not do so; and
WHEREAS, the Board has issued an advisory opinion with regard to this matter; 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 has reviewed the opinion 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. 2013-03 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 contained therein.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 20th
day of August A.D. 2013. —A
�FpRTco, Ma or
ATTEST: �.
City Clerk ••u•°
EXHIBIT A
OPINION NO. 2013-03
OF THE ETHICS REVIEW BOARD
OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS
August 20, 2013
This advisory opinion and recommendation is being provided to the City Council by the
Ethics Review Board (the 'Board") under Section 2-569(c) of the City Code in response
to a suggestion made by an alternate Ethics Review Board in Opinion. No. 2012-03. In
that opinion, the alternate Review Board had considered inquiries submitted by Mayor
Karen Weitkunat and then Councilmember Ben Manvel as to whether either or both of
them had a conflict of interest in participating in Council decisions about the
redevelopment of the Link-n-Greens Golf Course by reason of the fact that they own
businesses within the "notice zone" of the redevelopment, as established in Section 2.2.6
of the Land Use Code.
In formulating its opinion and recommendation in that situation, the alternate Review
Board considered the following guidelines that had previously been established by the
Board:
• the size of the group that will likely be affected in the same way and to
the same extent as the Councilmember who is the subject of the inquiry;
• the magnitude of the potential financial or personal impact that the
Councilmember may experience;
• how close the connection is between the upcoming decision(s) and the
potential impact on the Councilmember, and
• the need for the Councilmember to participate in the upcoming
decision(s)as an elected representative.
In applying those guidelines, the alternate Review Board concluded that neither Mayor
Weitkunat nor Councilmember Manvel had a conflict of interest. The question that the
alternate Review Board recommended for consideration by the regular Board is whether
members of City boards and commissions who own property within the notice zone of a
proposed land use project should utilize the same guidelines as Councilmembers in
deciding, on a case-by-case basis, whether to recuse themselves from participating in
quasi-judicial decisions related to such projects, or whether they should instead routinely
recuse themselves from those decisions unless an opinion is rendered by the Board that
they need not do so. The Board recommends the latter course of action.
The Board bases this recommendation on two considerations. First, the members of City
boards and commissions are not elected representatives. Thus, in deciding whether to
participate in quasi-judicial decisions that directly affect projects within the immediate
vicinity of their residences or other properties in which they have an ownership interest,
Opinion of the Ethics Review Board
Opinion 2013-03
August 20, 2013
Page 2 of 2
they do not have to take into consideration the fourth factor that Councilmembers need to
consider—the need to represent the views of their constituents. Second, quasi-judicial
decisions must be guided by the principles of procedural due process, including the
requirement of impartiality. The "impartiality" standard is less well defined than the
conflict of interest standard contained in the City Charter, and a board and commission
member might well be viewed as having a bias in a particular decision even if the
member's interest in the decision does not rise to the level of a conflict of interest.
For these reasons, the Board recommends that, if a member of a City board of
commission has any kind of ownership interest in real property that is within the notice
zone of a proposed land use project, he or she should not participate in any decision of
his/her board or commission regarding that project unless the board or commission
member receives from the Board an opinion that it would be ethically_permissible to do
so. A board and commission member may seek such an opinion through the Council
liaison to the board or commission or through any other Councilmember.
This advisory opinion was reviewed and approved by Mayor Weitkunat and
Councilmembers Poppaw and Campana, as regular members of the Ethics Review Board,
for distribution to members of the Council and for distribution to the City Clerk, to be
maintained in the permanent file of opinions of the Ethics Review Board.
Dated this day of August, 2013.
Stephen J. Roy
City Attorney