HomeMy WebLinkAbout5 - Presentation and discussion about the city of Boulder's Code of Conduct - Review of city's Conflict of Interest PoliciesCITY OF BOULDER
WAT~R R~SOURC~S ADVISORY BOARD
AG~NDAITEM
NIEETING DATE: February 25, 2008
AG~NDA TITLE: Presentation and discussion aUout the City of Boulder's Code of
Conduct
PRESENT~R/S: Sue Ellen Ha~rison, City Attorney's Office
EXECUTIVE SUMMARY:
A representative from the City Attorney's Office is meeting with all the city's boards and
commissions to discuss and review the city's Code of Conduct. Sue Ellen Harrison, Senior
Assistant City Attomey from the City Attorney's Office, will be the representative at the Water
Resources Advisory Board meeting.
ATTACHMENTS:
• Report, Summary of Important Legal ResponsiUilities for Board Members and
Commissioners, March 30, 2007
• Boulder Revised Code, Title 2, Chapter 7, Code of Conduct
• Conflict of Interest Report, DecemUer 2007
• Supplemental Code of Conduct Investigation Results, January 2, 2008
Page 1
Office of the
~ ~ ~ ~ City Attorney
~
Boulder • Colorado • USA
March 30, 2007
CITY BOARDS AND COMMISSIONS
Boulder, Colorado
RE: Summary of Important Legal Responsibilities for
Board Members and Commissioners
Dear City Board Members and Commissioners:
I would like to offer my personal thanks for your
willingness to serve the Boulder community. Public service in
Boulder's form of "home rule" local government can be very
rewarding. It can be challenging as well. Robust public
engagement in civic affairs is an essential hallmark of Boulder.
The Colorado pioneers who created home rule had a deep and
abiding mistrust of distant, secretive government because of the
corruption often bred in that environment. As a result, the
City of Boulder conducts all of its business in the bright
sunshine of public and media scrutiny. Our behavior as public
officials, public employees, and board and commission appointees
becomes the example by which the quality and character of
Boulder's local governance is judged. I have great pride in
this city's commitment to open, ethical, and responsive
government. I know you will join me in feeling a sense of
'stewardship for the qualities that make Boulder one of the truly
great American cities.
This report summarizes some important city and state
laws that govern how you must conduct yourself as a Boulder
board or commission appointee.. These laws create rules to
protect the public's trust in local government. But they are
HONORABLE CITY COUNCIL
Page 2
Re: Summary of Important Legal Responsibilities for
Board Members and Commissioners
more than rules - these laws truly define the essentials of
responsive and effective local governance.
This report is organized into six sections which
discuss the following topics:
¦ The Basics of Colorado ~~Home Rule" Government
¦ Voting Rules for Boards and Commissions
¦ Boulder's. Conflict of Interest Law
¦ Sunshine Laws: Open Meetings and Open Records
¦ Special Constitutional Rules for Quasi-Judicial Hearings
¦ Rules on Removal from Board or Commission Positions
A final caveat is necessary. This report is meant as
a brief summary of some very complex issues. You should not
treat this report as authoritative legal advice that is binding
upon the city. If you have additional questions, please feel
welcome to contact me or your board's or commission's assigned
assistant city attorney for further information at (303) 441-
3020. Please recognize, however, that the City Attorney's
Office represents the city as a corporate entity. We are not
able to represent you as an individual in a confidential
attorney-client relationship. We can and do, however, provide
legal advice to the Council, city staff, and boards and
commissions on city business. Moreover, you are entitled to
receive non-confidential individual advice from this office on
conflict of interest matters that arise during your service with
the city.
Respectfully submitted,
ARIEL PIERRE CALONNE
City Attorney
APC:lh
cc: City Council
Frank W. Bruno, City Manager
C:\DOCUments and Settings \beckll\LOCal Settings\Temp\XPGrpWise\r-2007 REVISED new H s C legal
resp memo.YAD.doc
HONORABLE CITY COUNCIL
Page 3
c t-„-. r_ ~ n n o
Re: Summary of Important Legal Responsibilities for
Board Members and Commissioners
1. The Basics of Colorado "Home Rule" Government.
"The powerful corporate interests engaged in
the exploitation of municipal franchises are
securely entrenched behind a series of
constitutional and legal checks on the
majority which makes it extremely difficult
for public opinion to exercise any effective
control over them."1
Between the Civil War and the early twentieth century,
municipal governments were considered "creatures" of the state.
Cities had only those few and limited powers that were granted
by state legislation. During the same period, the Fourteenth
Amendment - which was intended to assure Constitutional
protection for freed slaves - was interpreted to extend a wide
array of rights to corporations. It is perhaps not coincidental
that several leading jurists of the day (and the leading
municipal law scholar) were former railroad corporation lawyers.z
Powerful railroads and weak cities lead to widespread
legislative corruption. In an attempt to control cutthroat and
monopolistic railroad business practices, Colorado established a
Railroad Commissioner in 1885: The legislature promptly failed
to fund the office, and it was abolished in 1893. A three
member Railroad Commission (the precursor to today's Public
Utilities Commission) was established in 1907, but didn't begin
1 J. Allen Smith, LL.B., Ph.D., The Spirit of American
Government, p.289 (1911); The Chautauqua Press, Chautauqua, New
York.
z In 1868, Iowa Supreme Court Justice (and former railroad
lawyer) John F. Dillon authored "Dillon's Rule." This rule held
that cities have only those powers expressly granted by the
state or necessarily implied as essential to the purposes
declared by the state.
C:\DOCUments and Settings\beckll\LOCal Settings\Temp\XPGrpWise\x-2007 REVISED new B & C legal
. .resp memo.YAD.doc _ _
HONORABLE CITY COUNCIL
Page 4
-~arp~~--'~-
Re: Summary of Important Legal Responsibilities for
Board Members and Commissioners
its work until 1910 as a result of extensive railroad
litigation.3
Finally, in 1904, Colorado dramatically changed the
balance of power between cities and the state by giving the City
of Denver "home rule" authority.. Home rule powers are developed
by and founded upon the will of municipal voters. The voters
organize their municipal corporation around a "charter" which
describes and limits the powers of the city government. Rather
than being a "creature" of the state, a home rule city's power
over "local affairs" is paramount to state law. Boulder adopted
its first charter in 1917.
Today, Colorado home rule cities remain vigilant to
protect home rule power from intrusion by the state legislature.
Areas such as zoning, control of streets and wildlife,- and
public finance face regular challenges from interest groups
which would prefer to have uniform state control. Home rule
power must also be protected for the people who have vested
local control in Boulder's city government. Many of the laws
discussed below are aimed at maintaining the open and ethical
foundation of Boulder's home rule powers.
2. Voting Rules for Boards and Commissions.
Boulder's general rules concerning boards and
commissions are in Chapter 2-3 of the Boulder Revised Code4. The
first important rule is that three affirmative votes are
a The CoPUC website has a nicely done history at
http:!/www.dora.state.co.uslpuclabout/AboutHistory.htm
4 We cite references to the Boulder Revised Code as "B.R.C.
2981" which signifies that last major revision and
reorganization of the code back in 1981. A searchable version
of the code is available online at
http://www.bouldercolorado.gov/index.php?option=com_content&task
=view&id=330&Itemid=204
C:\DOCUments and Settings \beckll\LOCal Settings\Temp\XPGrpWise\r-2007 REVISED new H & C legal
resp memo.YAD.doc
r
HONORABLE CITY COUNCIL
Page 5
Re: Summary of Important Legal Responsibilities for
Board Members and Commissioners
required for any action of a board or commission of five
members. There a few major exceptions: Four affirmative votes
are required for any action of the Planning Board and for any
action of the Parks and Recreation Advisory Board to dispose of
park land or to appropriate funds from the Permanent Parks and
Recreation Fund. If members are absent, it may be necessary to
re-hear a matter so that it is possible for the entire board or
commission to vote. This makes it particularly critical that
board and commission members attend every meeting if possible,
in order to give applicants a fair opportunity for a timely
decisiom.
Board members and commissioners are not permitted to
abstain from voting. An "abstention" is a refusal to vote,
despite being present and qualified to do so. Section 2-3-1(f),
B.R.C. 1981 states that if a member is present but refuses to
vote, the member's vote: "Shall be recorded in the affirmative."
The only exceptions are approval of minutes of a meeting that
the member did not attend or if the member was excused under
Chapter 2-7-2 "Conflicts of Interest Prohibited," B.R.C.1981, or
on consideration of such member's conduct in the business of the
board or commission.
The general provisions of the code, reflecting Section
130 of the Charter, provide for election of officers of each
board and commission by the board or commission, minutes and
summaries, taping of meetings, application of Robert's Rules of
Order, Newly Revised (1990), unless the board or commission
adopts other rules of the procedure.
~i
C:\DOCUments and Settings \beckll\LOCal Settings\Temp\XPGxpWise\r-20 D7 REVISED new B s C legal
resp memo.YAD.doc - - - - - - -
i
HONORABLE CITY COUNCIL
Page 6
Re: Summary of Important Legal Responsibilities for
Board Members and Commissioners
3. Boulder's Conflict of Interest Law.
Conflicts of interest are prohibited in Chapter 2-7-2
B,R.C. 19.81.5 Basically, the code requires public officials and
employees not to participate in any decision which could affect
them or a member of their immediate family-financially. The law
works by defining city "transactions" in which an official or
employee might have a "substantial interest." A "substantial
interest" means:
a situation, including, without limitation, a
financial stake in the outcome of a decision in which,
considering all of the circumstances, would tend to
influence the decision of a reasonable person faced
with making the same decision." Section 2-7-15,
B.R.C. 1981.
Although the rule creates an objective standard ("reasonable
person"), there is no set dollar amount that determines when a
conflict arises. Thus, in interpreting the law the City
Attorney's Office evaluates all of the facts and circumstances
surrounding the decision. Legal advice is only binding with
respect to the facts upon which it is based. This means that
board members or commissioners are required to disclose personal
financial information when a conflict issue arises. This can
include sources of income, investments, -real estate interests,
debts, and loans. While this kind of disclosure is admittedly
5 The city is exempt from the requirements of the recently-
approved initiative known as "Amendment 41," which would be
codified in a new Article XXIX of the Colorado Constitution.
Section 7 of Amendment 41 states: "The requirements of this
article shall not apply to home rule counties or home rule
municipalities that have adopted charters, ordinances, or
resolutions that address the matters covered by this article."
C:\DOCUments and Settings\beckll\LOCal Settings \Temp\XPGxpWise\x-2007 REVISED new S & C legal
xesp memo.YAD.doc
I~
HONORABLE CITY COUNCIL
Page 7
.ice-~~~-~-~ e e ~ -
Re: Summary of Important ,Legal Responsibilities for
Board Members and Commissioners
intrusive, it is necessary for legal advice and required by the
municipal code.
When a conflict exists, the board or commission member
must "disclose and recuse." This is the process of publicly
declaring the nature of the conflict and refraining from voting
or otherwise participating in the decision making process in any
manner. The process of public disclosure may be uncomfortable
for some people, but it is required because it provides explicit
reassurance to the community that corrupting influences are not
at work. The actual code describes the "disclose and recuse"
rules as follows:
"a) Disclosure and Recusal: No person with a conflict
of interest shall fail to give written notice
of the interest described in such subsection to the
city council or the city board, commission, task force
or similar body of which the person is a member and
the city manager as soon as reasonably possible after
the interest has arisen. However, no written notice is
required if such person discloses the conflict of
interest on the record of a public meeting of the city
council or the city board, commission, task force or
similar body of which the person is a member. The
interested councilmember, employee, or appointee shall
thereafter:
(1) Refrain from voting upon or otherwise acting in an
official capacity in such transaction;
(2) Physically absent himself or herself from the room
in which a matter related to such transaction is being
considered; and
(3) 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." Section 2-7-10(a), B.R.C. 1981.
C:\DOCUments and Settings \beckll\LOCal Settings\Temp\XPGrpWise\r-2007 REVISED new B & C legal
resp memo.YAD.doc - - _
I
HONORABLE CITY COUNCIL
Page 8
Re: Summary of Important Legal Responsibilities for
Board Members and Commissioners
If a board or commission member is unsure about
whether or not a conflict of interest exists, the board or
commission member is entitled to consult with a member of the
City Attorney's Office and to request an advisory opinion on the
conflict of interest rules to a particular situation. Section
2-7-13, B.R.C. 1981. Complying with the City Attorney's advice
provides a defense, from prosecution for violation of the code.
Section 2-7-12(f), S.R.C. 1981.
The city's conflict of interest law also provides non-
binding ethical guidelines to address the appearance of
impropriety that could arise in some situations. While
violation of these rules is not a crime, the public's trust can
be undermined if these principals are not upheld. Specifically,
the code calls for voluatary recusal in the following
situations:
"(1) 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 councilmember, appointee., or employee believes
that the Friendship would prevent such person from
acting impartially with regard to the particular
transaction;
(3) IE the person has an interest in any transaction
with the city that is personal or private in nature
that would cause a reasonable person in the community
to question the .objectivity of the city councilmember,
employee, or appointee to a city board, or commission;
(4) If the person is called upon to act in a quasi-
judicial capacity in a decision regarding any of the
C:\DOCUments and Settings\beckll\LOCal Settings\Temp\XPGrpWise\r-2007 REVISED new B & C legal
resp memo.YAD. doc
'r
HONORABLE CITY COUNCIL
Page 9
_n v. r_ ~nn4-
i
Re: Summary of Important Legal Responsibilities for
Board Members and Commissioners
situations described in paragraphs (c)(1), (c)(2), and
(c)(3) of this section; or
(5) If the person owns or leases real property within
six hundred linear 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 official notice of a quasi-
judicial action of the city." Section 2-7-9, B.R.C.
1981.
4. Sunshine Laws: Open Meetings and Open Records.
Sunshine laws are the tools by which a skeptical
public retains control of the government it has created.6 These
laws are monikered "sunshine" because they were designed to let
the sun shine into the legendary smoke-filled back rooms of
government decision-making.
In this context, we use the intentionally
provocative term secret to make clear how the press and public
view government actions that take place in private settings.
Secret government decision-making is problematic for many
reasons, most of which are well beyond the scope of this report.
Public decisions help make sure that the voters have a clear and
accurate view of the actions and values of their local elected
and appointed officials. The voters cannot be expected to make
wise decisions on Election Day if they cannot fully evaluate the
6 While the rules discussed in this report are designed to
protect the public's ability to trust local government, it is
important to recognize that skepticism about government is not
necessarily an indicator of failure. Indeed, skepticism should
be respected as it is a measure of the public's engagement in
their civic affairs. As public officials, we answer skepticism
by openness, honesty, hard work, and demonstrated competence.
Public trust is earned by daily dedication to these core values.
C:\DOCUments and Settings \beckll\LOCal Settings\Temp\XPGrpWise\r-2D07 REVISED new B & C legal
xesp memo.YAD. doc
HONORABLE CITY COUNCIL
Page 10
Re: Summary of Important. Legal Responsibilities for
Board Members and Commissioners
skills and values of their elected representatives. Thus,
secret decisions fundamentally undermine the democratic process.
These laws also protect the public's ability to participate
meaningfully in government decision making.
Sunshine laws fall into two major categories: Open
meetings, and open records (or "Freedom of Information").
Boulder is highly unusual in that the charter has been
interpreted to forbid any closed or executive session of the
Council, or any board or commission. This demonstrates the
paramount importance of open government in Boulder:
Notice of Meetings is Required
Section 2-3-1(b)(5), B.R.C. 1981 requires each board
or commission to: "Hold all meetings open to the public, after
notice of the date, time, place, and subject matter of the
meeting, and provide an opportunity for public comment at the
meeting." This requires at a minimum that boards and
commissions provide twenty-four hour specific notice of each
meeting by posting a copy of the meeting agenda in the lobby of
the Municipal Building and electronically. Agendas for regular
board and commission meeting are published in the Daily Camera
as well.
Avoid Private Discussions and Casual Meetings
The state open meetings laws, as well as our
consistent interpretation of Section 2-3-1, B.R.C. 1981, require
that if three or more members of a board. or commission meet at
any time and discuss public business, notice must be given of
such meeting, and the meeting must be open to the public. If a
chance meeting occurs, such as at a social event, the members of
the board or commission must not discuss public business. One-
on-one communication about public business between members of a
C:\DOCUments and Settings \beckll\LOCal Settings\Temp\XPGrpWise\r-2007 REVISED new B & C legal
resp memo .YAD.doc
HONORABLE CITY COUNCIL
Page 11
Re: Summary of Important Legal Responsibilities for
Board Members and Commissioners
board or commission is permitted.
It is important to recognize that a meeting of three
or more members may not necessarily have to happen in the same
time and place. In other words, a face-to-face meeting is only
one way for potentially unlawful action to occur. "Serial"
meetings in which decisions are made as one official garners
support and commitment for certain actions from several of his
or her colleagues, one-by-one, are problematic as well.
State law specifies that three or more elected
officials communicating by e-mail constitutes a public meeting,
and all such communications are to be copied to the Hotline e-
mail address. While not explicitly required by the state law,
we advise similar caution for boards and commissions because a
court could find such an electronic communication to constitute
an illegal meeting. Use of one-on-one telephone or fax
communications is a better idea, since the risk of forwarding is
much less, and thus the risk of an illegal meeting can be more
easily avoided.
5. Special Constitutional Rules for Quasi-Judicial Hearings.
The Constitution requires certain city decision-making
processes to follow court-like procedures. These procedures
assure a fair and thoughtful decision that protects the
individual rights involved. The procedures also assure that
affected persons have notice of the potential action and an
opportunity to be heard before the decision is made. These are
called `quasi-judicial" hearings.
A quasi-judicial hearing calls for a determination of
facts based upon evidence presented during a hearing. Chapter
1-3, "Quasi-Judicial Hearings," B.R.C. 1981, specifies all of
the details of handling procedural and evidentiary issues at
C:\DOCUments and Settings\beckll\LOCal Settings\Temp\XPGrpWise\r-2007 REVISED new B & C legal
resp memo.YAD.doc
HONORABLE CITY COUNCIL
Page 12
Re: Summary of Important Legal Responsibilities for
Board Members and Commissioners
such hearings. Special notice requirements apply, and
particular notice requirements are imposed for-certain matters,
such as land use and liquor license proceedings. Quasi-judicial
hearings may give rise to an appeal to district court.
Board members and commissioners should be aware that
the city's quasi-judicial procedures include the following
requirements:
¦ Specific, mandatory rules for advance notice by
mail or publication;
¦ Testimony must be taken under oath or by
affirmation;
¦ Oral and documentary evidence are allowed;
¦ Cross-examination is allowed if requested;
¦ Some evidentiary rules (although less stringent
than those used in court); and
¦ Written findings of fact and conclusions of law.
No Ex Pa rte Contacts
A fair hearing requires the decision to be made upon
the basis of evidence that all have heard; and all have had a
chance to challenge. This means that the substance of all
material contacts (conversations, site visits, etc.) outside of
the hearing; dealing with the subject matter of the decision,
must be disclosed on the hearing record, and that an opportunity
be given for comment at the hearing if-the material is to be
considered in any way by the board or commission. The City
Attorney's Office recommends that board and commission members
avoid all such ex parte discussions outside o£ the hearing in
order to avoid problems of disclosure under Section 1-3-6 ("Ex
Parte Contacts,") B.R.C. 1981. In the alternative, whenever an
ex parte contact cannot be avoided, we recommend that careful
notes be kept of any communications so that they can be
C:\DOCUments and Settings \beckll\LOCa1 Settings \Temp\XPGspWise\s-2007 REVISED new B & C legal
xesp memo.YAD.doc
HONORABLE CITY COUNCIL
Page 13
Re: Summary of Important Legal Responsibilities for
Board Members and Commissioners
disclosed in detail. We also advise that such disclosure be
made whether or not the board or commission member intends to
actually rely upon the communication, so that no allegation to
the contrary can ever be made. Board and commission members
should also avoid site visits guided by an applicant or other
interested party whenever possible, to avoid any chance of
improper influence on a decision. The easiest way to disclose
information is to compare what was said to the written agenda
materials and then to disclose anything that was said that is
not contained in the agenda materials.
6. Rules on Removal from Board or Commission Positions.
The Charter provisions concerning boards and
commissions generally are contained in Section 130, "General
Provisions Concerning Advisory Commissions." Section 130
provides that: "The Council shall have the power to remove any
commissioner for non-attendance to duties or for cause." "Non-
attendance to duties" clearly includes unexcused meeting
absences, and can include other kinds of failures to attend to
duties. The Council has relatively broad authority to address
inappropriate conduct by board members and commissioners.
The Charter contains more specific provisions dealing
with specific boards. The provisions concerning the Planning
Board, contained in Section 74, are slightly more detailed with
regard to removal by the council for cause: "The Council shall
remove any appointed member who displays lack of interest, or
fails, upon due notice, and continuously for three months, to
attend meetings of the board without formal leave of absence."
The provisions for the Parks and Recreation Advisory
Board contained in Section 158 are similar: "The Council may
remove any board member who displays lack of interest or who
fails to attend board meetings for three consecutive months
C:\DOCUments and Settings \beckll\LOCal Settings\Temp\XPGrpWise\r-2007 REVISED new B & C legal
- resp memo.YAD.doc
.HONORABLE CITY COUNCIL
Page 14
Re: Summary of Important Legal Responsibilities for
Board Members and Commissioners
without formal leave of absence."
Finally, the provisions concerning the Open Space
Board of Trustees are quite general. Section 173 provides only
that: "Five members of the Council may remove any-board member
for cause."
Council has codified the absence rule at Section 2-3-
1, B.R.C. 1981: Failure to attend three consecutive regularly
scheduled meetings without a leave approved by a majority of the
board is grounds for Council to remove a member.
To summarize, any unexcused period of absence in
excess of three regularly scheduled meetings can result, in
termination of membership on a board or commission.' However,
the Council retains the power to remove a board or commission
member for absences of a shorter period and for causes other
than absence from board or commission meetings.
00000
C:\DOCUments and Settings\beckll\LOCal Settings \Temp \XPGrpWise\x-2007 REVISED new B 5 C legal
resp memo.YAD. doc
TITLE 2 GOVERNMENT ORGANIZATION
Chapter 7 Code G~f Conduct'
Section:
2-7-X Purpose, Legislative Intent And Findings
2-7-2 Con$icts Of Interest Prohibited
2-7-3 Use Of Public Office Or Confidential Information For Financial Gain
2-7-4 Duty To Maintain The Confidentiality Of Privileged Information
2-7-5 Gifts Ta Officials And Employees
2-7-6 Prior Employment, Outside Employment, And Subsequent Employment
2-7-7 Employment Of Relatives
2-7-8 Representing Others Before The City Prohibited
2-7-9 . Appearances Of Impropriety Discouraged
2-7-10 Disclosure And Recusal Procedure
2-7-11 Enforcement
2-7-12 Sanctions-And Remedies For Violation
2-7-13 Advisory Opinions And Outside Counsel Appointment
2-7-14 Exemptions From Chapter
2-7-15 Definitions
2-7-1 Purpose, Legislative Intent And Findings.
(a) Purpose: The purpose of this chapter is to protect the integrity of city government by:
(1) Defining and forbidding certain. eonfiicts of interest that if left unchecked tend to
compromise the ability of elected and appointed public officials ,and public employees to
perform their duties without improper financial influence.
(2) Refining and discouraging certain actions that may create an appearance of impropriety
that undermines public trust in the accountability and loyalty of elected and appointed
public officials and employees.
(3) Protecting the integrity of city government by providing standards of conduct and
guidelines for elected and appointed public officials and public employees to follow when
their private interests as residents conflict with their public duties.
(4) Fostering public trust by defining standards of honest government and prohibiting the
use of public office far private gain.
(b) Legislative Intent: It is the intent of the city council to:
(1) Prohibit public officials and public employees from acting on any matter in which he or
she may have a conflict of interest.
(2) Establish aspirational guidelines to encourage public officials and public employees to
avoid any appearance of impropriety.
(3) Require adherence to any provision of state or federal law that imposes a higher
standard of conduct than this chapter.
'Adopted by Ordinance No. 4677. Amended by Ordinance Nos. 5396, 7288. Derived from Ordinance No. 3792. Repealed and
reenacted by Ordinance No, 7442.
City of Boulder
2-9-1 2-7-5
(c) FindinES: The city council finds and'determines'tliat this chapter is necessary to protect the
public health, safety, and welfare of the residents of Boulder.
2-7-2 Con.$icts Of Interest Prohibited.
(a) Conflicts Prohibited: No public official or public'employee shall make or participate in the
making of any official action in which he or she knows>or should have known that he or she
would have a conflict of interest.
(b) Disclosure Required; Each public official or public employee shall disclose any conflict of
interest and disqualify'him+oi herself ~fro¢i' participating'i'n~the xelevarit action as provided in
section 2-7-10; "Disclosure.And Recusal Procedure," B.R:C: '1981. "
f''
2-7-3 i7se Of Public Office Or Confidential Inf®rimat~i'a~ 'Forc JE'inaraial Gaia.
(a) Use Of Position For Gain Prohibited: No city'council~inember;`employea;'or~~appointee to a
city board, commission, task'force~'or~similar'body shall •ii s}his or her~piililic office or position
£or financial gain.
(b) Use Of Confidential Information For Financial Gain Prohibited; No city council member,
employee, or appointee to a city hoard, commission, task force or similar body shall use or
disclose confidential information obtained as .a result of holding hrs or her. public office or
position, to obtain financial gain, whether~forpezsonal+gain; gain+for^,his'or-iker'~Telative gain
of any property or entity in which the official or employee has a substantial interest; or gain
far any ~•person'+or. for'any entiby'wvth'whom~th'e official'or employee is ri'egotiating for or has
any arrangement concerning prospective employment.
ly ¢Pi.' .1~ ~1a,~;l, ls~~ .f
31:¢: rtl.^, t ..Sys s;~n.~,
i ;:e v lY.~,. •;~fr§f if 'ly~'S"?' itii~tM S'.~'r~~4, :3i 1. ,14: i,i'+%.-"'t'•
2,7-4 Duty To Maintain The Cosifideritiahty~'Of Privileged 'Iriforination'7`"
(a) Duty Of A Member=OfGiby Council; Board, Commission; Task Force'Or Similar'Body: No city
feo`unci2"~emb'er°+or=appDm'tee'~to a'city''boar3'°+commission;-'tas7f~~foree or~'simila'r body shall
disclose privileged or confidential information without a piible`iiiajority''itote granting the
permission of the council or similar body that holds the privilege. The sanction for a member
of the city council; ~board;'commissron,'task force or similar body shall be censure of the body,
reached" by `a'majoiity tote off'{tlie ~boily, not <iiiCluding"the roemiier~dharged with'disclosing
such confidential information'. ~ '
(6) ' Duty''Of'PA'Citv'Emriloyee: No-eity employe'e~shall disoloee pridilegedror eorifidentia'1 informa-
tion, obtained as a result of holding his or her public office' o'r position; °iiriles's the 'employee
has first received approval by the' city manager acting upon the advice of the city attorney.
2-7-5 Gifts To "Officials And Emplogees.
(a) Gifts Prohibited: No city council member or appointee to a city board, commission, task force
or siiuilar body`, or city employee, or relative of 'such' employee or off?cial shall accept
anything of value including, without limitation, a gift, a factor, or a promise of future employ-
ment if:
(1) The official or employee 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.
City of Boulder
2-7-5 2-~-6
(b) Exceptions And Items Not Considered Gifts: The following shall not be considered gifts for
purposes of this section, and it shall not be a violation of this chapter for a person to accept
the same:
(1) Campaign contributions as permitted by law;
(2) An unsolicited, occasional non-pecuniary gift of a maximum amount of $50.00 or less in
value. The maximum amount will be adjusted on January 1, 2006, and annually thereafter to
reflect changes in the United States Bureau of Labor Statistics Consumer Price Index for the
Denver-Boulder Consolidated Metropolitan Statistical Area for all Urban Consumers, All
Goods, or its successor index;
(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 convention, 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 are similarly available to all employees of the city or to the general public
on'the same terms and conditions; and
(7) A single unsolicited ticket given to a city council member and valued at not in excess of
$150.00 to attend events open to the public on behalf of the city, such as awards dinners,
nonprofit organization banquets and seminars, provided that:
~ (A) The ticket is offered only to the council member and has no resale value; and
(B) The ticket is not offered by a commercial vendor who sells or wishes to sell services
or products to the city; and
(C) The ticket is not for a sporting event:
2-7-6 Prior Employment, Outside Employment, And Subsequent Employment.
(a) Prior Employment: No person shall be disqualified from service with the city as an official or
employee solely because of his or her prior employment. Officials and employees shall not
take official action with respect to their former employers far a period of six months from the
date of termination of the prior employment.
(b) Disclosure Of Employment And Other Business Activities: All officials and employees, other
than elected officials, shall report existing or proposed outside employment or other outside
business interests that may .affect their responsibilities'to the city in writing to their
appointing authorities prior to being appointed or hired. After being appointed or hired, all
such people shall report any changes of employment or changes to outside business interests
that may affect the person's responsibilities to the city, within thirty days after accepting the
same. An employee that has received permission from the city manager may engage in
outside employment or outside business interests.
(c) Disclosure By City Council Members: Members of the city council shall report any change in
their employment status that could give rise to a conflict of interest under this chapter.
July 2D07
Cite of Boulder
2-7-6 2-7-8
(d) Activities That Occur After 'Termination Of Emiiloyment Or :Office: No former offioial or
employee shall seek or obtain employment concerning matters upon which ha or she took
official action during his or her service with the-city for six months following termination of
office ar employment. This provision may be waived by the city eovncil or the city manager.
,
(e) Participation Of Former Officials Or Employees: No former official or employee shall appear
before; or participate in', a city board; commission; task force or similar body on which he or
she'ivas 'a'member`or served directly as an employee concerning-any matter or on which he or
she took official action during his or her service with th'e city for Ewelve months 'following
termination of office or employment. Tliis'prohbitiori may be'waived by'the city council by
appointment or vote. This prohibition shall not apply to persons who` appear before the city
in their capacity as an elected official fallowing termination of their office or employment
with the city. -
(f) Participation In Liti¢ation After Termination: No former official shall engage in any action
or litigation in which the city is involved on behalf of any other person or entity, if the action
oi'lrtigatioii involves a'inatter upon vi+hich"tlie person took offi61a1'~action duffing his or her
s'ervice'vvith the'city for'twelde months following termination of'seivice with tHe'city. '
r,
2-7-7 Employment Of Relatives.
(a7 No official or employee shall appoint, hire, or advbeate the appointment or'hiring by the city
any person who is his or her relative. In the event that an employee is concerned that the
,
employee's decision to app'diit, hire''or a'dvoca'te the"appomtment of~"'hiring by the city a
p p y y q p' ,y y yg , se an appearance ofwiolatmg this section., the
emslo eehma tree uestlthat'tizelcit~ mane eru'make'euch'd'ecisiori°on th`e`~enmployee's behalf.
Council-appointed officers may request the city council to make such an, appointment or
hirmg'decieion on'th`e~r Uelal`f. ' ` '.?n. irr.:.-:~ : ; .
(b)' The ci y may enter' into"transactions' with' companies; 'corporations.' or' other business
organizations that employ a relative of a city official or employee, pi0vided't$at
(1) The official or employee does not participate in the' decision making that leads to hiring
the company, corporation, or other business organization that employs his or her relative; or
(2) The 'biisineas" organizatio'n' is apublicly-traded cor'poration` tkat provides its services or
products to the city on nondiscriminatory terms justified by the market facts and circum-
stances of each transaction; ion '
(8) The company, corporation, or businesa'organization.has been doing business vrith the city
for at leaet one year prior to the date the city official's or e'mployee's relative became
employed by the company, corporation or other business organization, and the city official's
or,en~ployee's relative is not directly employed ,upon matters, involving the city- and does not
have his or her compensation tied iri any manner to the`euccess of'~,he company, 'corporation,
or other business organization, omits ability to obtain"'business or earn compensation from
the city.
2-7-8 Representing Others Sefore The City'Prohib'ited.
(a) City Council Members Barred From Representin¢ Others: No city council member shall
appear on behalf of himself or 'herself, or another person,'befbre the city council or any city
board, commission, task force or similar body. A city council member may be affiliated with a
Firm appearing on behalf of or employed by another person concerning any transaction with
July 2007
City of Boulder
2.7.8 2-7-8
the city before such a body if the council member discloses the situation and recuses himself
or herself pursuant to section 2-7-10, "Disclosure And Recusal Procedure," B.R.C. 1981.
(b) Board Commission Or Task Force Members Barred From Representing Others: An appointee
to a city board, commission, task force or similar body may appear or be affiliated with a
firm appearing concerning any transaction with the city under the following circumstances:
(1) An appointee may appear on his or her own behalf before the body of which he or she is a
member to represent his or her personal interests, if the appointee discloses the situation
and recuses himself or herself pursuant to section 2-7-10, "Disclosure And Recusal Proce-
dure," B.R.C. 1981, ar before the city council;
(2) An appointee may appear on behalf of another person before any city body except the city
council or the body of which the appointee is a member;
(3) A firm with which an appointee is affiliated may not appear on behalf of or be employed
by another person concerning any transaction before the body of which the appointee is a
member unless the appointee discloses the situation and recuses himself or herself pursuant
to section 2-7-10, "Disclosure And Recusal Procedure," B.R.C. 1981.
(c) City Employees Barred From Representing Others: No city employee shall appear on behalf
of or be employed by another person concerning any transaction with'the city or before the
city council or any city board, commission, task force or similar body. An employee may
appear before such a body on his or her own behalf or on behalf of such employee's spouse,
parent, or child. Nothing in this chapter shall be deemed to prohibit the city manager from
establishing additional policies and regulations to prevent conflicts of interest between city
employees and the city.
j (d) City Council Members And Municipal Court: No city council member who is an attorney shall
appear on behalf of or be employed by anothei person or be affiliated with a firm appearing
on behalf of or employed by another person concerning any matter before the municipal
court.
(e) City Employees And Municipal Court: No city employee who is an attorney shall appear on
behalf of or be employed by another person or be affiliated with a firm that appears on behalf
of or is employed by another person concerning any matter before the municipal court. A
pan-attorney employee may appear before the municipal court on his or her own behalf, and
an employee other than a municipal court judge may appear on behalf of such employee's
spouse, parent, or child to the extent otherwise allowed by law. This authority is intended to
allow employees to assist family members in matters before the municipal court to the extent
permitted by law but not to promote the unauthorized practice of law.
(f) Board Commission Or Task Force Member And Municipal Court: An appointee to a city
'board, commission, task farce or similar body may appear before the municipal court and
may be affiliated with a firm appearing before the municipal court.
(g) Consent To Sue: No city council member or appointee to any city board, commission, task
force or similar body shall be a party or by himself or herself or as an affiliate of a firm
appear on behalf of a party in a civil law suit in which the city is an adverse party, unless
the member or appointee first obtains the consent of the city council.
Ordinance No. 7517 (2007).
July 2007
City of Boulder
2-7-9 2-7-10
2-7.9 Appearances 'Of Tmprop'rie"ty Discouraged.-
(a) These guidelines are intended to establish ethical goals and principles to help city council
members,, employees, and appointees to a city board; commission,-task force or similar body
'''to detsr'niine if their"acfions`may`'cadse'an appearaxice"of ixxiprdp'riety'that'wih undermine
the'pu}jlic's trust in local government,
(b) 'Violations of 'this section shall'not constitute a violation of this .chapter. Compliance with
this section will not constitute a defense for violation of another subsection or section of this
chapter.
(c) A city council member, employee, or appointee to a city board, commission, task force or
'similar body' w1~o' determines that his or her actions may cause an appearance of impropriety
should consider,.but is not required to, 'disclose and recu'se as prescribed'by eeotion 2-7-10,
"Disclosure And Recusal Procedure," B.R.C, 1981, in the following circumstances:
(1)"Tf the person is an employee of a state or federal government'entity-with asubstantial
mi;erest 3n~any traii'sactiori bv'ith the'ci'~• ' I~+.' ,=srf.
. ~P•, 'ilia. - ~ -
(2) If the person has a close friend with a substantial interest in any transaction with the
city, and-''the co'nncil m~inber, appointee, or+employee~'behevesl~khat;ith'e 'friendship would
prevent such person from acting impartiaAy with regard to the particular transaction; '
d i ~
. ,
(3) If the person has' an interest zn any transaction' with -the city bhat is personal or private
iii•natiire that woul'd' cause'a`i"easoiia};le per'son`in the°communi'ty`to question rthe'objectivity
of the' city council' memb'e'r,' employee; `oz' appointee to' a city board;'or commission;
(4) If the person is called upon to act in aquasi-judicial capacity in a decision regarding any
of "thesitiiations descn}?e"d in paragraphs (c)(1);S.(4)(2);,andt(o)(3)~ofa'hi~ s'ea6ion,~onf''' _
.'r?a ,..;~,i',. {I, e 5.. t~ .n.{~.% , t..~.; e'^ asv,,.~~.}~y. .,..r ,+ial'r , ~y.'~f nr e.
(5') '''If the person' `owns' o`r 'leases real prbperty'dvithiri si$ hundred°feet 'froni 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 official notice of aquasi judicial action of the city.
Ordirian'ce No. 7453 (2006). '
2-7-YO"" Discldsiire'And R,ecusal:Procedure
(a) Disclosure And ReAusal: No person with a con"flict of interest pursuant to subsection 2-7-2(a),
B.R.C. 1981, and no`perso$ described iri subsection 2-7=8(a) or (b), B:R1C.'19'81, shall+fail to
give written notice of the interest described in such subsection to the city council or .the city
'board, corxminission,'taslc forae`or'similai' body'of wfiiah the person is a member.-and the city
manager as soon'as reasonably possible after 'She''interest has arisen. However, no written
notice is required if such person discloses the``conflict of'interesf'on`the record of a public
meeting of the city council or the city board, commission, task- force or similar body of which
the person is a member, The interested council member, employee; ror' appointee shall
thereafter: '
(1) Refrain from voting upon or otherwise acting in an official capacity in such transaction;
(2) Physically absent himself or herself from the room in which a mafter related to such
transaction is being considered; and .
(3) 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.
auty zoov
City of Boulder
2-7-10 2-~-1z
(b) Recusal By The Council Board Commission Taslc Force Or Similar Body: The city council
and any city board, commission, taslc force or similar body may order recusal of one of its
members i~ that member has an obligation to do so under this chapter and has failed to do
so_ Such an order is valid if reached after majority vote of the members of the body, not
including the member whose recusal is sought, based on competent evidence.
2-7-11 Enforcement.
(a) Violations Prohibited: No person shall violate the requirements of this chapter.
(b) Complaints: A complaint alleging a violation of this chapter may be initiated by any of the
following:
(1) Complaints Initiated By The City Manager Or City Attorney: The city manager or city
attorney may initiate an investigation of any city employee, other than those directly
reporting to the city council, if facts are alleged to the city manager in any form that, if true,
would constitute a violation of the provisions of this chapter.
(2) Complaints Initiated By A Resident Or City Employee: A resident of the city or any city
employee may initiate an investigation of any city council member, employee, or appointee to
a city board, commission, task force or similar body by filing a sworn statement with the city
clerk setting forth facts which, if true, would constitute a violation of a provision of this
chapter.
(3) Complaints Initiated By The City Council: The city council may initiate an investigation
of any of its employees, and of any city council member or appointee to a city board,
commission, task force or similar body if facts are alleged to the council that, if true, would
constitute a violation of the provisions of this chapter:
i
(c) Investigation Of A Complaint: The city manager (for city employees) or the city council (for
all otheis) shall request the city attorney to conduct an investigation regarding a violation of
this chapter. The city attorney may request that the city council appoint special counsel to
investigate and prosecute any case that may cause the city attorney to have a conflict of
interest or may cause an appearance of impropriety under the provisions of this chapter, or
may violate any rule regarding professional responsibility.
(d) Response To All Complaints Required: A public official or body, or appointee thereof,
conducting an investigation pursuant to subsection (b) of this section shall prepare written
findings of fact and .conclusions of law in response to all complaints that shall be made
available to the public upon completion of the investigation. The response may include a
finding that the complaint has no merit, is frivolous, is groundless, or is brought for purposes
of harassment.
(e) Limitations: No action may be taken on any complaint that is $led later than twelve months
after discovery of the facts supporting an allegation that a violation of this chapter occurred.
2-7-72 Sanctions And Remedies For Violation.
(a) Transactions Voidable: If a transaction including but not limited to a contract or sale is
consummated contrary to the provisions of subsection 2-7-2(a), B.R.C. 1961, the city council
may void the transaction.
auiy zoos
- Citp of Bautd¢r
2-7-12 2-7-13
(b) 'Removal'Bv City'Councili The city council inay remove any of its employees and any member
of'a city board, commission, task force'or similar body that it finds has willfully violated any
p'roVisiori'dithis chapter. ,
(c) Sanction .Recommendations' If the' party conducting- an investigation 'pursuant' "to section
2-7-11, "Enforcement," B.R.C. 1981, finds that a city council member or.an appointee to a city
board, commission, task force or similar body,. or employee has violated any provision of this
chapter, the investigator shall provide its findings and recommendations'"fb the city manager
or city council, as appropriate, who or which in turn may,talce any of the following actions:
(1) In the case of a city council member, a motion of censure;
(2) In the case of a city employee, a motion for censure or a recommendation that the
employee's appointing authority consider disciplining or discharging the employee;
(3) Removal as provided in subsection (b) of this"sectiori; or
(4) As an alternative or in 'addition'to the'sancfiob unposed herein, the pity council may
resolve that any person or entity causing, inducing, or soliciting a public official or public
employee to`violate this chapter may;not be.invdlved many transaatxon.with'.the~city, includ-
iiig""but not'I'imrted'to the awa"rd of any city contract, grant;'loan or'any other bhing of value
for a period"of twelve months' or that"any such'oontract~gran"t, loan or thing of value be
£'ermrna'ted repaid'os farfeit'ed:""
(d) Civil Remedies;. Any Person affected by a city transaction may commence a civil action in the
Distrrc"t Court m and'for the `County'of Boulder for equitable relief to enforce the provisions
'of this chapter upo'n''a shovG'ing'of W'llfu°1 violation of 'any ,provision of~this ckap'ter, Before
filing suc3i`'an action, the person sli'all peseiit the claim to 'the city aftorney fo'investigate in
accordance with subsection 2-.7 11(c),~'~`B R C:` 1981 The'"city atto'rfiey or•'+appornte'd'~special
council shall have sixty, days to act thereon, No civil action in district court pursuant to this
subsection :may be commenced later'than bweive' moiitls 'after ?a"violation,7of~ this 'chapter is
alleged'to have occurred "
(e) Cri'riunal 'Shnctions ThB city' attorney,-`or'special' counsel.authonzed to 'a`ct 'on'behalf of the
city' attorney, acting on b'ehalf'of the .people of'tthe crty,°may prosecute "any vielation of this
chapter in municipal court in the saxne''mannerthat othef•numcipal~offenses'are prosecuted.
(f) ,Defense Itl5ha11 be a defense to any'ch'arge ofa"vrolatron'jof~thrs'chapter,if the city council
member; "employee, or appointee tq' a city board, commission; tas7c''force or similar body
obtazne3 an„advisory opinion pursuant to section 2 7 I3~ "Advisory Opinions ,And Outside
Counsel .Appointment," B R.C."'•1981; aril was acting'ri''aecordanc'e' with''the advice provided
thereby.'
2-7-13 Advisory Opinions Anil Outsii~e'Counsel Appointment.
(a) City Attorney To Provide Advisory Opinions: Any city council member, employee, or
appointee to a city board, commission, task force or similar body ;may request an advisory
opinion of the city attorney whenever a question arises as to the'applieability of this chapter
to a particular situation. The city attorney's advisory opinion may provide a specific defense
from prosecution as set forth in section 2-7-12, "Sanctions And Remedies For Violation,"
B.R.C. 1981.
(b) Anuointinent Of Outside Counsel: Tf a significant controversy arises under this chapter, the
city attorney may appoint a neutral outside counsel to assist in resolving the issue.
July 2007
city of Boulder
2-7-14 2-7-15
2-7-14 Exemptions From Chapter.
Nothing in this chapter shall be deemed to apply to a city employee or appointee to a city board,
commission, task force or similar body who appears before any such body to urge action on a
policy or iesue of a general civic nature or to the relationship between the city council, the city,
and a general improvement district. Participation in an improvement district shall not, in and of
itself, constitute a conflict of interest for a city council or improvement district advisory commit-
tee decision concerning the district.
2-7-15 Definitions.
"Affiliated with" means an employee, partner, agent, stockholder, joint venturer, or corporate
director of any business organization or a person who shares office space with such organization.
"Appear on behalf of means to act as a witness, advocate, or expert or otherwise to support or
oppose the position of another person.
"Conflict of interest" shall mean any situation in which a city council member, an appointee to 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 substantialinterestin 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 of&cial notice of a quasi judicial action from the city.
"Employment" means providing personal services as an employee or an independent contractor,
with or without consideration.
"Gift" means any payment, entertainment, subscription, forbearance, service, or any other thing
of value, rendering or deposit of money, which is transferred to a donee directly or in trust for his
or her benefit. "Gift" shall not include campaign contributions as permitted by law.
"Official action" means any legislative, administrative, or quasi-judicial act of any public official
or employee including, without limitation, participation in, or influence of, the decision-making
process leading up to a vote or final determination.
"Public employee" or "employee" means any person holding any paid position of employment with
the city, but shall not include consultants or contractors who have independent control over their
work product.
City of Boulder
2-7-16 2-7-Z5
"Public official" or "official" means any person holding a position with th:e city'*by eleotion and any
person holding a position as an appointee of the city council or the city manager serving on .any
city°boasd, oommisaion• task'forceror similar~bodyr" „
'4Relative!~r:.means'~any~peraori^melated~!to',+a"pntilic~official:+'or'an~employee by blood; marriage or
adoption, cthr6ugh the'seoond ~d'egree of consanguinity,including; without limitation, th'e'following:
spouse, .parentis; parents=in-law;+;Children; :children-in-law, brothers'ahd sisters,-'brothers and
sisters-in-law, grandparents, grandchildren, aunts, uncles, cousins; nephews, and nieces:- A
separation between spouses shall not be deemed to terminate relationships described above which
exist only because of marriage.
"Substantial interest" means a situation, including, without limitation, a financial stake in the
outcome of a decision in which; considering: all of'the :circumstances,-would tend to influence the
decision~of^axeasonablepersonfaeed'withama~kingthe'samedecieion:'
"`t`ransacti'on" means a' contract of any kind; any sale or lease of any int®reAt inland; matarial,
supplies, or services; or any granting of a development right'any planning; zoning'%or'land use or
review process that may precede granting of a development right, license, permit, or application.
A transaction :does snot' includa any' decision`'which°i~ legislative =in `nature that"'affeots -the entiie
membership of a class or a significant segment of the-.oommunity in the ^same manner as the
affected official or employee.
4 yip„ S. F a,;3 ~ ~ r..^,.;
i
- - i ~ ~ L. -
City of Boulder
CONFLICT OF INTEREST REPORT
PREPARED FOR
THE CITY COUNCIL
OF BOULDER, COLORADO
E^1 DECEMBER,-2007
PREPARED BY:
STEPBEN J. ROY
CITY ATTORNEY
CITY OF FORT COLLINS, CO
300 LAPORTE AVENUE
FORT COLLAVS, CO 80526
(970) 221-6520
SROY@FCGOV:COM
TABLE OF CONTENTS
Introduction ..................................................................1
i
i
Allegations Contained in the Complaint . . . . 1
d
Description of Investigation . . . 2 i
i
Relevant CadejProvisions ~ .
~
Analysis and Discussion . . . 7
1. Sequence of Events . . . 7
2. Application of the Code Provisions 9
3. Existence and Consequences,of aConflict of Interest 9 '
k~ $,t~. ,fcaa,. t.~~~.q
1
4. Adequacy of Mr. Sopher's Recusal from Relevant Planning Boazd Actions , 10
5. Appearances of Mr.Vospex: ..:......................................10
i,
6. Whether Mr. Sopher's AppeararAges Beforethe Council and the Community Review
Panel Violated Section 2-7-2(a) . . 11
7. Whether Mr. Sopher's Appearances'Before
the Council andthe Community Review ;
Panel Violated Section 2 7='($)(2)' ::4d 12 '
8. Whether Mr. Sopher Willfiilly Violated the Code of Conduct 12
Summary of Issues, Findings of Fact, Conclusions and Recommendations 13 -
Additional Recommendations ...................................................15
i
INTRODUCTION
On October 16, 2007, acting pursuant to Section 2-7-11 of the Boulder Revised Code (the "Code"),
the Boulder City Council (the "Council") directed the Boulder City Attorney's Office (the "City
Attorney") to obtain the assistance of outside counsel to inifiate an investigafion of a complaint filed
with the Boulder City Clerk's Office on October 8, 2007, by several residents ofthe City of Boulder
(the "Complaint"), alleging that Boulder Planning Board member Adrian Sopher violated vazious
provisions of Title 2, Chapter 7 of the Code, entitled the Code of Conduct. As City Attorney for the
City of Fort Collins, I agreed to assist in the investigation of the Complaint, pursuant to the
provisions of an intergovernmental agreement betweenthe Cities of Fart Collins and Boulder dated
September 17, 1997.
ALLEGATIONS CONTAINED IN THE COMPLAINT
The Complaint alleges that Mr. Sopher, a Boulder azchitect who was appointed to the Planning
Board in 2005, willfully violated the conflict of interest provisions of the .Code of Conduct by:
(a) addressing the Council at its meetings on March 7, 2006; September 19, 2006; and
September 1:8, 2007;. on behalf of Wonderland Hill Development Company ("Wonderland Hill")
with regard to the Washington Village Project (the "Project") which involves the proposed sale and
redevelopment of a Historic school building site {the "Property") owned by-the Boulder Valley
School District (the"School District").and leasedbythe City ofBoulder (the "City"),which Property
is, according to a memorandum.of understanding between the School District and the .City, to be
conveyed forredevelopmentpurposes to aprivate party selected through acompetitive process, with
the understanding.that theredevelopment proposal must fast be approvedthroughthe City's regulaz
land use approval process;
(b) failing to recuse himself from a Planning Boazd meeting on 3une 15, 2006, at which-
the Project was discussed; and
(c) makinganappearancev~ithregazdtotheProjectbeforea"CommunityReviewPanel"
on July 19, 2006, which panel had been established and appointed by the City Manager to review
proposals for the Project and to make recommendations to the Council regarding those proposals.
~ The original complaint alleged that Mr. Sopher improperly addressed the Counci] with regard to
the Project on only two occasions. Mr. Rubin supplemented the Complaint when I met with him on December 6,
2007, by providing me with a partial transcript of remarks addressed by Mr. Sopher to the Council at its meeting on
March 7, 2006. Thus, the Complaint, as supplemented, now alleges three such violations.
Boulder Report 3~ 1
The Complaint also expresses "additional concerns" as to:
4.
(a) whether Mr. Sopher failed to properly recuse himself from meetings of the.Planning
Boardaon 3uly 19, 2007, and.September 13, 2007, at which=the Project .wasndsaussed„so .that the
appearance before the .Planning Boaxd,on those dates by one, of IvIr.,Sopher's associates in.his
azchitectural: firm, Stephen ~Cosper, violated the Gode.of.Conduet;
,(b) .;:.wheth8~:2W1r Sopher engaged•;in any other:improper contact. or•discussions?with any: e
current or pastmembers of the Paanning $oazd, the .City Council, or the Conuriunity Review Panel;
i
(c) whethet Mr, Sopher received an advisory gpinion from the. Crty,Attorney.as to the
applicability of the Code of Conduct to this particular situation.
DESCRIPTION OF INVESTZOAT,ION .
On -October 24, 2007;,.I„was notified that~tl~e ,CaunoiX~had authonzed~this,amuest~gation~and:,had , 1
,
furEher,au~lionzed the,~C'}ty .Attorney to obtaanS;tkAe,ussistance ofrputstde;counsal;~to conduot~the..
investigation. On November 15, 2007, I received a letter from the City Attorney providing certain
background, information seque5ticig a fuial, r, p, rt,on my fipdings;as re ured.b Seoton 2-7-:11 d
r. , t ~ to in~f ~ Ri:.,..' ~ ~ ~ q ~4,-:.. J A )
of the Code,:and specifically;requasUng~a,fmdmg.as:to~whather;anyvrolations oftheCode,,were
willful yiolations~and whether,,ia,~eferral~,£gn~.cnmanal„pxgseauhon~as wazmauted a, The folloy,~ing
~ y.,i l~ I pa r lF' r 1 L' r 0 ? r .I r, r
'ti _ materrals werexncludedwrth,the.lettar, ~ , , ' ~ ,
yy
r ~)i~ a nr C~%~1 f4,Y isb,~, rr. I~•ti .o. ,t~ ~ ~ i:~ti~+V11 ,.Y ,?t=,.~ ~ v~.;~ ~ i '.r ,
A list.ofpersons,.and contact informatiop that.mzght be useful in investrgating the
. - . Complaint, r ~ spit i,:' . ~ ',F+ , , ~Y e. ~~t+ n- e~{~~i • s
• A copy~of the' Code of Conduct;, ~
• A copy of the Complaint;
• A summary of the Complaint in table format that correlates various documents
relevantto.theallegations.gf:the:Complarnt,, _ ;
A chronology of the Project (and background events) that gave rise to,the Complaint;
and
• . A,tabbed, set of
other documents and reeords:that.the City Attorney.thought might be
useful,.
Since the facts related to this matter are fairly complicated, the materials provided were extremely
helpful, as was the assistance of Paralegal Rosemary Gearheart and other members of city staff in -
arranging interviews and providing supplemental information: After reviewing the materials, T
interviewed the following persons in order to gain a better understanding of the situation, alI of
whom were very cooperative:
1. As-many complainants as were available;on the date I interviewed the complainants;
these were Fred Rubin, IVIiklci Rainey, Christianna I-~altemann and Stari Dyed.
Boulder Report d• 2
2. Acting City Attorney Jerry Gordon.
3. Acting Deputy City Attorney David Gehr.
4. Former City Attomey Ariel Calonne.
5. Planning Boazd member Adrian Sopher, against whom the Complaint was filed.
6. Stephen Vosper, a member of Mr. Sopher's architectural Earn.
7. Planning Board member Philip Stull.
S. Planning Boazd member Elise Jones.
9. Planning Director and Planning Board liaison Ruth McHeyser.
10. Planning Board secretary 7uliet Bonnell.
11. City Planner IKazl Guiler.
12. Policy Advisor Carl Castillo.
During and following the interviews, I was provided with- or obtained the following additional
documents:
1. A summary of comments:made with regard to the Project by members of the public
at two Council meetings held in 2006, showing that Adrian Sopher appeared and addressed the
Council with regard to the Project at both of these meetings. One of these meetings (a meeting on
September 19, 2006) was already mentioned in the Complaint, while the other(a meeting on Mazch
7, 2006) was not. These documents were provided to me by Mr. Rubin for the purpose of
supplementing the Complaint at the time that I interviewed him.
2. A list of Planning Boazd members and City staff assigned to the Planning Board.
3. Minutes of a Planning Board meeting on December 7, 2006; at which Mr. Sopher
recused himself from a discussion regazding the Project, together with the Planning Board agenda
item for this meeting.
4. A supplemental report provided by Laurel Hamilton, Senior Legal Administrative
Assistant, after she reviewed the tape of the June 15, 2006, Planning Board meeting, in which she
concludes that Mr. Sopher did recuse himself from the Board's discussion of the Project, a fact not
reflected in the minutes of that Board meeting. Ms. Hamilton's review of the tape recording was
undertaken at my request.
Boulder Report ~ 3
S: Copies of a-mail correspondence between Mt:'Gordon and`Mr. Rubin regarding this
1 ,l matter, dated October 1, 2007, through December 6, 2007,
-
6. A copy of the memorandum of understanding between the City and the School '
District, dated Mazch 8, 2005, and related documents.
7: Minutes of the Mazch 7, 2006, City Council meeting.
8. Copies oftrainingmaterialsprovidedtonewPlanningBoardmembersatorientation I
sessions held on Apri112,.2005, and March 30, 2007:
4. A copy of Wonderland Hill's response to the City's Request for Qualifications far
redevelopment of the Property, which response is dated'Deoember•16, "2005; ;j
i
- i
RELEVANT CODE PROVISIONS
i
The provisions of the Code of Conduct that I believe are most relevant to this situation are the
following: ~ r . i
i
2-7-1 Purpose, Legislative Intent and Findings.
~ m'P P~ ' ~ P ` . p e -infegmty 'of arty ,
~ overnment b e T'he' ose of ~dhis cha ter is to' rotect :th' ` ~
g Y• I
- i
' ' ~(1) "Definuig~'and forbidding certain conflicts of interest"that °ifleft '
'urichecked'~fend to ooinpromise f$e~abiltiy``of eleoted•and appoirite3
public officials and pub'hc employees to p
~ ` 'erformtheir~dufies'ryvlfliarit° '
unpr'oper financial influence
-
--r"r7~~~ .
.
(2) Defining and dis6,ouraging` certain acfions that may create`an
appearance of :impropriety -that undermines public. crust in the
accountability and'loyalty of eleoted and appointed public officials '
and employees.
"(3) Proteoting'the ni'tegrity ofeity goverrimerit:bypioviding standards of
conduct and guidelines for elected and appointed public offtcials'and
public employees to follow when their private interests as residents
corifliot with theii•~pu`6liadufies>
(4) Fosteringpublictrustbydefmingstandardsofhoriestgovemment'and
prohibiting'the use of
public-office'for•private gain. ;
I
13ouIder Report ~ 4
(b) Legislative Intent: It is the intent of the city council to:
(1) Prohibit public officials and public employees from acting on any
matter in which he or she may have a conflict of interest.
(2) Establish aspirational guidelines to encourage public officials and
public employees to avoid any appearance of impropriety.
(3) Require adherence to any provision of state or federal law that
imposes a higher standazd of conduct than this chapter.
(c) Findings: The city council fords and determines that this chapter is
necessaryto protectthe public health, safety, and welfare ofthe residents ofBoulder.
5ecfion 2-7,2 Conflicts of Interest Prohibited.
(a) ConflictsPrrohibited:Nopublicofficialorpublicemployeeshallmake
or participate in the making of any official action in which he or she knows or should
have known that he or she would have a conflict of interest.
(b) Disclosure Required: Each public official or public employee shall
disclose any conflict ofinterestand disqualify him orherselffromparticipating inthe
t,~_ relevant acfion as provided in Section 2-7-10, "Disclosure and Recusal Procedure,"
c B.R.C., 1981.
2-7-8 Representing Others Before The City Prohibited.
(b) Board, Commission Or Task Farce Members .Barred From
Representing Others: An appointee to a city boazd, commission,taskforce or similaz
body may appear or be affiliated with a firm appeazing conceming any transaction
with the city under the following circumstances:
(2) An appointee may appear on behalf of another person before.any city
body except the city council or the body of which the appointee is a
member;
(3) A firm with which an appointee is affiliated may not appeaz on behalf
of or be employed by another person concerning any transaction
before the body of which the appointee is a member unless the
appointee discloses the situation and recuses himself or herself
pursuant to Section 2-7-10, "Disclosure and Recusal Procedure,"
B.R.C. 1981.
Boulder Report ~ 5
- ~ Section 2-.7-YO Disclosure and ~Recdsal Procedure: '
+ q
y
"(a)' " Disclosure'AndRecusdl Noper~onwthaconflicfdfiriterestpursuant
to subsection 2=7-2(a); B:R~C. 1981, and no person described in subsection 2-7-8(a)
or (b),'B.R.C. 1981', shall fail to gi4e written notice of the interest described in such
subsecfion to the city council ~or the city'-boazd; commission, task force or similar
body of which the person is a member and the city manager as soon as reasonably
possible after'+tflerinterest~~has arisen`'However; rio written~'notice'is required if such
person, discloses'the?oonflict of interest on the record of a:public7rieeting of the city
council orthe city boazd, commission, task forceor similaz body ofwhichthe person
is a member: The'interested douncil member,:employee, or appointee shall thereafter:
i x
(1) Refrain from voting upon or otherwise acting m an official capacity
in such transaction; ~ ~~~"~,',.ri , "a` , ~ ~ k , '
'(2) ` ' Physically.absenthiiri'selforherselffrorrr'tfieroominwhichamatter
` - ' xelated`to ~sueh transaction is being conside
"red, 4and ' '
~ - ~ -
(3) Not discuss any matter related to such transaction with any other
'member;of the,counoil,;board, pommission,:task force, or similaz
bgdy~of,wludlirthepersonis:amemhex,
;f
_ Section 2-7-15 Definitions. , I
'Affiliated with" means an employ,.ee„partner, agent„stockholder.,,jgintventurer,>;or
corporate director of any business organization or a person who. shares office space
withsuch,organization.....
~ ?,Yst ~T+'E' il. f 1 a'=: i ~."i' ~.°i ~ r'i'd"
"Conflact of interest"shall mean anyaihiation in wlucl~~,alcity council member; an
appointee to a city$oard,commission, taskforce or similazbody, or a city employee; i
(a) Has a substantial interest.in,any~transaction,with;the city; I
=(b) Has erelative with a substantial"interes't in `any transaction with the
city; `
(c) Has a substanhal,interest as.an affiliate, of a., firm,with a substantial
mteres#'in any transaction~with the•city, ~ .
~r' ,a,'
(d) .Has a substantial interest as an,affiliate of alum appearing on behalf
of or employed by a:perspn,with~asubstantial •interest in anytransaation with the city;
(e) Is an officer of an organization thafhas taken an'offioial 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;
Boulder Report ~ G
(g) Is affiliated with a law, accounting, planning, or other professional
firm that has substanfial interest in any transaction with the city; or
(h) Is requiredto receive officialnotice of a quasi judicial action from the
city.
"Off cial action" means any legislative, administrative, or quasi judicial act of any
public official or employee including, without limitation, participation in, or
influence of, the decision-malting process leading up to a vote or final determination.
"Public o~cial" or "official" means any person holding a posifion with the city by
election and any person holding a position as an appointee of the city council or the
city manager serving on any city board, commission, task force or similar body.
"Substantial. interest" means a situation, including, -without limitation, a fmancial
stake in the outcome of a decision in which, considering all of the circumstances,
would tend to influence the. decision of a reasonable person faced with malting the
same decision.
"Transaction"means a contract of any kind; any sale or lease. of any interest in land,
material, supplies, or services; or any granting of a development right, any planning,
zoning or land use or review process that may precede granfing of a development
right, license, permit, or application.. A transaction does not include any decision
which is legislative in nature that affects the entire membership of a class or a
significant segment of the community in the same, manner as the affected off cial or
employee.
ANALYSIS Arm Discusslorl
1. SEQUENCE OF EVENTS
On March 8, 2006, the City and the School District renewed a memozandum of understanding
("MOU"} between them that established an arrangement wherebythe-City was given an opportunity
to lease with an option to purchase any school property that the School District had decided to
discontinue using for school-purposes and offer for sale. Pursuant to the MOU, the City leased the
Property from the District on September 1, 2005. On March 20, 2006, the City and the School
District amended the MOU so that the City, instead of purchasing the Property itself, could conduct
a request for qualifications and request for proposal process.("RFQ/RPP") to identify a third party
purchaser who would redevelop the Property in a manner that would preserve the historic values
associated with the Property. Under the amended MOU, the School District agreed to accept, as
purchaser of the Property, the party selected by the City in the RFQ/IZFP process as long as that
purchaser also met certain other requirements imposed by the School District. The School District
further agreed to allow the City to place restrictive covenants, intended to run with the land, on the
Boulder Report ~ 7
'Property to ensure fha# upon 'sale ~of the iProperC 'to 'the' purohas`er,.'~the Property would be
j~ redeveloped in a manner consistent with the proposal that the purchaser'had sribmitted to the City. -
Mr. Sopher is the majority shareholder in, and president of, the Boulder architectural firm of
Architecture, Incorporated: ("Architecture Inc."). He was appointed to the Planning Board in March,
2005, Inaate 2005, Architecture Inc, began to .w.ork with,Wonderland-Hill on a .proposal for the
possible redevelopment of;the Property,, When;the City:issued.a Request for Qualifications for the
ProjectmNnvember.of2005,Wonderlandl3ill:wasamongthose.thatresponded. ThaWanderland -
Hillresponse, dated December 16, 2005, identified Architecture, Inc. as part of the team that would
be working:on Wonderland Hill',5;proposal., ~On or.about Marcht3l, 2006; Arohitecture; ;Inc. began . .
to keep billable hours fof, its,Work on VJgnderland Hill.'s proposal. Tlie.:first rnvoice,for such work
wassubmitted:to Wonderland,HillnnApri1;:200b;:
The Project became the sdbjectof a;series ofineatings and. decisions.by.three;bodes,,,ofttie City -
the Community Review Panel, which Was;:to, assist the CounciLin adentifying.asuitable,purchaser
of the Property, the,PlannmgBoard,Which:was.toreview theaanduse;proposalssubmittedbythe -
prospectivepurchaser oftheProperty once thatpurchaser had been selected; andthe:Council, which
was involved in both the selection of the purchaser.and the review of the proposed land use for the
Property These two prgcesses .selection,gfthei~urchaser and review oftheland;use entailed a '
series of meetings of these three bodres co;nmencmg, on July..19; :2005, when the,Council..voted to '
lease the Property, and;extendmg t~irough .O.ctober 23, 2007,when.theCouncil adopted an ordinance j
reaomng a portion of
thg P,ro1?errtY ,~t~,,, ~ t,a?} s ~r;
~ - , „ , ;~r:~ Fr i ' l ~~a':.; el i;:. .f
......iii Mr. Sopher fyir~t agpetlrec~,abefore,theiQouncil,~owith regard to,the Project at its~mestingror{ March 7,
2006, at which the Council was.asked to consider approving the recommendation ofthe Community
ReviewPaneltoissuetheRFPfortheProject. Mr. SopherappeaxedasthearchitectforWoriderland
Hill and spoke hi support of Wonderland Hill's proposal for the Property.
On June 15, 2006, when the Planning Board held a public hearing on the Concept Plan for the
Wonderland Hill proposal, Mr. Sopher recused himself from the Board's deliberations (a fact that
does not appear in .the minutes of that meeting but was determined fr"oiii a review of fihe tape
recordrng, of the meeting) „He then spoke in favor of the Wonderland Hill proposal before the
Commumty Review Panel on July 19, 2006; and iater made two additional appearances on behalf
of Wonderland H111 before the Council for the Barrie purpose;, one on September'19, 2006, and
another, on 'September 1,8, 2007. During this period of Time, he recused himself .from three more
Planning $oa'rd drscussions regarding;the'Project; one on December 7, 2D06, one ori.Jnly 19; 2007
and~another~o''iiSepteiphex-13,'200.
No formal,; written agreement was executed betweesArohitecture; Inc."atid Wonderland Hill
regarding the Project until sometime after the'Coancil meeting on September 19, 2006, at whioh the
Coupeil vofed'to acbept the proposal thafihad beeri submitted by Wonderland Hill, refer"the proposal _
to the Planning Board'for srte review approval, and~refer Wonderland Hill to'the School District as
the preferred:puxchaserofttie Property.
Boulder Report ~ 8
2. APPLICATION OF THE CODE PROVISIONS
i
Under the Code of Conduct, an appointee to a City board or cormission has a conflict of interest
in a transaction with the City if he or she has a substantial interest in the transaction, or if a firm with
whom the appointee is afliIiated has a substantial interest in the transac*don, or if a person whom the
firm represents has a substantial interest in the transaction. A substantial interest essentially means
a financial stake in the outcome of a decision that would tend to influence a reasonable person in
making the decision.2
If an appointee knows or reasonably should have known that a conflict of
interest exists, then he or
she must refrain from participating in any official action of the City with regazd to the matter,
including any administrative or quasi judicial act of any person appointedby the City Council or City
Manager who serves on any board, commission, task force or similaz body of the City 3 In addition,
the appointee must disclose that interest in the manner prescribed by the Code of Conduct, refrain
from voting on or otherwise acting in an of&cial capacity with regard to the matter, absent
bim/herself from the room in which the matter is being considered and not discuss the matter with
other members of same body of which the appointee.is a member."
Whether or.not an appointee has a conflict of interest, the appointee is prohibited from appearing on
behalf of another person before the. Council or the body of which the appointee is a member s
3. EXISTENCE AND CONSEQUENCES OF A CONFLICT OF INTEREST
In applying these standards to the facts'in this case, it is my opinion that, as of Mazch 7, 2006, and
at all relevant times thereafter, Mr: Sopher, Architecture Inc. and Wonderland Hill all had a
"financial stake in the outcome" of the City's decisions regarding the Project which would "tend to
influence the decision of a reasonable person.."6 Therefore, Mr. Sopher had a conflict of interest in
all official actions ofthe City related to the Proj ect, including decisions and recommendations ofthe
Council, the Community Review Panel, and the Planning Board regarding the selection of the party
to whom the Property would be sold. and the review of the proposal for redeveloping the Property.
Under Section 2-7-2(a), Mr. Sopher was altogether prohibited from "participating" in any of those
decisions, whether in an official or unofficial capacity, since he lmew or should have known that the
conflict of interest existed. And, under Section 2-7:2(b), he was required to disclose that conflict
of interest as provided in Section 2-7-10 and refrain from participating in an official capacity in any
"relevant actions" of the Planning Board related to the Project.
z Secfion 2-7-15
s Section 2-7-2(a) and Section 2-7-15
a Section 2-7-2(b) and Section 2-7-] 0(a)
s Section 2-7-8(b)(2)
e Section 2-7-15
Boulder Report ~ 9
s'--. 4. ADEQUACY OF MR. SOPHER'. S RECUSAL FROIYI RELEVANT•PLANNINGBOARD ACTIONS
Section'2-7=10(a) requires persdns'who `have'a donflibt'of `inter'est to gtve'written'riotice ?of the
interrest to the'City Counoil or the City b'oatd; oommission, task forge of similar'body of which°the '
.per's'on rs a `member, as we'll`as `tlie 'City IvIanager; pi'ovi3ed; 'however, thdt no ~,vritten' notioe is
required:ifsuch:persohdisclosestheconflictofintereston'therecordofapublicmeetingofthebody ,
of'wluch the peison'is' a member:' As'noted'abov8,'the interested person'is'then required to xefrairi '
from voting upon or otherwise acting in an official capacity in such transaction, and'to'pfiysically -
absent himself or herself from the room .in which a matter related to such transaction is being
corisi3ere3~and to not'discuss the iriatter witli any other member'of theibody~of which the~parson is
The xiunutes'and tape recordrngs'of the Planning Boazd meeurtgs at which the~ProJect was dtscussed
show that I3Ii~"1Sopher°was recused-idurmg~all`aBoard~"iliscus`srons ~of'the Project, ~begnining~iwith:fli'e
Tune 15; 2046,'meetuig and conitinwngthroughthemeetings ofthe Board~anDecember
7, 2006; July
19, 2007, aiid'Septeiriber'1'3;"2007: 4vIr'':'Stull the vice=clatr`E'offhe'Board;recalls that atthe Anne"1~5
2006, meeting Mr. Sopher announceti'the need~to recuse"r"htmself and~le$ the'me~ting room;
and that
he did the same at the subsequentmeetings where the Proj ect was discussed, except fox the meeting
on September^1'3, 2007ffrom wlucli~he was~enfuely atisent since thePr`o~edtwasthe'only tteirl'on'
the agenda:
`'NIs Jones who was th'e b"liair of#he'Boarc~ du'ring~this'perio~ `of tune','was absent from'°'
-the meetings on June 15, 2006, and July 19, 2007; however, .her .recollection of Mr. Sopher's
handling of his conflict at the otherimeetings'~ia con§istent vi~ifh~Mr Stil's recollecfion
The record and recolleotton of Planning Board members aze not' enttrely clear as to ~i'hether IVIr: '
r re +ir
~f u~ i5 e - o Srt i!Y ~~a i.i;~l xi.
Soph'er specifically announced tle~~faetthat~lie°hac~~a~coiithct~ofinteres`t or~explaified fne nature'bf
that ~donfltct before the recused'htrnself from the Plazinmg Board meetings Nonetheless, I afn
' i ri .;l r i.4, i r i v, i }fp ° dRV.. er, ~ , h '
convinced, based uponmy'conve"rsattons wifh°all partres nivolv8d, thatfkose'preseri~ afthe Planning
Board meetings lvere''ful'1y aware`of AYIr ~Sopher's status as the'arcluteoffo'r the Wonderland -Hill''
proposaland#hatMr Sophersubstanttallycomphedwtlifherequirementsoi'tlus`Secton2=7-1"0(a)`
oftlieCode'of+Conduct. 'F:':' 'r ^z }r. .
5. PEARhNCE6~O~FIYIR: VOS~EB ~
:
Beoause I~Ir"Sopher properly recused'hiriself frorri~tliese ~Plaiuxing Board nreetirigs;'there'was'no'
improprietyin the.appearance of StephenVosper, NlrrSopher's associate; at the"July 19, 2007, aitd
September 13, 2007, meetings of the Board on behalf of Architecture, Inc. Section 7-8(b)(3)
expressly permits a firm with which an appointee is affiliated to appear before the body of which the
appointee is a member if the appointee has disclosed his or her conflict of interest and recused
himself pursuant to Section 2-7-10(a).
~ Sectian2-7-10(a)
Boulder Report ~ 10
- 6. WHETHER MR. SOPHER'S APPEARANCES BEFORE THE COUNCIL AND THE COMMUNITY
+ REVIEW PANEL VIOLATED SECTION 2-7-2(a)
Although Mr. Sopher properly recused himself from the foregoing Planning Board meetings, it is
my opinion .that he failed to fully satisfy his obligations under Section 2-7-2(a) because: (1) he
participated in Council meetings related to the Project, not only on March 7, 2006, as noted above,
but also on September 19, 2006, and again on September 18, 2007; and (2) he participated in the
Community Review Panel meeting on July 19, 2006, on behalf of Wonderland Hill's proposal for
the Project. These were "official actions" of the City related to the subject matter of Mr. Sopher's
conflict of interest that he was prohibited from participating in under the provisions of Section 2-7-
2(a).
In making this determination, it was necessary to construe the meaning of the following language
of Section 2-7-2(a):
"No public official or public employee shall make or participate inthe making of any
official acfion in which he or she knows or should have known that he or she would
have a conflict of interest."
The particular question presented by this provision in Mr. Sopher's situafion is whether, by
addressing the Coundil and the Commuuuty Review Panel-for the purpose of influencing their
decisions with regard to the Project,.he "participated" in those official actions.
- In my opinion, the prohitiitidn against "participating" in an official action does include addressing
the body charged with taking the official action, even when the public official or employee
addressing the body is doing so in an unofficial capacity, as was Mr. Sopher when he addressed the
Council and the Community Review Panel. To instead interpret the term "participate" as applying
only to those public officials or employees who actually make the decision would ignore the plain
language of the provision, which prohibits both malting the decision and otherwise participating in
the decision. Moreover, if"participating" in anoffcial actionwere the same as "making" the official
action, S ection 2-7-2(a) would add nothing to Section 2-7-2(b) and Section 2=7-10(a)(1), since those
provisions aheadyprohibit appointees who have a conflict of interest from taking "relevant action"
in an "official capacity."
This interpretation is also consistent with both the broad meaning of the word "participate" (to tape
part in something)e and with one of the stated purposes behind the enactment of the Code of
Conduct, i.e., avoiding any appearance of impropriety.9
s m
e~+ International Dictiona + o t1~e En Tish Lan ua e, 1646 3 Ed. 1986
Webster's Third N >7 f S % S ( )
s Section 2-7-1(a)(2) and (b)(2)
Boulder Report ~ 11
Cam, 7. WHETHER IVIR:`SOPHER'5APP~ARANGESBEFORE`THE~COUNCII,ANDTHECJOMIYTUNITY
_ ~ REVIEW-PANEL VIOLATED SECTION 2=7-8(Z)' `
Bven if Ms,.Sopher had not had a,confliotof iriterest:in the Project,;his appearances Before he
Council on behalf of Wonderland^Hill:al5owiolated'Section 2-7=8(b')(2), which categorically'
prohibits appointees from appeazing'before~the ~Gouncil on behalfrbf another person whether ormot
suoh persomhas a:conflict of interest. However,'Ivlr:"Sopher?s appeararices before'theCommunity
ReviewPAnelydid'notviol~te`S'ectitin2 7~8(b)(2)becausethaf~sectionorily~prohibits'app"ouifeesfrom
appearing•on:behalf.ofianothei°before the Council orthe body ofwhich-the appointee is amember,
which in this case is'the`Planriirig-Boazd
i
8. WxETHER 1VIR. SOPHER WILLFULLY'VIOL.4TGD,THE CODE OF CONDUCT
The Code of Conduct does not define the term "willfully." Therefore, it is necessary to look to other ~
definitions of the term in order to, detenrune whether Mr Sopher~tvillfullyt violated,the Code of
Conduct. Chapter 5; Tfle 1 of the'Code, pertauung to general offenses, slates as follows:
(b) "Ifnowingly" or "willfully" means, with respect to conduct or to a
circumstance described by a section ofthrs code or an ordmance definmg a vrolatlon '
that. a"person is "aware that such person's eoriduct a bf ~that+nature or that the`
'i5. y:~,yfiat~it ~ r e ilk fi,~; p a!, fl,+'S .tfa., ~i ii e ~ yt ;
circumstance exists . 4F'mphasis added j
This rs substantially rdeniacal to the c(,efimtion contarn
~ ed m Section 18 ]-5 6(1) of,the Colorado
CT]minal SltB~Ates. ~~'L~ ~•,a c~ h _u f±t~, '
V:.( ~i.5 1 ~.~KV t.. 1 )~..{t Y?u:'~:•:! ,i Y 1 n 1
It might fault' be said That Mr Sopher should have at;~ea~st c~uestroned whether lus.ap~eazances
~F~ nrof . ° 1~~ ~L,L %~)'fi f'~ a ~ xYld~~Y~ b I yAV. ~ b` i I NY~tVq 7yt ~I 1p'~: pit ~~VV baH't t V S, xi^.;
befotei;~t~bo,ci~esr~egarc~ingt~iePxoiectwouldcreateanappeazanceofrmpropnetymcgnsistentwtth
the intent of fhe Code of Conduct On A,pnl, 12, 20Q5, Mr Sopher attended a ne)v member
~ t ~M1f f" }1 P ° I Yk ~ ~i W ~ ~ N~ a t i l It
onentatron trazmng sesszgn that addressed, among other subjects, fhe Code of Conduct a copy of
S r ~ r n t {S ~ 1 ~.tl. h^"*hxs [ ~ ~ P.c „qx ~r}.. ,i~i~ {1 'rpn i~ ~ a~ Y ~ ^ 1Iy ' t ~kr ~ t )4;'- i
which was dis~nhilted to a panc~r~ants mthe session TherCgy'de of Conduct clearly unposes„ i
obligatrori~ that go beygnd recusal, from an appointee's owri board or eommissrgn, and It seems,
reasonable to expect {ha{t appfomtees haviag.a'oonflict of interest wou'Id familiarize: the"iriselves with` `
the relevantprovisionsgoverningsuchmatters,especiallywhenthosematerials'ha've°beenpiovided
to them.
However, the fact thaf'1VIr. Sop~kerhad been'provxded -with a copy of the Code of Conduct, had, an
opportunity to review it, and subsequently failed to fully abide by its provisions does not, in itself, _
mean that he conunitted a willful violation. The question is whether he committed the violations
lrnowing-that they were violations: Ismy opinion, he did not. T reached this conclusion for the
following reasons.
First, Mr, Sopher contends that, after recognizing his conflict of interest in this matter, he simply
misunderstood his obligations under the Code of Conduct and thought thathe fully satisfied those
obligations by disclosinghis conflict ontherecord of each Planning Boazd meeting where the Project
i
Boulder Report ~ 12
was discussed. This is consistent with the statement he made when he addressed the Council at its
meefing on Septembex 18, 2007: "I amnot speaking as amember ofthe Plamring Board this evening,
and I have recused myself on the Planning Board from all .discussions regarding this item."
Second, it appears that Mr. 5opher did contact the City Attorney's Office with regard to this conflict
of interest situation as well as an earlier one. His account of those conversations seems credible in
light of my interviews with the attorneys involved in those conversations and with Ms. McHeyser.
It appeazs that Mr. Sopher's conversations with the City Attorney's Office focused on detenuining
whether a conflict of interest existed and whether recusal from Planning. Board deliberations was
necessary. None of the parties to these conversations recall specifically discussing the fact that
having a conflict also entails other obligations on the part of appointees. This is consistent with a
statement made to me by Ms. McHeyser, the current Planning Director, that recusal from Plaruung
Boazd discussions is typically the focus of conflict of interest discussions among Planning Board
members since that is generally the extent of anyinvolvement that'Planning Board members have
withregardtolanduseproposalsthatazepresentedtotheCityforreview. Allofthislendscredence
to Mr. Sopher's contention that he was unawaze of the prohibition against addressing the Council
and the Community Review Panel.
Third; Mr. Sopher was apparently not alone in his perception that the Code of Conduct only required
that he recuse himself from Planning Boazd deliberations regazding the Project. To my knowledge,
no one involved in the matter questioned the propriety of Mr. Sopher's various appeazances before
the Council or the Community Review Panel until theviolations were brought to light by Mr. Rubin.
Faurth, I neither heazd during the interviews I conducted nor saw in my review of the relevant
documentation any evidence that Mr. Sopher did actuallyunderstandthat his appeazances'b~forethe
Council and the Community Review Panel violated the Code of Conduct and that his obligation in
the event of a conflict of interest went beyond recusing himselffrom Planning Boazd discussions of
the subject matter ofhis conflict. Inmy opinion,therefore, Mr. Sopher's violations ofthe Code were
not willful violations.
SUMMARY OF ISSUES, FINDINGS OF FACT, CONCLUSIONS AND
RECOMIvIENDATIONS
1, Whether Mr. Sopher's appearances before the City Council on behalf of Wonderland Hill
violated the Code of Conduct.
Response: Yes. Such appearances violated both Section 2-7-2 of the Code of
Conduct, which prohibits an appointee who has a conflict of interest from
participating in any "official action" of the CiTy in which he or she has a conflict, and
Section 2-7-8(b)(2), which allows a board member to appear before any City body
except the City Council or the body of which the appointee is a member.
Boulder Report d- 13
i
2. Wheflier Mr. Sopher failed to properly recuse'lvmself`fromthe: June 15,'2006,'Planriirig`' ` i
the Pro'ect',. ,
f.. Board discussion of ~ '
.,ur ri ~ ,,.,t ukp
Response: No. Although the minutes of this meeting show that Mr. Sopher was '
present at the meeting and do not indicate that 'he recused himself, further
irivestigafion indicated that he did so in the manner required by Section 2-7=10(a) of
' fhe''Code ofCoriduct;•'
3. " Whetlier Mr Sopher's appearances before the Communitq review Panel with regardto'the '
Project violated the Code of Condu`bt ' • - '
Response Yes HoweverTthean'swertothisquestaoriwouldnof,.uimyopiriton, '
be immediately apparent from areview ofthe Code of Conduct because Sectron 2'7
. { 1, S.ibt}J.W ,h, 1.0. [h.._kt.pSA ~ra`<It It wik~ nlrPlu. l=n~~yv~ ~Sb 5 ~ill.l : -<,~7:,i..;rvY
8(b)(2)` would permtt sucf an appearance a"lisent a'conflict of 4riterest, aril Elie "
' relationship between Sections 2 7-2 and Secton`2 7=8(l)(Z)'and (3) as `soriiewhat r
•1.(..' ,t .r,,, ;~1:'.:•, a s~', ,
unclear. . se,~ qtr . ,11
4, Whether Mr. So her's violations of the Code of Conduct were willful.
_ r,. Y.t;l}'n r p 15N; ,.1VI: I , ~ 1 1 ';'},'1;3 r 1 +.I f~ Plea. °=:.i, .Il. Y~,:r{'i Nfipi - 1
I
~r ~ r -ti i 4 r ~ f%1 ,
Response No I have found no'evidence' of a vvillfifl violation However I ,
(r LS+nY 1 4 e°.lr Yri ~Md + ~ w ..iii i In',"'+r ~tf lr~er4x rW' f6F~~, C3 .y 1'+
' believe tha't'MI'.'Sopher should have more fully explored the provisions oi'the Code
3 r , - , 1-- -
of Coriduo't `in determining how .to' properly'liandle `his" conflic£ `of mferest `ni tins'
r._.~~ matter: I
rv~7:'? ~~'~i<N 1 ~Y1t~ 1 'h3~ ~ 4 y
r Fi;{ - v.' e a r V ~'d~id - ' t, rta0 JSi f1 +F}'7, v nr.~, no", t q ' ~'r, -
5 Whefiher my review of the facts indicated that`Mr Sopher rhos had any Improper contact's dr '
discussions wltli any cu"rr"ent or past rrtembers of the Plannuig Board regarding the Pro~ect10
~ E'"' f,~ ~^,~A'~ to ~I FI ~~.1. f6v r,. 1 '.N.r 9'1 1 t $}a I )d „lYy~l; - ,
` Response No T posed that quesfion'to'~lie`other plaiuung Boar'u member's and
Planning staff that I interviewed and found no evidence of such a violation:
6. Whether Mr. Sopher requested and„received an advisory opinion of the City Attorney, l
ursuant to "Section 2-7-13' a re ardiri the a hcabili ofthe~Code of Goiiducf'tc his situatior% ~
,
Response: No. Neither Mr. Sopher, Ml•. Gordon nor Mr Gehr recall such a
request Although rt appears that Mr. Sopher spoke with Mr Gehr about whether he,,
' had a
conflictof interest in this situation; NIr: Sopher did`riot request or receive an
10 The Complaitit seeks ari opinion alto whether'IvlxrSophernad any;improper contact ordiscussions
with any current or,past members: of the'P]anning I3oard, the; City Council, or the Community.Review~Panel in,
violation of.Secflon2-7-10(a)(3)..That,provision of the Qode,prohibits aCouncil member, employee or appointee
who has a conflict of mterest from disciissmg matters related.to the conflict. with "any other member of the cpuncil,
board, commission, task force, or similarbod o •wli'ich the "ersoii is a member." ~ basis added : In m ' o 'inion
Y f P ~mP ) Y P ,
the application ofthis provision in this situation is limited to any conversations Mx. Sopher might have had with ;
) members of the Planning Board, since that is the only board of which Mr. Sopher is a member.
Boulder Report ~ 14
- advisory opinion as to whether he could address the Council or the Community
Review Panel regarding the Project.
7. Whether criminal prosecution is appropriate.
Response: No.
8. Whether Mr. Sopher should be removed from the Planning Board by the Council.
Response: No. Section 2-7-12(b) of the Code of Conduct permits the Council
to remove a member of a boazd, commission, task force or similar body only if it
fords that the member has willfully violated a provision of the Code of Conduct.
9. Whether some other sanction should be imposed upon NIr. Sopher.
Response: No. The only sanctions available under the Code of Conduct for a
violation by a board member aze criminal prosecution under. Section 2-7-12(e) or
removal under Section 2-7-12(b). The sanction of censure referenced in subsecton
(c)(1) is available only in the-case of a City Council member; the sancfion of
discipline or discharge referenced in subsecton (c) is available only in the case ofa
City employee; and the sanc$on ofbeingbarred from participation in anytransaction
with the City referenced in subsection (c)(4) is available only in the case of a person
y or entity causing, inducing, or soliciting a public official or public employee to
violate the Code of Conduct,-.and not to Council members, boazd and commission
members or City employees who may actually violate the Code of Conduct.
ADDITIONAL RECOT~IIVIENDATIONS
Although not specifically requested, I would offer the following recommendafions in light of my
review of this matter.
1. That consideration be given to amending Section 2-7-2(a) of the Code of Conduct to clarify
the meaning of the prohibition against "participating in" an official action.
2. That the provisions of the Code of Conduct be further reviewed with an eye toward
reconciling oratleastclazifyingtherelationshipamongtheprovisionsofSection2-7-2; Section2-7-
8; and Section 2-7-10. I make this recommendation for the following reasons:
a. Section 2-7-8 authorizes an appointee to appeaz before any City body except the City
Council and the body of which the appointee is a member. It is not cleaz whether that permission
applies to an appointee who has a conflict of interest if the appointee has complied with the
disclosure and recusal procedures contained in Section 2-7-10. I have concluded it does not because
Section 2-7-2(a), which spealts specifically to the conflict of interest situation, prohibits a member
Boulder Report ~ 15
who has a c"oiifhot of interest fron'~iarticipating'ui the~iriaking of any "off'ic'ial aotiori" o'f the Gity in
~ which he or she has a conflict of interest and, under the current'language of tkat provision, I believe
that the term "participating" should be interpreted to include making an appearance before the.
decision-making body.
b. Section 2-7-10(a)(1) states that an appointee who -has a conflict of irit8resf trust
refrain from voting upon or otherwise acting m an offacial capacity m transactions related to the
conflict. Thissugges'ts~thatthe°appoidte~'solhgafron§'arebon"firiadtdrairaiiiingfroiripa~icipating
in official actions takes bythe-board or.comrmssion of which the appointee is'a member. -Under
Section 2 7=2(a}, howeve'r,'an appointee must refrarn from participating m the
making of any official 1
action of the Gity`related to {hey subject matter of the confhot i
ti ,a ~ ~ v, ' r, ,y;.=~. t lYz~ Jfd ;~~t~
3.. That, especially in fight of the complexity of the provisions of the Code of Conduct, the .City
Attorney's 'Office might consider expariding its°piog"ram o'f`trainuig for"'board ~ahd`%commission '
. members to speciflcallyaddress the Code of Conduct in greater detail,, especially with regard to.
obligations that go beyond recusal;"~' r`'"~ " ' r~~ ~ " ~ ~ ! ~"i^,~~~ ~ ~r
1-. ~
Respectfully snbmrttad;~'` l,; ~ . , ~ ~ ~ ,
.,.Fry
~ 'vN. I Y i.- (t IU "it?+~ 3 ' Y~tu ,t ~.r r
Iii YS.'):5. \ ~ P •:.'1 5 11
S phenJ' Oyi' Ort{Coll~in~fCr -~i~`tOr`ney d~l'ur .ki,i~A YiE Datei~x~tar+fik~:+'t $yh>;~I'fi t?-..°.A3E~°,'
ay+ _
. ~i
i
Boulder Report ~ 16
' ~i rte.
Office ~f~the
~ b ~ • ~ ;;r City Attorney
l;
Boulder ~ Colorado ~ USA
7anuary 2, 2008
THE HONORABLE CITY COUNCIL
Boulder, Colorado
RE: , Supplemental Code of Conduct Investigation Rasults
Dear Members of the City Council: '
On October 16, 2007, -the City Council directed the Acting City Attorney to obtain the
assistance of outside counsel to conduct an investigation of a complaint by several. residents..of
the city. The complaint alleged that Boulder Planning Board Member Adrian $opheY, or i'
members of his architeotural firm, violated various provisions of Boulder's Code of Conduct by
addressing citybodies im.connection with Washington School site land use review prccesses.
Outside investigator Stephen J. Roy, Fort Collins City Attorney, issued a report of his
findings onDecember 24, 2007.
The Council discussed Mr. Roy's report at its January 8, 2008 meeting. At the
• conclusion of that discussion, the Council requested that Mr. Roy review certain written
comments that were submitted by Fred Rubin and' John Gless regarding the report. Mr, Roy was
invited to augment his report as he felt appropriate.
Mz. Roy subsequently engaged in additional analysis and provided a Supplemental ;
Conflict oflnterest Report for the City Council of
Boulder, Colorado dated January 24, 2008.
Copies of the supplemental report were distributed to each council member and to interested
parties. The supplemental report was also posted on the city holnepage at
httn://www.bouldercolorado, gov.
Section 2-7-12 (b), B.R.C. 1981, provides that the City Council may remove a member'of
a city board if it finds that the member "willfully" violated auy provision of the Code of
Conduct. Although Mr. Roy's investigaflon specifically found that there was no willful
violation, the ultimate decision onthat matter lies with Council. Therefore, if Council wishes to
have further discussion with regard to this matter, it may wish to drrect the Council Agenda:
Committee to calendar the matter for that additional consideration.
iG\CCADUtoy Suppplemental --Report to Counci1305;DOC -
AGENDA ITElYI L PAGE
HONORABLE CITY COUNCIL
Page 2
February 1; 2008 -
RE: Supplemental Code of Conduct Report of Special Investigator Stephen Roy
At this juncture, options for- Council include the following:
(1) Direct its Agenda Committee to calendar this matter forfurther discussion; or i.
(2) Decide that the reports from Mr. Roy on the matter sufficiently resolve the matter
and that no further Council action is required with regard to the specific complaints. '
At its January ,8 meeting, when the original report was discussed by Council„ direction
was provided to the Acting City Attamey to initiate work on clarifying.revisions to fhe city's
Code.of Conduct. That process has been initiated and.potential Code amendments will come
back for Council review ata latertime.
~,,1€es • ectfully sitbm'~d;
J$RRYP GO ON
' Acting pity Attorney .
cc: -Frank W. Bruno, City Manager
Stephanie Crrainger, Deputy City 1Vlanagex
K;\CCAD~Roy Suppplemehtal Report ro Counail305.DOC
AGENDA ITEM # `'S PAGE
CC,A-fl `mss
2~/~,~~ ~~.r-~- od1-.~-r
P~~
~TJLI~E~,. C®L® ~
,~~i~r~~;.2~~~
~®®JL~~Y2~~ A~PTg7E.' '
. ~~7®) 2271=~52~
~~®~r~xca~®v.c®rvg
- - .
TABLE CONTENTS
1
Introdiictian . ,
Summary ofTssues Addressed' and Responses..........: : . . . .1 .
Discussion
2 ,
1: Whether the manner of IVlr. Sopher's recusal fiom relevant'Planning
' : Board meetings warrants further investigation . . , , 2
2. ' Whether,I exceededlhe scope of my authority and responsibility by
.................4
addressing the question of willfulness in the Report. .
3. VJhethex it is therole of the:investigator or the Council to make the final '
. deterination as•to willfulness::•.._
• 4.
. 4. ~ ' ~ ' Whether the Council should use.a different definition o.
f "willfully"in.
'
.:.5.
malang its determination. . . .
.5:. Whether, hi reading all.of fhe relevant Charter aud.B.R.G`. provisions; ' '
- togetliex; the Councii'is,autharized'to remove Nlr. Sopher from fihe. •
• Plawiing Board even ifhe did not willfullyviolate the Code of Conduct 5 .
6. Whether the transactions in which ],VIr. Sopher participated s7iould.be
..9'
voided..:.:..::..`
.:.::......:...:......:.....:...i........,......
7. . Wheihex I considered the proposed'legtslatiye intent of the-Code of _
" Conduct,'ascoirtamedinSecdon.2~7-1,mzeaclungthe_canclizsons3 `
reachedinthe'Report ..9
8. Whether Mr. $opher'.s fain committed violations of the Gode o£ G~onduot
that axe not addressed in the Report • : . 9
. rl
Endnotes.,..'
. ,
IIVTRODUCTI01'~ ,
This supplementalreportis inresponse#oyour request that Ireviewthe written comments thatwere
• . submitted to' you by Fred Rubin gird John Gless regarding'my report to you.of Decembel• 24, 2DD7,
(the "Report"),together with such other information as I may'consider relevant, and that 3 augment .
the Report as I deem appropriate, The following.i sues.are addressed in the order in whichthey.are
presented in the two' communications. The first six issues were raised by Mr, Rubin: The, last two ,
were raised by Mr. Gless: .
5U1\/iN1Af~Y OF ~~5UES f~DDRE~SED Al~]D .RESPONSES
1.. Whether 111e .manner of
Mr. Sopher:s recusal froxri relevant Planning Boardnreetings
warrants fm*ther invesfigation.
Res onsei That"is up to the Council.. Wlvlernyinvesti.gafiondidnotrevealwhethez•MriSoliher
made any_specific statements at the time of the xecusals, I believe that the recusals
substautially compliedwiththerelevantprovisions ofthe Code of Conduct, and that .
"substantial compliance" is the appropriate standard'to apply in this situation: More.
detail about the manner of.recusal could be .gleaned tram a review of. the tape
• zecordingsofeachPlarn~ngBoaidmeeting'atwhichtheProjectvtrasconsideredifthe,
- Council believes that such'additionalreview isnecessary. ,
2, Whether Lexceeded the scope of my authoxiiy. and responsibilit3! by addressing the question
of willfulness in the Report:
"Resnonsec I: addressed.tlie question of willfuh}ess because the puxpose..of the Report was .to : _
respondao the Complaint, and the Complaint alleges -that:Mr:: Sopher committed ~ "
willful violations. Also,.the Acting City Attorney specifically requested, on behalf
of the Cotuicil, that I provi de an opirnon on that question.:
3: " Whether it is the'role of the irivesfigator oz the Council to rna3te the final .determination as
to willfulness. .
• Response:. The fmal determination as to the willfulness of lvlr. Sopher's conduct is up.to the ,
Council. However; before the Council' would make a deterininafiori that 1VLr._ ' .
Sopliex's violatior~.s.of theCode o£ Conduct were willful, the Acting City,Attorriey . "
shouldbeconsultedwiihregardtoanyprocedmalsafeguardstheComrcidmightwant '
to utilize in malting that determination. •
4. Whethei the Council should use a different definition of "willfully" in malting its
determination.
Resuonse: That is certainly the Gouncil'sprerogative. 'In reac)iiiig the conclusion I reached,'I
used a,definition that,I believe is consistent with the legislative intent.
suplplesnerataIl ~onalder Il~eport ~h.1
• ~ ~ "?,,'~2 _ ~'S~-:: ':taw' S
- ~~~v.
• 5. Whether, in reading all.of the relevant Charter and B;R.C. provisions together, he Counoil
is'authorized to remove NIr..Sopher frozntliePlanning Board evenifhe did notwillfullyviolate the
Code of Condtlet.
Response: No. TheGityCharterand•B,R.C.provisionsgovemingremoval,whenreadtogether;
authorizeremoval onlyfor wsllful violations of the Code of Conduct.
b: Whether the.transactions in which Mi. Sopher pazticipated should be voided.
Response:.: Becausethatreliefwasnotsouglit,intheComplaintandgoesbeyondthescopeofthe
' • investigation that I was asked to conduct, I:have not addressed this guesfian, either
in the Report or in this supplement to the Report. '
7, Whether I:considere3 the proposed legislative intent cf the Code of•.Conduct, as cdntained
in Section2-'1-1; in reaching the conclusions I reached in'the Report.
Response: Yes, I attempted to balance whafI consider to be the plain.meaning of the language
used in the .Code of Conduct provisions with the intent behind those provisions.
8. ' Whether IVIr. Sopher's firm :c'ommitted; violations Hof .the Code of Conduct in _Tnne and ' '
December of 200fi .that are not:addressed in the Report: .
Response;. . Because these allegations~weie not.part aftheComplaint, I:did not invesfigate diem
' beyond reviewing .the 'minutes of the Plannisig Board meetings on June 35 and,- _ ;
December 7• of 2006, at which the Projecf was. discussed. ,These minutes. do not •
• . reflect appearances by Stapheri Vosper; the individual.referenced in Mr. Gless's
email: Again; whether•furthezinvestigation ofthese allegations is warranted is up to : .
• the Councils ~ '
.
I)ISCIJSSI®N .
1, ~!hetherthemanaaera$194r.Sapper'sreensaifn'®Karelevatltl°lammmmnmg]&®asdmmneetings .
~~arrants fearataer inves4igateomm. ,
AsI understand Mr. Rubin's coi~cems hrtlris area, as noted onpages 3'and 4 of hisdetter, they ate:
(a) v5hether'it was appropxiafe to use. the "substantial compliance" standard in ascertaining the''
suffioieney oflvIr. Sopher's ccuipliancewiththe disolosuzeandnon-compliancerequiiements ofthe
Code of Conduct, and (b)~whether further.investigatien of the facts surrounding his zecusal is
warranted. -
a. Sunbstantfial complaaaaee stmmdard. .
.The substantial compliance or substantial perfozmance doctrine is arule whi'bhstatesthat if agood- .
faith ateemptto perform'does notpreciselymeetthetezms: of anagreezrient or statutoryrequirements,
theperformancevaillstillbeconsidexed.completeiftheessentialpnrposeisaccomplished.' Section
Suppleanental ~binYder k~eport ~ 2
_.__-r;;i}i,'~;:i:,`;: .~~:-;,ter;;
2=7-2(b) requires public. officials and employees who have a conflict of interest to "'disolose any
'conflict of interest and disqualify him or herself $nm parli'cipating in the relevant action,..."
Disclosure is sufficient under Section 2-7-10(a) "if such person discloses the conflict of interest on • '
the record of a, pubflc meeting..,..of which the person is a member." The term"disclosure".means' -
"the act or process of malang'lcniovni sonrething'that'was previously.unlmown.'.'Z
In reviewingthepurposes and legislafive intent behind the Code of Conducfas stated in 5ection2-7-'
1, the purposes of the•xequirennent that a.personhaving a conflict not participate in relevant actions
appearto be: (a)'to proteetthe integrity of government by ensuringihat City officials and employees .
are notmotivatedbyprivate interests ini
malting deoisionis in their official capaciti es; and (b) to avoid
any appearance of impiopriety that might undermitne public trust in the accountability and loyalty .
• of suchpersons. The purpose bf
the disclosuue regiiirementis, inmy estimation, to inform those in ;
attendance why a partioulaz• member is not,parEicipating iu t12e discussion of an item so as to .
underscore the importance.of.thesevaiues and to preserve that public trust. .
Based:upon ilie information I reviewed and the interviews I conducted, I believe that Iv1r. Sopher
aoliieved those purposes insofar as his disclosure and non-paid cipation in relevant Planning Board
actions.are concerned..' ' i
b. 'VVhe4laerfnia-tlierinvesttgati®n®ft?neffactssuarn•®nnndnngl~r.Soplaer'sreoiasalis
. ayar~anted..: ~ .
. .
I based my findings and conclusion•that Mx. Sopker had rebused himself from the.four •Platutirrg
Boardmeetings.afwhichtheProjectwasdisaussedonthefollowingsourcesofinfomiation: (1)the •
maiutes of those meetings; (2) my interviews with'IVIr. Sopher, two P.Ianrihig Board members. `
(Phillip Stall.and$lise7ones),'Planning Director andPlanriiugBoardliaisonRuthNlcHeyser,and.. '
Planning Board,secretary 3uliet Bonnell;'and (3) an email message and attachment from Laurel
I3amilton.. Ms. Hamilton listened to he tape recording..of the June 15, 2006, meeting at my request
aftexIfoundadiscxepancybetiveesthemiuutesofthatmeeting,wluohdonotreflectthatNir.Sopiler ,
•zecused himself, and Mr: Sophex's statement to me thathe had,.in fact, zecused himself. The tape
' recording confirmed that Nlr: Svpher did recuse liimself.
No one thatl'interviewedhad aclear recollection of exactly J~qw IVlr. Sopher zecused himself fiom .
. ' the meetings, but there is no question that he
was ieeused and.it sees more likely than not, :from
the interviews I' conducted, that he lied explained. at one.os nnore of the meetings why he was„
recusing himself and that those.present at the meetings .were generally aware that Ivh•. Sopher vies .
leaning the discussion because he was the aichiieot for the project, '
In ordei for. me to have verified exactly what was said and. by whom with regard to the recusals at
.each oftliese meetings, it would have beennecessany.for someone in the City's employ to listen to
several liotus oftape recordings, In ruy judgment, that wouldhave been an unreasonable request pn
my part and an umiecessary expenditure of staff time and xesouroes. If tlie. Council disagrees with
my conclusioninthatregaid,thenlbelievethatreviewingthetapexecondings ofthemeetingswould
be the mostaeliable way to deteiinine exactly what Mr. Sopher said; if anything, when he zecused
himself on these occasions.
Supplemental Boan]der Report 3
2. Whether I eicceetIed•the scope of taay autkeority exid responsibility by flddressing dhe
.question of wi9flfuluess in the Report..
Ou page 5 of his.letter, Mr. Rubin.expresses concern that. Section 2-7,11, whi6h go$ettis the
investigation'oftomplaints. filed under the -Code of Conduct,.does not call for a. conclusidn on my ' ' '
part as to whether Mr. Sopher's violations of the Code of Conduct were willful. PIe then explains
why he disagrees with the conclusionIreachedonthat.questionand,onpage•6,assertsthat5ection
2-3-1(a)(2) authorizes the Council to refnove Ivlr. Sopher for violation ofthe Code of Conduct.even •
if he.did.notwillfullyviolate its provisions: . .
There are two reasons thatT addressed the'question 6f willfulness in the Report. First; Section 2-7-
I1(d) states that the person, oonducting au investigation under the Code of Conduct is to "prepare
written findings of fact and conclusions of law iriresponse to (the Complaint): The Complaint
• alleges that !'Adrian Sopher...has willfully yiolated•the Code of Conduct..." Second; the Council's- '
•xequestthat I handle this investigation was conveyed to mein adetter from Acting City Attorney
Jerry Gordon, datedNovember 15, 2007. Tn that letter;lVlr. Gofdon states; on
page 4: "Ifyou find '
that one os more violations were committed, ~,ve will appreciate your views an wliether or not that
violation ox thosewglations were committed `willfully.'."_ ; "
3.: Whetharatisthea~oleoftheiuvestngator.ortlae'Counciltoanalce$lie~maide$ermar~ati®n. .
. 'al`to willfuluess. ' '
I. agree.with Mr. Rubm's contention tliat.it is ultimately up to tfie.Couneil to determine whether Mr.
Sopher willfullywi olated the Code. o£Gonduct and, tf su; whether heshould be removed $om the
Planning Bomd: 'As Nlr. Rubin correctly.points outm hxsletEer, Section 2-7-12.states that,: "(t)he "
city count%T may remove..,ariy member of a city board that it fuids has, willfully violated a~qy
provisions ofthis chaptai:" (Emphasis added). Theinterpxetationurged'b}~Mr.:Rubini& consistent
. with`the'language. of-this sectidn: It is also: consistent, by' analogy;'with the Colorado Supreme ~ •
' •'Court'sdefennination oftheweighttob~accordedaheaiingofficel'sfindingsandconclusionsunder
_ .a state statute dealing with.the erciployment`and dismissal. oi;.teachers: •L'Tnder.that statdte,.whieh .
authoiazes the .board of education to make the final decision regarding fernrination, the'Court held . : .
tlxat the board was free, to accept ofi:reje.'ct the admiriistrative hearing officer's "conclusions of
ultimate fact," that is, ooriclusigns involving. mixed".questions of fact and` law.' 'Ihe question of
willfulness i,s.such a.question:" While. aninvestigatoi is not the.same as a bearing of6cex, the .
principle established by this case would seem to :be even, more true of tb e conolitsions that I Iaave . '
submitted to the Council as an investigator. ' " '
FIowever,' if the .Council believes that the facts wzderlying the "violations noted in the Report-may ,
warrant Mr. Soplier's removal fromthe Planning Board, I recommend tbat the Council confer with
the Acliiig City Attorney.about any procedure[ safeguards that may need to be followed in mailing
.such a final determinations; as' well as the weight; if aiay, to be given to. the• evidenfiary findings
contained in.the Report,~since those topics are not apecifically addressed iii the.Code of Conduct. ' .
~uy~p'leanentra?1Soanldor R.epor~ ^Y^ 4
f
b. ][nterp~~etiing the relfltionshsp among the t?rroe provisions,.
.Absent the express language, of Section 2-7,12(b), which authorizes Council i:o remotie board . .
members orilyfor,willfiil violatioiis.ofilxeCode of Conduct, Charter Section 74 andB.RrC. Section
2-3-1(a)(2).would permit".their .removal for anysuch violation, whether or not it v?as willful.
IIowever, the existence ofthese threeprovisionspresents a question ofinterpretation as to howthey
should be read together..'
.The interpretation of municipal charter and ordinance pxovisions`is generally governed by the same
rules of construction as apply to the interpretation of state statutes.' The various provisions of a
charter, code or statute, including those relating to the same subject,.iuustbe lead together and
construed as a whole"to discern the underlying legislative intent and, if possible, they'are to be
hazmonized so that sensible effect is givento eachprovision." Tfseparate clauses or provisions may
be harmonized by one construction, but would be.antagonistic colder a different.construction, the
• .;construction which results in harmorry rather than.inconsistency should be adopted." Provisions
should be interpreted so that no clause, sentence or word is rendered superDuous, contradictory or
insignificant.'" Effect is to be .given to every word of .an'enactment if possible.15 There is a
presumption that a just and reasonable result is intended.16 T.hepublicinterest is to beforemost over
°`anyprivateinterest,'T•. '
Ifcodeprdvisionsconflictwitheaoh.other,andthedonflictisirreconcilable,thentke•mora;specific
.:provisionprevailsasanexceptiontothegeneralprovision,unlessthegeneralprovisionwasadopfed .
later.in'•time, and the manifest legislative intent is that the~general provision is.to pxevai170 .In'the. '
- event:ofariirreconcilableconfiiotbetweenaofiarterpzovision'and.acodeprovision,adifferentsule '
applies:..the chaiEer provision prevail because a municipal charter is :the "organic law" of a..
municipality,.muchlike aconstitution, and ift~alce's precedence over all municipal' ordinances, rules ; .
or regulatiohs that aze inconsistentwith its provisions.19
' Inapplyingthese~rulesofcozastrucfionfotheGharter.andB.R.C.provisionsinquestion;Ibelievethe
• three provisions can be readily reconciled and effect given.to each in a mamler consistent with the
legislative intent by:::
(a), . construing Section 74. of the.'ChaYter 'as establishing the general` principle that
Planning Boazd membersarray be removed only for cause; .
(b) : construing Section 2 3-1 as a genera] pzovisiontliat: (i) reiterates this prnlciple.of.'
- removal for cause foz. all boarcl,and commissionmeuibers; (si), b
ves e~amplas of such cause; and
(iii) specifies that auy such removal must be by maj ority vote; and .
(c) construing Section 2-7-d2(b) as°inore specifically establishing the.pazticulaz
cizcumstandes under wlucli removal can be based' on a violation of the Cade of Conduct, i.e., for -
wi]lfiil violafions only.
.Even if the two B.R.C. provisions conflicted with one another and the conflict was iireconcilable,
theniore specific ofthe twoprovisions (the Code ofConductprovision`that limits removalto willful
violations) would prevail in this situation. That is because the legislative history of the two
Supplearaentmfl 1Poealdes ~$eport 3° 7
provisions shows thatthe'.morespeoific provision,vias more recently .adopted than the ,general
provision,-and there is no indication that the more general was ever intended to supercede the more .
specific. If agything, the conlrary.intent.appear's to b'e tme.20 . _ ,
Therefore, I believe,it would be erroneous to substitLrte the more general provisions of the Charter
and B.R.C., which'are silent on the question of intent.or u+illfalness, for the more specific provision
in the Code ofCondnct;. I also believe that doing so would thwart the clearly expressed`legislative
intent behind Section 2=7-12(6), which authorizes-Council to remove board and commission
members onlpfor willful violations of the`Code of Conduct. In other words, suchan interpretation
would render the term wild "supeifluous, contradictory or insignificant "
IV1s. Rubin also seeks comment on the importance of tng following B.R.C: provisions +rrith regard
to this question of interpretation:
1-7-5 •d~lbenal~oustrnctflonr .
The city council intends fliat a1l.general.provisions; terms; phrases, and expressions
containedintliiscodebeliberallyconstruedirlordeithatthecouncil'strueartentand ,
meaning maybe fully:;implemented. ~ ,
. 1,1-14 Intentloia. in Emactiag ~rdiiBHammeos.: .
. ' ' In enacting an "ordinance the. city council intends ~ ~ ' ,
(a) . To coaiplywiththe city charter andthe constitutions of'Efie State of
Colorado
and the United.States; ; .
(b). `That-the entire. ordinance be effective;;
(c) A just and reasonable result; .
(d) A zesult thatmay be feasibly executed; and'
• (e) That the public interest be.favored over any private interest:. . '
• I agree with the principles .of
interpretation stated'in these sections. They:are consistent with tl~e
rules ofconstructioncitedaboye.'Tnmyview;however,.noneoftheseprovisions'arguesforadopting
an interpretation of Section 2-3-1 or 2-7-12(b) thaf,fails to give effect to the term"willfully
violated" .
In summary,'it is my opinionthat the Council mayremovelVli. Sopher from tl?e Planning Board by '
maj ority vote only if it finds that he willfully violated the Code of~Conduct or if there is some oilier
cause for his remoeal unrelated to the .Code of Conduct violations alleged in the Complaiirt.
Suplelenaexatal $oanlder $tep~ort °H 8
6.. . 'VG'he¢her flee trhsasactions in whieh Ma•.'uoplrerpairticipatod should beV+oida;d.
Mr. Rubin correctly notes on page.? of his letter that I:"did;not offer.any discussionregardingfhe
possibility that the.City •Council .could vnid'the entire. VJashingi on Village proceedings due to'Mr.
Sopher's violation of the Code of.Conduot:" The reason I did not do. so is that'the Complaint . '
contanLSnoYequestforsuch.relief,andneitherMr.Gordon'sletCernor'tlieprovisionsof5ection2-7= '
11(d) call for finduigs and'conclusions on.thispoint.
7. '~ðei• Y oonsiderod flee proposed legislative intemmt o$' the bode of Coaaduot,. as •
eontained'an 5ecti®ai 2-7~1, in reaclrimg the•comolusiomms I reached in the P:epork.
Mt. Glens expresses coneem that "there is. nothing in (the) report about legislafive intent;'.' and he . .
urges the. Council to.consider'the provisions of Section 2-7-1:m deciding how to respond to the,'
Report. I agree that theseprovisions.are imporfant to the questions ofinterpretations presented bg .
the.Complaint. 'They are referenced onpage 4 of the Report, undex.the heading of "Relevant Code ' ' ,
Provisions;" and also mentioned infootnote 9 on page ll.ofthe Report as beingparticularlyrelevant
to the question,of inteipietation addressed in that section of the Report:
In formulating. the conclusions bontained in flan supplemeritao the Report, I have again reviewed ,
. tlieseprovisions..'Asriotedabove,:givingeTfeCtto~thelegislativevitentbehindtheCodeofConduct
pipvisions_is tlie'primary goal• of intefpreting and`applying.thoseprovinions. ,'However, affect must
alsobegiventotheplainmeaiungofthewordsused: Tnarrivingatahe.conclusionsexpressedinthe.
ReporE; I have attemptedto' strike anappropriate lialance betweenthese tkvo.pxinciples..
S.' ~hethor 1V'<r:~Sopher's girm eo~nrit~®d vidlatiomms af'the Cvde ®f:Cammductthat mr¢ not '
addressed im the Rep®rtc : '
Ntr.Glessstafesiinderthisseetionofhis.correspondencethathehasbecomeaware.ofdiolationsthat .
`d failed tb ineritign: In:particular;'he references "the.appearanees`of Steve. Vospei, Mr. 5oplier's ' .
amployeez before the Planning Board in 7une.and December.2006," which he apparentlybelieves
_ violated the provisions of Section 2,7=8(b)(3) of the Code of Conduct, as that provision was then
. .
worded:. ,
In'invastigafing the Complaint, I did nbfbecome awake of atty violations of the-Code of Conduct
other thap.those allaged.irrthe Complaint. The Coxnplaintreferences, Linder "additional concerns,"
appearances of Mx. Uospez before the Planning Board on'hily 19;;2Q07, and September 13, 2007, .
'and those are the alleged violafions'that I investigated: , The minutes for those meetings coi~fum that
Mr. Vosper participated•in the applicanUovmer presentations zegarding the Project. The dates of
those meetings were sLihsequentto the enaetYnent of 1he.currenf version of Section 2-7-8(b)(3),
w1Li6h tools effect on May 31, 2007 This led:
me.to the conclusion, which I still maintahi, that Mr:
Vosper's appeatance before tlLe
Planning Bbard did.not;violatethatprovision since•thethen-current
''version ofthe provision permits members of en appointee's firm to make such appearances as long
asthe appointee has•complied v,~ith the disclosure and racusal procedurescontained in Section 2-7-
10.
5'upple~ental.Boulder 12eport 9
it `~jJ=. - _.1.1.,--
'::u
as the appointee has compliedwiththe disclosure arid'recusal:procedures coritained,in Section 2-7c
10.
Iamnot.aware:
of any appearances of Mr.VosperbeforetheFlantinlgEoardinJwieaadl;ecenibef .
of200fi.InreviewingtheririnutesofthePlatningBoardneeting'sori7une15,2006.,andDecember '
7, 2006, I see no reference to any~appearaxices of Mr. Vosper, onthose occasions. Whether further
. investigation of Mr. Gless's allegations sfiould be undertaken is up to the Council.
If you have additional .questions, oonderns or regLrests, please Iet me luiow. Thank you'for the
opportunity to augment the Report,
Respectfully submitl:ed,
t hen 1 0 Ford Collins 'ty Attorney Date ~ ~ ~
S ~p Y, ~ ,
' . 5uppl~naental ~®u&dea• Igep®xt flD
E1V17NnTE5
'BLACIC',S 1.,4W DICfI0NAl2Y (8'I~ Bd. 200h),
2.BLAIXC'S LAW DIC'1'IONARY(8'~' Cd, 2004).
3. Board of 8iluc, pf Nre,rl Yun1n Sclavnl.Dirt, R,1-J v. Flcm~ing, 93$ P.2d 1.51. (Colo. '1997), See, also, for
comparison, the distinction that is drawn hetween evidentiary facts and ultimate conclusions of fact i1i. Sec. 24-4=105;
Colo, Rev. Stat, poi'tainingtoadjuilicafory decisirnts ny state agencies.
4. Barrett:v,Universit)+qfCnla•adaHe[d/IrScierlcesCcnler;857P.2d258(Ctilo.App.'1.993J,evaluatingwhethor
an employee's-conduct constituted vt+illful lniscvnduct:in violation of a'Golarailo Department of':Persoamtil:Board rule
ani! thus was grounds for termination.
S. See,:fea-example, n~IcQuillerr on N1un. Cw•p, Sec. 1.2?60:07
In vonq•ast,fihe state statute that was,the subject of.fhe:Flanllr~g oasesgpr^a., specifies the standard a board of
educatiouistonsaifiedisttiisseseteachoroverthe'hearingoffioer'srecommendations. Sec.22-63-302(c)(9)Colv,Rev.
SYat.
7.' Web9tei''sTJiird.hrtemationalDiotionary(198b).
,8. ;BLACK'S^LAW'D[CT.IUNARY (Deluxe^$thEd,1999).
9., Sa~aers a, Lneriepn,IanitoraaCSer4aice Inc„_426 P 2d 693, fs95 (Colo. 1967), citing Riehla+, U1z¢mployment
GonppulsatrgnT3oar^d dfReviem, :175 Ra„Super 400,':17;6 A 2d 271 x'1,95$);;
1'0. Secion.2 3•I addl~essesmatters pf.generdl itpplicatton'fq.boar:~s.atid commissions, such astheir;powers, their
terms ofof6ce_aird.coin,,p'eusation,liiriitatong oii.niembership,'and.the prooeduies fgr ponductiiig and jit'ovicYmg,puUlic
notice;ofineeutigs'.
7:1: , JJRI,:LLCv-Mt'Ci•ested:Butte,.1GOP3d365;(Colo.App:'2007):
1:2.. Cnlardtln State Bd. QjNursirgg ~r, Bethesda Pp~+chialrc Flptip., :809.P.2d ]0.51 ,(Colo:App. 7990); City of
:Pl7orratoh p. Replvgle 873'P..2d 30,:(Colo, App.1993),.aff rlS8R P....2d 782 (Colo.199S) Nlitsorl A:E.Erig'g:arul"Dev.
Co„ 'lnc.'8.35 F, Supp.:572 _(D:dnlo 1.89.3); :L7 r e Dan'issal, 797 ,I2:2d $D9.4Colo; Jtpp 1990),.
1'3. Cthrtifnxr'aYV.Olin,'761.P.2d789(Colo.79~8).
].4. L7reOTC.Net,L1c.34B.R..65$(Blntcy.COlo.1983),fh'1101d'V..CalOi'ad0!]1C/7/. (1f.CpP/'CCtfOn5,978P'Ld749
.(Colo, App. 7999)'...
1.5. Johnstvllaa Cltl+Cmplcll n/'Grecrnrvotl Village, 493 P.2d G.51.(Colo. x972).
16.. Sec, 2-4-201(1)(0), Colo: Rey. Scat„ ~IViCannn, Inc. ir. Cnlorddr~ PuG. TJNI. Conv11`n, 955 P:?d 1023 (Colo.
1.99.8).
17, Sec. 2-4-201(e), Colo, Aev, Seat,
;.Sup.p'iementRlI3ott]dcr Report >I '7.1
~_.t:~'i_::.. l 1. _
~3_
'1'3. Sec.:2,4-2U5,Colo.Rex.'Sfat;;Ohlsura u.'I~~e71,9.3:5P?d 939`(Coto.App.].29T);.9:77:P.2d305,1ceF['~cleniei/,
mill cert. rlenieK; G.lewepv, IYgrtly, 9:0TP.2d305'(COOo.App:'Y995).
1:2, tl~eCJerillen.nrl Mora. C"vrp. Sec. 9.U3 and 15..;07. Flanrlers:v. Pueblo, PGO R:2d 980:(Colo. 1945);:~lenwgnrl
Pnst i,. City of Glenia,vvrl $/.irings, 731. P:2il 2C 1 "(Celle. App.2005),
Z0, ThclegislaEivc;liisfoly hous>aseries,ofB:I2.C.amandmanLS,opthtssuhlectoverahcyoats,.'Pheyiiorc,ypeciGG
provision noe,:conttiined ircSecfio. p:2=7- LZ((?) waseiiacCeil and. ce>euacted sovert(laimes,.mosCreCenCJy tn2OOS, long after
tGe?iiiitiiiLaBgption:offihe•tnocegenuaJp'roi%icionin.:SecLiaq~-3-:f(a)(2),.wfuch:occurred in.1962,;lroftrinoce.detailed
ex}ilanition of flie legislative history, see Exhib'iY "A;""aftnohetl"Jierefo.
2'1.. Ordiuauce.No.'Z517, adoptetl Rd?y::L,.200Z.
1Satpplemesatal `f~aulder.IL~fiorY 1:2
nh
~,XIIIY~$T uA» '
i,~u^YTiSI.AT%"~~ ~5T®lS~ lr~l~i>(A gl<I'g'1CN~' dFp"d'~ C~A~T]ER ~3B le.Yt:C. .
PA~(9ix7t5g®1°lS 1ZiCLA T]EY9 ~'®~Itd®~xA)<. ®p' ~®AYaHD ~1oT~' C~]V111f1[S5;<~leT Td11V1VdBE1C~S
1. 'Charter provisions authorizingremoval.. Since 1917,.'Secfions 74 and 13.0 ofthe Chattex
have authorized the Council to remove board and commission members in general, and Planning
Board members in particular, only for cause...
2. Specific B R G provisions authorizinE removal for contlicbofintexest violations. On May
2, 1972, the Council adapted Ordinance No. 3792, enacting Section 2-5 of the B.R:C. to govern '
conficts: ofiriterest. According to-the recitals in that ordinance, this was the first codification of a
City.policy on conflicts ofinterest, Stibsection 2-5(d) established a disclosure andnon-partidipation
rulef'or Council members andboard and commissionmembeis whohad an interesf iu a Citgcontract
ox other transaction.'Subsection 2-5je), like the cursentversion of Section 2
7-8(b)(3), prohibited
board and commission members from appearing before the Council on behalf of another person.
Under this ordinance,.violations of either of these provisions cdnsfituted grounds fos removal horn'
office for'cause, without regardao fhe appointee's state of mind'in committing the violations: : .
3. Specific B R C provisions amended to authorize removalonly for willful violations of the
Code of Conduct. On July 2D, 1982, language wasfirst; added to the B:R.C:; by the adoption of
OxdinapceNo. 4677, limiting the Council's ability to remove board and..commi lion members to
removal for willfulviolafionsonly. This ordinanceiepealedSection2-5; re-establi5hedtheconflxct .
of.interest rules as the "Code of Conduct!' 'in Chapter 7, and planed the folloK~ng-provision in . ,
Section 2-7-4:. "The•couricil may remove any person-other than a council member who willfully '
violates any provision of this ohapter " A memo to the:Councilfrnmthethen-current city. attorney
states'that "stafF.alsn pioposes thatviolation of the gliapter be-a niunicipal.offense (not currently ,
allowed under the.existmg ordinance)..;andthot vdllful violations of the chapter maybe grounds
.from removal of the councilsiember, exliployee;,or appointee. at the council's discretion:"' -The
language of the .ordinance and the langua.'ge in the memo evidence a conscious intent to limit'the.
. removal. ofboard and ooznmission rnernbers8or Code• of Conduct violations to willful violations.
' 4. Codification of geiierel removal~prodisions: On December 7, 1982,.following an October ,
study session. onboards and commissions, the Council adopted OrdinanceNo.'4722.forthepuzpose
ofimplementing'severalxecorwnendations relatingto the procedures andxespottsibiliiaes fbrboards .
and couurussions. One ofthe c)zanges adoptedbythe Council was to place in Section2-3-1 themore
generallanguag'e of Subsection2-3-1(a)(2) which states thattha Council"may remove any member
bymajorityvoteforcontlictofinterestviolation...oranyrothercause.." The purposeoftlrisprovision
was apparentlyto cover intheB.R;C. the general subject ofremovalwlrich; according to the agenda'
summary far this ordnance, .had theretofore been addressed only inthe Chmter, and to add to the
' Memoiandumfrom7oseph.N:deRaimes,CiTyAttomey,toCityManager,MayorandCouucil,dated
Match 9,1982, p.3.
'Council'spowexofremoValtheabilitytoremoveforconflictofinterestvolationsorotheviolations ,
of law or for failure to attend three cpnsecutive meetings without approval ofmajoxity of board
members. • ,
As noted above, .there ie 1io indication that this dodification cf the general removallirovision was
intended'tosupercedeorrepeal'the'willfulnessstandardthafhadbeenaddedtotheprovisioiisofthe.
'Code ofConduct ten months. eazliex: I view the.referenoe to conflict of interest violations that was
added to 5eotion 2-3-1 as a "shorthand" reference to the more specific provisions regazding removal '
'for conflict of interest diolations contained in.the Code of Cpnductitsel£ '
S. Rewordine ofthe Code of Conduct 'removal provision renuirement of wiIlfiilness retained.
' OnIVIay 20, 2003, the Council adopted OrdinanceNo.:7286, expanding the slope cfthere~dations
in Chapter 2-7. The wording of Section 2-.7-11(b)was revised to read as follows:
The City:Council.mayrernove any of its employees and any member 6f a city board,
commission, ;taslt force' or similar body that it. finds has willfully violated aziy .
provision of this Chapter: ' °
' This is the current wording of Section2r7-12(b). The agenda maferials.for this ordinance State that
_
theiutentofthenev?wordingwa~:toaddadditionalsanctioilstotheexistingsanciidns,whichalready .
. .inolnded removal:. The new language of the provision.'continued to limit removal to willful ' • ' '
' , violations. • - . '
•6 RelocatioriofCodeofConduotremoValprovision•requirement•ofwillfu]nessretained.•. On _ '
December 27, 2005, the Corozal adopted ;Ordinance No: 7442, again;repealing and reenacting tha •
Code of-Conduct and adopting a new'set of provisions: jTJhen these changes'wexe made, the...
• Council's~abilitytoemoveboaxdandcommissionmembersorilyforwillfulviolationsoftheCode
ofGonductwasniovedto_Section2-7-12(b).: