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HomeMy WebLinkAbout2021 Ordinance No. 004Page 1 of 10 BY AUTHORITY ORDINANCE NO. 4 COUNCIL BILL NO. 02 SERIES OF 2021 INTRODUCED BY COUNCIL MEMBER OLSON AN ORDINANCE AMENDING TITLE 1 BY ADOPTING CHAPTER 11, SECTIONS 1-9 REGARDING ESTABLISHMENT OF A CODE OF ETHICS, ALL WITHIN THE CITY OF ENGLEWOOD, COLORADO. WHEREAS, the City of Englewood, Colorado, (“City”), is a home rule municipality, organized and existing under and by virtue of Article XX, Section 6 of the Colorado Constitution, and as such the City has all legislative powers and functions of home rule municipal government as reserved to it by the Colorado Constitution and the laws of the State of Colorado; WHEREAS, the City Council finds and determines that its regulation of the subject of the ethical conduct of Representative of the City is a matter of local concern upon which the City of Englewood is empowered to legislate and that once adopted these regulations shall supersede within the City of Englewood all conflicting state statutes, including, but not limited to Title 24, Article 18, Colorado Revised Statutes, C.R.S. § 24-6-203; and C.R.S. § 31-4-404; WHEREAS, the provisions of this Code of Ethics are distinct from and in addition to the reporting requirements for candidates for elected position, and do not relieve an incumbent in or elected candidate to public office from reporting financial matters in accordance with State law; and WHEREAS, this Title 1, Chapter 11 shall replace Resolution 86, Series of 2006 which was previously adopted to serve as the Code of Ethics for the City of Englewood. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1: Establishment of Title 1, Chapter 11. Title 1, Chapter 11, Code of Ethics shall be adopted as set forth below: 1-11-1: PURPOSE AND AUTHORITY. A. The City Council finds and determines that its regulation of the subject of the ethical conduct of Representative of the City is a matter of local concern upon which the City of Englewood is empowered to legislate pursuant to the home rule authority granted in Article XX of the Constitution of the State of Colorado. These regulations do not supersede the City Manager’s authority to create more restrictive ethical standards for employees in accordance with Charter §52, but are intended to supersede all conflicting state statutes and local ordinances, including, but not limited to: 1. Title 24, Article 18, Colorado Revised Statutes; 2. C.R.S. § 24-6-203; and 3. C.R.S. § 31-4-404. B. The City Council finds and determines that this chapter addresses the matters covered by Article XXIX of the Constitution of the State of Colorado. Therefore, per Section 7 of said          Page 2 of 10 Article XXIX, its provisions do not apply to the City or any Representative of the City and the independent ethics commission created by Section 5 of said Article XXIX has no jurisdiction over any Representative of the City. C. The provisions of this Code of Ethics are distinct from and in addition to the reporting requirements for candidates for elected position, and do not relieve an incumbent in or elected candidate to public office from reporting financial matters in accordance with State law. 1-11-2: PUBLIC TRUST; FIDUCIARY DUTY. The holding of public office or employment is a public trust, and imposes a fiduciary duty upon every representative of the City, including elected officials and City employees. A member of City Council, Board or City employee shall carry out their duties for the benefit of the people of the City in accordance with this Code of Ethics. 1-11-3: DEFINITIONS. As used in this chapter, unless the context otherwise requires: BOARD: Any board, committee, commission, authority or other body appointed by the City Council, whether standing, provisional or temporary. BOARD MEMBER: A member of any board, commission or committee appointed by the City Council, pursuant to the authority vested in the City Council through Charter, ordinance or state law, including both regular and alternate members. Such term does not include or cover any compensated full-time or part-time City employee. BUSINESS: Any corporation, limited liability company, partnership, sole proprietorship, trust or foundation, or other individual or organization providing a service, resource(s) or goods, whether or not operated for profit. COMPENSATION: Any money, thing of value, or economic benefit conferred on or received by any person in exchange for goods or services rendered, whether rendered by himself or another. CONFLICT OF INTEREST (Personal or Private): A a personal right or a pecuniary right or liability that would materially (i.e. not de minimis) affect a Representative of the City’s financial interest, those of such representative’s family members or any business with which the Representative of the City is associated. A Conflict of Interest does not include a public interest. Examples include: (i) A Representative of the City is employed by or consults for a firm that will be directly benefitted by a decision of City Council; (ii) A Representative of the City's spouse or family member owns a share of business that is pursuing a new housing development and needs City Council action to move forward on zoning or licensing; or (iii) A Representative of the City owns an interest in property that the City wishes to purchase. ECONOMIC BENEFIT: An economic benefit tantamount to a gift of substantial value includes, without limitation, a loan at a rate of interest substantially lower than the commercial rate then currently prevalent for similar loans and compensation received for private services rendered at a rate substantially exceeding the fair market value of such services. EMPLOYEE: Any compensated person in the service of the City who is designated as an employee in the City's personnel policies and procedures, except a member of the City Council, the municipal judge or an independent contractor.          Page 3 of 10 FAMILY (FAMILY MEMBER): Family includes any person related to the Representative of the City by one degree of kinship (i.e., parents, siblings, children) by blood or marriage and shall also include spouses, domestic partners, and persons in a civil union regardless of whether the relationship is formally recognized. FIDUCIARY DUTY: A duty to act for the benefit of the City on matters within the scope of one’s position. FINANCIAL INTEREST: A substantial interest held by a Representative of the City, or their spouse, which is: (1) An ownership interest in a business; (2) A creditor interest in an insolvent business; (3) An employment or a prospective employment for which negotiations have begun; (4) An ownership interest in real or personal property; (5) A loan or any other debtor interest; or (6) A directorship or position of corporate officer in a business. GIFT OR GRATUITY: The acceptance by a Representative of the City or Board Member of goods, services or money for his or her own personal benefit offered by a person who is at the same time providing goods or services to the City under a contract or other means of which the Representative of the City or Board Member has a measure of control or decision- making authority, unless the totality of the circumstances attendant to the acceptance of the goods or services indicates that the transaction is legitimate, the terms are fair to both parties, the transaction is supported by full and adequate consideration, and the Representative of the City does not receive any substantial benefit resulting from such person’s official or governmental status that is unavailable to members of the public generally. OFFICIAL ACT OR OFFICIAL ACTION: Any vote, decision, recommendation, approval, disapproval, or other action, including inaction, which involves the use of discretionary authority. PERSON: Any individual or any other legal entity. PUBLIC INTEREST: Something in which the community at large has some interest. Examples include: Interests in general City goals, such as facilitating economic opportunity or protecting the natural environment, are shared with the public and do not cause a conflict of interest even if the Representative of the City may indirectly benefit from these policies. Similarly, a Representative of the City who is the patron of a grocery store or other business does not have a conflict of interest if the business seeks an approval from the City because the Representative of the City's interest as a customer is shared with the public. Living in the City, attending church or having children who attend local schools are further examples of matters of public interest. REPRESENTATIVE OF THE CITY: For purposes of this Chapter a member of the City Council or an employee. THING OF VALUE: Any tangible or intangible thing having a market value. 1-11-4: RULES OF CONDUCT FOR CITY COUNCIL MEMBERS AND CITY EMPLOYEES. A. It shall be a breach of a Representative to the City’s fiduciary duty and the public trust to:          Page 4 of 10 1. Disclose or use confidential information acquired in the course of their official duties in order to further substantially a personal financial interest. Confidential or privileged information, including information learned within an executive session, shall not be disclosed except as provided by law. 2. Engage in a substantial financial transaction for a private business purpose with a person who is inspected or supervised by Representative of the City in their capacity as a Representative of the City. 3. Perform an official act directly and substantially providing a direct or indirect economic benefit to/for a business or other undertaking in which they or a family member either have a substantial financial interest or are engaged as counsel, consultant, representative, or agent. B. An employee of the City who has a personal or private interest in any matter associated with such employee’s employment shall disclose such interest to their Department Director and immediate supervisor in writing. Employees shall not provide to any other entity, public or private, the same services for which they are retained by City without written approval from their Department Director. Employees shall not privately provide services to or accept payment from parties in contract with the City or provide services to the City. C. No employee may directly or indirectly supervise his or her family member or work under the line of supervision of any family member. 1-11-5: RULES OF CONDUCT FOR BOARD MEMBERS. A. Commission of any act enumerated in this section is proof that the actor has breached a fiduciary duty. Final determination shall be made by the City Council. That decision is not subject to appeal. B. A member of a board who has a personal or private interest in any matter proposed or pending before the board shall disclose such interest to the board and shall not vote thereon and shall refrain from attempting to influence the decisions of the other members of a board in voting on the matter. C. A member of a board who has an appearance of impropriety in any matter proposed or pending before the board shall disclose such interest and shall either affirm his or her vote will not be influenced by such interest or shall not vote thereon and shall refrain from attempting to influence the decisions of the other members of the board in voting on the matter. 1-11-6: GIFTS AND GRATUITIES. A. Neither a Representative of the City nor a Board Member shall solicit or accept any gift from any person, either directly or indirectly through a spouse or dependent child, which gift the Representative of the City or Board Member knows or which a reasonable person in such person’s position should know, under the circumstances, is either: 1. A gift that would tend to improperly influence that Representative of the City or Board Member to depart from the faithful and impartial discharge of his or her public duties; or 2. Is a gift being solicited or given for the primary purpose of rewarding the Representative of the City or Board Member for an official action he or she has taken; B. Rebuttable presumption of ethical violation arising from the acceptance of gift or gratuity.          Page 5 of 10 1. There shall be a rebuttable presumption that a gift to a Representative of the City from a person who has submitted a pending application, or who the Representative of the City knows is considering submitting such an application, to the City for any kind of contract or permit is prohibited. 2. There shall be a rebuttable presumption that a gift to a Board Member from a person who has submitted, or intends to submit, some form of application for contract or permit to the board upon which such Board Member is appointed to serve is prohibited. 3. There shall be a rebuttable presumption that a gift exceeding $50.00, trips outside the jurisdiction for non-work-related purposes, or tickets to an event outside the jurisdiction for a non-work-related purpose is a prohibited gift unless enumerated under subsection (C) below. C. The following gifts shall not be deemed to improperly influence a Representative of the City as described in paragraph (b)(1) or to be an unlawful reward for official action as described in paragraph (b)(2) and shall not be prohibited for that reason, but they shall be subject to the prohibition set forth in paragraph (b)(3): 1. Campaign contributions and contributions in kind as authorized by law; 2. An unsolicited, occasional non-pecuniary gift that is of trivial value not exceeding fifty dollars ($50.00); 3. An unsolicited token or award of appreciation in the form of a plaque, trophy, desk item, wall memento, or similar item; 4. Unsolicited informational material, publications, or subscriptions related to the recipient's performance of official duties; 5. Payment of, or reimbursement for, meals, lodging, travel expenses, and admission for attendance at a convention or other meeting at which the Representative of the City is scheduled to participate; 6. Gifts similarly available to the general public; 7. Educational scholarships, fellowships, and grants (hereafter collectively referred to as "scholarships") awarded by any person, whether such scholarships and grants are awarded to the Representative of the City, or to the Representative of the City's spouse or family member; provided however, the scholarships must be awarded based on merit, or competitive application, or ongoing performance requirements, and they must be awarded on the basis of objective and non-discriminatory criteria; 8. Gifts received pursuant to fundraising activities within the community at large when a Representative of the City or a Representative of the City's spouse or dependent child has special medical or financial needs resulting from an accident, medical condition, or other extraordinary event; 9. Gifts received pursuant to fundraising activities within the community at large when a Representative of the City or a Representative of the City's spouse retires; 10. An occasional, unsolicited opportunity to participate in a business meeting or social function where a meal is served and/or entertainment is provided if the Representative of the City's attendance would not be considered extraordinary when viewed in light of the position held by the Representative of the City; 11. Anything given by an individual who is a relative;          Page 6 of 10 12. Anything given by a personal friend of the recipient and such gift is given for personal reasons, including wedding, birthday, or similar commonly understood reason for gift giving; 13. Any ticket to a sporting, recreational, or cultural event where the Representative of the City's attendance is reasonably related to the official or ceremonial duties of the Representative of the City; 14. Payment for a speech, appearance, or publication with an organization unrelated to the City and not anticipated to enter into a contract with the City; 15. Payment of salary from employment; 16. Anything given as part of an inter-office gift exchange; or 17. Gifts or things of value received by a Representative of the City from the City, or received by a Representative of the City arising from his or her non-City employment and which is unrelated to his or her official City duties. 1-11-7: APPEARANCES OF IMPROPRIETY DISCOURAGED. A. An appearance of impropriety is created when a Representative of the City or Board Member will or may take a direct official action that, although not constituting a conflict of interest, will create a reasonable perception that the Representative of the City or Board Member's ability to carry out his or her official duties with integrity, impartiality, and competency is impaired. As examples only, such appearance may be created in the following circumstances: 1. When the direct official action will involve a close friend, employer, employee, or business associate of the Representative of the City or Board Member. 2. When the Representative of the City or Board Member is a recipient of an official notice of a quasi-judicial hearing due to the Representative of the City or Board Member's ownership or lease of property to be affected by such hearing. 3. When the Representative of the City or Board Member will be called upon to consider taking official action of a quasi-judicial nature and the Representative of the City or Board Member has previously and publicly expressed an opinion, position, or bias regarding the matter. 4. When the Representative of the City or Board Member will be called upon to consider taking official action of a fiduciary nature and members of the Public would have reason to believe the Representative of the City to have a personal or private interest in the matter. Example, when a Representative of the City or Board Member’s personal or private interest, including those of a family member, are included in advertising published by the City even when no direct monetary exchange occurs. B. A Representative of the City or Board Member who determines that his or her actions may cause an appearance of impropriety should disclose the appearance of impropriety in accordance with 1-11-8 below, and, if deemed necessary and appropriate by the Representative of the City, may recuse him or herself from participation. C. Violations of this Section do not constitute a violation of this Code of Ethics because an appearance of impropriety is not an actual ethical violation. However, a City Council member or Board Member who fails to publicly disclose an appearance of impropriety may be subject to public censure by the City Council. An employee may be disciplined pursuant to the          Page 7 of 10 administrative policy manual when failure to disclose leads to a breach of trust between the community and the City/City Administration. Compliance with this Section shall not constitute a defense for violation of another subsection or section of the Code of Ethics. 1-11-8: DISCLOSURE AND RECUSAL PROCEDURE; CHALLENGES. A. Disclosure. 1. Mandatory disclosure of a personal/private conflict of interest, or a voluntary disclosure of an appearance of impropriety, shall be made when the conflict or appearance is first reasonably known to the Representative of the City or Board Member. For members of the City Council, disclosure shall be made either orally during a public meeting or in writing to all other members of the City Council. For the City Manager or City Attorney, disclosure shall be made either orally during a public meeting or in writing to the City Council. For Board Members, disclosure shall be made either orally during a meeting or in writing to all other members of the board or commission. Employees shall make disclosure in writing to their immediate supervisor. Such immediate supervisor shall inform the Department Director and the Director of Human Resources. 2. A disclosure shall identify whether the matter is a conflict of interest or an appearance of impropriety, the general nature of the interests involved, whether the matter will create or potentially create an economic, pecuniary, or financial benefit or detriment for the Representative of the City or Board Member, and the approximate value of any potential benefit or detriment. B. Recusal. 1. When recusal is required due to a conflict of interest, or at the determination of a Department Director, or is voluntarily elected due to an appearance of impropriety, the Representative of the City or Board Member shall: a. Refrain from communicating with any other Representative of the City or Board Member regarding the matter and attempting to influence any other Representative of the City or Board Member's official action concerning the matter; b. Refrain from voting upon or taking any official action concerning such matter; and c. Physically leave the podium or meeting area at which the matter is being considered. Non-elected officials should leave the room. 2. A majority of City Council may require the recusal of a Council Member in accordance with subsection (c)(1) below. A majority of a Board may require the recusal of a member in accordance with (C)(3) below. The City Manager may require the recusal of an employee in accordance with subsection (c)(2) below. 3. Notwithstanding the prohibition against participation and voting where a conflict of interest exists, a City Council member may participate and vote on a matter notwithstanding a conflict of interest if participation is necessary to obtain a quorum or otherwise enable the City Council to act and if the City Council member complies with the voluntary disclosure procedures, and the City Council affirmatively votes to approve or require participation. C. Challenges for conflict of interest. 1. Challenge of City Council Member. Any person may challenge a City Council member's failure to declare a conflict of interest or failure to recuse himself or herself. A          Page 8 of 10 challenge must be submitted to the City Council in writing or orally made during a public meeting stating the facts in support of the challenge. The City Council shall promptly inquire into the basis and facts of the challenge and may request an opinion from the City Attorney, or outside counsel, regarding the challenge. The City Council may by majority vote of those present and voting (excluding any challenged member) render a determination whether a conflict of interest exists and/or whether recusal of the challenged Council Member is required. That determination is final and not subject to appeal. The City Clerk shall note in the minutes of the meeting the recused member’s vote as an abstention due to conflict of interest. 2. Challenge of employee. Any person may challenge an employee's failure to declare a conflict of interest or failure to recuse himself or herself. A challenge must be submitted in writing to the Director of Human Resources stating the facts in support of the challenge, with a copy to the City Manager. The Director of Human Resources shall promptly inquire into the basis and facts of the challenge and render a determination whether a conflict of interest exists. The Director of Human Resources shall make a recommendation as to the appropriate response to such conflict of interest and provide such recommendation to the applicable Department Director and City Manager. The City Manager will make a determination as to the required response to the conflict of interest. That determination is final and not subject to appeal. 3. Challenge of a Board Member. Any person may challenge any Board Member's failure to declare a conflict of interest or failure to recuse himself or herself. A challenge in writing or orally made during a public meeting must be submitted to the City Clerk, to be distributed to the City Council, and to the chair of that person's board. The written challenge must state the facts supporting the challenge. The person's board or commission shall promptly inquire into the basis and facts of the challenge and render a determination as to whether a conflict of interest exists and/or whether recusal is required. That determination is final, but may be reviewed by the City Council at the discretion of the City Council. 1-11-9: ENFORCEMENT OF ETHICAL VIOLATIONS. A. General Enforcement Provisions. Enforcement of this Code of Ethics shall not involve either a fine or imprisonment, nor shall enforcement be pursuant to the E.M.C. Title 1, Chapter 4, General Penalty Clause. Action under this Code shall not prohibit or prevent the pursuit of criminal or civil action if a crime or civil wrong is deemed to have occurred. B. City Council Members and Board Members. The appropriate means of enforcement of this Code of Ethics shall be determined by the City Council, in accordance with the restrictions provided within 1-11-9(A) and any other applicable law, for any alleged violation or actual violation of this policy by any member of the City Council, any member of any Board, the City Attorney or the City Manager. Members of the City Council may be censured by a majority vote of the City Council and required to recuse themselves from a vote in which they are found to have a personal/private conflict of interest. Board members may be removed from their appointments for acting upon a matter in which they have a personal/private conflict of interest. Actions against appointed officials shall be in accordance with applicable law. C. Employees. The method and manner of enforcement of this Code of Ethics for allegations made against employees shall be subject to the discretion of the City Manager who, pursuant to Englewood Charter §52 and Englewood Municipal Code Title 1, Chapter 6, Article A, is          Page 9 of 10 responsible for the supervision of employees and the suspension, transfer, or termination of any employee. Section 2. Notice of general provisions and findings applicable to interpretation and application of this Ordinance: Applicability of Title 1, Chapter 2, Savings Clause. The provisions of E.M.C. Title 1, Chapter 2, Savings Clause apply to the interpretation and application of this Ordinance, unless otherwise set forth above, including, but not limited to, the provisions regarding severability, inconsistent ordinances or code provisions, effect of repeal or modification, and legislation not affected by repeal. Enforcement. Enforcement of the above provisions shall be in accordance with Title 1, Chapter 11, Section 9. Enforcement of this Code of Ethics shall not involve either a fine or imprisonment, nor shall enforcement be pursuant to the E.M.C. Title 1, Chapter 4, General Penalty Clause. Action under this Code shall not prohibit or prevent the pursuit of criminal or civil action if a crime or civil wrong is deemed to have occurred. Safety Clauses. The Englewood City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Englewood City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Introduced, read in full, and passed on first reading on the 4th day of January, 2021. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 7th day of January, 2021. Published as a Bill for an Ordinance on the City’s official website beginning on the 6th day of January, 2021 for thirty (30) days. Read by Title and passed on final reading on the 19th day of January, 2021. Published by Title in the City’s official newspaper as Ordinance No. 4, Series of 2021, on the 21st day of January, 2021. Published by title on the City’s official website beginning on the 20th day of January, 2021 for thirty (30) days. This Ordinance shall take effect thirty (30) days after publication following final passage. Linda Olson, Mayor ATTEST: Stephanie Carlile, City Clerk          Page 10 of 10 I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by Title as Ordinance No. 4, Series of 2021. Stephanie Carlile