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HomeMy WebLinkAbout1996-06-17 EC CORRESPONDENCE [1]• City of Englewood June 17 , 1996 Sandra Ostema 2843 South Grant St reet Englewood , CO 80 11 0 Dea r Ms . Ostema , 3400 S . Elati Street Eng lewood , Colorado 80 11 0-2304 Phone (303 ) 76 2-23 00 (303 ) 762 -2 301 FAX (303 ) 789-1125 Pursuant to State Statute § 1-4-903 I am notify ing you that the Petition to Recall Rita Hathaway has been approved as to form by the Secretary of State 's Office and that I am , as of this date , authorizing the reca ll petition . Please note that authorization of the petition does not constitute approval of the contents of the petition but , rather, commences the running of the t ime periods . The Englewood Home Rule Charter § 34 states that the recall pet ition shall be filed with the requ isite informat ion and signatures with the City Clerk within sixty (60) days after authorization . The deadline for submission of the recall petitions is August 16, 1996 at 5:00 p.m. Failure to file a pet ition within this period shall render the recall petition nu ll and void . The authorized petition must be c irculated and signed by registered electors who would be ent itled to vote for the successor of the incumbent sought to be recalled . The petition must be s igned by at least 319 reg istered electors in District I. Loucrishia A Ellis , CMC C ity Clerk . :w Printed on Recyc led Paper "'--...c· ' 14 a 3Jnqn l~I. 1.Eliltralrn & Assnciat?s, J.Qr. A TIORNEYS AND COUNSELORS AT LAW -HN P . DiFALCO Daniel R. Brotzman City Attorney City of Englewood 3400 S. Elati Street Englewood, CO 80110-2304 Dear Mr. Brotzman: STUART PROFESSIONAL PARK A ril _,9 1136 EAST STUART STREET . SUITE 4102 p ~ , 1996 FORT COLLINS . COLORADO 80525-1194 \~ l{~ '. I I r..._/\...~----:.· ... ,.'.·... . . TELEPHONE (970) 224-2084 ~ , FAX (970) 224-9086 '..../ 11frCf1 :, "'"-:°.: ... ,"§ 1/~, ~L-,!V tf) \ ;:\ ·.I ·•. .· .:• .•· .· ~ , Crti1 ..,, ,. ~ -. . • , !:. .-\ Cl~ .... !·~~weed -'A r; attc.-;;~y 1;~~<· 1_, i \:5 \' This is in reference to your March 25, 1996 letter informing this firm that the Englewood City Council has authorized our appointment as special counsel to investigate the facts and issue a legal opinion regarding a potential conflict of interest by a member of the City Council. In investigating the matter, we have had discussions with yourself, City Manager Doug Clark, the citizen who filed the complaint, Sandra Y. Ostema, and the individual who was alleged to have engaged in the conflict, Council member, Rita Hathaway. Additionally , we have reviewed the procedure manual of the City Council , Municipal Code , Section 3-10-5 , which deals with conflict of interest and the Home Rule Charter of the City of Englewood. Our investigation has focused upon the March 5, 1996 allegations made by Sandra Y. Ostema in her letter to the Englewood City Council. Obviously , pursuant to the lim ited request of the Englewood City Council, our findings and opinion will be based solely upon the legal issues that are presented. Any political or legislative policies are beyond the purview of this review and will not be evaluated, as such matters are best left for the duly elected officials and the political process of the City of Englewood, Colorado. This opinion will focus on the issues raised by Sandra Y. Ostema in the sequence she presented them to the City Council in her March 5th letter. Initially it is noted that there does not appear to be any significant dispute regarding the facts in the case. On January 29 , 1996 , Council member, Rita Hathaway received an E- mail from the City Attorney's office providing the draft of a proposed ordinance and two paragraphs of a resolution setting fees under the ordinance. The ordinance generally referred to regulation of temporary agencies/day labor in the City of Englewood. Council member Hathaway in tum faxed the proposed ordinance on January 30th to the "Colorado Association of Staffing Services," a lobbying group for the businesses subject to regulation under the ordinance. Rita Hathaway had given notice three weeks previously to her employer, Stand By Personnel , that she would Daniel L. Brotzman City Attorney May 1, 1996 Page 2 be taking another position. Her last day of employment with that company was January 31, 1996. The E-mail ordinance Council member Hathaway received from City Attorney Dan Brotzman's office was part of the information provided to members of City Council for their regular meeting scheduled for Monday, February 5, 1996. Attorney Brotzman indicates that the information was provided to the member of Council in the normal course of business and that the same information, the draft ordinance not being a privileged or confidential document, was available to any citizen who may have requested a copy. Indeed, there is information that at least one citizen did request a copy of the ordinance and was advised that he could just pick it up at the City Attorney's office. This request apparently came in on Thursday, February 1, 1996. The significant point is , however , that the City Attorney did not consider the document to be confidential , attorney/client privileged, or otherwise restricted from the public. As the purpose of the ordinance was to license and thereby establish certain restrictions on temporary agencies/day labor providers , as is customary in Englewood, a resolution to set fees with such ordinance creating a licensing procedure is routinely provided to the City Council. It was explained that the resolution setting fees can quickly be modified in conjunction with consideration of the ordinance, which requires a more cumbersome procedure to amend. The City Attorney advises that he has a specific procedure to mark documents that are confidential, privileged, or somehow restricted. He notes that he usually marks such documents as "clients review only" or "confidential." (It is clear that the documents in question were never intended to be confidential, nor were they marked in any way to prevent public disclosure.) All parties agree that the subject ordinance related to a matter that was of general concern to the public in Englewood --that is the regulation of temporary employment agencies in the City. Our opinion concerning the separate allegations made by citizen Ostema are presented in order as follows: 1. On January 31, 1996, Councilperson Hathaway violated Home Rule Charter No. 26, with willful conduct and malice disregard to her office and the constituents of District No. 1, she did cause Bill No. 5, specifically referred to as the Temporary Agencies/Day Labor Bill, ' Daniel L. Brotzman City Attorney April 29 , 1996 Page 3 hereafter referred to as Bill No. 5, to be released to the general public, contrary to City Administrative procedures for the introduction of Bills. This allegation generally refers to the responsibilities of a member of City Council under the constitutions of the United States and Colorado , as well as the Charter and ordinances of the City. It is an allegation that Council member Hathaway somehow violated her general responsibility by making public an ordinance that was being considered by the City Council for possible enactment. In reviewing Home Rule Charter, Article V , relating to ordinances, we find this traditional Chaner language concerning the enactment of ordinances in no way precludes a Council member or any other official of the City from providing copies of a proposed ordinance to any party. The procedure manual of the City Council , specifically Section VII , relating to ordinances, resolutions , motions and contracts , does not preclude the member of Council from providing copies of the ordinance to any interested party. Indeed, Section V , paragraph D , relating to the City Attorney, mandates that, "Any member of the City Council may at any time call upon the City Attorney for an oral or written opinion relative to any municipal matter or for the preparation of a bill for an ordinance upon any subject." Further, the City has a very broad open meetings provision which implies that the information generated by the City is generally available to the public , unless for some acceptable reason, such as contract negotiations or personnel matters , the City chooses to declare a confidentiality exception to the virtually universal openness implicit in the City Charter and ordinances. In that the provision of information in the form of ordinances or resolutions to the public is not prohibited; indeed, it appears to be encouraged by the City Charter, ordinances, and procedure manual of the City Council , the mere act by member of Council , Rita Hathaway , in providing information to a group of constituents or any other party does not constitute any legal conflict of interest. 2. On October 24, 1995, Councilperson Hathaway violated Home Rule Charter No. 30, with willful conduct and malice disregard to her office and the constituents of District No. 1, by delegating to a committee known as Neighborhood Watch an issue of concern to her constituents, namely working with the concerns of the neighbors and the effects of a business known as Stand By Personnel. Neighborhood Watch is a neighborhood committee and not a Board or Commission duly appointed by the City of Englewood. I am sure that this delegation Daniel L Brotzman City Attorney May 1, 1996 Page 4 was made to save the appearance of a conflict, however, Home Rule Charter No. 30 was violated nonetheless. This allegation appears to be related to the Charter provis10n concerning Council powers. It is clear in Colorado that under the state constitution, a City Council may not delegate legislative power to any other individual , commission , board, etc. Greeley Police Union v. City Council of Greeley, Colo. 553 P.2d 790 (1976 ). Although the referral of a matter to a neighborhood committee is characterized in Ms. Ostema's letter as an illegal delegation of legislative authority, the facts clearly indicate that no such delegation was intended or was even attempted in the instant case. It is not at all uncommon for an entire City Council or individual Council members in Colorado jurisdictions to ask neighborhood groups to address issues from an information gathering standpoint and make recommendations to their elected representatives on problems of neighborhood or general citywide concern. The actions by Council member Hathaway in referring this matter to the committee on its face does not appear to be anything more than a traditional and legally recognized effort to make such an informal request to a neighborhood committee. It is clear that even if the entire City Council attempted to illegally delegate legislative authority to an individual or committee in violation of the prohibition of the state constitution on such delegation, the legal consequence of such effort would only constitute an ultra vires act. The illegal delegation, without power by the Council , would simply make such action null and void. See Greeley Police Union, supra. The attempt at delegation would not, in and of itself if done in good faith , constitute a conflict of interest, merely an error in wrongl y delegating legislative authority. In that the action by Council member Hathaway does not even arise to a delegation, it cannot constitute even a legal error, let alone be characterized in any respect as a conflict of interest. It is best described as another effort on the part of Council member Hathaway, and through her presumably the City Council, to effect the policies of the City of Englewood to have an open government with considerable citizen involvement. The propriety or political correctness of such actions are best left for the City Council and the electorate. These actions do not rise to the level of any legal conflict of interest or Charter violation. 3. On January 31, 1996, Councilperson Hathaway violated Home Rule, Charter No. 32, with willful conduct and with malice disregard to her office and the constituents of District No. 1, she did cause Bill No. 5 to be released to the general public, by direct interference with the procedures of the City Manager and City Attorney, contrary to City Daniel L. Brotzman City Attorney May 1, 1996 Page 5 Administrative procedures for the introduction of Bills. Bill No. 5 was in a draft form. The cover letter issued by Attorney Brotzman did not include residents and/or Stand By Personnel, therefore it was not intended to become "of public record". Bill No. 5 was released before the draft was completed in its entirety. See copy of Fax from Stand By to Alexander's Data Processing, a copy of which has been given to Alex Habenicht. The copy that was faxed to Stand By from City Hall was done in two parts. The ink does not appear to be dry enough to make it "of public record". This allegation concerns a Charter provision that is found in virtually all Home Rule Charters mandating that the administrative service of City government shall deal solely through the City Nfanager. It contains the usual prohibition on members of City Council , cautioning them against dictating the appointment or directing or interfering with the work of any officer or employee under the administrative jurisdiction of City Nfanger. In the instant situation, the question of violating section 32 of the City Charter never arises because the evidence discloses that Council member Hathaway received the ordinance and communicated with the City Attorney and his confidential employees who by express provision of the Charter are not members of the administrative staff reporting to the City Manager. The Englewood Chaner, as is typical in most Home Rule cities , provides for the establishment of a legal department under Article IX of the Charter. It specifically provides at Part I , section 64 that, "The Council shall appoint a City Attorney who shall be the legal representative of the City and who shall advise the Council and City Officials in matters relating to the official powers and duties." The Council establishes the compensation for the City Attorney and hires and fires that individual. Conversely, the City Manager, who is also an appointee of the City Council , is the head of the administrative service of the City, that group of employees contemplated by section 32 of the City Charter. It is clear under section 49 of Article VII of the Charter that the City Manager , "shall be the chief executive officer and head of the administrative branch of the City Government." He , like the City Attorney, is hired and fired by the City Council, who also sets their respective salaries. Although City Attorney staff may be members of the City personnel system for purposes of pay , benefits, etc., under the Charter, the City Manager, who is in charge of the administrative branch of the City Government and the City Attorney , who serves as the legal representative of the City and advisor to the Council and City Officials , are legally two separate and distinct entities and for the purposes of the prohibitions of the City Charter found at section 32, must be recognized for their different roles and responsibilities, vis a vis , Daniel L. Brotzman City Attorney May 1, 1996 Page 6 the City Council. In short, Council member Hathaway could not have violated section 32 of the City Charter because she was not even dealing with the administrative service of the City in having discussions with and obtaining documents from the City Attorney. A basic prerequisite to violation of section 32 of the Charter is therefore not met (i.e. a Council member dealing directly with the "administrative service") and , therefore, there can be no violation of that specific Charter amendment, nor is there any violation of applicable ordinances or the procedural manual of the City Council specifying similar prohibitions regarding the Council dealing directly with members of the administrative service. In Ms. Ostema's letter of March 5, 1996 , she states that, "The cover letter issued by Attorney Brotzman did not include residents and/or Stand By Personnel , therefore, it was not intended to become "of public record"." The assumption that unless a document is designated as public record it is somehow private and not disclosable by City Attorney Brotzman is a gross misunderstanding of the public records law in the state of Colorado, as well as the obvious policies of the City of Englewood , as reflected in its adoption of state statute and ordinance regarding open meetings. The exact reverse of Ms. Ostema 's position is the correct law . All documents generated by a municipal government are considered matters of public record unless the document comes within the narrowly defined exceptions under the various public records laws. In other words , the document does not have to say, "of public record" to be public. It is presumptively a public record unless there is some clear indication that it is confidential, private , or attorney/client privileged. Mere disclosure of the information when such disclosure is in furtherance of the public policy of openness in government cannot, in any respect, constitute a conflict of interest. Presumably, the citizen making the complaint would not be in favor of government in which records were private unless identified for the public, as this is just the kind of governmental abuse that the open records laws intended to correct. The City policy of openness is fully congruent with the actions of Council member Hathaway in disclosing the ordinance to members of the public. 4. On January 31, 1996, Councilperson Hathaway violated Home Rule Charter No. 37, by willful conduct and with malice disregard to her office and the constituents of District No. 1, she did not excuse herself from voting on matters involving the consideration of her own official conduct or when her personal or financial interest is involved, namely being in the employ of Stand By Personnel. Councilperson Hathaway's last day of employment with Stand By Personnel was on . .,, Daniel L. Brotzman City Attorney April 29 , 1996 Page 7 January 31, 1996, and would be receiving a final payroll check around mid-February. This allegation relating to an incident on January 31, 1996 is difficult to address because there is no evidence that there was any Council meeting or vote on January 31 , 1996. The allegation that Council member Hathaway, "did not excuse herself from voting on matters involving the consideration of her own official conduct or when her personal or financial interest is involved," is equally difficult to address . If there was no vote, there could not have been a conflict as described in this allegation. The only conceivable related issue may have occurred at a Council meeting on February 5, 1996, when the Council voted to table Bill No. 5 (the ordinance relating to temporary agencies/day labor.) It appears Council member Hathaway did participate that evening in the procedural vote under the rules of parliamentary procedure to table funher consideration of the subject ordinance. A procedural vote to table such ordinance could not, in and of itself, constitute a conflict as it is uncontroverted that Council member Hathaway did not work for Stand By Personnel after January 31 , 1996, and in any event, there is no showing that she engaged in any act which would violate the City 's conflict of interest ordinance, Englewood City Code , Section 3-10-5 , et. seq. That very broad conflict of interest provision would appear to cover virtually any conceivable impropriety by a public official. At Section 3-10-5, subparagraph D , it is clear that the City considers it a conflict if an employee holds an employment relationship with a business entity or agency subject to the regulation of the City of Englewood and such relationship , "will create a conflict between his/her private interests and the performance of his/her public duties or that would impede the full and faithful discharge of his /her public duties." In the instant case, any such employment relationship was terminated as of January 31, 1996, and there is no evidence that Council member Hathaway directly benefited in any respect from any votes that she may have participated in, indeed, "there was no vote on January 31, 1996," nor is there any indication that a vote to table the regulatory ordinance on February 5, 1996 was either favorable or unfavorable to any particular party, specifically the Council member's former employer. In order to demonstrate a conflict of interest under the statute, one must show a certain "legal nexus"or direct connection or benefit for action taken. Unless such is demonstrated by competent evidence, and this is not the case in these allegations, then the dispute between the parties becomes nothing more or less than a political dispute that under our system of government must be addressed in the political arena. In looking at all the uncontroverted facts in this matter and recognizing the very broad construction that is to be given to the remedial legislation of the conflict of interest ordinance, one Daniel L. Brotzman City Attorney May 1, 1996 Page 8 cannot find that any of the actions taken by Council member Hathaway, be it the unofficial action of providing information to constituents or the official action of voting on a matter, can reasonably be construed as demonstrating a conflict of interest. In any event, there can be no violation of section 37 concerning any actions taken on January 31 , 1996, as there was no Council meeting and there were no votes by Council member Hathaway on that date. 5. On January 31, 1996, Councilperson Hathaway violated Home Rule Charter No. 37, by willful conduct and with malice disregard to her office and the constituents of District No. 1, by willfully and knowingly circulating or cause to be circulated Bill No. 5, the disclosure of which defeated the lawful purpose for which it was intended to accomplish .. by creating confusion among her constituents and area businesses associated with the matters of Stand By Personnel. The same Charter provision is referred to in allegation 5, as was listed in allegation 4, and since there was no such vote on January 31 , 1996 , there cannot have been any violation of that Charter Section. The actions complained of, circulating the subject ordinance , "the disclosure of which defeated the lawful purpose for which it was intended to accomplish ," would appear to be an allegation that the member of Council, by disclosing information prevented an ordinance from being enacted that may somehow have snuck through the legislative process , thereby sandbagging a certain constituency or member of the public. This allegation, even if it were true , is not a basis for finding conflict. The allegation is more in the nature of a comment on the correct way the political process is intended to function. The mere disclosure of an ordinance is all that occurred, and the allegation that such disclosure somehow created "confusion among ... constituents and area businesses " is more in the nature of a political comment from the party who may not have prevailed in the political in- fighting than a responsible allegation of conflict or other violation of City Charter. Obviously, it is not the purpose of the City Council , despite what the citizen complainant seems to be saying in her allegations, to quietly enact legislation before constituencies are aware of just what the City Council is doing in implementing legislative policy. Indeed, such star chamber legislative action is a far greater evil than disclosure of information, as is well recognized by the open meetings and public records policies of virtually every level of government in this nation. In summary, the issues raised by citizen, Sandra Y . Ostema, regarding the conduct of Council member Rita Hathaway are clearly in the nature of political Daniel L. Brotzman City Attorney May 1, 1996 Page 9 disagreement and should, indeed, be addressed in the political arena. The fact that Council member Hathaway did not exercise the restraint that Ms. Ostema would have preferred in concealing the ordinance from one or more constituents or in approving the ordinance as written, which apparently was the goal of the complaining citizen, is a matter for the political process, not the conflict of interest regulations of the City which are rightly intended to cover those instances in which there has been financial gain or inappropriate self-dealing by a public official or employee in violation of the prohibitions of the Charter and ordinances. In reviewing all the facts which are essentially not in dispute , and in applying the City ordinances prohibiting conflicts of interest, the City Charter and procedural manual of City Council concerning the proper procedures for enacting legislation in the most broad and remedial sense , we are unable to find any violation of Charter, ordinance , or procedure in the actions of Council member Rita Hathaway. There is no legally recognizable conflict of interest in this case , although there is obv iously a political dispute which must remain in the political arena. We are confident that any such political dispute, as is appropriate in a democracy under our form of representative government, will be resolved in the best interests and for the general welfare of all the citizens of the City of Englewood , Colorado. JOHN P. DiF ALCO & ASSOCIATES , P.C. By: JOHN P . DiFALC