HomeMy WebLinkAbout8A - Board Member Alan Smith request for leave of absence from the Parks & Recreation Advisory Board /
TO: Parks and Recreation Advisory Board ~/~j~
FROM: Jan Geden, C.PRP, Director of Parks and Recreation
Sarah DeSouza, Policy and Information Services Manager
Alice Guthrie, Parks and Planning Superintendent
Teri Olander, Acting Recreation Superintendent
SUBJECT: Matters from the Department -Alan Smith Request For Leave of
Absence from the Parks and Recreation Advisory Board
DATE: Monday September 8, 2008
On July 31, 2008, Alan Smith sent a letter to the City Council requesting a leave of absence from
the Parks and Recreation Advisory Board {PRAB) due to being called up for Active Duty in the
Army Reserves. "I'he Active Duty term is for one year and the anticipated date for his return from
the assignment is October 1, 2009. Alan has expressed an interest in rejoining the PRAB upon
his return from active duty.
The City Council Agenda Committee (CAC) discussed the letter at their August 4 meeting. The
members of the CAC asked staff to return with more information including whether there is
anything in the City Charter or Procedures relating to leaves of absence and requested that the
PRAB be polled for their recommendation.
Included for your review in this matter are the following items:
• A letter from Alan Smith to the City Council requesting a leave of absence;
• A memorandum from the City Attorney regarding the request and its relation to the City
Charter; and
• An email from the City Attorney to the City Council clarifying the voting privileges of an
ex-officio appointment.
The PRAB is being asked to make a recommendation to the City Council regarding this matter.
Some options that the PRAB might consider in making a recommendation include but are not
limited to:
1. Granting a leave, recommending that an ex-officio appointment is made by the City
Council and allowing PRAB member Smith to complete his term upon his return. (An ex-
officio member could be a former member of the PRAB or a person currently serving on
another city board).
2. Granting a leave with no interim appointment, recognizing that this has the potential for a
"hung" board on important issues.
3. Not granting a leave and recommending that the City Council appoint a new member for
the remainder of the term. The PRAB could recommend that PRAB member Smith be
granted the next appointment upon his return.
Staff is asking the PRAB to make a recommendation to the City Council regarding this request.
AGENDA {TEM # ~ , PAGE__~__
Alan Smith
689 Hartford Drive
Boulder, CO 80305
720-628-2135
July 31, 2008
Dear Boulder City Council,
This spring I had the distinct honor of being selected by you to
serve on the Park and Recreation Advisory Board. In the short time I
have been there, I have been very impressed with the caliber of my
fellow board members and the Park and Recreation staff, not to
mention their knowledge and hard work.
I am an Officer in the Army Reserve and two weeks ago I
received notice that I am being called up to Active Duty. I will be
assigned to Fort Riley, Kansas for one year, beginning September
30t'', 2008.
1 am asking for a leave of absence from PRAB appointment
until I return from this assignment, which should be on or about
October 1St, 2009. Please contact me if you have any questions or
concerns.
Sincerely,
Alan Smith
I
~ ~ Office of the
D ~ D i City Attorney
Boulder • Colorado • USA
August 25, 2008
THE HONORABLE CITE' COUNCIL
Boulder, Colorado
RE: Board Member Leave of Absence Request
Dear Members of the City Council:
EXECUTIVE SUMMARY
Council has received a written request from Parks and Recreation Advisory Board Alan Smith
for a one year leave of absence. Mr. Smith is requesting the leave in order to comply with active duty
military orders. Pursuant to city charter, council has discretion to either grant or deny a request of this
kind.
DISCUSSION
Alan Smith is a member of the city of Boulder Parks and Recreation Advisory Board
("PRAB"). He is also a member of the Army Reserves. He has been called to active duty for one year
and would like to resume his board duties upon his return from military service. Mr. Smith is to report
for active duty beginning September 2008. He has requested a leave of absence through October 1,
2009.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) 38 U.S.C.
§4301 et. seq., encourages non-career service in the uniformed services by eliminating or minimizing
the disadvantages to civilian careers and employment which can result from such service. These
federal statutes protect paid employees and their employment status. Thus, the jobs of city employees
are legally protected when those employees are called up for active military service. However, the
federal law does not cover voluntazy boazd members. Therefore, Boulder's local laws are controlling.
According to Boulder's Charter, council may remove any board member who fails to attend
board meetings for three consecutive months without formal leave of absence. See, Art. XI, §158,
Boulder City Charter. Council also has discretion to grant a leave of absence so long as it is also
approved by a maj ority of the relevant board or commission:
2-3-1 General Provisions.
(a) The city council:
(1) At a regular meeting before April shall appoint members to city
boards and commissions, who are city electors representing both sexes;
K:~PAUP~PRAB manber seeks leave of absence due to activo duty status-.r)oC
4GENDA ITEM ,PAGE ~J
HONORABLE CITY COUNCIL
Page 2
August 25, 2008
RE: Board Member Leave of Absence Request
(2) May remove any member by majority vote for conflict of interest
violation, any other violation of applicable law, regulation, or policy,
non-attendance to duty, failure to attend three consecutive regularly
scheduled meetings without a leave of absence approved by a majority of
the board or commission, or any other cause; and
(3) Sha11 fill any vacancy for the remainder of its term.
Section 2-3-1(a}(2), B.R.C. 1981.
If council decides to grant a one year leave of absence, it will also have discretion to appoint an
ex-officio member to the board for such terms as it deems advisable.
There shall be a parks and recreation advisory board consisting of seven
members appointed by the city council....The council may appoint such
ex-officio members to the board for such terms as it deems advisable.
Art.XI, § 157, Boulder City Charter.
The procedure for handling requests for leave of absence of board or commission members is
not codified, One approach would beta have PRAB provide council with a recommendation and then
council might take action by either gxanting or denying the request. It appears that a positive
recommendation of the board would be required.
If the requested leave is approved, a decision could also be made about whether or not an ex-
officiomember should be appointed to fill the interim vacancy. Whether or not council chooses to
grant the request for leave, the current board member could be reappointed to the board at some fiiture
date.
R fully s}~ i ed,
~ ~~ti,,,
RRY . GO ON _ _ ~
City Att rney
cc: Stephanie Grainger, Interim City Manager
Paul Fetherston, Deputy City Manager
K:~PAUP\PRAB member seeks leave of absence due to active duty status-.DOC
~1GENi~A ITEM PAGE
From: Jerry Gordon
To: cc members
Date: 9/2/2008 4:32 PM
Subject: PRAB BOARD MEMBER LEAVE OF ABSENCE
CC: Geden, Jan; Gehr, David; Llanes, Sandra
City Council members,
Council member Cowles asked a relevant follow-up question to the short memo that I distributed concerning the request
for a leave of absence from PRAB member Alan Smith. I am responding to all council members because I think his
question raises issues that are relevant to council's decision about how it wishes to proceed.
The question: Would the exoffciothat could be appointed be a voting member of PRA8 during the term of the
appointment?
The short answer to this question is that an ex officio member of PRAB would be able to vote. However, there are related
issues that are of interest. Primarily, those center upon who could serve as an ex o»cio member. As will be seen below,
the answer to that question would depend upon council action.
The phrase "exoffcio," as generally used, means a person who holds office by virtue of holding some other office. An
example: "The Vice President serves ex officio as president of the Senate."
Boulder's code and Charter are not explicit about which person would hold an ex olfcio position with PRAB or about
whether or not that person would be allowed to vote. However, in a somewhat different context having to do with
Landmarks Board, an ordinance has been passed allowing the appointment of a member under some circumstances.
That section is found at Sectior, 2-3-7(d),and it provides that:
(d) The mayor, with the consent of the city council, may appoint former board members as alternates to hear matters
under chapter 9-11 (http://colocode.tom/boulder2/chapter9-ll.htm "Historic Preservation," B.R.C. 1981, when the
mayor finds that there is a conflict of interest under chapter 2-7 (http://colocode.com/boulder?/chapter?-7.htm "Code
of Conduct," B.R.C. 1981....
Using the Landmarks Board provision as something of a model, if council wants to appoint an ex o>fcio member of PRAB,
it might first consider passing an ordinance providing for the procedure to be used to select the new ex o~do office
holder. In that ordinance, it might also clarify the voting rights issue.
For example, such an ordinance could (this is just an example) establish that a searing Open Space Board member could
be appointed to serve ex officio on PRAB and that the Open Space member would have full voting rights.
The other approach would be to interpret the Charter provision in Art.XI, § 157 as self-executing. That would eliminate
the need for an interpretive ordinance, but might also leave some confusion about the way in which the phrase ex officio
is being utilized in the relevant Charter provision.
[It is interesting to note that the Parks and Recreation Board was created in 1961 by virtue of the enactment of Article XI
Sections 154-169. Section 157 first introduced the concept that council may appoint ex-offcio members to the board.
Section 169 also stated that the Article would be "self-executing." However, Section 169's self executing clause was
repealed in 1993.]
While our local laws are not very clear on the issue of ex olfcio service, Roberts Rules of Order provides some guidance.
One interpreter of Robert's Rules summarizes the voting rights of ex officio members as fo{lows:
[E]x-officio members of boards and committees have exactly the same rights and privileges as do all other members,
including the right to vote.
There are, however, two instances in which ex-officio members are not counted in determining the number required for a
quorum or in determining whether or not a quorum is present. These two instances are:
i. In the case of the president, whenever the bylaws provide that the president shall be an ex-officio member of all
committees (except the nominating committee); and
2. If the ex-officio member is not a member, officer, or employee of the society (for example, when the governor of a
state is made ex officio a member of a private college board).
Again, however, it should be emphasized that in these instances the ex-officio member still has all of the rights and
privileges of membership, including the right to vote. [Citing Robert's Rules of Order Newly Revised, 10th ed. (Cambridge,
Mass.: Perseus Publishing, 2000), p. 466-67; p. 480, I. 18-27.]
Discussed at: http://www.robertsrules.com/faq,html
One additional point: My prior short memorandum on this matter failed to give credit to Sandra Llanes of my office for
her work and analysis on this matter. Sandra worsts with PRAB and my failure to give her credit for her work was an
oversight that I would like to correct here.
Jerry P. Gordon
Boulder City Attorney
AGENDA 1TENi PAGE~_