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HomeMy WebLinkAbout2013-074-08/20/2013-ACCEPTING ADVISORY OPINION AND RECOMMENDATION NO. 2043-02 OF THE ETHICS REVIEW BOARD (FAILED TO PASS RESOLUTION 2013 -074 OF THE COUNCIL OF THE CITY OF FORT COLLINS ACCEPTING ADVISORY OPINION AND RECOMMENDATION NO . 2013 -02 OF THE ETHICS REVIEW BOARD WHEREAS , the City Council has established an Ethics Review B rd (the "Board") consisting of three members of the City Council; and WHEREAS , the Board is empowered under Section 2-569 of, e 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 Councilmember Wade Troxell would have a conflict of interef in participating in any decisions of the City Council related to a proposed redevelopment pro.' ect f the Front Range Community College because of the proximity of the Troxell residence to the s ' a of the redevelopment project; and WHEREAS , the Board has issued an adviso opinion with regard to this matter; and WHEREAS , Section 2-569(e) of the Ci Code provides that all advisory opinions and recommendations of the Board be placed on th agenda for the next special or regular City Council meeting, at which time the City Council s all determine whether to adopt such opinions and recommendations ; and WHEREAS , t /eference evie ed the opinion of the Board and wishes to adopt the same . NOW, THERE RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that Opinio2 of the Ethics Review Board, a copy of which is attached hereto and incorporated hereierence as Exhibit "A," has been submitted to and reviewed by the City Council, and the eby adopts the opinion contained therein. Passed and adogular meeting of the Council of the City of Fort Collins this 20th day of August A. D . 20 Mayor ATTEST: City Jerk FAILED TO PASS by a vote of 3-3 EXHIBIT A OPINION NO. 2013-02 OF THE ETHICS REVIEW BOARD OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS August 20, 2013 BACKGROUND. This advisory opinion and recommendation is being provided to the City Council by the Ethics Review Board ("the Board") in response to an inquiry submitted to the Board by Councilmember Wade Troxell. The question submitted is whether Councilmember Troxell would have a conflict of interest in participating in any decisions of the City Council related to a proposed development project (the "Project") of the Front Range Community College ("FRCC"). This issue arises because of the proximity of the Troxell residence to the site of the FRCC project. SUMMARY OF OPINION AND RECOMMENDATION. The majority of the Board believes that Councilmember Troxell does not have a conflict of interest with regard to this matter because neither he nor his spouse would experience any direct and substantial benefit or detriment from the construction of the Project that is different in kind from that experienced by the general public. Board member Lisa Poppaw disagrees and would find that Councilmember Troxell does have a conflict of interest. The Information Presented to the Board. 1. The FRCC Project. City Planning staff presented the following information to the Board about the Project. • It will be constructed on a lot adjacent to FRCC that is presently owned by a third party. The property, which is 8.22 acres in size, is under contract to FRCC. Covenants on a portion of the property reportedly require, in effect, that the HOA consent to the construction of the project. • The initial building will be one story and will consist of 27,800 square feet. • The building will be used for instructional purposes for trades such as auto repair and welding. • FRCC plans five more phases over the next six years. • FRCC hopes to begin construction this September. Opinion of the Ethics Review Board Opinion 2013-02 August20,2013 Page 2 of 3 The locations of the Project and the Troxell residence are shown on Attachment "A". 2. Effect of the Project on the Troxell residence. City Real Estate staff presented information to the Board that had been obtained from appraisers who are familiar with the City and the FRCC and also from a local real estate broker. The two appraisers who responded to this request are both of the opinion that the construction of the Project in the vacant ground south of the FRCC campus would not have any substantial impact on the residential market in the immediate and more outlying residential properties. The first appraiser who was contacted felt that FRCC has done a very good job of designing its buildings in the past so that they are compatible with the adjoining neighborhoods, and he anticipates that the same would be true of the Project, in which case he didn't see any impact to the residential properties in Clarendon Hills. The second appraiser stated that it would be extremely difficult to measure an impact from the Project on an individual single family residential property value—either positive or negative. The impacts would need to be derived from market data, and markets don't tend to react to particular projects unless they are very substantial in size or unusually impactful, such as a sewer disposal plant or new mall. The broker; on the other hand, indicated that, in her opinion, the expansion of FRCC to the vacant land would have a negative impact on the residential properties in the immediate area. She believes that the addition of the new building would intensify the impact to the residential properties in northern Clarendon Hills by increasing the number of students and vehicles in the campus area. Councilmember Troxell stated that he does not see the proposed construction of an additional building on the FRCC campus as having any significant impact on the value of his residence or the quality of life that he and his spouse enjoy at the residence, especially in view of the fact that intervening residences and landscaping will shield their home from any noise that might be generated by the use of the new building, as well as their view of the building. OPINION AND RECOMMENDATION. In arriving at its opinion, the Board considered and discussed the City Charter definitions of"financial" and "personal" conflicts of interest, which appear on Attachment "B". It also considered the following criteria that have been previously established by the Board: The size of the group that will be affected by the construction of the FRCC project in the same way and to the same extent as Councilmember Troxell and his spouse; Opinion of the Ethics Review Board Opinion 2013-02 August 20, 2013 Page 3 of 3 • The magnitude of the potential financial or personal impact that the Troxell's may experience; • The need for Councilmember Troxell to participate in any decisions of Council related to the FRCC project; and • How close the connection may be between any such decisions and the impact on the Troxells. In applying these factors, the Board recognizes that the Troxells are part of a relatively small group of citizens that will be directly affected by the FRCC project in that they reside within the immediately vicinity of the Project. However, Boardmembers Weitkunat and Campana believe that the effect of the Project on the Troxells and on the value of their residence will not be substantial, primarily for the reason that Councilmember Troxell indicated: it will not significantly increase the impact that the FRCC campus already has on the Troxells, primarily because the residences and landscaping between the Project and the Troxell residence will effectively buffer their residence from the new building or buildings that may be constructed on the site. As noted above, this opinion is shared by the appraisers who provided information to City staff on the subject and is consistent with Opinion No. 2012-3 of the Board, where the Board concluded that neither Mayor Weitkanut nor Councilmember Manvel had a conflict of interest in participating in Council decisions about the redevelopment of the Link-n-Greens Golf Course by Woodward, Inc. in view of the fact that they and their spouses own business properties with the notice zone of the project. Board member Poppaw disagrees with the majority opinion of the Board. She views the situation as being similar to that reviewed by the Board in Opinion No. 2012-2, where the Board concluded that Mayor Weitkunat has a conflict of interest in Council decisions related to the redevelopment of the Foothills Mall because of the proximity of her residence to the Mall. 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 Attachment "A" NJ M or 2 _ l 0LL 4'1 ar ' ell oow� CL mob 4 OF! in sdo 7 4� �. • J R 1 � 1 {'1 M .• y J i u Al Lk W O . r S0 i;' I r t :a 'N . y « In o n4 or 1 z+ p p ? in uLo Ch in Ul w , MW . O de W � • ' C? o E o u •� V lJ to U Fi t J M U ' • , 1 t fo,� . r d� s �€ . , . ate' } •'7s�""� E N j• L o o C ! , p bj 1 'O N C C UI —7 N M Fee to d ve /•r l it ` • +I ' '� Z AL oj ls, t r , ;: ' •, • • ' '� The Project ; ` - • ' WIND RL15 5U .IAIHSAS r OL :12 1+ , to ~ a p - - 1 • ' 40 • ' ! = 1 Ito Ilk all irk N top . ._ �r qw \, ` , Y ,' p . Z- � 4 � f _l �I �f �� .' - 7 — � , nl CrvVuivIu Attachment «B„ (3 ) the interest that an officer, employee or relative has as a recipient of public services when such sec- vices 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, employee or relative; ( 4) the tntcrest that an officer, employee or relative has as a recipient of a commercially reasonable loan made in the ordinary course of business by a lending institution , in such lending institution ; ( 5 ) the interest that an officer, employee or relative has as a shareholder in a mutual or common invest- ment fund in the holdings of such fund unless the shareholder actively participates in the management of such fund ; (6 ) the interest that an officer, employee or relative has as a policyholder in an insurance company, a de - positor in a duly established savings association or bank, or a similar interest -holder, unless ;the discre - tionary act of such person, as an officer or employee , could immediately, definitely and measurably affect the value of such policy, deposit or similar interest ; ( 7) the interest that an officer, employee or relative has as an owner of government-issued securities un- Section 9. Conflicts of interest. less the discretionary act of such owner, as an officer Definitions. For purposes of construction of this Sec - or employee , could immediately, definitely and . n 9, the following words and phrases shall have the measurably affect the value of such securities ; or following meanings : ( 8 ) the interest that an officer or employee has in the Business means a corporation , partnership, sole proprie • compensation received from the city for personal torship, firm . : entetprise , franchise, association, organiza- services provided to the city as an officer or employ. tion , self-employed individual , holding company, joint ee . stock company, receivership ., trust, activity or entity. Officer or employee means any person holding a position Financial interest means any interest equated with mon by election , appointment or .employment in the service of ey or its equivalent . Financial inierest shall not include : the city, whether part- time or full -time , including a member of any authority, board , committee or commis - the interest that an officer, employee or relative sion of the city , other than an authority that is : has as an employee of a business, or as a holder of an ownership interest in such business , in a decision of ( 1 ) established under the provisions of the Colorado any public body, when the decision financially ben Revised Statuies ; e • , fits or otherwise affects such business but entails no ( 2 ) govemed by state statutory rules of ethical con - foreseeable , measurable financial benefit to the of- duct; and firer, employee or relative ; ( 3 ) expressly exempted from the provisions of this ( 2 ) the interest that an officer, employee or relative Article by ordinance of the Council . has as a nonsalaried officer or member of a nonprofit corporation or association or of an educational , reli Personal interest means any interest (other than a finan- pious , charitable, fraternal or civic organization in cial interest) by reason of which an officer or employee , the holdings of such corporation , association or or- or a relative of such officer or employee, would, in the ganization ; C -s Supp Nu. 103 judgment of a reasonably prudent person , realize or expe- ( 3 ) Interests in other decisions . Any officer or em- rience some direct and substantial benefit or detriment ployee who has, or whose relative has , a financial or different in kind from that experienced by the general personal interest in any decision of any public body public . Personal interest shall not include : , of which he or she is a member or to which he or she ( 1 ) the interest that an officer, employee or relative makes recommendations , shall, upon discovery has as a member of a board , commission , committee, thereof, disclose such interest in the official records or authority of another governmental entity or of a of the, city in the manner prescribed in subsection (4) nonprofit corporation or association or of an educa hereof, and shall refrain from voting on, attempting tional, religious , charitable, fraternal , or civic oraani to influence , or otherwise participating in such decf zction ; lion in any manner as an officer or employee. (2 ) the interest that an officer, employee or relative (4 ) Disclosure procedure. If any officer or employ. has in the receipt of. public services when such ser • ee has any financial or personal interest requiring vices are generally provided by the city on the same disclosure under subsection ( 3 ) of this section, such terms and conditions to all similarly situated citizens ; person shall immediately upon discovery thereof de clare such interest by delivering a written statement or to the City Clerk, with copies to the City Manager ( 3 ) the interest that an officer or employee has in the and , if applicable, to the chairperson of the public compensation, benefits, or terms and conditions . of body of which such person is a member, which his or her employment with the city. statement shall contain the name of the officer or Public body means the Council or any authority, board, employee, the office or position held with the city by such person, and the nature of the interest. If said of. committee, commission , service area, department or of- ficer or employee shall discover such financial or Tice of the city . personal interest during the course of a meeting or in Relative means the spouse or minor child of the officer or such other circumstance as to render it practically employee , any person claimed by the officer or employee impossible to deliver such written statement prior to as a dependent for income tax purposes, or any person action upon the matter in question, said officer or residing in and sharing with the officer or employee the employee shall immediately declare such interest by expenses of the household. Giving oral notice to all present, .- including a descHp- ( b ) Rules of conduct concerning conflicts of interest. tion of the nature of the interest. . ( 5 ) Violations. Any contract made in violation of ( I ) Sa les to the city. No officer or employee, or vela- this Section shall be voidable by the city. If voided five of such officer or employee, shall have a finan - within one ( I ) year of the date of execution thereof, cial interest in the sale to the city of any real or the party obtaining payment by reason of such con- personal property, equipment , material , supplies or . tract shall , if required by the city, forthwith return to services , except personal services provided to the the city ,all or any designated portion of the monies city as an officer or etployee, if: received by such individual from the city by reason a. such officer . or employee is a member of the of said contract , together with interest at the lawful Council; maximum rate for interest on judgments . ( Res. No. 71 . 12 . 2 . 11 .71 . approved, election, 4-6 -71 : Ord, No. 1551 b , such officer or employee exercises, directly 1933 . 12 -20-88 , approved, election 3 . 7-89; Ord. No. 10, 1997 , 110 or indirectly ; any decision making authority 2 .4-97 , approved , election 4 -8 -97; Ord. No. 22 , 20014 12. 2 •2o ol . concMinz such sale ; or approved , eeection 4 . 3 -01 ) c . in the case of services , such officer or em - ployee exercises any supervisory authority over the services to be rendered to the city. ( ? ) Purchases from the city, No officer, employee or relative - shall, directly or indirectly , purchase any real or personal property from the city, except such property as is offered for sale at an established price , and not by bid or auction , on the same terms and conditions as to all members of the general public . C• 9 Supp . No. IN