HomeMy WebLinkAboutWATERGLEN PUD PDP - 71 93A - LEGAL DOCS - CITY HALLMayor and City Councilmembers
November 16, 1993
Page 3
672 P.2d 225 (Colo. App. 1983). The challenger of a quasi-judicial decision has the burden of
rebutting this presumption of impartiality. Schweiber v. McClure, 456 US 188 (1982).
Nonetheless, in order to avoid these kinds of challenges, our office has consistently
recommended against conversations with affected parties -in -interest regarding a potential or
existing development proposal.
In this instance, it is possible that some of the subjects that Mr. Reynolds or others might want
to discuss could involve legislative matters, rather than the merits of the PUD itself. It would
be very difficult, however, to separate out these issues and demonstrate that conversations
related solely to legislative matters and not to the merits of the development proposal itself.
Therefore, I recommend avoiding any such conversations altogether.
SJR: whm
Mayor and City Councilmembers
November 16, 1993
Page 2
ANALYSIS:
1. The Private Showing. The City Code provides in Section 2-568 that officers and
employees of the City shall refrain from accepting any gift or favor which, in the judgment of
a reasonably prudent person, would tend to impair the officer or employee's independence of
judgment in the performance of his or her official duties. It expressly states, however, that
"acceptance of an opportunity to participate in a social function or meeting" does not constitute
a prohibited gift or favor if such invitation or opportunity "is not extraordinary when viewed in
light of the position held by such officer or employee." Under another subsection of the same
Code provision, meals and tickets to cultural events are also cited as examples of gifts or favors
which are not prohibited.
Therefore, unless a Councilmember believes that the timing of this event is such that it creates
an appearance of impropriety, it is not the kind of event which, in my opinion, is so
extraordinary that attendance would likely be construed as a violation of this Code provision or
the Charter conflict of interest provisions. Nonetheless, the very safest course would be to
decline the invitation so as to avoid any appearance of impropriety.
2. Meetings With Interested Parties. The law recognizes a distinction between lobbying
efforts that are directed toward elected officials in their legislative capacities and in their quasi-
judicial capacities. Meetings with citizens who are interested in legislative decisions of the
Council are entirely appropriate, because these kinds of decisions deal with policy matters that
affect the general public (as well as the interested parties), and those affected by the City's
policy decisions have a fundamental right to discuss these matters with their elected
representatives.
Quasi-judicial decisions, on the other hand, are viewed quite differently by the courts. This is
because these kinds of decisions do not deal with policy matters (at least not directly). Instead,
they deal with the implementation of policy through the application of existing law to a particular
set of facts. This application of the law (in this instance, the criteria of the LDGS) is to be
made through a public hearing process, and all parties directly affected by the decision have a
constitutional right to be notified of the impending decision and to be heard before it is made.
Additionally, a quasi-judicial decision is to be based solely on the evidence produced at the
public hearing, and the decision -making body must maintain its impartiality so as to avoid any
"favoritism" in the manner in which the criteria are applied.
In this context, then, a decision to approve or disapprove a particular development proposal can
be overturned in court if it appears that the impartiality of the Council or the Board was
compromised or that the decision was based on some consideration other than evidence at the
hearing. Wells v. Del Norte School District C7, 752 P.2d 770 (Colo. App. 1982). Admittedly,
there is a presumption under Colorado case law that those serving in quasi-judicial capacities will
exercise integrity, honesty and impartiality in their decision making. Scott v. Citof Englewood,
City Attorney
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City of Fort Collins
CONFIDENTIAL
MEMORANDUM
DATE: November 16, 1993
TO: Mayor and City Councilmembers
FROM: Steve Roy, City Attorney
RE: Invitations from W.W. Reynolds
ISSUE:
How should Council and the Planning and Zoning Board members respond to invitations from
W.W. Reynolds to: (1) attend a private showing of an OpenStage Theatre production and
cocktail party at the Lincoln Center, and (2) meet with Mr. Reynolds to discuss an affordable
housing development proposal (Waterglen PUD) which will be coming to the Board on January
24, 1994.
POTENTIAL RISKS/CONSEQUENCES:
If the City approves the Waterglen PUD and its decision is "tainted" by events which undermine
the impartiality of the City's decision makers, the decision could be overturned in court.
CONCLUSIONS/RECOMMENDATIONS:
There is probably little legal risk in Council or Board members attending the private showing
and cocktail party. There is significant risk, however, in discussing the Waterglen proposal with
Mr. Reynolds or other affected parties, even if the conversations have to do with things (like
fee waivers) which are arguably matters of policy, because they are so closely related to the
merits of the proposal itself. The safest course would be to avoid any appearance of impropriety
by not attending the showing and declining any invitation to meet with Mr. Reynolds while the
Waterglen PUD proposal is pending. Whether or not Council or Board members do choose to
attend the social gathering, I recommend that they avoid any "off the record" discussions with
Mr. Reynolds or others about the PUD proposal or related topics.
300 LaPorte Avenue • P. O. Box 580 • Fort Collins, CO 80522-0580 • (303) 221-6520