Basalt looks at changes to council conflict rules
September 10, 2012
BASALT – The Basalt Town Council is pondering a substantial alteration of the way council members can determine whether they have a conflict of interest on matters before the board.
The council is considering changes that would allow a council member with a possible personal conflict to raise the issue with the full board for determination if a recusal is necessary, according to a draft ordinance.
A first reading of the ordinance was scheduled Tuesday night, but it has been withdrawn, and the council will discuss the matter in a closed session. If the ordinance is approved at a later first reading, the board will set a future public hearing and a second reading.
Bill Kane, who recently retired as town manager, said in an interview before he left the post that the change was discussed in the council’s retreat in July. Basically, he said, the change would allow a council member who is uncertain if a situation merits a conflict of interest to seek clarification by the other board members.
Currently, a member with a question about a possible conflict consults with Town Attorney Tom Smith, who advises the person based on the existing rule on “Disclosure of Personal Interest in Legislative Action” in the town code. That provision says, in full:
“Any member of the Town Council who has a personal or private interest in any matter proposed or pending before the Town Council shall disclose such interest to the Town Council and, except as provided in Section 2-280, shall not vote thereon and shall refrain from attempting to influence the decisions of the other members of the governing body in voting on the matter. The Council member shall leave the room during the Council’s discussion and action on the subject, and shall return only when the Council has taken up the next agenda item.”
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Section 2-280 allows a council member with a possible conflict to vote in case a quorum is needed.
Smith said the existing guideline will remain. The council will consider language that adds to the procedure. In his words, a member of the council could come to the full board on a disclosure issue and say, “I don’t see it as simple black and white, and I’d like to get it out there before the public.”
Smith, a former Pitkin County attorney who has advised the Aspen-Pitkin County Housing Authority for years, said he is asked about personal conflicts frequently by members of the boards he advises.
“Seventy-five percent of the time it’s an easy yes or no,” he said.
The other cases are more of a judgment call. Basalt’s proposed procedure would give a council member the option of bringing the issue to the full board. The board then would be asked to vote on whether the member should recuse himself or herself.
“It’s certainly more democratic than it is now,” Smith said.
The option would remain for a council member to declare a conflict and recuse himself or herself.
“Any council member at any time can say, ‘I’m out,'” he said.
The proposed ordinance provides criteria for the council to make its decision. It must determine if the personal or private interest is “direct or indirect, immediate or remote, and substantial or insubstantial,” the ordinance says.
There are two other major criteria:
• “Whether the nature of the personal or private interest would compromise the fairness of the Town Council’s action on the underlying matter.”
• “Whether the purposes of the Town Code of Ethics and the public interest would be served best by participation or recusal by the requesting member.”
Smith said he is unaware of any other government body that follows a procedure similar to what Basalt is proposing. An official at the Colorado Municipal League said she was unaware at first blush of a similar procedure elsewhere in the state, though she said she hadn’t researched it extensively. Three town managers outside the area also said in an informal poll they were unaware of any similar procedure in Colorado.
Basalt’s procedure also would bring the public into the process. Once a council member triggers the public review on whether there is a conflict, the council would take public comment on the issue, according to the proposed ordinance.
The process could reduce the town attorney’s role in determining a conflict of interest and place it in the hands of the public and other council members, said Basalt Mayor Jacque Whitsitt. She said she is opposed to the proposed additional language.
“As far as I’m concerned, our attorney has provided sound legal advice on this,” Whitsitt said. “It’s a legal question. It’s not a matter of opinion.
“I’m not comfortable if it takes the attorney out of the loop,” Whitsitt added.
The issue came up as a result of the review of the Pan and Fork Mobile Home Park, according to Kane.
“Yeah, I think that was certainly the impetus for it,” he said.
A nonprofit organization called Community Development Corp. purchased the mobile-home park earlier this year. It hired Basalt Town Councilman Glenn Rappaport, an architect, as a consultant as well as architect Harry Teague, husband of Basalt Councilwoman Karin Teague. Neither Rappaport nor Harry Teague is consulting with Community Development Corp. any longer, according to them and a representative of the nonprofit.
Community Development Corp. submitted an application for redevelopment this spring. Rappaport and Karin Teague have recused themselves from participation in the review after consultations with Smith.
Rappaport declined a request for an email interview with The Aspen Times on the proposed addition to the conflict ordinance. It is unknown if he will attempt to reverse his recusal on the Pan and Fork redevelopment.
Karin Teague said she raised the idea of altering the town’s conflict rule at the council’s retreat.
“I raised it as an issue because our current code has led to the nutty result of me being not able to participate in possibly the biggest land-use application in the town’s history, which may go on for years, because my husband spent a small number of hours giving preliminary master planning advice to the (Community Development Corp.) that ended a year ago and for which there is no understanding, implicit or otherwise, that he will continue in any capacity,” Karin Teague wrote to The Aspen Times in an email.
She added that she feels there is an “overly strict local rule (stricter than the state statute) that is then rigidly applied by our town attorney.
“The idea behind the new ordinance is to let the person with the possible conflict hear from his peers, maybe be made aware of something he/she hadn’t considered, and/or figure out there is no conflict or unease on the part of his/her fellow councilors, and thus be able to participate in important town decisions, which after all is what we were elected to do.”
Karin Teague said she intends to inform the rest of the council at the next opportunity that she doesn’t believe she has a conflict of interest on the Pan and Fork project and that she would like to begin to participate. That could put the town in an interesting legal position because Smith disclosed on Feb. 29 that the employment of Rappaport and Harry Teague “would in the future require the recusal of Mr. Rappaport and Ms. Teague.”