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8 - Items for Discussion/Information Letter from Joseph de Raismes to Boards & Commissions, Constrai. ~~~P~~ , ylal~/ i" / ~~ ~~~~~ ~ CtTY OF BOUl..0~3~, COLOFiAaO ~ ~ ~ Office of the City Attorney Joseph N. de Ra~smes, III ~ Mumcipal Bwlding City Attomey PO Box 791 Boulder, Colorado 80306 Jerry P Gordon Phone (303) 447-3020 Deputy City Attorney Fax (303) 441-3859 Alan E. Boles, Jr. First Assistant City Attorney MEMORANDUM TO Boards and Commissions FROM Joseph N de Raismes, III, City Attomey ~ SUBJECT Constramts on Board and Commission Members DATE March 30, 2001 The City Council has asked that I remmd board and commission members of the most ~ important constramts that must be kept m mmd m conducring the pubads busmess Bvlaws Most boazds and commisstons have bylaws to govem their normal operahons These bylaws serve to supplement the Boulder Revised Code and other legal documents applicable to the boazd or commission. They should be consulted penodically by all boazd members to assure comphance. Conflict of Interest Gmdelmes Conflicts of mterest are covered by Chapter 2-7 ofthe Boulder Revised Code Basically, the code requires that mdrviduals not participate m any decision wluch could affect them or a member of their immediate family financially, and also requires that boazd or commission members refrazn from participatmg m any decision m which they have a"substanhal mterest " A"substanrial mteresY' is defined as "A situarion, includmg without limitarion a pecumary stake m the outcome of a decision, m which, considenng all of the circumstances, a reasonably prudent person observmg the situarion would expect a mazked tendency to make a decision other than an ob~echve decision " This mcludes non-financial conflicts, such as close proximity to an azea under considerahon (six hundred feet has been used as a guidehne, and three hundred feet-- one block -- is a clear disquahficahon, but the real tssue ~s the extent of neighborhood pressure on the decision maker), close fnendship with one of the parties to a decision, or any other situation wtuch would lead to a r"` `"w' K CC~D~M-CONFLf YAD ^^~ clear "appearance of impropnety " Spousal conflicts and shared conflicts require particulaz sensrtivity The City follows the Colorado BarAssociarion's Ethics Committee opimons on spousal and firm conflicts. If a board or commission member is unsure about whether or not a conflict of mterest exists, the board or commission member is permitted to consult with the Office of the City Attomey confidentially and to request an advisory opmion as to the apphcabihty of the conflict of mterest rules to a particulaz situarion Tlus nght is specihed m Sechon 3-7-6 of the Boulder Revised Code Ooen Meehngs ReQulahons The general provisions concemmg boazds and commissions are contamed m Chapter 2-3 of the Boulder Revised Code Pazagraph 2-3-1(b)(5) requires that each board or commission. "Hold all meerings open to the public, after norice of the date, rime, place, and sub~ect matter of the meetmg, and provide an opportumty for public comment at the meeting " Tlus reqmres at a mimmum that boards and commisstons provide twenty-four hour specific norice of each meetmg by postmg a copy of the meetmg agenda m the lobby of the Mumcipal Buildmg The Cirizen Ass~stance Office provides space for those nohces The Hotlme is also used to announce all meetmgs Agendas for regulaz boazd and commisston meering are published m the DailkCamera as well '"'~ Although publication is not required for all board and commission meerings, it is highly " recommended In the past, boards and commissions held agenda meerings and other mformal gathenngs without givmg the required notice However, 1991 changes to the state public meehngs law as well as the consistent mterpretahon of Sechon 2-3-1 require that if three or more members of a board or comm~ssion meet at any hme and discuss public busmess, nohce must be given of such meeting and the meehng must be open to the public If a chance meehng occurs, the members of the boazd or commission must refram from discussmg pubhc busmess or convene m o oups of less than three One-on-one commumcation about pubhc busmess between members of a board or commission is pemutted at all hmes, and ~t is only when three or more members gather that a "meehng" is consrituted. State law specifies that three or more elected officials commumcatmg by e-mail conshtutes a pubhc meetmg, and all such commumcahons aze to be copied to the Hotlme e- mail address While not required by the statute, s~milaz caution is urged for boazds and commission, smce a court could find such an electromc commumcarion to conshtute an illegal meering Use of one-on-one telephone or fax commumcahons is a better idea, smce the nsk of forwardmg is much less, and thus the nsk of an illegal meetmg can be more easily avoided Removal from Board The Charter provisions concemmg boards and commissions generally aze cuntamed m Section 130, "General Provisions Concernmg Advisory Commissions " Secrion 130 provides that ''"w, ~ K CCAD~M-CONFLIYAD ? ~ "The Council shall have the power to remove any commissioner for non-attendance to duties or for cause " Although regulazmeetmgs are specified, no specific number of absences is given as grounds for removal under Section 130 The Charter also contams more specific provisions dealmg wrth specific boards The provisions concemmg the Plamung Board, contamed m Sechon 74, are shghtly more detailed with regard to removal by the Council for cause Specifically, the Charter provides for the Plarunng Board that: "The Council shall remove any appomted member who displays lack of interest, or fails, upon due nohce, and contrnuously for three months, to attend meerings of the board wrthout formal leave of absence " The provisions for the Parks and Recreahon Advisory Board contamed m Sechon 158 are similar "The Counctl may remove any boazd member who displays lack of mterest or who fails to attend board meerings for three consecuhve months without formal leave of absence " Finally, the provisions concemmg the Open Space Board of Trustees aze quite general Sectron 173 provides only that: "Frve members of the Council may remove any boazd member for cause " Council has codified the absence rule at Sechon 2-3-1, B RC. 1981 Failure to attend three ~ consecuhve regularly scheduled meerings without a leave approved by a ma~onty of the boazd is grounds for Council to remove a member To summanze, any absence of over three months certamly should be viewed as impenlmg contmued memberslup on a boazd or commisston However, the City Council retams the power to remove a board or commission member for absences of a shorter penod and for causes other than absence from boazd or commission meehngs Rules Applicable to Boards and Commissions The general rules concermng boazds and commissions are those contamed m Chapter 2-3 of the Boulder Revised Code. The cnrical rule is that three affirmahve votes aze requued far any acrion of a boazd or commission of five members, and four affirmarive votes aze required for any action of the Plannmg Boazd, and for any action of the Parks and Recreahon Advisory Boazd to dispose of park land or to appropnate funds from the Permanent Pazks and Recrearion Fund Thus, contrary to the usual rules of parliamentary procedure, an absolute ma~onty is required for any achon, and if inembers are absent, it may be necessary to re-heaz a matter so that rt is possible for the enhre board or commission to vote This makes it particulazly cnhcal that board and commission members attend every meering if possible, m order to b ve applicants a fair opportumty for an affiimahve decision ~ ~r~ K CCAD\M-CONFG YAD ,.^*, The general provisions of the code, reflectmg Section 130 ofthe Charter, provide for election of officers of each board and commission by the boazd or commission, mmutes and summanes, tapmg ofineetmgs, applicahon of Robert's Rules of Order Newlv Revised (19901, unless the boazd orcommissionadoptsotherrulesoftheprocedure,andaprohibiriononabstenhons Subsecrion2-3- 1( fl specifically provides that if a member of the board or commission is present but refuses to vote, the member's vote "Shall be recorded m the affirmative " The only excephons are approval of minutes of a meetmg that the member did not attend or if the member was excused under the conflicts of mterest chapter, Chapter 2-7 of the Boulder Revised Code, or on considerarion of such member's conduct m the busmess of the board or commission. (~uasi-7udicial Reawrements Quasi-~udicial heanngs aze a specific form of process required whenever a pubhc heanng is required for the apphcarion of a standazd set forth m the code to a fact srtuahon The quasi-~udicial chapterofthe Boulder Revised Code, Chapter 1-3, spectfies all ofthe details ofhandhng procedural and evtdenriazy issues at such heanngs Special nohce requirements apply, and particulaz norice requirements are imposed for certam matters, such as land use and hquon c~ense proceedings Quasiyudicial heanngs may d ve nse to an appeal to distnct court Accordingly, advice should be sought from the Office ofthe City Attomey whenever a quasi- ""~ ~udicial issue anses Sigmficantly, the quasi ~ud~cial chapter specifies that. "In the absence of -- ob}echon, the heanng will be conducted mfommally, and fazlure ko request any procedure sha11 consrituteawazverthereof"BoulderRevisedCode,Subsechon1-3-5(h) Thus,theonlyhmewhen a boazd or commission needs to be concemed about an mterpretation of Chapter 1-3 is when a demand is made for a particulaz procedure In the absence of such demand, mformal proceedings aze authonzed by the code The quasi-~udicial provisions of which boazd and commission members should be aware mclude specific norice reqmrements, the requirement that teshmony be taken under oath or by affirmarion, the reqmrement that cross-exammahon and the presentahon of oral and documentary evidence be permitted, spec~fic evidenriary reqmrements, wtuch are somewhat looser than those in civil lrtigarion, and the requirement of wntten findmgs of fact and conclusions of law. Most sib tficantly for boazd and commisston members, the quasi-}udtctal chapter requires that the substance of all matenal contacts outside of the heanng dealmg with the sub~ect matter of the decision be disclosed on the heanng record and that an opportumty be a ven for comment at the heanng if the matenal is to be considered m any way by the board or commission The Office of the City Attomey recommends that board and commission members avoid all such "ex ~arte" discussions outside of the hearing m order to avoid problems of disclosure under Secrion 1-3-6 of the Boulder Revised Code In the altemauve, whenever an ex parte contact cannot be avoided, it is ~ K `CC.\D\M-CONFL[ YAD 4 ~ ~ recommended that careful notes be kept of any commumcations which cannot be avoided so that they can be disclosed m detail. It is recommended that such disclosure be made whether or not the boazd or commission member mtends to actually rely upon the commumcation, so that no allegarion to the contrary can ever be made Board and commission members should also avoid site visits guided by an apphcant or other mterested party whenever possible, to avoid any chance of improper mfluence on a decision The easiest way to disclose mformation is to compare what was said to the wntten agenda matenals and then to disclose anythmg that was said that is not contamed m the agenda matenals \r..- ~'"` , ~..- K. CCAD~N4CONFL[ YAD