6 - Public Meetings; Open Records; Boulder's Code of ConductCITY OF BOULDER, COLORADO
OlTice ol ihe Clly A~iomey
M~nicipal Building
1777 Broa~3way
Posl Omce Box 791
Bouldec ColoruAo 80306
'lelephonc(30l)441-3020
Pacsimlle (303) 441 d 859
MEMORANDUM
FROM: Jerry Y. Gordon, Acting City Attomcy
TO: Members of City Boards and Coimnissions
DATE: April 2, 2008
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SUBJECT: Public Meetings; Opeu Records; Boulder's' Code of Conduct
Introduction
The city of Boulder rclies hcavily apon the members of tl~e co~nmunity who volunteer to
work on iYs boards and commissions. Tl~ose who devote their time to service on these bodies
are much appreciated. However, even though board aud commission members are volunteers,
they are also appointed city officials. As a result, a number of state and local laws apply to them
and violation of those laws can have seiious consequences. T7~is memorandum attempts to
summarize important provisions of those laws.
Open Meetings Law
The Open Meetings Law requires that all ~neetings of public bodies be open to the public.
"Meetings" are defined to include "any kind of gathe~ing convened to discuss public business, in
person, by telephone, electronically, or by other means of communicatiou." § 24-6-402(])(b),
CR.S.
Wl~enever tluec or more members (or a quorum of the members, if fewer than three) of
the `9ocal public body" get together and public business is discussed or fonnal aetion may be
taken, the gathering is a"mecting" and opeu to the public.
Norice,for Public Meetings
Members of thc public cannot exercise their right to attend open meetings unless they
know that meetings will occur. Therefore, the Open Meetings Law requires that tl~e public
must reccive "full and timely notice" of any opcoming meeti~g. The statute prescribes the
notice requirement as fo]lows:
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Any meetings at which the adoption of any proposed policy,
position, resolution, rule, regulation, or formal action occurs or at
which a majority or quorum of the body is in attendance, or is
expected to be in attendance, shall be held only after full and
timely notice to the public....
The statute does not explicitly limit the kind of notice that is legally sufficient.
However, it approves the practice of posting notice in a designated public place at least twenty-
four hours before the meeting. In practice, the city usually publishes meeting dates in the local
newspaper.
• Public Meetings and Electronic Mail
Sometimes an exchange of email messages can violate the Open Meetings Law. That is
because if board or commission members engage in an electronic email discussion, a court may
rule that they have engaged in anon-noticed public meeting.
Usually, no open meetings problem exists if only two board or commission members
communicate by email. Under state law, a meeting occurs when more than two members of a
public body discuss the public's business. However, email presents dangers even when a board
or commission member intends an email message to be received by only one other board or
commission member. Because it is so easy to forward electronic mail, or copy and paste it into a
new message, an email author can never be certain that the circulation of his or her message will
stop with the original addressee.
The easiest way to deal with this issue is to do business at regularly scheduled and
noticed traditional public meetings. Electronic communications are convenient, but without
advance planning and a great deal of care, they may run up against the legislative prohibition on
the formulating of public policy in private.
When a member of a board or commission desires to communicate by email with another
board or commission member, a practical step might be to prominently post within the
communication a request that it not be forwarded to any other person. That may help insulate the
sender from any alleged violation of the Open Meetings Law. However, it is doubtful that such a
technique would have any impact upon the issue of whether the message would be subject to
disclosure pursuant to the Open Records Act, which is briefly described in the next section.
Colorado Open Records Act
The Colorado Open Records Act requires that most documents generated during the
course of the governmental process be made available for public inspection upon request. The
state statute defines "public records" very broadly. They include "all writings made, maintained,
or kept" by agencies of government -including city govcnunent.
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Electronic files (including email) are specifically included as "documents" under the law.
As a result, almost all messages and documents created by officials during the course of
government process are considered public documents. In fact, there is a specific provision in
state law which mandates that if officials use electronic mail to discuss pending legislation or
other public business among themselves, the electronic mail is subject to the law. § 24-6-
402(2)(d)(III), C.R.S
On the other hand, not every email produced by a board or commission member is a
public document. Private messages that are not related to municipal business are not covered by
the disclosure law. Also, some documents maybe confidential by virtue of legal privileges. For
example, some communications with the City Attorney's Office might be covered by the
attorney/client privilege.
• Open Records and Home Computers
Under some circumstances, email exchanged between board or commission members
over private email networks may also be subject to disclosure pursuant to the Open Records Act.
If municipal officials exchange email messages from their home computers that discuss
official city business or that are intended to influence the work of the board or commission, there
is a good chance that those messages will be covered by the law. That means that if a member of
the public requests them, the messages may have to be disclosed. If this kind of situation was
presented to a court for resolution, the ultimate decision would probably turn on the nature and
purpose of the messages rather than upon which computer system was used to product or receive
the messages.
Code of Conduct
City staff and members of the city's many boards and commissions are governed by the
provisions of the city's Code of Conduct. Those provisions are found u~ Chapter 7, sections 2-7-
1 through 2-7-15 of the Boulder Revised Code (B.R.C.).
The purpose of this part of the code is to protect the integrity of city government. The
idea is to prohibit public officials from acting on matters in which they have conflicts of interest
and to establish guidelines that encourage them to avoid any appearance of impropriety.
This memorandum summarizes important provisions of the Code of Conduct. However,
it is strongly suggested that board and commission members read the entire Code of Conduct
chapter. Obviously, if there is any inconsistency between this memorandum and the actual Code
of Conduct language, the Code of Conduct language controls.
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• Conflicts of Interest
The general Hale for conflicts of interest is set forth in section 2-7-2. That provision
explains that no public official is allowed to make, or participate in, any official action in which
he or she knows (or should know) that he or she has a conflict of interest. The section mandates
that public officials must disclose any conflict of interest and disqualify themselves from
participating in actions in which they have conflicts.
Section 2-7-15 defines "conflict of interest" to include situations in which a member of a
city board, commission, task force or similar body (or a city employee):
(a) Has a substantial interest in any transaction with the city;
(b) Has a relative with a substantial interest in any transaction with the
city;
(c) Has a substantial interest as an affiliate of a firm with a substantial
interest in any transaction with the city;
(d) Has a substantial interest as an affiliate of a firm appearing on behalf
of or employed by a person with a substantial interest in any transaction
with the city;
(e) Is an officer of an organization that has taken an official position on
any transaction with the city;
(f) Is on the board of directors of an organization that is substantially
affected by a transaction with the city;
(g) Is affiliated with a law, accounting, planning, or other professional
firm that has substantial interest in any transaction with the city; or
(h) is required to receive official notice of aquasi-judicial action from the
city.
If one of these listed conditions exists, a board or commission member is required to
remove him or herself from the decision making process.
• Appearance oflmpropriety
Even when there is no technical conflict of interest, the code asks board and commission
members to consider removing themselves from decisions or matters when the circumstances
suggest that there might be an appearance of impropriety. However, self removal in these cases
is discretionary.
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Section 2-7-9 provides examples of situations in which a member, employee, or
appointee to a city board, commission, task force or similar body may decide to remove
themselves from consideration of a matter -but in which they are not required to do so. Those
examples are:
(l) If the person is an employee of a state or federal government entity
with a substantial interest in any transaction with the city;
(2) If the person has a close friend with a substantial interest in any
transaction with the city, and the council member, appointee, or employee
believes that the friendship would prevent such person from acting
impartially with regard to the particular transaction;
(3) ]f the person has an interest in any transaction with the city that is
persona] or private iu nature that would cause a reasonable person in the
community to question the objectivity of the city council member,
employee, or appointee to a city board, or commission;
(4) If the person is called upon to act in aquasi-judicial capacity in a
decision regarding auy of the situations described above; or
(5) If the person owns or ]eases real property within six hundred feet from
a parcel of property that is the subject of a transaction with the city upon
which he or she must make a decision, and is not required to receive
ofScial notice of aquasi-judicial action of the city.
• Limitations on Accepting Guts
The code provision about gifts appears in section 2-7-5.
The basic rule for board and commission members is that no appointee (or any relative of
such an official) may accept anything of value if:
(1) The official is in a position to take official action with regard to the
donor; or
(2) The city has or is known to be likely to have a transactional, business,
or regulatory relationship with the donor.
Questions that arise in this area generally involve a list of items that arc not considered
gifts for purposes of the code. Section 2-7-5 (b) contains the list as follows:
(1) Campaign contributions permitted bylaw;
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(2) An unsolicited, occasional non-pecuniary gift of a maximum amount
of $50.00 or less in value;
(3) A gift from a relative;
(4) An award, publicly presented, in recognition of public service;
(5) Reasonable expenses paid by other governments or governmentally
related organizations for attendance at a convection, fact-finding mission
or trip, or other meeting if the person is scheduled to deliver a speech,
make a presentation, participate in a panel, or represent the city;
(6) Items which arc similarly available to all employees of the city or to
the general public on the same terms and conditions; and
The obvious intent of these provisions is to avoid actual graft or the appearance that special
treatment from our local government can be purchased. Accepting gifts by government officials
can be very problematic and it is strongly suggested that board and commission members who
have any questions in this area contact the City Attorney's Office for specific feedback and
suggestions.
• Prohibition on Using Confidentialln(ormation for Financial Gain
Sections 2-7-3 and 2-7-4 make it clear that board and commission members are not to use
their positions to gain financial benefit for themselves or others. Also, it is a violation of the code
to disclose confidential information obtained as a result of holding public office.
While most board and commission members don't come into possession of confidential
information very frequently, it does sometimes occur. When it does, board and commission
members are under a very strict legal obligation to maintain confidentiality of that information.
• Conflicts and Outside Employment
Section 2-7-6 sets out some rules about outside employment Under those rules, board
and commission members are not to take official action with respect to a former employer for at
least six months after they leave the job in which they worked for that employer.
Also, board and commission members are supposed to report existing or proposed
outside employment or business interests that may affect their responsibilities. This notice must
be in writing to the City Council.
Within thirty days after accepting a new job or business opportunity, board and
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commission members are to report any changes of employment or changes to outside business
interests that may affect their responsibilities to the city.
• Limitations on the Participation of Former Officials
For twelve months following termination of office or employment, no former official
may appear before, or participate in, the proceedings of a city board or commission on which he
or she was a member. However, this limitation maybe waived by the City Cowrcil by
appointment or vote.
• Limitations on Litigation by Former Appointed Officials
No former official may bring a lawsuit against the city, or participate in a lawsuit in
which the city is involved on behalf of any other person or entity, if the litigation involves a
matter upon which the person took official action during his or her service. This rule applies for
twelve months following termination of service with the city. § 2-7-6 (f), B.R.C.
• Employment of Relatives
Generally, a board or commission member may not advocate for the appointment or
hiring by the city of someone who is his or her relative. However, board and commission
members may request the City Council to make such an appointment or hiring decision.
Also, it is permitted for the city to enter into transactions with companies, corporations or
other business organizations that employ a relative of a city official if:
(a) The board or commission member does not participate in the hiring decision;
(b) Any business organization involved is apublicly-traded corporation that provides its
services to the city on nondiscriminatory terms justitied by the market facts and
circumstances of each transaction; or
(c) The business organization has been doing business with the city for at least one year
prior to the date the city official's relative became employed by it and the board or
commission members relative is not directly employed to work on matters involving the
city and his or her compensation is not tied to the success of the outside business
organization in obtaining business from the city.
• Prohibition on /Zepresenting Others Before the City
The general rule is that members of boards and commissions are not allowed to represent
others in front of the board or commission on which they serve or before the City Council It
may, under some circwnstances, also be improper for members of boards and commissions to
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represent others in front of other city groups or bodies. This is an important rule and if it is
violated, violators may be removed from their board or commission or could even be criminally
prosecuted.
Because this rule can be somewhat complicated in application, members of boards and
commissions are urged to seek guidance from the City Attorney's Office before they represent
another party before a city entity.
• The Manner in Which a Board or Commission Member is Supposed to Remove Him or
Herselffrom Consideration of a Matter
There is a formal procedure that a board or commission member should use when that
member feels that he or she has a caiflict of interest or that there would be an appearance of
impropriety if he or she participated in a particular decision. ~ 2-7-] 0, B.R.C.
Under these circumstances, the board or commission member should either provide
written notice of the conflict or disclose the conflict of interest on the record of a public meeting
of the board or commission on which the person is a member. Then, the board or commission
member must:
(a) Refrain from voting upon or otherwise acting in an official capacity with regard to the
transaction giving rise to the conflict or appearance of impropriety;
(b) Physically absent himself or herself from the room in which the matter is being
considered; and
(c) Not discuss any matter related to such transaction with any other member of the
council, board, commission, task force, or similar body of which the person is a member.
• ~ Safe Harbor. for Code of Condi2ct Issues
Board and commission members will want to know about a "defense" that is provided to
them against alleged violation of the Code of Conduct.
Section 2-7-13 allows any city board or commission member to request a~~ advisory
opinion from the City Attorney about the application of the Code of Conduct to a particular
situation. If a board or commission member acts in accordance with the advice from the City
Attorney, that individual will have a defense to a criminal charge of violating the Code of
Conduct.
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Conclusion
As noted earlier, some of the issues discussed in this summary can get a bit complex iu
specific situations. Therefore, new board and commission members are invited to set up an
appointment with representatives of the City Attorney's Office to discuss these and related
matters in more depth.
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