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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 $tep~ort °H 8 6.. . 'VG'he¢her flee trhsasactions in whieh Ma•.'uoplrerpairticipatod should beV+oida;d. Mr. Rubin correctly notes on page.? of his letter that I:"did;not offer.any discussionregardingfhe possibility that the.City •Council .could vnid'the entire. VJashingi on Village proceedings due to'Mr. Sopher's violation of the Code of.Conduot:" The reason I did not do. so is that'the Complaint . ' contanLSnoYequestforsuch.relief,andneitherMr.Gordon'sletCernor'tlieprovisionsof5ection2-7= ' 11(d) call for finduigs and'conclusions on.thispoint. 7. '~&ethei• Y oonsiderod flee proposed legislative intemmt o$' 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).: