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HomeMy WebLinkAbout2020-08-18 Agenda and Supporting Documentation Town Council Afternoon Meeting Agenda VAIL TO W N C O U N C IL R E G U L AR ME E TIN G Agenda Virtual 1:00 P M, August 18, 2020 Meeting to be held Virtually (access High Five Access Media livestream https://www.highfivemedia.org/live-five the day of the meeting and visit https://www.vailgov.com/town-council to participate in public comment) Notes: Times of items are approximate, subject to change, and cannot be relied upon to determine what time Council will consider an item. Public comment on any agenda item may be solicited by the Town Council. 1.Executive Session 1.1.Executive Session, pursuant to: 1) C.R.S. §24-6-402(4)(b)(e) - to have a conference with the town attorney to receive legal advice on specific legal questions; and to determine positions, develop a negotiating strategy and instruct negotiators, regarding: town sale of Chamonix Vail Community Unit No. 6 and Children's Garden of Learning lease dated February 12, 2020 ; 2) C.R.S. §24-6-402(4)(f) - to discuss personnel matters, regarding: Town Manager employment review and other personnel complaints; and 3) C.R.S. §24-6-402(4)(b) - to receive legal advice on specific legal questions; Regarding: Colorado ethics and conflict of interest laws. 90 min. Presenter(s): Matt Mire, Town Attorney 2.The Afternoon Regular Meeting will reconvene at 2:30 p.m. 3.Presentation / Discussion 3.1.Future Property Tax ballot discussion.45 min. Presenter(s): Kathleen Halloran, Finance Director and David Flaherty, Magellan Strategies Action Requested of Council: Provide feedback on additional information presented regarding a potential ballot question to voters this November to "de-Gallagherize" Vail property tax. Staff is also requesting approve to move forward with a voter survey. Background: On August 4th staff presented a potential ballot question to stabilize Vail's property tax collections. This presentation is to provide additional information to Council on the topic, request approval of a voter survey and ask for feedback on ballot wording. 3.2.Vail Valley Drive Advisory Bike Lane Trial Update 20 min. Presenter(s): Tom Kassmel, Action Requested of Council: Provide feedback and direction to staff regarding the Advisory Bike Lane trial. Background: The Town installed an Advisory Bike Lane (A B L) trial along Vail Valley Drive from the Ford Park Soccer Field Lot to Sunburst Drive two August 18, 2020 - Page 1 of 139 months ago. The purpose of this work session is to report back to Council on feedback that staff has received on the A B L’s. Staff Recommendation: Continue with A B L trial this year and plan on installing the A B L next year with some improvements to be further defined prior to installation next year. 3.3.Public Works Capital Projects Direction 10 min Presenter(s): Greg Hall Director of Public Works and Transportation Action Requested of Council: Listen to presentation and provide staff direction on next steps. Background: The purpose of this item is to: Request the Town Council to consider a smaller scale project at the Public Works Shop Receive Town Council direction regarding continued bid solicitation for a revised first phase Public W orks shop project and East Vail Drainage project for completion this fall. Staff Recommendation: Staff has recommends moving forward with bid proposals in anticipation of project award of the two projects on September 1, 2020. 3.4.Economic Recovery Efforts Updates in Response to the Public Health Crisis 45 min. Presenter(s): Scott Robson, Town Manager Action Requested of Council: I nformational update with some feedback requested on certain topics. Background: An economic recovery efforts update will be presented addressing a number of programming and tactics implemented to help stimulate Vail's business economy during these challenging times. Such topics include status of public health orders, discussion about consideration of mandatory mask zones, marketing updates, and other program updates. 4.D R B / P E C Update (5 min.) 4.1.D RB / P E C Update Presenter(s): J onathan Spence, Planning Manager 5.Information Update 5.1.V LHA Meeting Results J une 23, 2020 5.2.V LHA Meeting Results J uly 28, 2020 5.3.C S E Meeting Minutes from August 5, 2020 6.Matters from Mayor, Council and Committee Reports (10 min.) 6.1.Ethics & Conflict of I nterest Discussion Presenter(s): Dave Chapin, Mayor Action Requested of Council: Town Council is asked to review the information included in the Colorado Municipal League materials and affirm they are interested in this discussion with C I RS A's attorney at the September 15 council meeting. August 18, 2020 - Page 2 of 139 Background: Members of the Vail Town Council have requested materials that would inform a discussion about drafting legislation addressing ethics and conflict of interest to be included in the Town Code. The Town Clerk's Office has forwarded information and video that help frame the ethics and conflict of interest topics. Sam Light, C I RS A, has been invited to the September 15 meeting to present some recommendations and facilitate the discussion about these topics. 7.Recess 7.1.Recess 4:50 pm (estimate) Meeting agendas and materials can be accessed prior to meeting day on the Town of Vail website www.vailgov.com. All town c ounc il meetings will be streamed live by High Five Acc ess Media and available for public viewing as the meeting is happening. The meeting videos are also posted to High Five A cc ess Media website the week following meeting day, www.highfivemedia.org. Please c all 970-479-2136 for additional information. S ign language interpretation is available upon request with 48 hour notification dial 711. August 18, 2020 - Page 3 of 139 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Executive Session, pursuant to: 1) C.R.S . §24-6-402(4)(b)(e) - to have a conference with the town attorney to receive legal advice on specific legal questions; and to determine positions, develop a negotiating strategy and instruct negotiators, regarding: town sale of Chamonix Vail Community Unit No. 6 and Children's Garden of L earning lease dated F ebruary 12, 2020 ; 2) C.R.S. §24-6-402(4)(f) - to discuss personnel matters, regarding: Town Manager employment review and other personnel complaints; and 3) C.R.S . §24-6-402(4)(b) - to receive legal advice on specific legal questions; Regarding: Colorado ethics and conflict of interest laws. P RE S E NT E R(S ): Matt Mire, Town Attorney August 18, 2020 - Page 4 of 139 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: F uture Property Tax ballot discussion. P RE S E NT E R(S ): K athleen Halloran, F inance Director and David F laherty, Magellan Strategies AC T IO N RE Q UE S T E D O F C O UNC I L: Provide feedback on additional information presented regarding a potential ballot question to voters this November to "de-Gallagherize" Vail property tax. S taff is also requesting approve to move forward with a voter survey. B AC K G RO UND: On A ugust 4th staff presented a potential ballot question to stabilize Vail's property tax collections. T his presentation is to provide additional information to Council on the topic, request approval of a voter survey and ask for feedback on ballot wording. AT TAC H ME N TS: Description gallagher Power Point August 18, 2020 - Page 5 of 139 __________________________________________________________________________ Memorandum TO: Town Council FROM: Finance Department DATE: August 18, 2020 SUBJECT: Future Property Tax ballot discussion I. SUMMARY The purpose of this memorandum is to provide additional information to Town Council based on questions posed during the previous August 4th Council meeting on the topic of a future ballot question to voters to “de-Gallagherize” Vail property taxes. Magellan Strategies will also present to Town Council on the overall climate of this year’s November election, how the state’s ballot question to repeal the Gallagher Amendment may interplay with a Vail question, and discuss the opportunity for an online survey effort to give Council baseline data on voter sentiment. Staff proposes moving forward with the online survey to provide a glimpse of data that will better inform Council before making a decision to move forward with a ballot question. The survey will cost between $5,000-$7,000, with results reported back to Council on September 1st. Tonight’s consent agenda includes Resolution No. 36, Series 2020, which will approve an intergovernmental agreement for the coordination of the ballot with Eagle County. This resolution is required due to the timing of county deadlines, however this does not commit the town to a final decision on bringing forward a ballot question. The final decision will be made at the September 1st Town Council meeting, with approval of ballot language that is due by September 4th. II. BACKGROUND On August 4, staff presented a potential ballot question that would diminish the impact of the Gallagher Amendment on property tax collections by allowing the town to increase or decrease its mill levy in order to effectively achieve a permanent residential assessment rate of 7.15%, the rate currently imposed on residential properties in the town and throughout the state. August 18, 2020 - Page 6 of 139 - 2 - Council supported moving forward based on the below supporting arguments: • The significant impact to town services, including fire, police, public works, transit, parking and general operations. Over last three years, the town has lost $1.3M and with impacts of COVID, the town stands to lose another $1.4M in 2021. • Property Tax is a diversified source of revenue for the town; With less property tax flowing in (even as residential values increase), the town’s dependency on sales tax will grow even larger than it is today. • The State of Colorado will pose the same question to voters in November. Whether or not the state question passes, the Town of Vail citizens through the Town Council will have a say in the amount of property taxes collected. This ballot question would effectively freeze the residential assessment rate at 7.15% (current rate statewide) and not be impacted by increases or decreases set by the state. • Large support from county-wide voters to “de-Gallagherize” for other regional special districts such as Vail Recreation District, Colorado Mountain College, Greater Eagle Fire District, Eagle County Paramedic Service and Gypsum Fire District. The projected impact to Vail property owners: Based on 2021 estimates, a home valued at $500,000 would be impacted by not seeing a reduction of $30 in their property taxes. By voting “yes” on this ballot question, voters would be allowing the Town of Vail to keep the $30 in property taxes for critical services. This ballot measure would not impact commercial properties, as the state has already fixed the assessment rate at 29%. III. DISCUSSION Staff has met with representatives of districts that were successful in a vote to “de- Gallagherize”, as well as Magellan Strategies, campaign and polling experts. Based on their collective input, the following strategies make up a formula for success: • Survey voters: An online survey of voters is proposed to gather critical data on voter sentiment. Specifically, staff is concerned about the timing of a ballot issue given the economic impact of COVID-19 on residents, the potential confusion caused by a state- wide ballot question to repeal Gallagher and testing the “messaging” of the Vail initiative. • Support of Town Council: A ballot question will not be successful without strong support from all council members, and successful campaigns have Councils who advocate the issue in the community. • Careful ballot wording such as “Without increasing total tax revenues…” in the first line of the question so as not to immediately turn off voters. Be clear with why we’re asking for this and what the money will be used for. August 18, 2020 - Page 7 of 139 - 3 - • Establish an external committee to campaign for the issue. According to the Fair Campaign Practices Act, Town of Vail staff may not participate in campaign activities or publish advertising surrounding the ballot question. Examples of committee activities include gathering support from community champions, fundraising, coordinating letters of support to the Vail Daily, distributing yard signs or other campaign advertising, etc. • Craft effective messaging. An online survey will help to craft effective messaging to reach Vail voters. Polling data gathered from previous campaigns indicated that voters agreed with giving more control to local government rather than relying on the state. Voters also viewed quality of services as a positive outcome and strongly supported maintaining those services. Attempting to educate voters on the details of the Gallagher Amendment was not recommended due to complexity; rather a focus on the real-life impact and outcomes of a “Yes” vote were more effective. • Close to Election Day, Town Council supports the ballot question with a Resolution. This is last opportunity for the town to outline all the reasons for supporting the issue in a public manner. Staff would recommend this resolution be set for the meeting on October 20th. Sample Ballot Wording The below ballot wording has been revised based on preliminary input gathered at the last Council meeting. Council expressed concern that the “legal-ease” language was confusing and too lengthy. While much of the language is required for legal reasons, other districts have recommended that the ballot be clear and easy to understand exactly what the town is proposing to do and how the funds will be used. The following revised ballot language for your consideration: WITHOUT INCREASING TOTAL TAX REVENUES COLLECTED AND IN ORDER TO ALLOW THE TOWN OF VAIL TO SUSTAIN BASIC PUBLIC SAFETY AND MUNICIPAL SERVICES, SHALL THE TOWN BE AUTHORIZED TO ADJUST ITS MILL LEVY ANNUALLY SOLELY TO MAINTAIN REVENUES THAT WOULD BE LOST DUE TO STATE-IMPOSED PROPERTY TAX ASSESSMENT REDUCTIONS MADE PURSUANT TO THE 1982 GALLAGHER AMENDMENT TO THE COLORADO CONSTITUTION PROVIDED THAT THE REVENUES GENERATED BY SUCH MILL LEVY ARE THE SAME AS THE TAX REVENUES THAT WOULD HAVE BEEN GENERATED HAD SUCH CHANGES IN THE METHOD OF CALCULATING ASSESSED VALUATION NOT OCCURRED, AND SHALL THE PROCEEDS OF SUCH MILL LEVY AND INVESTMENT INCOME THEREON BE COLLECTED, RETAINED AND SPENT BY THE TOWN WITHOUT REGARD TO ANY SPENDING, REVENUE- RAISING, OR OTHER LIMITATION CONTAINED WITHIN ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION OR SECTION 29-1-301, OF THE COLORADO REVISED STATUTES? Yes ___ No ___ August 18, 2020 - Page 8 of 139 - 4 - To give more context to the conversation, below are examples of other ballots to “de- Gallagherize”; Please note that these are district ballots, which are governed by different rules than municipalities: COLORADO MOUNTAIN COLLEGE LOCAL COLLEGE DISTRICT WITHOUT RAISING ADDITIONAL TAX REVENUES IN THE YEAR IN WHICH THE MILL LEVY IS ADJUSTED AND IN ORDER TO ALLOW COLORADO MOUNTAIN COLLEGE TO MAINTAIN AFFORDABLE COLLEGE EDUCATION SUCH AS • FIREFIGHTER, LAW ENFORCEMENT AND FIRST RESPONDER TRAINING; • NURSING AND HEALTH CARE EDUCATION; • TEACHER EDUCATION AND TRAINING FOR RURAL SCHOOLS; AND • SKILLED TRADES AND WORKFORCE TRAINING; SHALL THE COLLEGE’S LOCALLY ELECTED TRUSTEES HAVE AUTHORITY TO ADJUST THE COLLEGE’S MILL LEVY SOLELY FOR THE PURPOSE OF MAINTAINING REVENUES THAT WOULD BE LOST DUE TO STATEWIDE PROPERTY TAX ASSESSMENT RATE REDUCTIONS, SO LONG AS INDEPENDENTLY AUDITED FINANCIAL REPORTS ARE PUBLISHED ANNUALLY, AND SHALL THE REVENUES GENERATED BY ANY SUCH MILL LEVY INCREASE BE COLLECTED, RETAINED AND SPENT NOTWITHSTANDING ANY LIMITS PROVIDED BY LAW? VAIL PARK AND RECREATION DISTRICT * VRD did ask for an increase in mil levy in addition to de-Gallagher SHALL VAIL PARK AND RECREATION DISTRICT (“VRD”) TAXES BE INCREASED* BY $1,093,026 IN 2018, AND BY SUCH AMOUNTS AS MAY BE COLLECTED ANNUALLY THEREAFTER FROM A TOTAL LEVY OF 3.760 MILLS (AN INCREASE OF 1.000 MILLS, RESULTING IN AN EXPECTED 2018 ANNUAL TAX INCREASE OF $36 FOR A HOUSE WORTH $500,000) FOR OPERATING AND CAPITAL EXPENSES, INCLUDING: • TO REDUCE THE NEED FOR VRD TO RAISE FEES, • TO ADDRESS THE CURRENT MAJOR REPAIR BACKLOG TO FACILITIES AND EQUIPMENT, AND • TO MAKE VRD OPERATIONS AND FACILITIES MORE ENVIRONMENTALLY FRIENDLY; WITH VRD’S ENTIRE OPERATING MILL LEVY RATE SUBJECT TO ADJUSTMENT TO OFFSET REFUNDS, ABATEMENTS AND CHANGES TO THE PERCENTAGE OF ACTUAL VALUATION USED TO DETERMINE ASSESSED VALUATION? August 18, 2020 - Page 9 of 139 - 5 - IV. ACTION REQUESTED FROM COUNCIL • Does Council approve moving forward with a voter survey? • Does Council have comments regarding the above “formula for success”? • Does Council have input on the revised ballot wording? August 18, 2020 - Page 10 of 139 De-Gallagher Ballot Question Town Council | August 18, 2020 DE-GALLAGHER BALLOT QUESTION FINANCE | August 18, 2020 August 18, 2020 - Page 11 of 139 Town Council | Finance | 8/18/2020 De-Gallagher Ballot Question | Why do it? •Significant impact to town services •$1.3M lost in last three years; •$1.4M will be lost in 2021 •Fire, Police, Public Works, Municipal Services •Vail heavily dependent upon Sales Tax already •Approx. 10% of taxpayer bill goes to Town of Vail August 18, 2020 - Page 12 of 139 Town Council | Finance | 8/18/2020 De-Gallagher Ballot Question | Why do it? •Stabilize Property tax collections •Vail Citizens will have a “say” in the amount of property taxes collected •Maintain quality town services •Large support from county-wide voters August 18, 2020 - Page 13 of 139 Town Council | Finance | 8/18/2020 De-Gallagher Ballot Question | Path to Success ✓Survey voters ✓Support of Town Council ✓Careful ballot wording ✓Establish an external committee to campaign ✓Craft effective messaging ✓Resolution supporting ballot question August 18, 2020 - Page 14 of 139 Town Council | Finance | 8/18/2020 De-Gallagher Ballot Question | Ballot language •Draft ballot language included in memo •Samples from other districts Next Steps: •September 1st Approve ballot language and “Call for Election” August 18, 2020 - Page 15 of 139 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Vail Valley Drive A dvisory Bike L ane Trial Update P RE S E NT E R(S ): Tom Kassmel, AC T IO N RE Q UE S T E D O F C O UNC I L: Provide feedback and direction to staff regarding the A dvisory Bike L ane trial. B AC K G RO UND: The Town installed an Advisory B ike L ane (A B L ) trial along Vail Valley Drive from the F ord Park Soccer Field L ot to S unburst Drive two months ago. T he purpose of this work session is to report back to Council on feedback that staff has received on the A B L’s. S TAF F RE C O M M E ND AT IO N: Continue with A B L trial this year and plan on installing the A B L next year with some improvements to be further defined prior to installation next year. AT TAC H ME N TS: Description Memo Presentation Engagevail Forum Feedback Email Feedback August 18, 2020 - Page 16 of 139 To: Vail Town Council From: Public Works Department Date: August 18, 2020 Subject: Vail Valley Drive Safety Improvements – Advisory Bike Lanes Trial UPDATE I. SUMMARY Vail Valley Drive is a narrow residential road that carries vehicles and a significant number of pedestrians who use the Gore Valley Trail. Providing a safe, separate facility for pedestrians has been a critical goal of the town for decades. However, past efforts of moving forward have been hindered by; limited alternatives, cost, impacts to neighboring properties, concern about “urbanizing” the road with curb and sidewalk, and a commitment to move forward by the town. Congestion continues to increase, and a renewed interest in accommodating a separated recreational path has resurfaced. Over the past year the Town along with the design team of RFE Engineering & Norris Design have engaged the public and received feedback on potential options for Vail Valley Drive. Initial options were presented to Council last November with refinement and final options presented this past March. At the March Council meeting staff was directed to implement Advisory Bike Lanes (ABL’s) from the Ford Park parking lot to Sunburst Drive as a trial this summer. Staff implemented the ABL trial and has received feedback and data over the past 8 weeks. Engage Vail (www.engagevail.com) was used as a platform to educate users on the use of ABL’s and a hub for receiving comments regarding users experiences. The Town received 7 comments on engagevail; 2 by direct email; over 40 reply posts on Facebook; and 114 informal drive by surveys. The Town also completed speed studies and traffic and compliance counts on two separate occasions. II. ADVISORY BIKE LANES ABL’s are striped shoulder bike lanes that allow for two-way vehicular traffic to share a narrowed single center lane while pedestrians and bicyclists utilize the ABL’s on each side separated from vehicular traffic by dashed lines. The center lane is only wide enough for one vehicle, requiring vehicles to yield and move over to the right into the ABL, yielding to pedestrians and cyclists, when an on-coming vehicle is approaching. August 18, 2020 - Page 17 of 139 III. VAIL VALLEY DRIVE TRIAL The Advisory Bike Lane (ABL) trial along Vail Valley Drive extended from the Ford Park Soccer Field parking lot entrance to a point just west of Sunburst Drive. The center drive aisle had a width of 11’ and the two Advisory Bike Lanes had a width of 5’ each. In general, the Town received an overwhelming positive response, particularly from bicyclist regarding the ABL’s. The few negative comments revolved around safety concerns (potential head-on collisions), un-informed drivers who may not understand that the center drive aisle is two-way, and confused users who may not understand the striping or signage. During staff’s usage of the road and standing observations there were no witnessed significant concerns. The most common conflict occurred when there was congestion with bicyclist and cars going in both directions in the same place at the same time. In this case there was obvious uneasiness with the drivers (with bicyclist somewhat unaware of the issue), however common sense usually prevailed in which case the vehicles yielded until the bicyclists cleared; an inconvenience but rarely a true safety concern. Overall staff found that the ABL’s performed better than expected. The goal for the ABL’s was to move most (~70%) of bicyclist and pedestrians over to the edges of the road so they would cease using Vail Valley Drive as a 20’ wide recreational path; thus maintaining a safe drive aisle to allow vehicles to pass. The presence of the ABL striping seemed to provide the necessary visual que to keep 90% of bicyclists and pedestrians on the sides of the road. While the ABL’s may not be the desired solution to the congestion and physical separation problem, it does provide a cost- effective incremental improvement to corral most cyclist and pedestrians. The feedback and studies we received and completed for this trial include; Facebook feedback, engagevail.com feedback, e-mail feedback, “Drive-By” survey feedback, traffic and compliance counts, and speed studies. Facebook Feedback The image on the right is a snapshot of the Facebook responses; 34 likes, and 13 comments (both positive and negative) August 18, 2020 - Page 18 of 139 Engage Vail Forum Engage Vail was the hub for information and feedback, however the feedback was limited. We received 8 responses on the Forum page, 5 in favor and 2 in favor from a bicyclist standpoint but see the need for improvement for the vehicle lane, and 1 against (See attached for Forum responses). Email & Verbal Responses We also received couple direct emails and a few verbal responses about the ABL’s. One direct e-mail was in favor and one was against the ABL’s(See attached for e-mail), and the few stronger and lengthier verbal responses we received during our observations were strongly opposed to the ABL’s mainly due to safety concerns and being witnesses of vehicles being confused/non-yielding, and speeding. “Drive-By” Survey Results On Friday July 10th staff completed a “Drive-By” survey, requesting users to provide us with a thumbs up or thumbs down on the ABLs. Results were as follows: Traffic and Compliance Count Results On Friday July 17th , in order to better understand the percentage of bicyclist and pedestrians who are generally compliant with the use of the Advisory Bike Lanes and stay within their own lane, the town completed traffic and compliance counts during the peak hours of 11:30 to 1:30 pm. The observations took place along Vail Valley Drive from Hornsilver Circle to the curve prior to the Golf Course Maintenance Building. In order to be deemed compliant bicyclist and pedestrian had to be riding or walking completely within the striped Advisory Bike lane. The results showed that there was 100% compliance with pedestrians and 93% compliance with bicyclists. See below for actual counts. August 18, 2020 - Page 19 of 139 Vehicles 83 Bicyclists 300 (22 Non-Compliant) Pedestrians 45 (0 Non-Compliant) Again, on Friday August 7th staff completed a traffic and compliance count, but this time in front of the Ford Park Soccer field and found that there was over 97% compliance by users. Vehicles 214 Bicyclists 340 (10 Non-Compliant) Pedestrians 63 (1 Non-Compliant) Speed Study Results Each of the above traffic and compliance counts were followed up by a speed study; • Vail Valley Drive at Hole #4: 85th percentile speed was 23 mph, down from 25 mph in 2019. • Vail Valley Drive at Ford Park Soccer Field: 85th percentile speed was 28 mph down from 29 mph in 2019. IV. SEPARATED PATH Also as discussed at the March Council meeting, Staff engaged RFE Engineering to provide a design for a separated path from the Ford Park Soccer Field Parking Lot to the Town of Vail Bus Turnaround to provide an extension of the existing path with minimal impacts. The design has been completed, and the estimated cost of construction is approximately $300,000. If Council wishes to move forward with this project, staff recommends rolling the currently budgeted funds into 2021, to complete the project next spring. V. NEXT STEPS The purpose of this work session was to report back to Council on feedback that staff has received on the ABL’s. Based on this feedback and the Council’s experience August 18, 2020 - Page 20 of 139 using the ABL’s, staff would like to receive any additional feedback from Council and understand how Council would like to move forward. Some next steps could include; • Direction from Council to continue the trial this year and plan on restriping the ABL’s next year with or without modification including possible modifications like; o Widening the road to accommodate wider ABL’s, going from 5’ ABL’s to 7’ ABL’s to accommodate side by side bicyclist o Added signage and/or striping/symbols on pavement o Increased sight distance o Extend ABL’s west to Ski Club Vail path and/or Gold Peak • Direction from Council to end the trial this year and not restripe the ABL’s next year due to safety concerns • Direction from Council to budget for the extension of a separated recreational path from the Ford Park Soccer Field to the bus turnaround. VI. ATTACHED Presentation Engagevail.com Forum Comments E-mail Comment August 18, 2020 - Page 21 of 139 VAIL VALLEY DRIVESAFETY IMPROVEMENTSAugust 18, 2020 - Page 22 of 139 PROJECT GOAL•Safe experience for all•Define clear and aesthetically pleasing separation between motorists and pedestrians/cyclistsAugust 18, 2020 - Page 23 of 139 ADVISORY BIKE LANES•NEW practice in sharing the road•FHWA Experimental GuidenceAugust 18, 2020 - Page 24 of 139 ADVISORY BIKE LANE FEEDBACK•Facebook Feedback•Engagevail.com Feedback•E-mail Feedback•Verbal Feedback•“Drive-By” Survey•Traffic and Compliance Counts•Speed StudyAugust 18, 2020 - Page 25 of 139 ADVISORY BIKE LANE FEEDBACK•Engagevail.com Feedback Forum:• 5 in Favor; • 2 in Favor from bicycle standpoint but needs improvement for vehicles• 1 Against (ABL too narrow; Empower selfish drivers; Confusing for vehicles)•Direct E-mail: •1 in Favor•1 Against (Same as in Forum Feedback)•Verbal Response: •Dozens in Favor•A few passionately Against (Safety concerns, Confusion, Non-Yielding, Speeding)August 18, 2020 - Page 26 of 139 ADVISORY BIKE LANE FEEDBACK•“Drive-By” SurveyAugust 18, 2020 - Page 27 of 139 ADVISORY BIKE LANE FEEDBACK•Traffic and Compliance Counts July 17th93% ABL Compliant•Vehicles 83•Bicyclists 300 (22 Non-Compliant)•Pedestrians 45 (0 Non-Compliant)•Traffic and Compliance Counts August 7th97% ABL Compliant•Vehicles 214•Bicyclists 340 (10 Non-Compliant)•Pedestrians 63 (1 Non-Compliant)August 18, 2020 - Page 28 of 139 ADVISORY BIKE LANE FEEDBACKSpeed Study•Hole #4 85% Percentile Speed•2019: 25 mph•2020: 23 mph (with ABL)•Soccer Field 85% Percentile Speed•2019: 29 mph•2020: 28 mph (with ABL)August 18, 2020 - Page 29 of 139 August 18, 2020 - Page 30 of 139 ADVISORY BIKE LANE FEEDBACK•Pros•99% of Bicyclist & Pedestrians / 60% of Drivers are in favor*•Provides “Delineated” lanes for Vehicles, Bicyclist & Pedestrians to Share the Road•90%+ ABL compliance – Bicycles are not spread out unaware of vehicles behind them•Ability to direct users (tours/families/kids) to stay in your lane for safety•Vehicle speeds slightly decreased•Cons•Striping can be confusing at first•Is it a one-way? Which lane is which? Confused driver may not yield•Difficult to navigate with on-coming vehicles and bicyclists at same timeAugust 18, 2020 - Page 31 of 139 EXTENDED SEPARATED PATH•Design extension of path from Ford Park Parking lot to Bus Turnaround for future implementation•Design Complete•Estimated Cost: $300kAugust 18, 2020 - Page 32 of 139 NEXT STEPS•Council Feedback & Direction•Should the Town Install ABL in 2021 with or without Modifications?•Widen ABL to 7’•Improved Signage & Striping/Symbols•Increase sight distance (Widen “S” curves; limb/remove trees)•Extend ABL to Ski Club Vail path/ Gold Peak•Should the Town not install the ABL in 2021?•Should the Town move forward with the construction of a Separated path extension in 2021August 18, 2020 - Page 33 of 139 Provide Your Feedback! Please provide any comments or feedback on your experience when driving or biking/walking along Vail Valley Drive in the areas where the trial Advisory Bike Lanes have been painted. theobear, 5 days ago Alert moderator It seems to work pretty well for the bikers, but I'm not sure about the cars. Vail Valley Drive is still the primary route for the residential areas east of the village to get to the village or to the golf course. Three incident observations: (1) a small Jeep travelling westbound shoe-horned himself into the bike lane because he didn't understand the new lane markings; (2) TOV eastbound bus, westbound car, bikes and/or pedestrians in both bike lanes - nobody but the bus knew how to handle the situation; (3) bikers riding 2-3 abreast in the one vehicle lane - dangerous for all. One westbound intersection is confusing because a solid white line comes out of the street and around the corner onto the shoulder of Vail Valley Drive; the bike lane is parallel to it on the street, creating too many lane markings westbound. Richard, 1 day Alert moderator I am a part time Vail resident and have biked in Vail for decades. These lanes are counterproductive. For the first time ever in Vail I was yelled at from a vehicle: "Stay in the bike lane!" 1) This road is a designated bike route, has little traffic and I have never experienced an issue with cars before these advisory lanes; 2} Most bikers on this route are in pairs or families. The advisory bike lanes do not work for more than one cyclist; 3) These lanes are very confusing to cars. I have biked all over the world and have never seen lanes like these. They serve NO purpose except to confuse bikers and empower selfish drivers. August 18, 2020 - Page 34 of 139 Biker49, 8 days ago Alert moderator cooper606, about 1 month ago Alert moderator As a bike rider I think they’re great. One minor issue I’ve had is that sometimes pedestrians will be walking the opposite way in which I am riding, so have to swerve out in the car thoroughfare to avoid. Would be helpful to encourage pedestrians to walk the same direction we are instructed to ride (with traffic instead of against). Again, minor issue, overall I think they’re great. jca551, about 1 month ago Alert moderator Fantastic. I thought the signage was clear on where to drive and where to ride (I frequently do both). As not everyone seems to clearly understand, however, maybe some additional paint on the road? My only request is that this treatment is used on other roads in town! I think Streamside Circle and E Meadow Drive between Bighorn Rd and Bighorn Park could also use this treatment. Heavy ped, bike, bus, and car traffic here as well. Town on Vail Civic Area Plan, about 1 month ago Alert moderator The bike lanes are great for the bikers. The problem is there is not enough space for two cars to pass each other. The cars must encroach in the bike lanes. The bike lanes could be made a bit narrower. Not sure if the road is wide enough for what is to be accomplished. Yes, it is the summer when packs of riders travel, having fun and are not paying any attention to logic, traffic or other riders. The same situations on Vail Pass bike paths. We just need to slow down and let our visitors have a fun. They are clueless at times but new to the area and not trying to cause problems. Be gentle! This is a great idea. We come to Vail to get away from cars and we need to encourage cars to stay on the frontage road. Children are learning to ride bikes on this road and need the safety. People should be able to enjoy a walk with their dog without being pushed into the mud by cars August 18, 2020 - Page 35 of 139 GW1328, about 1 month ago Alert moderator Diggerdown 29 minutes Alert moderator I had a very positive experience on Vail Valley Drive. I rode it on my bike a handful of times and drove on it in my car twice. I would like to see it become permanent. The bike lines have provided some positive improvements to the flow of traffic, especially during the past few weeks when the volume has increased significantly. Cars seem to be biding the bike lane instructions well. However, there are some areas for improvement for your consideration. Many visitors don't understand Vail Valley Drive is an active roadway. Today, there were 20 (I counted) bikes stopped at the corner of Vail Valley Drive and Spring Hill Dr. blocking the entire roadway. They were having a conversation and not aware they were blocking the road until a bus pulled up and honked it's horn. Also, many bikers are riding down the middle of the road at high speeds. With the potential for oncoming traffic, particularly where there are hills or blind curves, there is a potential for a head on collision with a car. Reminders that VVD is an active roadway and recommending that bikers/walkers stay within the bike lane would be helpful. Lastly, while many cars are heeding the 15 mph limit, many are not. There are many cars and trucks that are traveling 10-20 mph over the speed limit. It would be useful to have speed limit reminders on VVD in a few spots, eg, the VVD/Spring Hill Intersection, at the beginning/end of hole 4 and by the rugby field. These straight-always are the areas where this seems most problematic. Hope this input is helpful August 18, 2020 - Page 36 of 139 1 Tom Kassmel From:Matt Dority <mtdority@gmail.com> Sent:Sunday, July 19, 2020 7:03 PM To:Tom Kassmel Subject:Vail Valley Drive Safety Improvements - Advisory Bike Lanes Trial Summer 2020 | Engage Vail Follow Up Flag:Follow up Flag Status:Flagged Hi,    I recently had the opportunity to ride through this ABL section while visiting Vail during a charity bike ride.    I live in the front range but visit Vail year round as a pedestrian (/ skier / snowboarder), cyclist, and motorist.    I’m sure it's difficult to accommodate the multi modal transport needs & preferences of visitors, property owners, and  local government (eg public safety / fire / ems). I appreciate this project as a thoughtful way to accommodate multiple  users in a higher traffic area within the space constraints of the valley.      Thanks and looking forward to a future visit,    Matt    https://www.engagevail.com/vail‐valley‐drive‐safety‐improvements  August 18, 2020 - Page 37 of 139 1 Tom Kassmel From:Richard Replin <psyclin@aol.com> Sent:Wednesday, August 12, 2020 7:23 PM To:Tom Kassmel Subject:Bike Lane Trial Hello, While I've posted a comment on the EngageVail site, I feel strongly enough about the trial bike lane on Vail View Drive that I wanted to write you directly. I am a part time Vail resident for almost 3 decades. I bike in Vail regularly. I am a "utility" (transportation) biker and bike nearly daily in Denver, and have biked all over the world, in cities like Amsterdam, Paris, NY, London, Shanghai, Mexico City, Tokyo and even in Ethiopia. This experimental bike lane serves no purpose at all and is confusing and dangerous. I would guess that the majority of bikers on this route are in pairs or groups and there is no way to ride together in a narrow bike lane. The street has long been part of Vail's bike route and has always been bike friendly. I have NEVER once encountered a problem on that route with cars. It has always been clearly marked for bikes sharing the route. Now, for the first time ever in Vail, a driver of a truck yelled at us, "Get in the bike lane." It is MORE dangerous for bikers to be kept to the side of a street. Many bikers in Vail are very occasional riders and not skilled. They can easily go off the side or swerve into a car. There is no way to put lines in the road and at the same time say it's "advisory" to stay within those lines. It creates confusion. This is a solution in search of a problem. It serves no purpose and is counterproductive. Regards, Richard Replin, Ph.D Denver/Vail August 18, 2020 - Page 38 of 139 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Public Works Capital Projects Direction P RE S E NT E R(S ): Greg Hall Director of Public Works and Transportation AC T IO N RE Q UE S T E D O F C O UNC I L: L isten to presentation and provide staff direction on next steps. B AC K G RO UND: The purpose of this item is to: Request the Town Council to consider a smaller scale project at the Public Works Shop Receive Town C ouncil direction regarding continued bid solicitation f or a revised first phase P ublic Works shop project and E ast Vail Drainage project for completion this fall. S TAF F RE C O M M E ND AT IO N: Staff has recommends moving forward with bid proposals in anticipation of project award of the two projects on September 1, 2020. AT TAC H ME N TS: Description Staff Memo August 18, 2020 - Page 39 of 139 To: Vail Town Council From: Public Works Department Date: August 18, 2020 Subject: Public Works Capital Projects Direction I. PURPOSE The purpose of this item is to:  Request the Town Council to consider a smaller scale project at the Public Works Shop  Receive Town Council direction regarding continued bid solicitation for a revised first phase Public Works shop project and East Vail Drainage project for completion this fall. II. BACKGROUND On May 21, 2020 the Vail Town Council voted 7-0 to reconsider and not award a project for work at the Public Works Shop. The project was a project to construct the Public Works Shop Yard Expansion Retaining Wall and Utility Project in the amount of, $4,629,652. The continuing updated financial implications and unknowns regarding the COVID-19 pandemic were of major concern. The staff provided an option of returning with a smaller project in the late summer for possible construction in the fall, in order to keep the remaining overall project on a schedule which can be completed in one construction season. Staff is requesting Council consider a project which includes:  A 1,250 feet water line extension and 3 additional fire hydrants looping along the entire back of the shop building. This design has been reviewed by the Eagle River Water & Sanitation District, Vail Fire and Vail Public Works.  Public works shop electric service modifications moving the transformer and building service from up the hill to the front of the building and replacing the electrical service feed, so in the future the feed does not interfere with the construction of the retaining wall and the current streets building can be demolished which contains the current electrical room. This is not related to the August 18, 2020 - Page 40 of 139 Town of Vail Page 2 bus charging electric service but the town shop only. The design has been approved with Holy Cross Energy.  One item required as part of the PEC process was for a rock fall berm to protect the entire site. The rockfall berm is above the proposed retaining wall which requires it to be constructed first as construction access is significantly hindered once the wall is constructed. In order to maintain one season of construction for the remaining portions of the project, the berm construction is required to be constructed before the wall construction due to the time restrictions of the Colorado Parks and Wildlife of its construction. (June- Mid November). The current Public Works project is estimated to be just under $1M, staff would return September 1 regarding a project award. The current capital project budget is funded to be able construct these improvements. The second project staff is seeking Town Council direction is a project related to drainage improvements in East Vail. The 2020 Capital Street Maintenance budget includes $290,000 for drainage improvements. These scheduled improvements include the replacement of aging culverts along Snowshoe Lane and Main Gore Drive which accommodates an existing major snowmelt drainageway. This improvement has been designed and has just recently been put out to bid with a bid opening date of August 26th and an expected award date of September 1st. The improvements are estimated in the $250,000 range. If Council is concerned about awarding the capital maintenance construction contract on September 1st, then staff should be directed to rescind the bidding of this project. III. ACTION REQUESTED Staff requests Town Council input and direction on the following items.  Consider a smaller scale project at the Public Works Shop as described above to include waterline extension, electric service relocation, and construction of a rockfall berm for approximately $ 1M.  Town Council provide direction regarding continued bid solicitation for a revised first phase Public Works shop project and East Vail Drainage project for completion this fall. Both scheduled for returning to the Town Council for project contract award on September 1, 2020. IV. STAFF RECOMMENDATION Staff has recommends moving forward with bid proposals in anticipation of project award of the two projects on September 1, 2020. August 18, 2020 - Page 41 of 139 Town of Vail Page 3 August 18, 2020 - Page 42 of 139 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Economic Recovery Efforts Updates in Response to the P ublic Health Crisis P RE S E NT E R(S ): S cott Robson, Town Manager AC T IO N RE Q UE S T E D O F C O UNC I L: I nformational update with some feedback requested on certain topics. B AC K G RO UND: An economic recovery efforts update will be presented addressing a number of programming and tactics implemented to help stimulate Vail's business economy during these challenging times. S uch topics include status of public health orders, discussion about consideration of mandatory mask zones, marketing updates, and other program updates. AT TAC H ME N TS: Description Memo Economic Recovery Efforts Update 081820 August 18, 2020 - Page 43 of 139 To: Mayor and Town Council From: Town Manager’s Office Date: August 18, 2020 Subject: Vail Economic Recovery Efforts in Response to the Public Health Crisis I. PURPOSE The purpose of the memo and presentation is to provide updates to a number of the Vail Economic Recovery Efforts in response to the Public Health Crisis by sharing information on key areas of planning, as follows:  Eagle County Public Health Orders Update  Review of Face Covering Mandate  Special Events Update  Music Entertainment in Villages and Lower Bench Activation Update  Noise Ordinance Concerns  Commercial Rental Relief Fund Update  Future Economic Recovery Efforts Suggestions  Sales Tax Deferred Payment Program Update  Marketing Updates II. BACKGROUND Town staff has presented monthly updates to town council about ongoing planning efforts in key areas in response to the updated public health orders from Eagle County. This memo addresses several economic recovery tactics that were supported by the Vail Economic Advisory Council, the Town Manager and Economic Development Offices. These programs have been initiated to stimulate Vail’s business economy as well as support the community during these challenging times. The programming and tactics below are recommended in the context of the Town’s Manager’s Emergency Order and current Eagle County Public Health Orders. III. ECONOMIC RECOVERY TACTICS UPDATE Eagle County Public Health Orders Update Eagle County Public Health officials continue to monitor the number of positive cases of COVID-19 in Eagle County. A recent update notes that COVID transmission in Eagle County has begun to plateau and drop in the past week and as of 8/14 the Eagle County “Weekly Performance Indicator” was in the YELLOW range indicating “Cautious, Reduce Contact with Others”. The Eagle County Public Health officials continue to work with the Eagle County School District in preparing for the school year openings and working with the regional business community in preparations for a successful 2020/21 winter August 18, 2020 - Page 44 of 139 Town of Vail Page 2 season as there will continue to be the need to balance public health concerns with community outreach, student needs and economic activity in the coming months. The Town continues to review and adjust both operational and economic recovery tactics to comply with these orders. For more information and updates about the COVID-19 health crisis, access Eagle County’s website, www.ecemergency.org. Consideration of Mandatory Mask Zones With several peer mountain resort communities recently creating “mandatory mask zones” which apply to all regardless of social distancing, discussion of the issue has increased once again, particularly related to Vail’s villages where visitor-density is the greatest. In addition to other peer communities recently passing outdoor face covering mandates, the VCBA and multiple businesses in the villages of Vail have recently made requests to the Town requesting adoption of a face covering mandate for the central core areas of the villages, regardless of social distancing. A letter in the Vail Daily from Vail Resorts CEO Rob Katz appeared to be requesting stronger mandates regarding face coverings as well. In an effort to provide Council and the public with more detail on the issue, staff has discussed the matter internally and with peer resorts and would like to highlight a few issues: • Feedback from our peers in Aspen and Breckenridge related to the outdoor face covering mandate in core zones was generally positive. In their opinion, utilization of masks outdoors in the core areas of their towns increased from about 70% to 90-95%. • Signage in peer communities has been effective and creates peer pressure. Feedback from guests has apparently been positive and they feel safer and have shared their comments to that effect on Trip Advisor • Enforcement has been minimal but primarily achieved through education with presence by Community Service Officers and newly hired "ambassadors." In Breckenridge, ambassadors are dressed in bright yellow polo shirts with "Town of Breckenridge" lettering on the front and "Community Education & Compliance Ambassador" on the back. The ambassadors are not authorized to write tickets, only CEO’s and police officers may. • Peer resort Town Councils approved the mandatory mask zone and gave town manager direction to implement. • In Vail like other communities, enforcement would be a significant challenge. More Code Enforcement Officers and paid hosts or ambassadors would need to be assigned to the villages to provide both education and free masks potentially. • Recent inquiries to the Eagle County Health Department and County Manager indicates they are supportive of mask mandates in areas with a high density of visitors. • The opinion of Vail Chamber and Business Association and village businesses has evolved over the last month and they are now requesting an outdoor mandate regardless of social distancing in our core areas. • The business community in Breckenridge was instrumental in lobbying for mandatory mask zone to decrease enforcement encounters by front line staff and to help protect employees from the spread of the virus. • As a test case, Vail has seen mandatory outdoor face coverings become widely accepted and utilized by over 90% of patrons at our Sunday Farmer’s Market with generally positive response. • Vail wants to do all we can to help ensure schools and ski areas open this fall and winter. While community spread of the Covid-19 virus has been very minimal in outdoor settings where August 18, 2020 - Page 45 of 139 Town of Vail Page 3 individuals are moving, additional face covering mandates may be somewhat useful in reducing current community transmission rates according to public health officials. If Town Council chooses to mandate face coverings in the core of our villages, regardless of social distancing, our staff can likely be prepared to implement within a 2-3 day period and has created draft language for signage along with boundary maps within our Villages. Special Events Update The start of August has brought the end to some events and series and the beginning of others. Bravo Vail closed out their reimagined programming with a show at the lower bench and a show at The Amp while High Altitude Entertainment has begun their concert series at the Lower Bench at Ford Park. The Vail Craft Beer Classic held its two day event at the Lower Bench August 15-16. On Wednesday, August 5, CSE held its monthly meeting and reviewed a new proposal for a September Wine Festival that was approved for funding. The CSE also approved funding the Vail Farmers Market with an additional $22,000 to support the additional expenses caused by COVID –19, resulting in the farmers market no longer charging for admission. A special meeting was held on August 12th to review a proposal for an Oktoberfest Event produced by the Sonnenalp. While funding was not approved CSE encouraged the event producer to consider October dates and provide more information on the event. The new Vail Fine Arts Festival will be held on August 21-23 in Lionshead. Staff and CSE have been reviewing the 2021 RFP for event funding which will be published the week of August 17, 2020. Music Entertainment in Villages and Lower Bench Activation Update Music has been activated in several village locations and the first concert presented and produced by High Altitude Entertainment (owner Scott Rednor) was held in the lower bench of Ford Park last week . The music programming has been secured in these locations through the month of August. There may be some interest from the music producer to submit programming dates for September. Additional funding would be needed for both additional productions as well an extension and payment on the stage rental in the lower bench. Funding for additional programing would require town council direction and approval for funding. The production of the events has complied with public health orders in terms of social distancing and face covering requirements. Please access the Discover Vail website for the current calendar of events that depicts the music entertainment at the lower bench and the Amp: www.DiscoverVail.com/events. Noise Ordinance Concerns Town staff continues to monitor music activations around Vail to ensure compliance with the Town’s Code Section 5-1-7 – Noise Prohibited. There have been some calls about noise exceeding allowed decibel levels per the town code. Several staff from various departments will be reviewing legislation from peer resort communities to compare the decibel standards and permitting process. Since the public health crisis has limited the ability to conduct business indoors and the restaurant activity has moved outdoors with a desire to create outdoor activation and synergy in the villages, the music around town has been helpful in creating this lively alpine village environment. Council has requested staff review the town’s code to ensure it is offering the appropriate guidelines with noise standards and the appropriate process for the issuance of noise permits. There are likely aspects of the noise ordinance that may need some improved language to meet these objectives and code amendments would be presented prior to the upcoming winter season. At the same time, the town continues to receive much August 18, 2020 - Page 46 of 139 Town of Vail Page 4 support for continuing such entertainment activation as it helps benefit the surrounding businesses and enhances the Vail guest experience. Commercial Rent Relief Program Update The program that is designed to provide rent relief to commercial businesses in Vail through a shared model between tenant, landlord and the town has been met with enthusiasm since the program format and funding was finalized through approval by town council on August 4. Since that time Economic Development staff has been in contact with more than 25 businesses and landlords to answer questions and provide more information on the program. Finance staff is finalizing the online application process for the commercial rent relief program. The program provides rent relief based on a formula reflecting reduction in revenue versus same month last year and is available for the period August 1 – November 30, 2020. Online applications will be available September 1. Future Economic Recovery Efforts Suggestions Below are some additional strategic economic recovery ideas presented by VEAC members to continue support of the business community in light of the continued public health crisis. Town staff are reviewing the proposals and would return at a later date with recommendations.  Proposal for financial assistance to help restaurant community with winter operations (tenting)  Town of Vail Gift Card Program to boost shoulder season  Town of Vail Communications Effort to Encourage Use of Face Coverings Sales Tax Deferred Payment Program Update Due to the economic impacts of COVID-19, Vail Town Council elected to allow deferred payment of sales taxes from the months February through June. A total of 342 businesses participated in this program, for a total of $2.48M in deferrals of sales tax payments. To date, 174 businesses have repaid $805K, with 168 businesses still outstanding, with a current balance totaling $1.67M. All deferred balances, along with July sales tax is due on August 20th. A notice will be published in the Vail Daily and email communication to participating businesses with reminder of the due date. Staff will continue to update Council on the status of outstanding balances. Vail Local Marketing District Fall Marketing Update The VLMD recognizes the importance of fall business to our lodges, restaurants and merchants. Fall focused marketing, advertising and paid media (including digital and streaming) will begin in the Front Range on August 24 and will continue through October 11. This includes fall specific messaging across all audiences (Super Boomers, Active Professionals and Dynamic Families). Specific tactics include: • Digital banners • Paid social media placements • Paid email pushes, including two added value email placements that are planned for Sept. 8 and Sept. 22. • Broadcast and Cable Television spots in the Front Range resulting in over 650,000 impressions featuring a new :30 TV spot • Innovative approach to public relations including influencer visits and media picnics August 18, 2020 - Page 47 of 139 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: D R B / P E C Update P RE S E NT E R(S ): J onathan S pence, Planning Manager AT TAC H ME N TS: Description August 5, 2020 D R B Meeting Results August 10, 2020 P E C Meeting Results August 18, 2020 - Page 48 of 139 D E S IG N R E V IE W B O AR D August 5, 2020, 3:00 P M Virtual 75 S. Frontage Road - Vail, Colorado, 81657 1.C all to Order 1.1.Register in advance for this webinar: https://us02web.zoom.us/webinar/register/W N_uenNgY X QTeKPkkXf2J ZtI A After registering, you will rec eive a confirmation email c ontaining information about joining the webinar. 1.2.Attendance Present: Peter Cope, Doug C ahill, J ohn Rediker, Kit Austin Absent: None 2.Main Agenda 2.1.D R B 20-0302 - Burnett R esidence Final review of an exterior alteration (exterior) Address/Legal Desc ription: 1987 Circ le Drive Unit A/Lot 26, Buffehr Creek Resubdivision Applicant: Amy G. Burnett Trust, represented by Nedbo Construction Planner: J onathan S penc e 1. The building permit shall c learly demonstrate that the proposed siding for the rear home is a c edar horizontal siding matching the siding on the front home. 2. Prior to project completion, the applic ant shall submit a new D RB applic ation for railings and lighting that is consistent between the two homes. J ohn Rediker moved to approve with conditions. Peter Cope seconded the motion and it passed (4-0). 2.2.D R B 20-0195 - Chase Bank Final review of a business sign Address/Legal Desc ription: 141 East Meadow Drive/Lot P & Tract C, Bloc k 5D, Vail Village Filing 1 Applicant: Solaris Commerc ial Owner L L C, represented by Roaring Fork Sign and Lighting Company LLC Planner: Greg Roy J ohn Rediker moved to table to August 19, 2020. Kit Austin sec onded the motion and it passed (4-0). August 18, 2020 - Page 49 of 139 2.3.D R B 20-0282 - Walker R esidence Final review of an exterior alteration (deck/windows) Address/Legal Desc ription: 4367 Columbine Drive/Lot 2, Bloc k 6, Bighorn Subdivision 3rd Addition Applicant: Daria & J on W alker, represented by Borgerson Design I nc. Planner: Greg Roy J ohn Rediker moved to approve. Kit Austin seconded the motion and it passed (4-0). 2.4.D R B 20-0306 - Town of Vail Final review of an exterior alteration (park rehabilitation) Address/Legal Desc ription: 221 Bridge Street/Lot B, Bloc k 5B, Vail Village Filing 1 Applicant: Town of Vail, represented by Todd Oppenheimer Planner: Greg Roy 1. The siloam stone wall shall be extended toward the Gasthof Gramshammer property and the aggregate walkway shall be extended along the wall to the west. J ohn Rediker moved to approve with conditions. Peter Cope seconded the motion and it passed (4-0). 2.5.D R B 20-0244 - Donovan Pavilion Final review of an addition Address/Legal Desc ription: 1600 South Frontage Road W est/Unplatted - D onovan Park Applicant: Town of Vail, represented by TA B Associates Planner: Erik Gates J ohn Rediker moved to approve. Kit Austin seconded the motion and it passed (4-0). 3.Staff A pprovals 3.1.B 20-0216.001 - 1245 W esthaven L L C/B D B Holdings LT D R esidences Final review of a change to approved plans (c olor) Address/Legal Desc ription: 1245 W esthaven Circle/Lot 36, Glen Lyon Subdivision Applicant: 1245 Westhaven L L C & B D B Holdings LTD, represented by Plath Roofing I nc. Planner: J onathan S penc e 3.2.B 20-0259 - Phillips/Lindseth R esidences Final review of an exterior alteratin (reroof) Address/Legal Desc ription: 4376 Streamside Circle W est/Lot 5, Bighorn Subdivision 4th Addition Applicant: J ohn Scott Phillips & Virginia M. Lindseth Trust, represented by August 18, 2020 - Page 50 of 139 Gregory Mullenax Planner: J onathan S penc e 3.3.B 20-0267 - Blume/Dews R esidences Final review of an exterior alteration (reroof) Address/Legal Desc ription: 1200 W esthaven Lane/Lot 40, Glen Ly on Subdivision Applicant: Blume Family Ptnshp & J ulianna Dews, represented by I C M Servic es Planner: J onathan S penc e 3.4.B 20-0283 - W ertheim Residence Final review of an exterior alteratio (reroof) Address/Legal Desc ription: 774 Potato Patch Drive/Lot 11, Bloc k 2, Vail Potato Patch Filing 1 Applicant: Herbert & Nicole W ertheim, represented by Aspen Roofing C ontrac tors Planner: J onathan S penc e 3.5.B 20-0287 - Beaver Dam R oad L LC Final review of an exterior alteration (reroof) Address/Legal Desc ription: 374 Beaver Dam Road/Lot 8, B lock 2, Vail Village Filing 3 Applicant: Beaver Dam Road L L C , represented by P lath Roofing I nc . Planner: J onathan S penc e 3.6.B 20-0290 - Dubin R esidence Final review of an exterior alteration (reroof) Address/Legal Desc ription: 2832 Kinnikinnick Road Unit 6/Lot 6, I nnsbruck Meadows Subdivision Applicant: Barbara & Martin Dubin, represented by Altitude Contracting Planner: J onathan S penc e 3.7.B 20-0293 - Burke Residence Final review of an exterior alteration (reroof) Address/Legal Desc ription: 2832 Kinnikinnick Road Unit 4/Lot 4, I nnsbruck Meadows Subdivision Applicant: J anice & J effrey Burke, represented by A ltitude C ontrac ting Planner: J onathan S penc e 3.8.D R B 20-0207 - Hancock R esidence Final review of an exterior alteration (deck/hot tub) Address/Legal Desc ription: 1403 Moraine Drive/Lot 24, Dauphinais-Moseley Subdivision Filing 1 Applicant: Andrew & Christine Hanc oc k, represented by Current Architec ts Planner: Greg Roy 3.9.D R B 20-0241 - Chase Residence August 18, 2020 - Page 51 of 139 Final review of a tree removal Address/Legal Desc ription: 2195 Chamonix Lane Unit 3/Lot 2, Vail Heights Filing 1 Applicant: Elana Chase, represented by Abel Forestry and Landscaping Planner: J onathan S penc e 3.10.D R B 20-0246 - Henderson R esidence Final review of an exterior alteration (deck) Address/Legal Desc ription: 1881 Lion's Ridge Loop Unit 3/Lot 1, Block 3, Lion's Ridge Subdivision Filing 3 Applicant: Larry Henderson Trust, represented by Rob Hall's Kitchens Plus Planner: Erik Gates 3.11.D R B 20-0250 - Grand Hyatt Final review of exterior alteration (fence/gate) Address/Legal Desc ription: 1300 W esthaven Dr / C asc ade Village Applicant: Charles Morrison for The Grand Hyatt Vail Planner: J onathan S penc e 3.12.D R B 20-0251 - Robinson Residence Final review of an exterior alteration (A C unit) Address/Legal Desc ription: 2633 Kinnikinnick Road Unit E2/Meadow Creek C ondominiums Applicant: J anet Robinson, represented by R&H Mechanical Planner: Erik Gates 3.13.D R B 20-0254 - Johnson R esidence Final review of an exterior alteration (windows) Address/Legal Desc ription: 1750 South Frontage Road W est Unit A3/Spruc e Creek Townhomes Phase I Applicant: Mark J ohnson, represented by Sunder I nc . Planner: J onathan S penc e 3.14.D R B 20-0255 - Pattison Residence Final review of an exterior alteration (driveway /snowmelt) Address/Legal Desc ription: 5126 Black Gore Drive/Lot 2, B lock 1, Gore C reek Subdivision Applicant: Carol Tuc ker P attison, represented by Burke Harrington C onstruc tion Planner: Greg Roy 3.15.D R B 20-0258 - Spiers R esidence Final review of a tree removal Address/Legal Desc ription: 2338 Garmisc h Drive Unit A /Lot 12, Bloc k G, Vail Das Sc hone Filing 2 Applicant: Celeste & Robert Spiers, represented by Old Growth Tree Servic e Planner: Greg Roy August 18, 2020 - Page 52 of 139 3.16.D R B 20-0260 - Camp Ir ma LTD/First Chair Proper ties LL C Final review of an exterior alteration (driveway /snowmelt) Address/Legal Desc ription: 2620 Bald Mountain Road & 2650 Bald Mountain Road/Lots 30 & 31, Bloc k 2, Vail Village Filing 13 Applicant: Carolyn Pope, Camp I rma LTD Lazarus, First Chair Porperties L L C , W itcher Properties LLC Planner: J onathan S penc e 3.17.D R B 20-0263 - Monnins Gift Trust Final review of a tree removal Address/Legal Desc ription: 424 Forest Road/Lot 4, Bloc k 1, Vail Village Filing 3 Applicant: Monnins Gift Trust, represented by Ceres Landc are Planner: Erik Gates 3.18.D R B 20-0264 - Tammy LL C Final review of a tree removal Address/Legal Desc ription: 1738 Golf Lane Unit R65/Area A, Sunburst at Vail Applicant: Tammy L L C , represented by Ceres Landc are Planner: Erik Gates 3.19.D R B 20-0266 - Ptarmigan 22 L LC Final review of an exterior alteration (deck) Address/Legal Desc ription: 1975 W est Gore Creek Drive Unit 22/Lot 29-42, Vail Village W est Filing 2 Applicant: Ptarmigan 22 L L C Planner: Greg Roy 3.20.D R B 20-0268 - Horn/Lar L LC Residences Final review of an exterior alteration (exterior materials) Address/Legal Desc ription: 1320 Greenhill Court/Lot 16, Glen Ly on Subdivision Applicant: J effrey & S ally Horn and Lar LLC Planner: J onathan S penc e 3.21.D R B 20-0270 - Patter son Residence Final review of an exterior alteration (deck/patio/hot tub) Address/Legal Desc ription: 3115 Booth Falls Court Unit B/Lot 1, Bloc k 2, Vail Village Filing 12 Applicant: Robert Patterson, represented by Haus Renovations Planner: Erik Gates 3.22.D R B 20-0271 - Vail E ast Properties L L C Final review of a tree removal Address/Legal Desc ription: 122 W est Meadow Drive/Lot 2, Vail Village Filing 2 Applicant: Vail East Properties LLC, represented by Earthwise Hortic ultural August 18, 2020 - Page 53 of 139 Planner: J onathan S penc e 3.23.D R B 20-0275 - Potato Patch Club Condominiums Final review of a tree removal Address/Legal Desc ription: 950 Red Sandstone Road/P otato Patc h Club C ondominiums Applicant: Potato Patc h Club C ondominiums, represented by Vail Valley Tree Servic e Planner: Greg Roy 3.24.D R B 20-0276 - Village C enter Condominiums Final review of a tree removal Address/Legal Desc ription: 124 W illow Bridge Road/Lot K, Bloc k 5E, Vail Village Filing 1 Applicant: Village Center Association, represented by Old Growth Tree Servic e Planner: Erik Gates 3.25.D R B 20-0278 - Sun Dial C apital LL C Final review of an exterior alteration (deck/railing/gate) Address/Legal Desc ription: 1645 Golf Terrac e, Unit 34/Lot 1, Sunburst Filing 3 Applicant: Sun Dial C apital L L C , represented by Bold S olutions Planner: J onathan S penc e 3.26.D R B 20-0281 - 4335 S pruce W ay L L C Final review of an addition Address/Legal Desc ription: 4335 Spruce W ay Unit W /Lot 4, Block 3, Bighorn Subdivision 3rd A ddition Applicant: 4335 Spruc e W ay LLC, represented by Gies Arc hitects Planner: J onathan S penc e 3.27.D R B 20-0284 - Town of Vail C ommunications Tower Final review of exterior alteration Address/Legal Desc ription: 1309 Elkhorn Road / TOV Public W orks Applicant: Crown Castle US A Planner: J onathan S penc e 3.28.D R B 20-0285 - Simon Residence Final review of exterior alteration (windows) Address/Legal Desc ription: 1514 Buffehr Creek Road C 32 / Valley C ondo Applicant: J oshua Simon, represented by Renewal by Anderson Planner: J onathan S penc e 3.29.D R B 20-0287 - Janet Family Trust Final review of an exterior alteration (streambank restoration) Address/Legal Desc ription: 5165 Black Gore Drive/Lot 17, Bloc k 2, Gore C reek Subdivision August 18, 2020 - Page 54 of 139 Applicant: J anet Family Trust Under the J effrey P. Lane Declaration of Trust Planner: J onathan S penc e 3.30.D R B 20-0288 - Martin Residence Final review of an exterior alteration (exhaust vents) Address/Legal Desc ription: 980 Vail View Drive Unit 217D/Lot B5, Bloc k B, Lion's Ridge Suvdivision Filing 1 Applicant: Blake Martin Planner: J onathan S penc e 3.31.D R B 20-0289 - Boyd Residence Final review of a tree removal Address/Legal Desc ription: 385 Forest Road/Lot 2, Bloc k 2, Vail Village Filing 3 Applicant: Thomas K. Boyd, represented by Old Growth Tree Servic e Planner: Greg Roy 3.32.D R B 20-0290 - Biscayne Trust W G S L L P Final review of a change to approved plans (c opper shingles) Address/Legal Desc ription: 1109 Vail Valley Drive/Lot 7, B lock 6, Vail Village Filing 7 Applicant: Biscayne Trust W GS L L P, represented by K H W ebb Arc hitects Planner: Erik Gates 3.33.D R B 20-0293 - T-Mobile Final review of an exterior alteration (antennas) Address/Legal Desc ription: 145 North Frontage Road W est/Lot 1, Middle C reek Subdivision Applicant: Town of Vail, represented by T-Mobile Planner: J onathan S penc e 3.34.D R B 20-0295 - Gore Cr eek North C ondominiums Final review of an exterior alteration (roof/fireplaces) Address/Legal Desc ription: 4342 Spruce W ay/Lot 8, Bloc k 3, Bighorn Subdivision 3rd Addition Applicant: Gore Creek North C ondominium Association Planner: J onathan S penc e 3.35.D R B 20-0298 - Bell Tower Partners LT D Final review of an exterior alteration (fire pit) Address/Legal Desc ription: 201 Gore Creek Drive Unit R1/Lot A, Bloc k 5B, Vail Village Filing 1 Applicant: Bell Tower P artners LTD, represented by Beck B uilding Company Planner: J onathan S penc e 3.36.D R B 20-0299 - Breakaway W est 300-400 Building Final review of exterior alteration (remove shutters) Address/Legal Desc ription: 993 Lions Ridge Loop, 300-400 Building /Lot August 18, 2020 - Page 55 of 139 B3, Block B, Lion's Ridge Subdivision Filing 1 Applicant: Breakaway W est Condo HOA, represented by Nedbo C onstruc tion Planner: J onathan S penc e 3.37.D R B 20-0301 - O'Brien R esidence Final review of exterior alteration (windows) Address/Legal Desc ription: 2335 Bald Mountain Road Unit B9 /Lot 26, Block 2, Vail Village Filing 13 Applicant: Regina O'Brien, represented by Crockford B uilders Planner: J onathan S penc e 3.38.D R B 20-0304 - 5084 Main G ore LL C Final review of a tree removal Address/Legal Desc ription: 5084 Main Gore Drive S outh/Lot 6, Vail Meadows Filing 1 Applicant: 5084 Main Gore LLC, represented by Old Growth Tree Service Planner: Greg Roy 3.39.D R B 20-0305 - Chateau-D 'oex LL C Final review of an exterior alteration (deck) Address/Legal Desc ription: 3816 Lupine Drive/Lot 8, Bighorn Subdivision 2nd Addition Applicant: Chateau-D'oex LLC, represented by J ake's D rafting Servic e I nc . Planner: Erik Gates 3.40.D R B 20-0307 - Danner Residence Final review of an exterior alteration (deck) Address/Legal Desc ription: 2633 Kinnikinnick Road Unit E4/Meadow Creek C ondominiums Applicant: Tom Danner Planner: J onathan S penc e 3.41.D R B 20-0308 - Mountain View Phase II Final review of a change to approved plans (driveway grade) Address/Legal Desc ription: 434 South Frontage Road East/Lot 1, Vail Village Filing 5 Applicant: Vail Mountain View Residenc es Phase I I LLC Planner: J onathan S penc e 3.42.D R B 20-0309 - D R K Pr operty Ventures L L C Final review of an exterior alteration (gas meter) Address/Legal Desc ription: 748 Potato Patch Drive Unit B /Lot 7, Vail Potato Patch Filing 2 Applicant: D RK Property Ventures L L C, represented by B erglund Architec ts Planner: J onathan S penc e 3.43.D R B 20-0310 - Hintz Residence August 18, 2020 - Page 56 of 139 Final review of an exterior alteration (railing) Address/Legal Desc ription: 1139 Sandstone Drive Unit 1/Lot A1 & A2, Block A, Lion's Ridge Subdivision Filing 1 Applicant: Elizabeth Anne Hintz Living Trust, represented by Nedbo C onstruc tion Planner: J onathan S penc e 3.44.D R B 20-0311 - Mitsi L LC Final review of an exterior alteration (windows) Address/Legal Desc ription: 2014 W est Gore Creek Drive Unit 1/Lot 41-43, Vail Village W est Filing 2 Applicant: Mitsi L L C , represented by C onnie J orck Planner: Greg Roy 3.45.D R B 20-0312 - Colorado Partial LL C Final review of an exterior alteration (repaint) Address/Legal Desc ription: 1825 Sunburst Drive/Lot 4, Vail Valley Filing 3 Applicant: Colorado P artial LLC, represented by Sc ully Building C orp. Planner: J onathan S penc e 3.46.D R B 20-0312 - Colorado Partial LL C Final review of a construc tion sign Address/Legal Desc ription: 670 Forest Road/Lot 7, Bloc k 1, Vail Village Filing 6 Applicant: 670 Forest Rd LLC, represented by Paragon Homes Planner: Erik Gates 3.47.D R B 20-0314 - Creekside B uilding Final review of an exterior alteration (repaint) Address/Legal Desc ription: 223 Gore Creek Drive/Lot A, Bloc k 5B, Vail Village Filing 1 Applicant: Creekside Condos, represented by Vail Management C ompany Planner: J onathan S penc e 3.48.D R B 20-0316 - Payne R esidence Final review of an exterior alteration (driveway ) Address/Legal Desc ription: 1592 Matterhorn Circle/Lot 2, Timber Vail Subdivision Applicant: Leo & Olga P ay ne, represented by Martin Manley Architec ts Planner: Erik Gates 3.49.D R B 20-0317 - Sonnenalp Final review of an exterior alteration (vent) Address/Legal Desc ription: 20 Vail Road/Lot 1, Sonnenalp Subdivision Applicant: Sonnenalp Properties I nc ., represented by Rocky Mountain C onstruc tion Group Planner: J onathan S penc e August 18, 2020 - Page 57 of 139 3.50.D R B 20-0318 - Fitch Residence Final review of an exterior alteration (windows) Address/Legal Desc ription: 1815 W est Gore Creek Drive Unit A/Lot 18, Vail Village W est Filing 2 Applicant: Clinton & Cy nthia Fitc h, represented by Renewal by Andersen Planner: J onathan S penc e 3.51.D R B 20-0324 - 1251 W esthaven C ircle L L C Final review of a tree removal Address/Legal Desc ription: 1251 W esthaven Circle/Lot 35, Glen Lyon Subdivision Applicant: 1251 Westhaven C ircle LL C, represented by Old Growth Tree Servic e Planner: Greg Roy 3.52.D R B 20-0326 - Ranch D og LL C Final review of a change to approved plans (A C unit) Address/Legal Desc ription: 2609 Davos Trail/Lot 22, B lock B, Vail Ridge Subdivision Applicant: Ranch Dog L L C , represented by AW I C ustom Construction C ompany Planner: J onathan S penc e 3.53.D R B 19-0073.001 - Scheidegger R esidence Final review of a change to approved plans (siding) Address/Legal Desc ription: 2698 Cortina Lane/Lot 11, Bloc k B, Vail Ridge Subdivision Applicant: Benno Sc heidegger, represented by Berglund A rchitec ts Planner: J onathan S penc e 3.54.D R B 19-0315.001 - Paradise Off-Piste L L C Final review of a change to approved plans (deck/fireplac e/hot tub) Address/Legal Desc ription: 1650 Lion's Ridge Loop/Lot 19, D auphinais- Moseley Subdivision Filing 1 Applicant: Paradise Off-P iste LLC, represented by Martin Manley Arc hitects Planner: Erik Gates 3.55.D R B 20-0134.001 - Vail P tarmigan L L C Final review of a change to approved plans (emergency exit) Address/Legal Desc ription: 1067 Ptarmigan Road/Lot 3, B lock 5, Vail Village Filing 7-Vail Village Filing 10 Applicant: Vail Ptarmigan L L C , represented by Sipes A rchitec ts L L C Planner: Erik Gates 3.56.D R B 20-0224.001 - Far hart R esidence Final review of a change to approved plans (dimensions/railing) Address/Legal Desc ription: 4415 Bighorn Road Unit 1/Lot 2, Bloc k 3, Bighorn Subdivision 3rd A ddition August 18, 2020 - Page 58 of 139 Applicant: Ray Farhart, represented by L K S M Design P C Planner: Greg Roy 3.57.D R B 20-0255.001 - Pattison Residence Final review of a change to approved plans (vent) Address/Legal Desc ription: 5126 Black Gore Drive/Lot 2, B lock 1, Gore C reek Subdivision Applicant: Carol Pattison, represented by Burke Harrington C onstruc tion Planner: Greg Roy 3.58.D R B 20-0265.001 - Axelrod Residence Final review of a change to approved plans (boiler exhaust) Address/Legal Desc ription: 1977 Circ le Drive/Lot 25, B uffehr Creek Resubdivision Applicant: Arthur Axelrod, represented by J D L Custom P lumbing I nc. Planner: J onathan S penc e 3.59.D R B 20-0312.001 - C olorado Partial L L C Final review of a change to approved plans (decks) Address/Legal Desc ription: 1825 Sunburst Drive/Lot 4, Vail Valley Filing 3 Applicant: Colorado P artial LLC, represented by Sc ully Building C orp. Planner: J onathan S penc e 3.60.D R B 20-0015.002 - Fleeger R esidence Final review of a change to approved plans (roof/deck/veneer) Address/Legal Desc ription: 1183 C abin Circ le/Lot 1, Bloc k 1, Vail Valley Filing 1 Applicant: Fleeger Family First L P, represented by B erglund Architec ts Planner: J onathan S penc e 3.61.D R B 20-0186.002 - Ostling R esidence Final review of a change to approved plans (materials/windows/roofs) Address/Legal Desc ription: 706 Forest Road/Lot 9, Bloc k 1, Vail Village Filing 6 Applicant: Paul & Danita Ostling, represented by Shepherd Resourc es I nc . Planner: J onathan S penc e The applications and information about the proposals are available for public inspec tion during regular offic e hours at the Town of Vail C ommunity D evelopment Department, 75 South Frontage Road. The public is invited to attend the projec t orientation and the site visits that precede the public hearing in the Town of Vail Town Council Chambers. Times and order of items are approximate, subject to change, and c annot be relied upon to determine at what time the D esign Review Board will consider an item. Please c all 970-479-2138 for additional information. Sign language interpretation available upon request with 24-hour notification, dial 711. August 18, 2020 - Page 59 of 139 P L ANNI NG AND E NV I RO NM E NTAL C O M M I S S I O N August 10, 2020, 1:00 P M Virtual 75 S. F rontage Road - Vail, Colorado, 81657 1.Call to Order 1.1.Register in advance for this webinar: https://us02web.zoom.us/webinar/register/W N_z53dowe2SlqXcwA3DlK78A After registering, you will receive a confirmation email containing information about joining the webinar. 1.2.Attendance Present: Brian Gifllette, Rollie Kjesbo, Ludwig Kurz, J ohn-Ryan Lockman, Karen Perez, Henry Pratt, Pete Seibert Absent: None 2.Main Agenda 2.1.A request for review of an exemption plat, pursuant to Title 13 Chapter 12, Exemption Plat, Vail Town Code, to allow for increases to the allowable Site Coverage and Gross Residential Floor Area (GRFA) allotment for individual lots within the Spraddle Creek Estates subdivision, and setting forth details in regard thereto. (P E C20-0015) 60 min. Applicant:Spraddle Creek Estates Homeowners, represented by Zehren and Associates Planner:J onathan Spence Spence gives a presentation on the item, the history for the site and previous applications of a similar nature. Kurz: W hat are the municipal services that are provided to this area? I s it similar to other areas? Spence: Same, except this is a private road. Perez clarifies the Staff memo description of location of the site. Gillette asks if we ever give more GRFA to zone districts. Spence says that the GRFA was based on the Hillside Zoning when originally platted. I t doesn’t take in any alterations to GRFA calcs afterwards. Spraddle Creek is restricted by GRFA calculations memorialized on the plat. Gillette: They get more GRFA than anyone else, right? Spence says that they have much more than the average of other single family or two-family districts. This is due to the size of the lots being much larger. They have GRFA and site coverage based on lot area when most of August 18, 2020 - Page 60 of 139 the lot is not buildable which does not necessarily make sense. Pratt asks if we know how much of the lots are buildable. Spence, we have an estimate, but the applicant may have more in their presentation. Pratt, does the town acknowledge building envelopes as a zoning device? Spence details how envelopes are used for lots where setbacks are not enough to protect hazards or environmentally sensitive areas. Gillette asks that since he lives in a P UD, if he wanted more GRFA would his neighborhood go through a similar process, and does this occur often? Spence: Yes, it would be much the same. This is a very unique circumstance where zone district isn’t in line with land use. The commission will need to decide if lot size makes sense for this GRFA calculation when most of it is not buildable. J osh from Zehren goes over the preparation for the request and meeting. Previous concerns with the development of the area was environmental sensitivities. GRFA does not match the maximum allowed in the Hillside Zone district. Back in 2007 there was a similar application except before we requested a text amendment to increase site coverage from 15 to 20%, which is not included in today’s request. The original request was approved by P E C, but not by Council. J osh gives an overview of the site, location, and history of Spraddle Creek. The primary reason the residents want additional GRFA and site coverage is because the homes are mature up there. They have seen the bumps given to other areas and have improvements that they want to do but can’t because of the cap in the plat. J osh goes over the table in the submission that shows the allotted amount of coverage and GRFA in the plat and how that compares to the amount allowed under the zoning and other districts in Vail. Gives examples of other areas of town that have higher density. J osh lists out the numbers they are requesting and how they came to those numbers to request. I n conclusion he goes over the concerns from the original platting process that were respected and how this application meets those concerns. Perez asks if an environmental impact report or assessment has been done with this application. Spence says there has not been a report done, but points to a section in the memo that is worth noting. Perez wants to know if we’ve looked at the GRFA increase and how it will affect environmental aspects. Spence details how they were previously reviewed. Perez says the commission must look at the criteria and what they have before them. Gillette asks if we’ve looked at the actual GRFA in the homes that are built. Are they completely built out? August 18, 2020 - Page 61 of 139 Spence doesn’t know which homes have maxed out GRFA. They do get the basement deductions since that was changed about how GRFA is measured which is consistent over Vail. He asks the applicant which ones are maxed out. J osh states he doesn’t know them all, but the case studies shown are typical of what is in the neighborhood and that most are within a couple hundred square feet of maximum. They have not done a lot by lot analysis though. Gillette asks where the largest homes are in town. Spence says they are probably on Forest Road since they have the largest lots. Around 10,000S F for duplexes. The average is closer to 7,000S F. Kurz says it would help to know what each lot has in GRFA. This would be a blanket upzoning without all the information on the table. Spence agrees that it would help with some of the lots knowing how large the increase would actually transfer to increase in size of the home. Lockman says the blanket 10,000 seems arbitrary and if each lot should/could ask for a variance to increase GRFA. Spence answers that the variance criteria is not appropriate for this type of request. GRFA caps are difficult to show hardship. Maybe another way would be to allow an increase in percentage of existing instead of an arbitrary cap. Lockman says previous minutes were not very clear or detailed at the Council level. Can you provide any more detail? Spence says they do not have as much detail due to record keeping at the time. J osh says there was a lot of conversation at that time about the text amendment that was proposed. This time they tried to simplify the application by keeping it within the bounds of the underlying zoning. Pratt asks if there is a general number that was given in 2005 with the amendments as to how much each house received additional GRFA or a percentage increase. Spence says it isn’t that clear as they were hard numbers and not a percentage. The percentage amount varies greatly depending on the lot size. Pratt says he got about a 12-14% bump without the basement deduction. Spence pulls up a graph with more information. Gillette says it is important to know what the area will look like from the valley floor if they get bigger. Spences directs attention to the chart on page 14 which shows what is asked for compared to existing. Kurz says he’s less concerned from what it looks like from the village since August 18, 2020 - Page 62 of 139 they’ve done a good job hiding houses. More concerned with blanket upzoning without the existing numbers. W e need to clearly assess the impacts. J osh said they can do that. I f P E C is comfortable with some lesser degree of what is allowed, we can look into that. Spence adds basing increases on a percentage could be easier Gillette says fairness and precedence of the decision. How many more people will ask for additional GRFA if we grant this? Spence says this is very unique. Similar to where Gillette lives and would be a similar application, but it is not typical to see this around town. Gillette asks if the hillside zoning was set up for this site. Spence clarifies that they land use plan made a Hillside Land Use without a zone district. This zone district was then created but done poorly as it didn’t include any design guidelines or special regulations pertaining to steep slopes. Gillette asked what has changed. They looked at this in the first round of review of the plat and must’ve had a reason for the GRFA given. Pratt says what’s changed is that people want to make an addition, but they don’t have GRFA. J osh says that other areas have gotten bumps in GRFA when Spraddle Creek didn’t because their GRFA was locked in Spence says the allowable number today take some of that bumps into account as part of the 2005 amendments was also based on the basement calculations and deductions. Gillette says another thing we need to be concerned with is other underlying design guidelines. I f we add GRFA they may do away with those guidelines that keep them hidden so they can add that additional GRFA, and then we lose the concealment the current guidelines provide today. Kurz goes over the history of the site as he was on the P E C at the time. They were worried about large homes covering the hillside in the Town and that may have been part of Council’s thinking. Gillette says to that note we are looking at making it 30% bigger with no large public input as was done at the initiation of the subdivision. Kurz reiterates that we need more information. Spence asks P E C to list what they would like to see next time. Chart shown, and existing GRFA he has written down. Gillette says another helpful piece of information would be comparisons between these lots and some other large lots in town. He wants to get a better idea of the size of lots compared to areas in town. An average of a subdivision with large homes and see what that looks like for the size of the house. August 18, 2020 - Page 63 of 139 Seibert says you also have to consider location. Some large home subdivisions are hidden. This area is prominent on the hillside in Vail. Spence asks for winter photos to have a better idea of year-round view. Seibert asks for history on inclusionary zoning in the previous application. Can we ask for something like that? Spence says we can ask for mitigation measures for example E HUs or environmental impact considerations. Gillette wants to know what they would offer to mitigate the addition. There is some wildlife mitigation that is needed in the area. Spence says absent a proposal from HOA the environmental/wildlife impact would be difficult to quantify, where housing has a set mitigation rate that could be applied. Gillette asks for a proposal from HOA on mitigation measures. Pratt asks for a review or map of the buildable area for each lot. W ants to have something that shows the slopes so they can back up numbers as to where the math comes from. W hat we are talking about seems so arbitrary. The 10k cap by the applicant and the percentage increase both are arbitrary and need something to be defendable in court. Gillette asks if we should be looking at another zone district as a comparison. Pratt says if anything we should base it on the existing zone district there. Kjesbo says 40 percent increase is huge but agrees everything is arbitrary. He likes the idea of a percentage better. We’re stuck with the zoning we have now, which makes it difficult. W e need to look at comparison large lots and what it was before and after the 2005 increase. Agrees that there should be inclusionary zoning with this. Several members discuss the amount of benefit that the 2005 change was granted. The goal is to make sure the changes and addition is equitable. Perez says the issue and premise of the whole conversation is that these lots are entitled to the increase that others received. Not sure it is a foregone conclusion. Kjesbo says the original goal was not to have “trophy homes” in the valley, which has since become a fact and are found in the valley. Discussion on the impact of additional GRFA on design is had between members, staff and applicant. Brian Gillette moved to table to September 14, 2020. Rollie Kjesbo seconded the motion and it passed (7-0). 2.2.A report to the P E C regarding an administrative approval of a Conditional Use Permit amendment, pursuant to Title 12, Chapter 16, Amendment Procedures, Vail Town Code, to allow for a 610 square foot expansion to 10 min. August 18, 2020 - Page 64 of 139 Donovan Pavilion for additional storage, a kitchen prep space, and an office/bride room located at 1600 S. Frontage Road W . / Unplatted – Donovan Park, and setting forth details in regard thereto. (P E C20-0014) Applicant:Town of Vail, represented by TA B Associates Planner:Erik Gates Gates gives a presentation on the addition that was proposed and approved administratively. The scale is why the application was administratively approved and P E C must be notified of the changes to the C UP. 2.3.A request for a recommendation to the Vail Town Council for a prescribed regulation amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to amend Section 12-10 Off Street Parking and Loading, Vail Town Code, to refine the appropriate sections to allow for a comprehensive approach to meeting the minimum parking requirements, including clarifying the review process and other considerations, and setting forth details in regard thereto. (P E C20-0007) The applicant has requested this item be tabled to a date uncertain. 5 min. Applicant:Braun Associates, I nc. Planner:Greg Roy Karen Perez moved to table indefinitely. Brian Gillette seconded the motion and it passed (7-0). 3.Approval of Minutes 3.1.J uly 27, 2020 P E C Results Karen Perez moved to approve. Brian Gillette seconded the motion and it passed (7-0). 4.I nformational Update 4.1.A worksession to discuss proposed process and a zoning code amendment, pursuant to Section 12-3-7, Amendment, Vail Town Code, for various amendments to Title 11 - Sign Regulations to updatedefinitions and reduce content-based regulations in order to conform with the Supreme Court ruling in Reed v. Town of Gilbert, and setting forth details in regard thereto. 45 min. Applicant: Planner:Erik Gates Gates goes over the proposed amendments to the sign code in response to Reed vs Town of Gilbert. Perez asks for more information on the Reed vs Gilbert case for next time. Gates notes that and will have it for next time as well as the online Engage Vail page when it launches. J ohn Ryan has questions about how much rewriting we are doing and the effect on sign content. Gates points out that it will affect content and we’re trying to change only parts that are required through the case. Gillette asks how we are changing sizes and Gates responds we are trying to avoid changing sizes and many are the same. August 18, 2020 - Page 65 of 139 Gillette states that the 45 days is too long for temporary signs. No more than two weeks would be appropriate. Spence says that timing is typical and 45 is what is reasonable based on the case. W e will check with the Town attorney on the minimum we can provide. Gillette says that we should weigh risk on this one. Kurz has a question on I 70 ROW, and if that includes on and off ramps. Gates says it includes that and most likely frontage roads. Kurz makes sure staff will have town attorney sign off by the time it comes back to them. Gates assures he will. 4.2.P E C Appointment to the Open Lands Board of Trustees Applicant: Planner:Matt Gennett Brian Gillette moved to appoint Ludwig Kurz to the Open Lands Board of Trustees. Henry Pratt seconded the motion and it passed (7-0). 5.Adjournment Brian Gillette moved to Motion. Rollie Kjesbo seconded the motion and it passed (7-0). The applications and information about the proposals are available for public inspec tion during regular offic e hours at the Town of Vail Community Development Department, 75 South Frontage Road. The public is invited to attend the project orientation and the site vis its that prec ede the public hearing in the Tow n of Vail Community Development Department. Times and order of items are approximate, subject to c hange, and c annot be relied upon to determine at w hat time the Planning and Environmental Commission w ill c onsider an item. Please c all (970) 479-2138 for additional information. Please call 711 for sign language interpretation 48 hour prior to meeting time. Community Development Department August 18, 2020 - Page 66 of 139 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: V L HA Meeting Results J une 23, 2020 AT TAC H ME N TS: Description V L H A Meeting Results June 23, 2020 August 18, 2020 - Page 67 of 139 Vail Local Housing Authority Meeting Results June 23, 2020 3:00 PM Virtual 75 S. Frontage Road - Vail, Colorado, 81657 1. Call to Order 1.1. Virtual Meeting Part I 1.2. Virtual Meeting Part II 1.3. Call to Order All Authority members are present and a quorum is established. Lindstrom called the meeting to order at 3:05PM. Ruther and Campbell are also present from staff. 2. Citizen Participation 2.1. Citizen Participation There are no comments. 3. Approval of Minutes 3.1. VLHA May 12, 2020 Meeting Results MOTION: MOFFET SECOND: WILKINS VOTE: 5-0 APPROVED 3.2. VLHA June 9, 2020 Meeting Results MOTION: MOFFET SECOND: WILKINS VOTE: 5-0 APPROVED 4. Main Agenda 4.1. Resolution No. 20, Series of 2020, a Resolution Approving the Purchase of a Deed Restriction Interest in Property (Type III Deed Restriction) in the Town of Vail Legally Described as Lot 6-W, Final Plat and Resubdivision of Lot 6 Vail Intermountain Subdivision, Block 10, Eagle County, Colorado with a Physical Address of 3120 Bellflower Drive, West Unit, Vail Colorado; and Setting Forth Details in Regard Thereto. Presenter: Lynne Campbell, Housing Coordinator MOTION: MOFFET SECOND: MC DOUGALL VOTE: 5-0 APPROVED 4.2. Resolution 21, Series of 2020, a Resolution Approving the Purchase of a Deed Restriction Interest in Property (Type III Deed Restriction) in the Town of Vail Legally Described as Condominium Unit A-6, Vail Das Schone Condominiums, Eagle County, Colorado with a Physical Address of 2111 North Frontage Road August 18, 2020 - Page 68 of 139 West, Unit A-6, Vail Colorado; and Setting Forth Details in Regard Thereto. Presenter: Lynne Campbell, Housing Coordinator MOTION: MORALES SECOND: MC DOUGALL VOTE: 5-0 APPROVED 4.3. Alternate Housing Sites Initiative Presenter: George Ruther, Housing Director Ruther provided the Authority with an update for the alternative housing sites initiative strategies and progress. The initiative was recently presented to the Council and shared with the community on June 2, 2020. He noted no conversations have been had with the Authority at this time. He reviewed the draft 5-year plan. The objective is to explore options for development of the Booth Heights parcel. 5. Matters from the Chairman and Authority Members 5.1. Matters from the Chairman and Authority Members Presenter: Steve Lindstrom, Chairman Lindstrom informed the Authority members the EHU compliance policy was given go ahead by Council and Housing staff will bring back to the Authority for review prior to Council approval. The Highline project in West Vail was approved at Council’s June 16th meeting. The West Vail Master Plan is moving forward and an advisory group has been created. Moffet discussed the Town’s opportunity to review and manage parking infrastructure. Ruther stated Council had requested the Community Development department review parking requirements and focus on less attention on square footage / building counts rather focus on transportation needs of residents. Ruther is waiting to hear back from Community Development on status. The Authority’s July 14th meeting will be held both in the Council chambers and virtually. Moffet motioned to leave the regular meeting and enter executive session. MOTION: MOFFET SECOND: MC DOUGALL VOTE: 4-0 APPROVED Wilkins left regular meeting prior to executive session 6. Executive Session 6.1. Executive Session per C.R.S. §24-6-402(4)(a)(e) - to discuss the purchase, acquisition, lease, transfer, or sale of property interests and to determine positions, develop a strategy and instruct negotiators, regarding: submitted Vail InDEED applications and program details. August 18, 2020 - Page 69 of 139 Presenter: Lynne Campbell, Housing Coordinator The meeting reconvened after executive session at 4:45PM. All members present except Wilkins who left prior to executive session. 7. Any Action as a Result of Executive Session 7.1. Action as a Result of Executive Session Morales made a motion to direct staff to move forward with the Vail InDEED applications as discussed in executive session. MOTION: MORALES SECOND: MOFFET VOTE: 4-0 APPROVED 8. Adjournment 8.1. Adjournment 5:00 PM (estimated time) Moffet motioned to adjourn the meeting at 4:52PM. MOTION: MOFFET SECOND: MORALES VOTE: 4-0 APPROVED 9. Future Agenda Items • Incentives for Long Term Rentals in the Town of Vail • Housing Sites Discussion • Land Banking (sale of GRFA) • Public Health Housing Incentive, Eagle County Health 10. Next Meeting Date 10.1. Next Meeting Date July 14, 2020 Meeting agendas and materials can be accessed prior to meeting day on the Town of Vail website www.vailgov.com. All housing authority meetings are open to the public. Times and order of agenda are approximate, subject to change, and cannot be relied upon to determine at what time the Vail Local Housing Authority will discuss an item. Please call (970) 479-2150 for additional information. Please call 711 for sign language interpretation 48 hours prior to meeting time. Housing Department August 18, 2020 - Page 70 of 139 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: V L HA Meeting Results J uly 28, 2020 AT TAC H ME N TS: Description V L H A Meeting Results July 28, 2020 August 18, 2020 - Page 71 of 139 Vail Local Housing Authority Agenda July 28, 2020 3:00 PM Virtual 75 S. Frontage Road - Vail, Colorado, 81657 1. Call to Order 1.1. Virtual Meeting Part 1 1.2. Virtual Meeting Part 2 1.3. Call to Order Lindstrom called meeting to order at 3:00PM with a quorum present. McDougall is absent. Ruther and Campbell are present from staff. 2. Citizen Participation 2.1. Citizen Participation No one is present from the public. 3. Approval of Minutes 3.1. VLHA July 14, 2020 Meeting Results MOTION: WILKINS SECOND: MORALES VOTE: 4-0 APPROVED 4. Main Agenda 4.1. Zoom Meeting Protocol, Tips and Tricks Presenter: Lynne Campbell, Housing Coordinator Campbell and the authority discussed meeting protocol and helpful tools. 4.2. A request for a recommendation to the Vail Town Council for the release of a deed- restriction from an existing employee housing unit, located at 1225 A Westhaven Lane / Glen Lyon Subdivision Lot 43 Parcel A ("exchange EHU") in exchange for the recording of a new employee housing deed-restriction on the property located at 3941 Bighorn Road, Unit 4B / Pitkin Creek Park Condominiums, Unit 4B ("proposed EHU"), pursuant to Section 12-13-5 Employee Housing Unit Deed Restriction Exchange Program, Vail Town Code. Presenter: Lynne Campbell, Housing Coordinator Staff and the Authority discussed the EHU exchange and proposed property. Moffet is not in favor of the remaining fee-in-lieu due to the rate being too low. The rate has not been updated since 2007. Ruther stated this request should be based on the existing code with updates and fee- August 18, 2020 - Page 72 of 139 in-lieu updates at a later date. MOTION: WILKINS SECOND: MORALES VOTE: 3-1 APPROVED (MOFFET OPPOSED) 4.3. Resolution No. 24, Series of 2020, a Resolution Approving the Purchase of a Deed Restriction Interest in Property (Type III Deed Restriction) in the Town of Vail Legally Described as Condominium Unit 6, Alpen-Glo Condominiums, Eagle County, Colorado with a Physical Address of 5115 Black Bear Lane, unit 6, Vail Colorado; and Setting Forth Details in Regard Thereto. Presenter: Lynne Campbell, Housing Coordinator MOTION: WILKINS SECOND: MORALES VOTE: 4-0 APPROVED 5. Matters from the Chairman and Authority Members 5.1. Matters from the Chairman and Authority Members Presenter: Steve Lindstrom, Chairman Discussion and research with lenders and appraisers how Vail InDEED appraisals are figured. The Authority discussed parking calculations as presented at the July 21st Council meeting. Ruther noted there is still discussion of alternative housing sites and is working with the Children’s Garden of Learning to identify both temporary and permanent sites. Moffet made a motioned to leave the regular meeting and enter executive session. MOTION: MOFFET SECOND: WILKINS VOTE: 4-0 APPROVED 6. Executive Session 6.1. Executive Session per C.R.S. §24-6-402(4)(a)(e) - to discuss the purchase, acquisition, lease, transfer, or sale of property interests and to determine positions, develop a strategy and instruct negotiators, regarding: submitted Vail InDEED applications and program details. Presenter: Lynne Campbell, Housing Coordinator made a motioned to leave the regular meeting and enter executive session. MOTION: MOFFET SECOND: MORALES VOTE: 4-0 APPROVED Reconvened regular meeting with Wilkins, Morales 7. Any Action as a Result of Executive Session 7.1. Action as a Result of Executive Session from July 14, 2020 and July 28, 2020 Wilkins recommended staff continue negotiating the Vail InDEED offers as discussed in executive session on July 14, 2020. There were no Vail InDEED applications reviewed for the July 28, 2020 executive session. August 18, 2020 - Page 73 of 139 MOTION: WILKINS SECOND: MOFFET VOTE: 4-0 APPROVED 8. Adjournment 8.1. Adjournment Meeting adjourned at 4:22PM MOTION: MOFFET SECOND: WILKINS VOTE: 4-0 APPROVED 9. Future Agenda Items • Incentives for Long Term Rentals in the Town of Vail • Housing Sites Discussion • Land Banking (sale of GRFA) • Public Health Housing Incentive, Eagle County Health • Parking Ratios 10. Next Meeting Date 10.1. Next Meeting Date August 11, 2020 Meeting agendas and materials can be accessed prior to meeting day on the Town of Vail website www.vailgov.com. All housing authority meetings are open to the public. Times and order of agenda are approximate, subject to change, and cannot be relied upon to determine at what time the Vail Local Housing Authority will discuss an item. Please call (970) 479-2150 for additional information. Please call 711 for sign language interpretation 48 hours prior to meeting time. Housing Department Meeting will be held on Zoom. August 18, 2020 - Page 74 of 139 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: C S E Meeting Minutes from A ugust 5, 2020 AT TAC H ME N TS: Description C S E Draft Meeting Minutes - 8/5/2020 August 18, 2020 - Page 75 of 139 COMMISSION ON SPECIAL EVENTS MEETING Virtual Meeting (Info at the bottom of the page) Wednesday, August 5, 2020 @ 8:30a.m.-10:00a.m. Minutes: Meeting materials can be accessed at the following link: August 5, 2020 Meeting Materials Board Attendees: Ali Wadey, Sam Biszantz, Mark Gordon, Jill Lau, Barry Davis, Marco Valenti Other Attendees: Jeremy Gross, Mia Vlaar, Liz Gladitsch, Angela Mueller, Joel Rabinowitz, Kathy Fagan, Kristen Horpedahl, Leon Fell, Lynn Martin, Michael McCormack, Peter Osorio, Ryan Slater, Skip Thurnauer 1. 8:30a.m.: Administrative Items (10 minutes) a. Approval of the Minutes from the CSE Meeting on 07/1/2020 • Motion to approve the minutes from the July 1 CSE meeting. • Gordon/Biszantz/unanimous b. VLMDAC, VEAC and Council Updates • VLMDAC 1. Skip: Last meeting we voted to reduce our 2020 budget by 60% for 2021 2. Continuing to market to drive and Front Range markets, shifting as needed when drive markets have spikes • VEAC: 1. Rental Relief Program was passed at $1M and up to $15k/business 2. Tenting of Restaurant patios in Winter: Focus on how to keep restaurants open at larger capacity this winter 3. Gift Card Program: provided to local community and guests to encourage spending in Vail 4. Tenting proposal should include some village/public consumption areas • Gordon: Boards and commissions feel constantly behind with once a month meetings due to the speed that things are changing. c. Financial Update • $87,473 unspent from CSE after 30% reduction • 2021 budget discussions now but planning on flat budget from 2020. d. Upcoming Meeting Reminders • VLMDAC – Thursday August 20 • Town Council – August 18 August 18, 2020 - Page 76 of 139 • CSE – September 2 e. 2021 Application/RFP timeline • RFP published this month, applications due September for CSE to review in October, votes at end of October, final approval by Council in conjunction with 2021 budget approval. 1. Gordon: In the past, the CSE has been involved in the drafting of the RFP. Gross: RFP will be sent to CSE for review prior to publishing. 2. 8:40 a.m.: Update on Current Public Health Orders (5 Minutes) a. Transition Trail Map/State Orders 3. 8:45 a.m.: Event Recap (15 Minutes) a. Vail Whitewater Race Series • First event in Vail post COVID shut down and only white-water series that happened this year • 30% people from Vail, 50% EC • Used some of CSE budget to purchase gift cards from local businesses • Motion to approve final funding for the Vail Whitewater Series. • Valenti/Biszantz/unanimous Davis abstained (Barry Davis is the Emcee for the event) 4. 9:00 a.m.: Event Funding Approvals (20 Minutes) Working on a reimbursement plan for those events that were canceled. Ie: unrecoverable marketing costs, a. Powabunga – • Powabunga has significant marketing and entertainment costs paid out. Because it is a ticketed event, the lineup is being retained as well as the ticket revenue. Approval of final funding will be contingent on a modified agreement to produce the event in 2021 with the 2020 funding. • Motion to approve final funding Powabunga with an amended contract for a 2021 event. • Valenti/Davis/unanimous b. Taste of Vail • Taste of vail spent significant amounts on marketing and PR which is unrecoverable. With the event being canceled withing a few weeks of the shutdown much of the marketing benefit to the Town had already been realized even without the event being held. Total funding was $55,000. Staff recommends a funding amount of $46,684.77. • Motion to approve the amended amount of $46,684.77 for Taste of Vail unrecoverable expenses. • Biszantz/Valenti/Unanimous August 18, 2020 - Page 77 of 139 c. Farmers Market • Increased operational costs and decreased revenue due to COVID- 19 have forced the Farmers Market to look for new revenue sources. For 3 weeks, the Farmers Market charged admission of $2.70 with $1 going to the market and $1.70 in processing fees. • Wadey: can CSE/staff set up a meeting with Meadow Drive business owners so we can get a unified stance from them and investigate a way for more vendors, spread out past Meadow Drive. • Motion to approve additional $22,000 to allow farmers market to continue without charging • Davis/Valenti/Davis, Valenti, Wadey, Lau – For Gordon, Biszantz Against 5. 9:20 a.m.: Event Funding request (15 Minutes) a. September wine festival • Original request for $65,000 • Discussion 1. Biszantz, this seems like the amount we would fund for a full 2021 event. 2. All businesses are suffering and adapting to higher expenses with lower revenue. 3. Concern that the event could move back to Breckenridge next year regardless of funding. 4. Concern that this would deplete funding for other events that may come up through the rest of the year. • Gordon Motion to fund vail wine festival at $55,000 for wine festival • Wadey Gordon Davis for/Biszantz, Lau, Valenti Against 1. Discussion: With limited attendance due to COVID-19 the amount seems too high. 2. Gordon Motion to fund wine festival at $50,000/Davis/ a. Biszantz/Lau/Valenti against 3. Motion to support wine festival at $45000 a. Approved 6/1 Valenti Against 6. 9:35 a.m.: Event Survey List (10 minutes) a. Board members to submit ideas for updates to the survey to include COIVD related questions 7. 9:45 a.m.: Event Updates (15 Minutes) a. Vail Outlier/Van Show Update b. Update from Mike McCormack • Vail Resorts has withdrawn approval to use property for bike expo. Many bike brands are limited in activation opportunity due to pandemic. Others are still interested but it will be a smaller field. Van/RV vendors are still engaged and interested. 2020 event would be smaller all around with the goal of getting it off the ground August 18, 2020 - Page 78 of 139 and collecting marketing assets for 2021 event. There is still a lot of excitement for the van show this year as more people are taking to the streets in campers/rvs. • Motion to keep funding at 16500 for adjusted outlier and van show. • Biszantz/Davis/unanimous 8. 10:00 a.m.: Public Comment/Event Producer Open Discussion (5 Minutes) 9. 10:05 .a.m.: New Business (5 minutes) Events still on calendar for 2020 as of Aug. 5, 2020 a. Vail Automotive Classic b. Vail Mountaineers Alumni Weekend c. Art Festival d. Vail Classic invitational e. Vail Mountaineers Hockey Tournament f. Vail Family Fun Fest g. Farmers Market h. Farm to Table i. Yeti Hockey j. Legacy Fighting alliance k. Vail Skating Festival l. Vail outlier Adjournment @10:10 a.m. August 18, 2020 - Page 79 of 139 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Ethics & Conflict of I nterest Discussion P RE S E NT E R(S ): Dave Chapin, Mayor AC T IO N RE Q UE S T E D O F C O UNC I L: Town Council is asked to review the information included in the Colorado Municipal L eague materials and affirm they are interested in this discussion with C I R S A's attorney at the September 15 council meeting. B AC K G RO UND: Members of the Vail Town Council have requested materials that would inform a discussion about drafting legislation addressing ethics and conflict of interest to be included in the Town Code. T he Town Clerk's Office has forwarded information and video that help frame the ethics and conflict of interest topics. S am L ight, C I R S A , has been invited to the S eptember 15 meeting to present some recommendations and facilitate the discussion about these topics. AT TAC H ME N TS: Description 2019 Ethics Liability & Best Practices Handbook August 18, 2020 - Page 80 of 139 HANDBOOK SECOND EDITION 2019 SAFERTOGETHER ETHICS, LIABILITY & BEST PRACTICES FOR ELECTED OFFICIALS EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 3EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 3 6/4/2019 1:02:41 PM6/4/2019 1:02:41 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 81 of 139 Tami A. Tanoue CIRSA Executive Director Sam Light CIRSA General Counsel Robert Widner Widner Juran LLP Linda Michow Michow Cox & McAskin LLP Christiana McCormick Michow Cox & McAskin LLP ETHICS, LIABILITY & BEST PRACTICES HANDBOOK FOR ELECTED OFFICIALS CIRSA 3665 Cherry Creek North Drive Denver, Colorado 80209 800.228.7136 www.cirsa.org CML 1144 Sherman Street Denver, Colorado 80203 303.831.6411 www.cml.org EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 5EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 5 6/4/2019 1:02:41 PM6/4/2019 1:02:41 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 82 of 139 TABLE OF CONTENTS ABOUT THE AUTHORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 FOREWORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 CHAPTER 1: Th e Oath of Offi ce: Ethics, Liability and Best Practices . . . . . . 7 CHAPTER 2: Healing Divisions on the Governing Body: Can’t We All Just Get Along . . . . . . . . . . . . . . . . . . . . 11 CHAPTER 3: Governing Bodies and Th e Outlier Syndrome . . . . . . . . . . 17 CHAPTER 4: Liability Protections and You. . . . . . . . . . . . . . . . . . . . 21 CHAPTER 5: Open Meetings and Executive Sessions . . . . . . . . . . . . . . 25 CHAPTER 6: Ethical Conduct in Local Government . . . . . . . . . . . . . . 29 CHAPTER 7: Harassment Issues: What Elected Offi cials Need to Know . . . 35 CHAPTER 8: Elected Offi cials’ Involvement in Personnel Matters. . . . . . . 41 CHAPTER 9: Social Media Use by Elected Offi cials . . . . . . . . . . . . . . . 47 CHAPTER 10: Appointment and Removal of Offi cials in Statutory Towns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 2 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 6EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 6 6/4/2019 1:02:41 PM6/4/2019 1:02:41 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 83 of 139 ABOUT THE AUTHORS Tami A. Tanoue Tami Tanoue has been CIRSA’s Executive Director since August, 2018. Her previous positions with CIRSA include General Counsel/ Deputy Executive Director and General Counsel/Claims Manager. She was previously in private practice with the fi rm of Griffi ths, Tanoue, Light, Harrington & Dawes, where she served CIRSA as its contract General Counsel for 12 years, and was City or Town Attorney for several Colorado municipalities. Prior to that, she was Staff Attorney for the Colorado Municipal League, where she represented the collective interests of Colorado municipalities. Tami is a regular speaker on local government liability topics and has written several publications on liability issues. Sam Light Sam Light joined CIRSA as General Counsel in 2018 and was previously in private practice with the Denver fi rm of Light Kelly PC, where he practiced for over twenty years in the areas of municipal and public entity law, and government liability and insurance issues. Sam has served as general and special counsel to home rule and statutory municipalities and other public entities throughout Colorado, and frequently provides training for municipal elected and appointed offi cials and staff . Robert Widner Robert (Bob) Widner is a founding partner with the law fi rm of Widner Juran LLP. Bob’s practice focuses on the general representation of local governments with a special emphasis in advising and training governmental bodies on best practices to foster ethics, transparency, and meeting effi ciency. Bob currently serves as the City Attorney for the City of Centennial. Prior to founding his law fi rm, Bob was a partner with the Denver law fi rm of Gorsuch Kirgis LLP where Bob served as the city, town, or county attorney for a wide variety of communities throughout Colorado. Linda Michow Linda Michow is a founding partner of the law fi rm of Michow Cox & McAskin LLP in Greenwood Village, Colorado where she maintains a robust local government practice. Ms. Michow is an experienced local government attorney well-versed in annexation, land use, urban renewal and zoning matters as well as in the day-to-day issues facing Colorado local governments including TABOR, elections, open records, and liquor licensing. Ms. Michow enjoys participating in educational seminars and training of the fi rm’s elected and appointed offi cials and municipal staff and is also a frequent presenter to the broader local government community on current and recurring local government issues. Christiana McCormick Christiana McCormick is an associate attorney at the law fi rm of Michow Cox & McAskin LLP. Her practice involves representation of local governments and covers a variety of areas, including taxation, land use, urban renewal, and law enforcement matters. Before joining Michow Cox & McAskin, Christiana served as a judicial law clerk to the Honorable Norma A. Sierra in Boulder District Court and completed a legal fellowship at the Denver City Attorney’s Offi ce, where she assisted with state and federal civil litigation matters primarily involving the Colorado Governmental Immunity Act and constitutional claims arising under 42 U.S.C. Section 1983. 3 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 7EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 7 6/4/2019 1:02:41 PM6/4/2019 1:02:41 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 84 of 139 If you’ve stepped up to the challenges of serving as an elected offi cial in your community, congratulations! You’re dedicating your energy, wisdom, and experience towards making your city or town the best it can be. But the job of an elected offi cial is not an easy one. Missteps can make you less eff ective, undermine your credibility, and even lead to liability. In this newly revised and expanded edition of the popular Ethics, Liability & Best Practices Handbook for Elected Offi cials, we discuss many of the issues of greatest concern to elected offi cials from the standpoint of maximizing excellence and eff ectiveness, while minimizing the risk of liability. Th e contributors have provided decades of service to municipalities, individually and collectively. We’ve tried to keep the content engaging, on-point, and light on the legalese. At CIRSA and CML, we pride ourselves on partnering with our member local governments. CIRSA off ers a wide range of risk management services, from providing property, liability, and workers’ compensation coverage, to managing claims, assisting in managing your risks, providing training to elected offi cials and staff , and consulting on virtually every liability-related topic. Founded in 1923, CML is a nonprofi t, nonpartisan organization providing services and resources to assist municipal offi cials in managing and serving Colorado cities and towns. CML works to empower Colorado cities and towns through legislative and legal advocacy, training, research and information, and leadership on matters of municipal interest. We hope you will fi nd this publication to be of value to you as you undertake the challenging and rewarding work of governing your community. Tami A. Tanoue Kevin Bommer CIRSA Executive Director CML Executive Director PREFACE 4 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 8EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 8 6/4/2019 1:02:41 PM6/4/2019 1:02:41 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 85 of 139 By: William E. Bell, MPA, ICMA-CM City Manager for the City of Montrose & former Executive Board President of the Colorado Municipal League (CML) and the Colorado City & County Management Association (CCCMA). We have all heard the old saying: “Ethics is doing the right thing when no one is watching.” Well, what about doing the right thing while everyone is watching? How refreshing it might be to sit in a nice quiet offi ce or out on a park bench with the birds chirping in the distance, while pondering our options prior to making a decision that aff ects hundreds, or even thousands of people for years to come. How reassuring it might be to run all of our ideas by a panel of experts to vet the pros and cons over an extended period prior to making our next decision. Sound good? Of course it does! However, that is simply not reality for a local government offi cial in today’s fast-paced world. But no matter the pace or pressures, this overarching point of municipal leadership remains the same: MAINTAINING ETHICAL INTEGRITY—AND DOING THE RIGHT THING—AT ALL TIMES IS A REQUIREMENT for elected and appointed offi cials alike. Our communities are microcosms of our society, and with an ever-changing demographic we are facing ever-changing expectations as to what role we should play as local government leaders. We are all facing the unique pressures of being public servants and although it is most defi nitely a worthwhile and rewarding calling for most of us, it can also be frustrating, unpredictable and complicated at times. More oft en than not, elected and appointed offi cials reach at least one point in their tenure where doubt creeps in, making them wonder about the true value of being in local government. Is it worth it? Can I handle this? Questioning oneself and our actions during times of uncertainty and chaos is normal and does not mean that we are doing anything wrong. In fact, I would argue the opposite. In working with thousands of constituents, hundreds of employees, and dozens of elected offi cials during my 16 years of managing communities, it is those individuals who were interested in self-refl ection and continuous improvement that I have truly admired for answering the call to public service. Th eirs is an example worthy of emulation and one that safeguards public offi cials from ethical missteps. We all struggle to fi nd our place when we are new to an organization, and it is a time when we are most susceptible to outside persuasion and manipulation. During times of transition, it is especially important to rely on each other’s experience and expertise and to reach out for support and guidance whenever there is uncertainty. Here in Colorado we are lucky to have several well-versed organizations such as CIRSA and CML at our disposal to off er advice on how to handle ethical dilemmas and complex situations. However, we must be willing to tap these valuable resources prior to getting ourselves into trouble. Asking for help is not a sign of weakness, but is rather an indication of care, thoughtfulness and wisdom. While there is no single blueprint to success for local government leaders, no recipe to follow to create the perfect outcomes, building strong and healthy relationships is the foundation of both achievement and sound ethical practice. Whether it is the idealistic vision shared between two newly elected offi cials, or the mutual respect and deference exhibited between a seasoned manager and his or her councilmembers; one thing is certain: the relationships connecting our local government leaders are what lay the foundation for sustainable and productive local governance in today’s society. I hope you are able to spend some time reviewing the information in this second edition of Ethics, Liability & Best Practices Handbook for Elected Offi cials and taking to heart its content. Th is material off ers a common ground from which all Colorado offi cials can work to make the communities of this great State even better. FOREWORD 5 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 9EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 9 6/4/2019 1:02:41 PM6/4/2019 1:02:41 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 86 of 139 6 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 10EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 10 6/4/2019 1:02:41 PM6/4/2019 1:02:41 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 87 of 139 CHAPTER 1 By: Tami A. Tanoue, CIRSA Executive Director & Sam Light, CIRSA General Counsel THE OATH OF OFFICE: ETHICS, LIABILITY AND BEST PRACTICES A typical oath of offi ce might go as follows: “I solemnly swear or affi rm that I will support the Constitution and laws of the United States of America and the State of Colorado, [the Charter,] the ordinances and other laws of the City/Town, and that I will faithfully perform the duties of the offi ce upon which I am about to enter.” With the passage of time since you took offi ce, does your oath have continuing meaning as an ethical commitment? Th is chapter examines the oath as a commitment to best practices in carrying out your responsibilities, and as a path to avoiding liability. We’ll focus on four key areas: allocation of responsibilities, transparency in meetings, quasi- judicial rules of engagement, and personal conduct. Honoring the Allocation of Responsibilities As in other levels of government, municipal powers and responsibilities are typically allocated among the governing body, judge, staff , and possibly others, according to charter or statutory requirements. Th us, for instance, the governing body is responsible for all legislation, the municipal judge is responsible for determining ordinance violations, and the manager/administrator and staff are responsible for administrative matters. To the extent the charter or statutory provisions set forth a clear allocation of responsibilities, respecting that allocation is part of an elected offi cial’s oath. Inappropriate involvement in administrative matters, then, could be a violation of your oath. Personnel matters are among those in which inappropriate involvement tends to occur. Th e governing body typically supervises a limited number of its own direct reports— for example, the chief administrator, judge, attorney, and perhaps a few others. As an individual elected offi cial, if you are asked by an employee who’s not one of the governing body’s direct reports to become involved in an employment issue, or if you take the initiative to become involved, that could be a red fl ag in terms of your oath to respect the allocation of responsibilities. 7 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 11EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 11 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 88 of 139 From a best practices standpoint, inappropriate involvement in personnel matters can eff ectively destroy the chain of command. While most municipal offi ces are not operated according to a military-style chain of command, some version of a chain of command is critical for eff ective functioning no matter how large, small, formal, or informal your operations are. Once you allow inappropriate involvement to occur, you have eff ectively disempowered managers and supervisors throughout the organization, and sent the message that employees are free to disregard the chain of command. Personnel matters are also a high-risk liability area. Th e more you’re personally involved, the more likely it is that your name may some day appear on the wrong end of a lawsuit, or come up in an executive session where your fellow members are assessing the risks your conduct has created. So, you can see that honoring the allocation of responsibilities by staying out of most personnel matters is a means of avoiding or reducing liability. Honoring Transparency in Meetings In local government, transparency of the governing body in its discussions and decisions is a basic expectation of the citizenry. Citizens take great interest in the goings-on of the governing body, and are quick to notice when their transparency expectations are not met. A perception that governing body members are conducting discussions secretly, that executive sessions are being held for improper purposes, or that decisions are being made in “smoke-fi lled back rooms,” can quickly erode trust and confi dence in government. Transparency in meetings means that governing body meetings are open to the public and held only aft er proper public notice, that executive sessions are strictly limited to the purposes authorized by law, and that discussions of public issues take place in a meeting setting rather than by email or in hidden locations. Is this part of your oath? Most certainly! Th e statewide open meetings law applies to all local public bodies, including city councils and boards of trustees. If you’re a home rule municipality, there may be charter provisions concerning transparency as well. Is honoring transparency in governing body meetings a best practice? It is, if you want to maintain the public’s confi dence and trust! Citizens expect and appreciate your body’s commitment to discussing and deciding diffi cult issues with full transparency. And making a commitment to transparency can also help ensure that your municipality doesn’t become Exhibit A in an eff ort to make draconian changes to the open meetings law. You surely don’t want to be held up as a bad example in the legislature. It’s happened. Is honoring transparency a liability-reducing suggestion? At CIRSA, we’ve seen our members become involved in litigation over their meeting practices. Based on our experience, the answer to that question is yes. Th ere are watchdogs out there scrutinizing you, and they will pounce on you with allegations of violations and a lawsuit if your meetings practices don’t pass muster under the law. CIRSA has open meetings/executive session defense cost coverage for member governing bodies, but by honoring the letter and spirit of the open meetings laws, you can avoid costly and potentially embarrassing litigation. 8 CHAPTER 1 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 12EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 12 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 89 of 139 Honoring the Quasi-Judicial Rules of EngagementGoverning body activities can be pigeonholed broadly into two areas: legislation and quasi-judicial decision-making. Th e rules of engagement diff er depending on which pigeonhole fi ts. For legislative matters, the rules of engagement are free-wheeling. Th ink of the state legislature when it’s in session, and the lobbying that goes on there. But for quasi-judicial matters, the rules of engagement have a basis in constitutional due process requirements: when you are making a decision that aff ects individual property rights, the constitution requires a properly noticed and fair hearing before a neutral decision maker— you. Th us, in quasi-judicial matters, you must conduct yourself similarly to the way a judge does in deciding a case. No doubt your municipal attorney has discussed the quasi-judicial rules of engagement with you. Th e attorney is trying to protect the integrity of the hearing process, the defensibility of the outcome, and your prerogative to participate as a decision-maker. Th ese rules of engagement include: • You will follow the applicable legal criteria and apply those criteria to the evidence you hear at the hearing, to arrive at your decision. • You will refrain from “ex parte” or “outside the hearing” contacts regarding a pending quasi-judicial matter. • You will not participate in decision-making in a quasi-judicial matter in which you have a confl ict of interest. Th ese rules fl ow from constitutional due process requirements, so they are most certainly a part of your oath. Following these rules is also a way to avoid or reduce liability. In quasi- judicial matters, the process by which you arrive at a decision is at least as important as the substance of the decision itself. If you’ve ensured that the process is letter-perfect, then you have eliminated a huge portion of the possible quarrels that could turn into a claim. And it’s a best practice, because following the rules of engagement will enhance the reality and the perception that all who come before you with quasi-judicial matters will be heard and treated fairly. Honoring Standards of Personal Conduct Th e way you conduct yourself in relation to other members of the body, staff , and the community greatly impacts your eff ectiveness as an elected offi cial. No matter where you are on the political spectrum, you can probably agree that politics today are infected with divisiveness and incivility. Municipal government being non-partisan, its elected offi cials should, at least in theory, be able to rise above the nastiness of partisan politics! With respect to the governing body, do all members understand that governance is a team activity? An individual elected offi cial does not have the power to accomplish anything on his or her own. Rather, the allocation of responsibilities to the governing body is to the body as a whole. Only through collaboration and consensus-building can an individual’s priority become the priority of the governing body. While the governing body is comprised of individuals and will “deliberate with many voices,” all members must recognize the governing body “acts with one voice.” 9 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 13EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 13 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 90 of 139 Has the governing body been able to “gel” as a team, or are members viewing one another with a sense of distrust? Are you lining up along the same divisions on every issue? Are you unable to disagree without being disagreeable? Perhaps some team building is in order if these things are happening. With respect to staff , is an incoming council or board viewing staff as the “enemy”? A staff exists to carry out the goals set by the governing body. Sometimes, with the changing of the guard at the governing body level, there’s an assumption that there needs to be a changing of the guard at the staff level, too. But if this staff faithfully carried out the goals of the prior governing body, why wouldn’t you expect that they will be equally able and willing to carry out the goals of the new body? With respect to the community, are public comment periods turning into “public inquisition” or “public argument” periods? Is “staff bashing” or “elected offi cial bashing” happening at meetings? Perhaps another look at your rules of order, and your approach to meetings, would be appropriate. Certainly the public has every right to appear at meetings and make complaints. It’s a sign of faith in local government that people care enough to complain! But the manner in which those complaints are made, and the manner in which you respond, can mean the diff erence between a constructive, productive exchange or a nasty, embarrassing, unproductive, or morale-crushing attack. Is the observance of personal conduct standards part of your oath? At least arguably, yes. Aft er all, the oath implies faithfully performing a role where you must work with others. And you have a fi duciary duty to act in the best interests of your municipality. It doesn’t seem a far stretch to impute to your oath a commitment to respectful conduct towards one another and the best interests of the municipality. Is it a best practice to observe personal conduct standards? It certainly seems so. Maintaining harmonious and productive working relationships with your fellow elected offi cials, staff , and the public can only increase your eff ectiveness. And keep in mind that harmony doesn’t mean you all have to agree all the time. Indeed, healthy discussion, debate, and disagreement are the engine for understanding issues and solving problems. But the idea of disagreeing without being disagreeable is important to keep in mind. Does the observance of personal conduct standards help with liability reduction? We think so. In CIRSA’s experience, turmoil at the top levels of the municipality means turmoil throughout the organization. Aft er all, you know what rolls downhill. Over and over, we’ve seen that disharmony and dysfunction at the top means claims throughout the organization. Th ese types of claims not only cost dollars to defend, but also can sap the governing body’s energy, destroy staff morale and cause reputational harm, all with long- lasting impacts. Conclusion Honoring your oath of offi ce isn’t just something you do when your raise your right hand at the beginning of your term. You can look at just about any arena in which you operate as an elected offi cial, and ask yourself, “What did I commit to do when I took my oath?” By asking and answering this question, you can stay on the path of best practices, and avoid or reduce personal liability. 10 CHAPTER 1 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 14EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 14 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 91 of 139 CHAPTER 2 HEALING DIVISIONS ON THE GOVERNING BODY: CAN’T WE ALL JUST GET ALONG By: Tami A. Tanoue, CIRSA Executive Director At CIRSA, we’re seeing more and more instances of governing bodies with intractable divisions that cut across virtually all of the body’s decision-making. Th is division is aff ecting productivity, driving away opportunity, and undermining citizen confi dence. It also lends itself to disputes and claims, with corresponding risks of liability. In this chapter, we’ll explore the causes and impacts of such divisions, and explore some possible ways to break out of the patterns that cause them. Introduction First, though, let’s be clear about the situation we’re discussing: Every governing body has disagreements, and there’s nothing wrong with that. It would be strange, indeed, if all members agreed on all issues all the time. If that were the case, why would we even need fi ve, seven, or nine members? Sometimes, disagreements create a residue of misunderstanding or hurt feelings, but that’s to be expected, too. Most governing body members are able to leave that residue behind and move on to the next matter at hand. We’re also not talking about the “outlier” issue, where one or some members of the governing body have made it their mission to separate themselves from the rest of the group, with the sole goal of embarrassing the rest and proving that they are the only “ethical,” “transparent,” or “responsive” (or insert description of your choice) member of the body, at least in their opinion. Th ere are ways to address the “outlier” issue (see Chapter 3). What we’re talking about here is a governing body in a state that we can all agree is severely dysfunctional. We’re talking about a body that’s intractably divided, and whose every debate, discussion, and decision are characterized by lingering unresolved matters, mutual contempt, and hard feelings that calcify into hardline positions. We’re talking about meetings that staff and citizens refer to as the “Th ursday night fi ghts” (or insert evening of your choice). We’re talking about meetings where members regularly yell or snipe at each other, name-call, storm out, or maybe even resort to threats or fi sticuff s. 11 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 15EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 15 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 92 of 139 And even if it’s not that dramatic, meetings may still be characterized by tension, frustration, passive-aggressive behavior, an inability to see beyond the players and focus on the merits of any issue, and maybe an angry social media post or two aft er the meeting.Whatever the level of dysfunction, destructive consequences can result. Once you “write off ” or “demonize” your colleagues (“she’s just clueless,” “he’s completely hopeless,” “I can’t even look at the guy,” “there’s no reasoning with her, so why even bother”), there may be no coming back. Why Can’t We All Get Along? A Look at Some Possible Causes “ Happy families are all alike; every unhappy family is unhappy in its own way.” ~Tolstoy “ Happy councils are all alike; every unhappy council is unhappy in its own way.” ~Tanoue Th ere are any number of reasons why the “marriage” of governing body members can go bad. Here are a few: Underlying divisions. Underlying divisions within the community may be refl ected on the governing body. Communities can have fracture lines. Th ere may be friction between the “old timer” part of the community and more newly developed areas that are full of “newcomers.” Th e interests of “old timers” and “newcomers” may not always be the same. “Newcomers” may not recognize the history and traditions of the community in the same way that “old timers” do. “Old timers” may discount the concerns raised by “newcomers,” or vice versa. Th ese diff erences may be refl ected in the makeup of the governing body. Members may have been swept into offi ce as a result of a controversial issue that divided the community. Perhaps there was a recall election. Unless the slate was wiped clean, the governing body makeup may refl ect the divisions that grew from the underlying issue. It may be diffi cult to get past that issue. New or younger members may clash with veteran members. Sentiments that “you young ‘uns haven’t been around long enough to understand this town” or “you old timers are stuck in your ways” may cause unwarranted rift s. And expressing or acting on such sentiments can contribute to a feeling that each member isn’t being accorded an equal voice in discussion and decision-making. Th at sense of inequality can also be the result of partisanship, and partisanship doesn’t necessarily have to spring from the type of political partisanship that exists at other levels of government. Of course, municipal government is avowedly and proudly non-partisan in the political sense (and by law its elections are non-partisan). But an “in crowd” and an “out crowd” based on other considerations can be a type of partisanship that’s just as problematic. Personalities. Voters aren’t judging whether the individuals they elect will be compatible with each other, so it’s possible that fundamentally incompatible personalities will end up on the body. If you have some “alpha dogs” on the body who are in constant competition, friction might be a predictable result. If others then line up behind their favorite “alpha,” division can ensue. If several “alphas” dominate the meetings, resentments may arise. 12 CHAPTER 2 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 16EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 16 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 93 of 139 Sometimes, an elected offi cial’s personality and proclivities seem to be just plain incompatible with holding elected offi ce! Politics, at the governing body level, has to be a team sport: decision-making requires collaboration and consensus. One member’s “agenda” can become the “agenda” of the body only by successful team play. A “lone wolf” who lacks the capacity or desire to be a team member is not going to be successful on the body. Add a few more “lone wolfs,” and frustration and paralysis may result. Governance is also about leadership. If the voters put someone in offi ce who is afraid to take a stand, is perennially “on the fence,” or is strictly a follower, leadership qualities may be lacking. A majority of non-leaders can create a perception of a “rubber stamp” governing body, resulting in extreme frustration for those members who are willing to stick their necks out. Preconceived personal agenda. Th ere are many good reasons why citizens run for public offi ce. However, the workings of municipal government are not always clear until well aft er you’re seated. So the agenda that a candidate ran on may collide with reality, and turn out not to be a workable agenda aft er all. Under those circumstances, clinging to the preconceived agenda is only going to sow the seeds of discord. If you have several members, each bent on pursuing only his or her own particular agenda, a fractured body can result. I once spoke with a newly elected councilmember who said his one campaign promise was to ensure that water and sewer rates were lowered. But when he took offi ce, he began to understand the economic realities of operating the town’s water and sewer system, and he saw that demanding the lowering of rates was unrealistic and fi scally irresponsible. He said he had some explaining to do to the citizens, but he wasn’t going to cling to his agenda given the realities he now understood. Th at’s a smart elected offi cial. Impacts Th e impacts of severe dysfunction and discord are manifold. Th ey include: • Lack of productivity. Th e body’s agenda may hit a standstill. Or getting through it might be slow and painful. Even if decisions are made, they may not necessarily be the best decisions. • Power transfer to tie-breaker. If you’re constantly split down the middle, then you may be transferring all decision-making power to the tie-breaker (oft en the Mayor). Is that desirable? • Financial consequences. If you’ve developed a public reputation as a dysfunctional body, then your community may be missing out on economic opportunities. Businesses want a predictable environment. Volatility may be driving them away. • Public embarrassment and loss of public confi dence. If you’re airing your discord for the camera, your viewership may be up, but public confi dence will be down! Residents want to be confi dent that their elected leaders function at a high level and in their best interests. • Driving away the best and brightest. I’ve heard people say they were reluctant to run for offi ce because they witnessed the discord and didn’t want to be a part 13 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 17EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 17 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 94 of 139 of it. So you may end up repelling, not attracting, potential leaders who could make great contributions to the community. Or you may lose great members to “burnout.” Likewise, if your community’s developed a reputation for governing body dysfunction, you may not be able to attract and keep the “best and brightest” for key staff positions. So You Think You May be Part of a Dysfunctional Governing Body? You may have experienced some jolts of recognition in reviewing the foregoing. If so, condolences and congratulations! Th e condolences are self-evident, but congratulations are also due, because recognition of a problem is the fi rst step to dealing with it! So now, what do you do? Here are some steps to consider: • See if you can gain a consensus that there’s a problem. Even if you recognize it, if no one else does, you’re not going to get anywhere. If there’s a consensus, then you’re halfway to solving the problem! • Start by talking about “values.” In working with CIRSA members experiencing severe governing body dysfunction, I’ve begun to realize that the “values” discussion is a critical fi rst step. By “values,” I’m talking about the philosophical underpinnings that you want as guides for behavior in your interactions with one another. If you can agree on these values, then additional steps are possible. If you can’t, you’re going to stall out. Such values might include: • Courtesy and civility towards one another, staff , and citizens? • Non-partisanship? • Equality of participation? Th is would include equal opportunities to be part of the discussion and decision, and equal opportunities to gain, insofar as possible, the same information at the same time as needed for good decision-making. • Acknowledgement of the role of the Mayor or presiding offi cer in presiding over meetings? Every meeting needs a presiding offi cer, and in most communities, that’s the Mayor. Th e role of the presiding offi cer must be honored if you want to have orderly, productive, and effi cient meetings. And, the presiding offi cer must embrace that responsibility. If there’s no acknowledgement of this fundamental need, then you won’t get anywhere. • Engagement? Th is includes a commitment to be prepared for meetings, to arrive on time, to stay for the whole meeting, to give your undivided attention during the meeting, to participate in decision-making, and to be absent no more than necessary. • Others? • Norms or rules of conduct. If you can form a consensus around values, you’re close to the point where you can discuss (and, it’s hoped, agree upon) the norms or rules of conduct that you want for the body. Th e content of your norms or rules won’t be discussed here, because they’ll be specifi c to your community and the values that serve as the jumping-off point for them. It’s worthwhile to look at 14 CHAPTER 2 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 18EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 18 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 95 of 139 examples from other communities around the state and nation, but it’s important to develop your own norms or rules from the ground up with your values as the foundation, so there’s buy-in. Why rules OR norms? It’s because the level of formality to be accorded really depends on your governing body’s needs and desires. If you have members whose attitude is “Rules? We don’t need no stinkin’ rules,” then perhaps a soft er approach of agreeing on “norms” of conduct may be a good starting point. On the other hand, you might see reasons to elevate the adoption process by using a resolution or even an ordinance. In Despair? You Can Still Help You may feel your governing body will never come together to recognize the problem, much less move on towards seeking solutions. Should you give up? No! Th ere are still things you can do as an individual. If enough individuals on the body do these things, then perhaps there will be an opening to go further! Suggestions for individuals include: • Assume good faith and best intentions on the part of everyone on the body. Some smart person once said that we judge ourselves by our intentions, and others solely by their actions. Th is perceptual gap can lead to misunderstandings and unfounded assumptions. Let’s give everyone the same benefi t of the doubt we give ourselves, by assuming that they, too, are acting on the basis of honorable intentions. • Listen more than you talk. Do your best to see and understand things from the perspective of others. Ask questions before reaching your own conclusions, and repeat back what you think you’re hearing from others, so that you know you’re on the same page. Listen for points of agreement, and emphasize and build on them. • Try to meet others more than halfway. If everyone only goes so far to try to bridge the gaps, then you may never meet in the middle. Sometimes one person’s generosity in going more than halfway is the catalyst for breaking down misunderstandings. • Use the postures, tone, and body language of respect and engagement. Do this even if you’re not “feeling it”; “acting as if” can be helpful in bringing a hoped- for harmony closer to reality. Make sure your body language and tone of voice aren’t inadvertently communicating something you didn’t intend. Keep your voice DOWN, even if others are starting to yell. Avoid the hair-trigger, knee-jerk, angry response. • Try some things to break down barriers. Maybe switch up positions where you sit on the dais. Suggest a pre-meeting dinner; breaking bread together can be a way to get people talking (make sure you have a “no-business” rule in eff ect). Team-building, especially in a retreat setting, can be productive. An outside facilitator or mediator might be helpful in identifying issues that are hard to see from the “inside.” 15 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 19EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 19 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 96 of 139 • If you’re an experienced member, mentor the newbies! You have valuable experience from which newer members can benefi t. Show them the ropes, teach them your own hard-earned lessons, and model the behaviors you want them to emulate. And if you’re a new member, seek out mentors! • Acknowledge and appreciate when you see others making the same eff ort. Conclusion: “Until Next Election Do You Part.” A governing body might be characterized as a kind of arranged marriage—a marriage arranged by the citizens. If the conditions for civil and productive discourse are lacking from the start, it’s no wonder that such a “marriage” can go bad quickly. But divorce isn’t an option! So start looking at ways to improve your relationships, as individuals and as a body. And take to heart the idea that, by “acting as if,” your deepest hope for a strong, high-functioning team can come closer to becoming a reality. 16 CHAPTER 2 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 20EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 20 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 97 of 139 CHAPTER 3 GOVERNING BODIES AND THE OUTLIER SYNDROME By: Tami A. Tanoue, CIRSA Executive Director Th ose who have been working with municipalities for an extended period have observed a phenomenon that occurs at the governing body level. Let’s call this phenomenon the Outlier Syndrome. Th e Outlier is the “lone wolf” who sits on a city council or board of trustees and steadfastly refuses to act like a member of the team. Even while isolating himself or herself as the only person on the losing side of just about every vote, the Outlier manages to create havoc with the rest of the body. Th e Outlier may be obstreperous and obstructionist. Th e Outlier may refuse to recognize and respect the norms that guide the rest of the body’s conduct. Th e Outlier may position himself or herself as the only “ethical” or “transparent” member of the body. Th e Outlier’s every statement and action seems to be aimed at preserving that self-assumed distinction rather than making any concrete achievements. Sometimes, a governing body is unfortunate enough to have more than one Outlier. Have you ever experienced the Outlier Syndrome in action? We call it a syndrome because of the recognizable features or symptoms that seem to fester whenever an Outlier sits on a governing body. Do you have an Outlier on your governing body? Could you possibly be an Outlier? Should the Outlier Syndrome be viewed as an affl iction or malady? And if so, what can be done? We’ll explore these questions in more detail below. Power, Goals, and the Outlier To understand the Outlier’s impact on a governing body, let’s start with the idea that elected offi cials can only act as part of a body – a collaborative decision-making body. You can search throughout the laws governing statutory municipalities, or just about any home rule charter, and you’ll likely fi nd no powers or duties that are to be exercised by a singular elected offi cial (other than the mayor, who may have certain defi ned responsibilities). Th is means that, as elected offi cials, the only way you can get anything accomplished is to have a majority of the governing body on your side. It’s likely that each elected offi cial has an individual list of goals, goals that those who voted for you want you to accomplish. But your goals can be accomplished only if they’re part of the goals of the body as a whole. Th at means your success depends on creating a consensus 17 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 21EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 21 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 98 of 139 of the majority! And where does the Outlier fi t in on a collaborative decision-making body? Why, nowhere! Perpetually being on the losing side of a vote means that the Outlier gets nowhere on his or her goals…unless, of course, he or she feels that being an Outlier is its own reward. Are You an Outlier? Perhaps you’ve met your share of Outliers, who tend to share one or more of these characteristics: • Th ere is an element of the lone crusader in them. Th ey feel they were elected to shake up the status quo in some way. Maybe they think their predecessors were too cozy with developers, not friendly enough with the business community, too close to the municipality’s staff , not close enough to the municipality’s staff , etc. • Th ey view themselves as independent thinkers. Th ey are oft en highly intelligent, but not “people persons.” In kindergarten, their report cards might have refl ected a poor score on “plays well with others.” • Th ey take a perverse glee in being the “outsider,” relish arguments for argument’s sake, and place little value on matters like courtesy and regard for the feelings of others. • Th ey hate having to endure “soft ” discussions such as a council or board retreat, the establishment of a mission or vision statement, the development of consensus around rules of procedure or rules of conduct, a session to discuss goals and priorities, or a CIRSA liability training session. • Th ey feel they are always right, and everyone else is always wrong. Th ey feel they are always ethical, and everyone else is not. Th ey feel they are looking out for the citizens, and everyone else is not. • Initially, they may just have been unfamiliar with the ways of local government, and needed to build the skills to work eff ectively in a new environment. One or more gaff es may have caused them to be pegged as Outliers and treated accordingly, initiating an unhealthy Outlier dynamic. • Th ere may have been some explosive moments in private or public with the Outlier’s colleagues, or indeed, the colleagues may have made some attempt at an “intervention.” Th ese observations may or may not be totally on the mark. But one characteristic of the Outlier cannot be denied: he or she is seldom on the prevailing side of a vote, and is oft en at loggerheads with the rest of the body. Do you think you may be an Outlier? If so, you might examine what your goals as an elected offi cial really are. Do you want to have a list of concrete accomplishments at the end of your term? Or will it be accomplishment enough to have been the “loyal opposition”? If the former, then your behavior may be working at cross-purposes with your goals. If the latter, really? Will the people who voted for you be satisfi ed with that accomplishment? Will you? 18 CHAPTER 3 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 22EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 22 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 99 of 139 Is the Outlier a Problem for the Rest of the Body? For the Municipality?Most people who’ve had to deal with an Outlier would say that yes, the Outlier is a problem! How? Well, here are some ways: • Anger and frustration build when a council or board has to deal with an Outlier, siphoning away energy that could be spent on more positive endeavors. Th is is a particular problem if tensions have built to the point that confrontations have begun to occur. No reasonable person wants to attend or view a council meeting and have a hockey game break out! It may be entertaining, but mostly, it’s embarrassing to the governing body and to the community. • Healthy teams seek to build a sense of camaraderie and cohesiveness. Th at’s not entirely possible when there’s an Outlier. It’s not healthy to build a team around a shared hatred of one of its own members, and most reasonable people would prefer not to have that happen. • Th e Outlier’s perspective tends to be oppositional. From a liability standpoint, such a perspective is risky. If you’re taking positions on an oppositional basis, are you really meeting your fi duciary duty to look out for the best interests of the entity? • A disharmonious governing body is a dysfunctional governing body. It’s been CIRSA’s experience that liability claims thrive in an environment of disharmony and dysfunction. • Your staff members are aff ected by the Outlier Syndrome, too. From the staff ’s perspective, seeing dysfunction on the governing body is a little like watching discord between one’s own parents. It’s unsettling, distressing, and morale- crushing. • Most importantly, it’s a shame for the governing body to lose a potentially valuable contributing member. In a worst case scenario, the Outlier becomes completely disempowered as he or she is ignored and marginalized. But this means that the body isn’t running on all cylinders, and is deprived of the valuable perspectives that the Outlier might otherwise bring. Ultimately, the voters, and the community, are the losers. Dealing with the Outlier Syndrome You can’t cure an affl iction until you recognize it. And you can’t recognize what you haven’t named and defi ned. If your municipality is affl icted with Outlier Syndrome, you’ve taken the fi rst steps towards a cure by naming, defi ning, and recognizing it! Here are some other steps you might consider. • Confront the issue forthrightly and compassionately in a neutral environment. A council or board meeting is likely not a neutral environment! Perhaps the matter could be discussed as one item on a retreat agenda. Be prepared with specifi c examples of how the Outlier has negatively impacted the body. 19 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 23EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 23 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 100 of 139 • Consider addressing the issue in the context of a larger discussion about governing body rules of procedure or rules of conduct. Th e “norms” that guide members’ interactions with one another may be obvious to some but not all, especially to newer members. Th ose norms could be part of the discussion, and the process of articulating them can facilitate a consensus to honor them. • Consider bringing in an outside facilitator to assist you. A governing body is a bit like a marriage that’s been arranged for you by the citizens! Th ere’s nothing wrong with getting some outside help for perspective and to fi nd solutions. If you think you might have the Outlier label pinned on you, consider these suggestions: • First, get a reality check. Find out how you’re being perceived by your peers. It may be very diff erent from your own perception of yourself. Ask each of your colleagues to give you a frank assessment. • Check your motivations. If you have concrete goals you want to accomplish as an elected offi cial, you must accept that success in your position can’t happen without collaboration and consensus building. Th ere is nothing that you can accomplish alone. So set a goal to be on the “prevailing” side…indeed to bring others over to establish a “prevailing” side. • If you’ve already burned some bridges, understand consensus-building can’t happen without mutual trust, respect, and a sense of cohesion. Th ese will take time to build. Look for a retreat or other opportunities to clear the air and start fresh. • Use staff as a resource! Your manager or administrator wants nothing more than to assist newly elected offi cials in learning the ropes, and understanding the best time, place, and approach to raising issues. Don’t get off on the wrong foot with blunders that might peg you as an Outlier. What if all eff orts to deal with the Outlier Syndrome fail? Well, it might be time for the rest of the governing body to cut its losses and move on. Don’t continue to agonize over the Outlier and his or her impact on the body’s functioning. Continue to accord the Outlier the same opportunities to participate in discussion and decision-making as any other member, but don’t allow the Outlier to keep pushing your buttons. Remember, arguments and confrontations require more than one participant. You may need to simply say “thank you” or move on to the next point of discussion. Ultimately, the responsibility for putting an Outlier into offi ce rests with the citizens, so there’s only so much you can do. Try to go about your business without having the Outlier become the dysfunctional center around which the rest of you swirl. Conclusion Governing body members don’t all have to be in lockstep, or think and behave in the same way. On the contrary, diversity of thinking, styles, opinions, experiences, and approaches are healthy and necessary for a collaborative decision-making body. Th ere is truly a collective wisdom that comes forth when many diverse minds work together on common goals. But the Outlier Syndrome is detrimental to a high-functioning governing body, and therefore, to the community. If your governing body is affl icted with the Outlier Syndrome, it’s time to do something about it! 20 CHAPTER 3 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 24EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 24 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 101 of 139 CHAPTER 4 LIABILITY PROTECTIONS AND YOU By: Tami A. Tanoue, CIRSA Executive Director & Sam Light, CIRSA General Counsel Are you acquainted with the protections you have through your entity’s membership in the CIRSA property/casualty pool? In this chapter, we provide you with a brief introduction to the two key coverage parts of the liability policy that apply to you as elected offi cials of CIRSA member entities.1 What Liability Coverages do We Have? General Liability and Auto Liability Coverage applies to claims for bodily injury, property damage, and auto liability, among others. Th is is the coverage part that pertains to most allegations of “hard” injuries, such as an allegation of physical injury to a person or to tangible property. Th us, for instance, this coverage part would respond for an auto accident while you’re driving your entity’s vehicle on public entity business. Th is coverage part also includes law enforcement liability coverage. Public Offi cials Liability Coverage applies to “wrongful acts” you are alleged to have committed. Th is coverage part applies to allegations of civil rights violations, improper activities concerning employment practices, and violations of federal and state law. Th us, for instance, this coverage part would respond when someone claims that he or she has suff ered employment-related discrimination, harassment, or a violation of constitutional rights. Who’s Covered? “Covered Parties” under the policy include, of course, your entity as a member of CIRSA. Any elected or appointed offi cial, trustee, director, offi cer, employee, volunteer, or judge of a CIRSA member is also considered a covered party. So is each governing body, board, commission, authority, or similar unit operated “by or under the jurisdiction of” a member entity. Th us, elected offi cials, board and commission members, appointed offi cials, employees, and even authorized volunteers of your entity are all considered covered parties. 21 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 25EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 25 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 102 of 139 What Limits of Coverage do We Have?2 • For general liability and law enforcement liability, the coverage limit is $10,000,000 per claim/occurrence. • For auto liability, the coverage limit is $5,000,000 million per claim/occurrence. • For public offi cials’ liability, the coverage limit is $10,000,000 per claim/ occurrence, subject to an annual per-member aggregate of $10,000,000. Defense costs are included in these limits. Th ere is also a member-selected deductible that applies to each claim/occurrence. Members have chosen deductibles that vary from $500 to as much as $250,000 per claim/occurrence, so you should check with your own CIRSA contact to fi nd out what your entity’s deductibles are. What Key Exclusions do We Need to be Concerned About? Th ere are several exclusions of concern, and a few are highlighted here. Th ese exclusions are universal in most liability policies. Th e “willful and wanton” exclusion is probably the exclusion of greatest concern to elected and other public offi cials. Th is exclusion applies to both coverage parts of the liability policy, and states that coverage does not apply to any loss arising out of the actions of any elected or appointed offi cial, trustee, director, offi cer, employee, volunteer or judge of a member entity when such acts or omissions are deemed to be willful and wanton. And remember, you are a “Covered Party” only while in the performance of your duties for the member entity, and acting within the scope of your authorized duties for the member entity. As you probably know, the Colorado Governmental Immunity Act’s protections are lost when you are determined to have been acting outside the “scope of employment,” that is, outside the course and scope of your authorized duties as an elected offi cial. But such conduct has a double consequence: the loss of your liability coverages through CIRSA. Th is is the reason that our public offi cials’ liability training places a heavy emphasis on the need to understand your “job description” as an elected offi cial, and the need to stay within the parameters of that “job description.” Staying within the “scope of employment” is also important to lessening your risks of liability where federal civil rights claims are concerned. You probably know that, under 42 U.S.C. Section 1983, you can be sued for a civil rights violation in your individual or offi cial capacity. An individual capacity suit is one that alleges that you violated someone’s constitutional or other federally protected right while acting under the auspices of your public offi ce. (An offi cial capacity suit, on the other hand, is a suit against the entity, rather than you individually.) A fi nding of individual liability in a Section 1983 suit essentially means that you’ve violated a clearly established constitutional or statutory right of which a reasonable person should have been aware, and that your conduct was unreasonable. Such conduct can fall within the “outside the scope” exclusion; violating someone’s civil rights is likely not within the “job description.” Th us, elected offi cials need to be especially cautious about conduct that could be actionable as an intentional civil rights violation. 22 CHAPTER 4 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 26EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 26 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 103 of 139 Th e sexual harassment exclusion is another exclusion that has impacts on claims based on an individual offi cial’s conduct. Th is exclusion to the Public Offi cials Liability coverage part applies to sexual harassment claims. Let’s say that a sexual harassment claim is made both against the entity, for failure to deal eff ectively with sexual harassment in the workplace, and against the harassing employee or volunteer. Under this exclusion, the entity will probably be covered. However, with respect to the individual offi cial, employee, or volunteer, the entity will have the option to direct CIRSA to defend or not defend the individual. Th us, if the entity so directs, the individual will be left out in the cold as to any defense of a sexual harassment claim against him or her! And in any event, even if the entity directs CIRSA to provide a defense, any liability imposed on the individual based upon a fi nding that harassment occurred would not be covered through CIRSA. Th e sexual abuse exclusion operates in a similar fashion. Th e punitive or exemplary damages exclusion is also pertinent in the context of an individual offi cial’s conduct. Punitive or exemplary damages can be awarded in circumstances where an individual’s conduct is willful and wanton in the disregard of someone’s rights, or callously indiff erent or motivated by evil intent. Th e purpose of punitive damages is, as the term suggests, to punish a wrongdoer for such egregious conduct. Because the punitive eff ect would be considerably blunted if an insurer were available to cover a punitive damages award, punitive damages are deemed uninsurable by the appellate courts of many jurisdictions, including Colorado. Consistently with this judicial position, the CIRSA liability policy contains an express exclusion for punitive or exemplary damages. Th e breach of contract exclusion can be pertinent to the activities of governing bodies. Governing bodies approve a wide variety of contracts, and sometimes are alleged to have dishonored them. It is not the intent of a liability policy to cover the kinds of liability that can arise when someone alleges a breach of contract, so there is an exclusion for the breach of an express or implied contract. Th is exclusion does not apply when a claim is based upon an allegation by an offi cial or employee of wrongful termination of employment. Th e condemnation/inverse condemnation exclusion can be relevant to a land use action taken by a governing body. A landowner may claim that all or a portion of his or her property was “taken” by governmental action, or that vested property rights were impaired by governmental action. Th ese types of claims, involving the value of private property, are not covered. As you can imagine, liability policies aren’t suited to cover these types of claims, because they would require insurers to try to underwrite the risk of having to pay for the property values of privately owned real estate throughout the state! Th e bonds or taxes exclusion applies to any liability based upon or arising out of the issuance of bonds, securities, or other fi nancial obligations, or taxes, fees, or assessments, or the collection, retention, or expenditure of funds. Th us, when a claim is made of an improperly levied tax, or retention of funds in violation of the Taxpayer’s Bill of Rights, or impropriety in the issuance of bonds or other fi nancial obligations, this exclusion would apply. 23 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 27EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 27 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 104 of 139 What Else Should You Know About Coverage Issues?A lawsuit against you may involve one of several responses from CIRSA. We may determine, based on the allegations, that we owe you an unconditional duty of defense (i.e., the assignment of a defense attorney) and indemnity (i.e., covering any judgment or settlement). Or we may determine that none of the allegations invoke any duty of defense or indemnity, and send you a denial letter. Sometimes, though, a suit will contain a mixture of covered claims and uncovered/potentially uncovered claims and, in this case, we will defend you under a “reservation of rights.” A “reservation of rights” letter will be sent telling you of the areas where there may be no coverage, and reserving our right not to indemnify you, and our right to terminate your defense (and potentially seek reimbursement of legal fees paid on your behalf) should circumstances warrant. One or more CIRSA defense counsel will be assigned in circumstances where we fi nd that there is a duty to defend. In some cases, a single attorney can represent multiple defendants; however, in cases where defenses may be inconsistent between or among the covered parties, or other circumstances for a confl ict of interest may exist in representation, we will assign multiple counsel. CIRSA-assigned defense attorneys, although paid by CIRSA, owe their duty of loyalty to you, their client. We hope that you never have to delve into the details of these coverages in the context of an actual claim against you, but it’s a good idea to be familiar with the broad outlines of those coverages. As always, if you have questions, please contact CIRSA. Footnotes: 1. Th is is only a summary of certain provisions of the CIRSA liability coverage documents. Th e language of the applicable coverage document must be reviewed for a complete and accurate understanding of the applicable coverages, and the application of the coverage document to any specifi c situation will require the advice of your entity’s attorney. 2. Please refer to the Declarations pages of the Liability Coverage form for more specifi c information on the limits and sublimits for all coverages. 24 CHAPTER 4 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 28EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 28 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 105 of 139 CHAPTER 5 OPEN MEETINGS AND EXECUTIVE SESSIONS By: Tami A. Tanoue, CIRSA Executive Director & Sam Light, CIRSA General Counsel At CIRSA, we’ve seen a steady stream of claims against our members for alleged violations of the open meetings law in the conduct of meetings and executive sessions. Th ese types of claims are usually excluded from most commercial insurance coverages. However, CIRSA provides some defense cost coverage for claims alleging executive session violations by governing bodies. In this chapter, we’ll go over the basics of the open meetings law and summarize CIRSA’s coverage for allegations of open meetings violations. The Open Meetings Law Under the Colorado open meetings law, C.R.S. Section 24-6-401 et seq. (COML), it is “the policy of this state that the formation of public policy is public business and may not be conducted in secret.” Note this statement’s focus on the formation of public policy. Th us, the law intends openness in the policymaking process, and councils and boards are well-served by honoring not only the letter of the COML but the spirit of this purpose statement. Th e core requirement of this law is that all meetings of a local public body (a term which includes the governing body and other formally constituted bodies of a public entity), at which public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times. “Full and timely notice” must be given of all meetings. Th e COML deems this requirement to have been met if notice of the meeting is posted at least 24 hours prior to the holding of the meeting; however, your charter or local ordinances may require posting further in advance. Th e notice shall include specifi c agenda information where possible. No action taken at a meeting is valid unless it meets the requirements of the open meetings law. A “meeting” under the open meetings law includes “any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication.” Th ere are a few exceptions to this core requirement of public openness, and a properly convened executive session may be held to discuss matters that fall into those exceptions. 25 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 29EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 29 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 106 of 139 Some of the more commonly arising subjects that are proper matters for an executive session include: • Th e purchase, acquisition, lease, transfer, or sale of any real, personal, or other property interest; • Conferences with an attorney for the local public body for the purposes of receiving legal advice on specifi c legal questions; • Certain personnel matters; and • Determining positions on matters that may be subject to negotiations, developing strategy for negotiations, and instructing negotiators. Th e open meetings law should be reviewed in its entirety for all of the applicable legal requirements, and legal advice should be obtained on its meaning. Home rule municipalities may have their own meeting and executive session procedures established pursuant to their home rule powers; this discussion is not intended to cover the variances in local practice in home rule municipalities. Th e “courts of record” of the state have jurisdiction to issue injunctions to enforce the purposes of the open meetings law. Any citizen of the state may apply for such an injunction. Th e open meetings law states that, in any case in which the court fi nds a violation of the law, the court shall award the citizen prevailing in such action his or her costs and reasonable attorney fees. In addition, a citizen may apply to the court for access to the record of an executive session; if the court determines, aft er listening to the record, that the local public body engaged in substantial discussion of any matters that were not proper subjects for an executive session, or took formal action while in executive session, then the record may be made accessible to the public. Executive Session Coverage Through CIRSA Defense costs coverage for executive session claims is provided to CIRSA property/ casualty members by way of an amendment to the “non-monetary damages, fi nes or penalties” exclusion in the public offi cials liability section of the coverage document. Th is coverage is subject to the following terms: • It applies only to reasonable attorney’s fees and reasonable and necessary costs included in the defense of an action brought solely under C.R.S. Section 24-6- 402(9) of the open meetings law. • It applies only to such an action brought against the member’s governing body; subordinate boards and commissions holding executive sessions do not have this coverage. • It does not apply to any plaintiff ’s attorney fees or costs that are assessed against the member as a result of losing such an action. Such fees and costs must be borne by the member. • Th ere is a sublimit for this coverage that is shared with certain other non- monetary defense coverages. Th e sublimit is $10,000 any one action, subject to a $30,000 annual aggregate per member. Th e member deductible does not apply to this coverage. 26 CHAPTER 5 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 30EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 30 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 107 of 139 • Submitting an executive session claim to CIRSA is optional with the member; the member may choose to defend such a claim itself. If a member wants to avail itself of this coverage, the claim must be submitted to CIRSA, for handling by CIRSA-assigned defense counsel, at the time of commencement of the action. A Few Suggestions Th e risks of open meetings violations can be greatly reduced by favoring transparency and using caution in cases of uncertainty. Aft er all, the courts interpret the rules and will resolve doubts in favor of openness. Toward that end, elected and appointed offi cials should be cognizant of when their discussions will trigger open meetings requirements, so that violations can be avoided. To avoid claims of improper notice, a full meeting agenda should be timely posted, and the body and staff alike should avoid adding substantive items to the agenda at the meeting (as claims and distrust can result from such surprises). Of course, claims of executive session violations could be avoided entirely by never having an executive session! However, this may be an unrealistic goal because, as discussed above, there is a legitimate need for confi dentiality in some matters. But consider the following: • Hold executive sessions to the absolute minimum necessary to protect legitimately confi dential matters. • Confi rm with your city or town attorney that the proposed subject of the executive session is authorized under the law. Th e statutory bases for having an executive session are specifi c and narrowly construed, and bodies should resist eff orts to pound a square peg in a round hole in searching for authority where it does not exist. • Utilize an executive session “script” to help guide you in the proper procedures for convening an executive session. CIRSA members may obtain a CIRSA sample by contacting saml@cirsa.org. • When participating in an executive session, be vigilant of yourself and others to make sure that the discussion doesn’t stray from the specifi c subject that was announced in the motion to go into executive session. Participants in the executive session must commit to “stay on topic” and not stray from the specifi c subject. • Make sure you keep an electronic record of each executive session as required by the open meetings law. Th e only exception to the recording rule is an executive session for an attorney-client conference; these sessions should not be recorded. • Stay out of the loop on personnel matters when feasible. One of the more common reasons for holding an executive session is the discussion of a personnel matter. However, if the employee who is the subject of the executive session so demands, the discussion must be done in public. Moreover, personnel matters that are not personal to a particular employee are not proper subjects for an executive session (unless some other lawful basis for holding an executive session applies). Th ese and other complexities of the “personnel matters” basis for holding an executive session can be avoided if your personnel policies have been set up in a manner that delegates most personnel matters to your staff . 27 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 31EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 31 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 108 of 139 • If you have to take one of your own governing body members to the “woodshed,” don’t do it in an executive session. Some years ago, the “personnel matters” basis for holding an executive session was amended to state that executive sessions are not permitted for discussions concerning any member of the local public body or appointment of a person to fi ll a vacancy on the local public body. Th us, the idea that the governing body can convene in executive session to discuss one of its own members as a governing body “personnel matter,” is no longer viable. • If the confi dentiality of a matter is such that it warrants an executive session, then be sure to honor that confi dentiality once the executive session is over, until and unless public discussion of the matter becomes legally permissible. Don’t act outside the scope of your legal authority as an individual member of the governing body to waive confi dentiality on your own. If the executive session concerns negotiations or other matters where some information will be shared with third parties in follow up to the session, ask “Who are our spokespersons?” and “What information will we share at this time?” and honor the answers arrived at in the session. Conclusion Open meetings missteps are hard to overcome in terms of maintaining your constituents’ trust in you. Further, each and every executive session your entity holds exacts a price in terms of expectations of open government and, if done improperly, can subject your entity to claims. By complying with the strict requirements of the open meetings law, keeping executive sessions to the minimum necessary, and observing all of the formalities for holding meetings and executive sessions, you can keep that price low and public confi dence high. 28 CHAPTER 5 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 32EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 32 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 109 of 139 CHAPTER 6 ETHICAL CONDUCT IN LOCAL GOVERNMENT By: Robert Widner, Widner Juran LLP Introduction Citizens have a right to expect ethical behavior from local government offi cials. In the municipal context, “ethical behavior” generally means the conduct of public business in a manner that will preserve or restore the public’s trust in government. In many instances, local government offi cials are unaware of the rules and guidelines governing their offi cial behavior. Th is chapter outlines a basic regulatory framework for ethical behavior for local government offi cials and advocates on the premise that limited but enforceable local regulation is necessary to protect the public trust. Th e fi rst part of this chapter focuses upon “what” ethical activity should be regulated at the local level. Th e second part focuses upon “how” local ethical standards should be enforced. Why Regulate Local Ethics? Both media stories and national studies of local government decision-making highlight the need for regulation of ethical behavior by local government offi cials. Unfortunately, ethical violations do occur at all levels of government and may range from the use of a public offi ce to help a friend secure special treatment from the government to corruption, self-dealing, or just plain poor decision-making. Although the vast majority of public offi cials ably conduct offi cial business without ethical missteps, a single publicized violation can cast a cloud upon the entire government organization and raise suspicion that other public offi cials are engaged in similar misconduct. Simply put, ethical violations erode public trust. Colorado state law attempts to describe appropriate standards of conduct for local government offi cials in Title 18, Article 24 of the Colorado Revised Statutes. Th e state law fails in many respects to articulate clearly the standards for ethical behavior or to defi ne key statutory phrases, such as what constitutes “personal or private interest.” State law further fails to serve the needs of local government by delegating the enforcement of alleged local ethical violations to the local district attorney’s offi ce. Th is delegation oft en proves ineff ective as it requires district attorneys to divert their limited resources from the enforcement of criminal conduct to the investigation and enforcement of 29 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 33EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 33 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 110 of 139 state misdemeanor ethical misconduct. Moreover, enforcement of statutory standards of conduct against elected public offi cials by elected district attorneys can—fairly or unfairly—lead observers to assume that politics, rather than justice, will dictate the outcome. In addition to state statutory law, in 2006 the Colorado voters enacted Amendment 41, a constitutional citizen initiative. Amendment 41 was codifi ed into Article XXIX of the Colorado Constitution. Th e purpose of Article XXIX was to establish new statewide rules governing the receipt of gift s and other considerations by government offi cials. It also allows a state independent ethics commission to hear complaints, issue fi ndings, and assess penalties in connection with ethics issues arising under Article XXIX and under any other state standards of conduct and reporting requirements. Th e state’s independent ethics commission has proven a less than eff ective means of addressing ethics at the local level due to lengthy hearing timelines and the need for local offi cials to defend conduct in a state tribunal located in Denver using state, and not locally, created and imposed ethics regulations. Of signifi cant importance to the creation of local ethics regulation, Article XXIX includes an explicit exemption which limits the state’s independent ethics commission’s jurisdiction: Home rule municipalities that have enacted local ethics codes which address the topics of Article XXIX are not subject to the jurisdiction of the independent ethics commission. Municipalities may overcome these state statutory and constitutional shortcomings through local regulation and local enforcement of ethical behavior. Eff ective local regulation of public offi cials’ ethics necessarily involves two distinct elements. Th e fi rst is a set of clearly written directives identifying what constitutes unacceptable or unethical behavior. Th e second is a process for enforcing the written directives in a reasonable, fair, and effi cient manner.1 What Should be Regulated? Th e most common problems with local rules of ethical conduct are vagueness and overbreadth. Sweeping general statements such as “city offi cials should comport themselves at all times in a professional manner” are too vague to help either the offi cials or their constituents understand what is and is not acceptable. Likewise, regulations that attempt to set standards for the offi cials’ personal life may seem admirable, but are really beyond the scope of good ethical regulation. Consequently, any set of ethical regulations should focus on the conduct of public offi cials while performing their public duties and should be specifi c enough to clearly defi ne what constitutes an ethical violation. Engaging in criminal conduct while in the course of one’s public responsibilities should always be an ethical violation. However, criminal acts committed by public offi cials outside of their offi cial role and in their private capacity are best left to local law enforcement or, as discussed below, the public’s right of recall. It may be true that a public offi cial’s criminal activity unrelated to public offi ce can still undermine public trust, but if your ethical code provides that “any felony or misdemeanor criminal activity” committed by a public offi cial constitutes an ethical violation, are you prepared to sanction a board or council member who receives a jaywalking ticket? A criminal act committed by a public offi cial in his private life will typically only call into question the qualifi cations of that particular public offi cial to serve the public. To that end, 30 CHAPTER 6 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 34EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 34 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 111 of 139 state law provides a remedy in the right of recall, a process by which the voters can decide whether that individual should continue to serve. Local ethical regulations, however, should avoid putting members of the municipal governing body in the role of overseeing and enforcing the private activities of one of their own. It is also customary, and a good idea, for local ethics regulations to incorporate as an ethical violation any failure of the public offi cial to adhere to important provisions of the municipal charter or ordinances, such as provisions that prohibit elected offi cials’ interference with the city manager’s supervisory role over city employees. In addition, ethics regulations should prohibit: • the intentional disclosure of confi dential governmental information; • the acceptance of gift s of substantial value; • the misuse of public resources or public equipment; and • engaging in contractual relationships for the personal benefi t of the public offi cial and/or the offi cial’s relatives or any business in which the offi cial has an interest. In summary, local ethical regulations should prohibit the conduct that will most directly impair the public’s trust in the local government organization as a whole. If draft ed with appropriate attention to specifi city, eff ective local regulation will put public offi cials on notice of precisely what constitutes inappropriate behavior related to their public service, and will clearly inform constituents of what is expected of their local representatives. Accompanying the regulations should be well-defi ned steps for disclosure and recusal in circumstances giving rise to confl icts of interest. Finally, local codes should include terms and phrases designed to avoid vagueness and ambiguity. How Should Ethics Codes be Enforced? Ethics regulations eff ectively inform offi cials what conduct is permitted and prohibited in public service. However, without a means to enforce the ethical requirements, the regulations become largely meaningless. Creating a process to enforce ethical regulations requires careful thought. Ensuring that the regulations are enforced fairly is a paramount concern. Fair enforcement is fostered when regulations clearly articulate the requirements and expectations of every step of the enforcement action. Where a step is optional, such as whether an investigation of the ethics complaint will be performed, the criteria and procedures for determining whether the step will be employed should be clearly identifi ed and followed. Th e regulations should contemplate the need for issuing subpoenas for documents and compelling witness testimony and attendance. Th e typical process will include a complaint, the identifi cation of the hearing body or hearing offi cer, an initial review, investigation, a hearing, a decision and, if appropriate, a penalty. Complaint Th e initiation of the process to enforce an ethical standard should require a written complaint or allegation of unethical conduct. Th e form of the written complaint is 31 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 35EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 35 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 112 of 139 important. Th e person charged with unethical conduct has a right to know what conduct is alleged to have violated the ethical rules. At a minimum, the complaint should include a detailed description of the action alleged to have violated the rules and citation to the ethical rules alleged to be violated by such conduct. Requiring the complaining party to verify or certify under penalty of perjury or other sanction that the allegations are truthful may aid in preventing complaints that are merely intended to harass or which might be politically motivated. Once received, the complaint must be must formally delivered or served upon the person alleged to have violated the rules. Hearing Body or Officer A critical decision for any ethical enforcement action is the selection of the appropriate hearing body or offi cer to hear the allegations, render a decision, and impose a penalty, if appropriate. Th e enforcement regulations should identify the process for selection, composition, and qualifi cations of the hearing body or hearing offi cer. Th e options are numerous. Th e hearing body might, for example, be composed of the entire governing body of the local government, a governing body subcommittee, a citizen ethics board, or an independent hearing offi cer. Moreover, the decision of the hearing body or offi cer can be considered advisory and made subject to fi nal review and ratifi cation by the governing body. Each option presents advantages and disadvantages. Th e elected governing body is a logical selection when judging the conduct of its fellow members or public servants due to its role as representing the citizens who demand ethical action by government. However, selecting the governing body or individual members of the governing body risks injecting elements of political favoritism into the ethics process, and raises complications where other members are necessary witnesses to facts alleged in the complaint. Similarly, while citizen members have a direct interest in ethical governmental action, citizens can oft entimes be politically aligned with elected offi cials or lack the experience to understand the allegations in the context of public service. Individual hearing offi cers, while perhaps free of any political motivations, may lack accountability to the citizens. Initial Review A preliminary or initial review of the complaint may be a benefi cial step. A complaint may fail to assert any actions by the public servant that constitute an ethical misstep or may assert actions that are unrelated to the servant’s public duties. In addition, a complaint may, on its face, be submitted for the sole purpose of harassing the public servant. At a preliminary review, the hearing body or offi cer can elect to dismiss the complaint, thereby saving the local government time and money in processing spurious or specious allegations. Any decision to dismiss the complaint should be made in writing and provided to the complaining party and the person against whom the allegations were raised. 32 CHAPTER 6 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 36EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 36 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 113 of 139 InvestigationFor some but not all complaints, an investigation might be warranted. If warranted and approved by the hearing body or offi cer, the investigation should be undertaken by an independent and neutral party. Th is investigation might involve the interview of witnesses and review of the evidence, and may culminate in a written summary of disputed and undisputed facts relevant to the issues to be decided by the hearing body or offi cer. Hearing For complaints that warrant prosecution, a hearing should be held to consider the complaint. In some circumstances, the hearing may include a preliminary stage whereby the hearing body or offi cer reviews the investigative report and, if appropriate, may elect to dismiss the allegations if the investigation established that the evidence does not support a fi nding of wrongdoing. Conducted in a manner similar to a judicial proceeding, the hearing should permit the presentation of evidence to support the allegations of unethical conduct and an opportunity to provide a defense against the allegations. Th e local government may employ a prosecutor to present the allegations and evidence. Any decision by the hearing body or offi cer should be made in writing to ensure an adequate record and formally conclude the proceeding. Decision and Penalty In the event that the hearing body or offi cer fi nds a violation of the ethical standards, a penalty may be in order. Obviously, the severity of the penalty can vary depending upon the seriousness of the violation. Penalties may range from a simple letter of admonition or censure, to removal of the public servant from certain duties or responsibilities, to more drastic action including removal from elective offi ce. It is exceedingly rare for ethical violations to result in a monetary fi ne. A monetary fi ne or action to void a contract resulting from unethical conduct is most appropriate where the ethical violation caused probable fi nancial harm to the community. Th ese types of violations are best prosecuted by the district attorney under the public trust provisions of state law. Importantly, removal from offi ce is a power best reserved for the governing body which holds the power of removal pursuant to the charter (for home rule municipalities) or state statutes (for statutory cities and towns). Moreover, it is important to acknowledge that elected offi cials remain accountable to the citizens and are subject to recall from offi ce should their constituents feel the ethical standards of their offi cial are lacking. For that reason, removal from offi ce should be considered only in the most egregious cases. 33 Footnote: 1 . Many home rule and statutory municipalities in Colorado have adopted local ethics regulations, ranging from comprehensive charter provisions and ordinances to a few local supplements to state law. CIRSA members can obtain examples of local ethics ordinances by contacting saml@cirsa.org. EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 37EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 37 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 114 of 139 34 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 38EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 38 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 115 of 139 CHAPTER 7 HARASSMENT ISSUES: WHAT ELECTED OFFICIALS NEED TO KNOW By: Tami A. Tanoue, CIRSA Executive Director Introduction Harassment allegations have been a media fi xture for the past few years, as the “me too” movement spreads across the world of entertainment, media, the corporate sector, and even into federal, state, and local government. In municipal government, many of us feel like seasoned veterans in dealing with harassment issues. At least in the employment arena, we know how to deal with harassment. We have the policies in place, and we take them seriously. We do regular training on the issues. We know how to undertake a fair and credible investigation when allegations surface, and we understand the need to impose appropriate consequences for well-founded allegations. But now, harassment issues are surfacing at the level of governing bodies and elected offi cials. Like an unexpected virus variant, this permutation has left some municipalities unprepared to deal with the consequences. Th e results have included ineff ective responses, public embarrassment, and loss of public confi dence. Why Should You Care About Harassment Issues at Your Level? You might be thinking that the governing body working environment is not the same as the employee workplace. You’re all co-equals, elected by and accountable only to the voters. Th e people “hired” you, and the people are the only ones who should be able to “fi re” you. You each got into this voluntarily for the love of your municipality, and not as your livelihood, and those who can’t stand the heat should get out of the kitchen. Right? Well, wrong! Let’s start by looking at your place in the municipal organization. You’re at the very top of the organizational chart and the chain of command. As such, you are a key infl uencer of the organizational climate. A recent study concludes that the organizational climate is the most potent predictor of harassment in the workplace!1 You’re setting the tone for how people throughout the organization interact with one another. If the tone you set is disrespectful, inhumane, or dysfunctional, then that behavior will be modeled and replicated throughout the organization! Do you want that? 35 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 39EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 39 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 116 of 139 Another reason you should care: the higher up in the organization a harassment issue surfaces, the more diffi cult it is to deal with. Because of legal requirements and public expectations for transparency, you must necessarily conduct most of your work in public. If you think that a harassment allegation at your level can be dealt with behind closed doors, you may be disappointed. Also, the consequence for a well-founded allegation of harassment isn’t straightforward when it comes to an elected offi cial. How is an elected offi cial to be “disciplined” by his or her peers? Concepts such as “corrective action up to and including termination” don’t necessarily translate well when applied to elected offi cials. And assuming you’ve laid out a process for dealing such allegations, who gets involved in that process? Th ose in the administrative team who normally provide you with support, advice, and assistance may well say, “sorry, this is above my pay grade,” requiring you to go outside your organization, at great expense, for help. Policies, Legal Definitions, Civil Liability Laws, and Their Limitations Th e defi nition of “harassment” diff ers from policy to policy. One common factor, though, is that harassment generally must be “severe or pervasive” in order to constitute a policy violation. Th e “severe or pervasive” standard is consistent with the U.S. Equal Employment Opportunity Commission’s (EEOC) view of off ensive conduct that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, or the Americans with Disabilities Act of 1990: the conduct must be severe enough that enduring the off ensive conduct “becomes a condition of continued employment”; or must be “severe or pervasive” enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.2 Th us, policies, as well as civil rights laws aff ording protection from harassment, set a high bar for liability. A common question, then, becomes: “well, if my conduct is short of ‘severe or pervasive,’ there’s no problem, right?” Stated diff erently, if someone’s behaving badly, but the behavior doesn’t quite hit the high bar for a policy violation or for civil liability, does that make the conduct acceptable? Another form of liability is criminal culpability. How oft en have you heard someone justifying their bad behavior in this way: “Well, I haven’t committed any conduct that could be described as criminal.” Does that make the conduct OK? Let’s think about this! In any other aspect of your work as a public offi cial, is the standard for acceptable conduct this low? When it comes to ethical or confl ict of interest issues, for example, would we be able to get by with a low bar like “well, just don’t commit a crime,” or “just don’t expose yourself or our municipality to civil liability”? No! Municipal offi cials pride themselves in meeting the highest standards of conduct when it comes to ethical issues or confl icts of interest. So why should we set such a low bar for the way we behave towards one another? And here’s another critical issue. Harassment laws are generally aimed at employment matters: employee-employee issues, supervisor-employee relationships, employer- employee responsibilities, and the like. Th ese laws aren’t designed for issues between elected offi cials, who aren’t employees, aren’t accountable to an employer, and are beyond 36 CHAPTER 7 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 40EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 40 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 117 of 139 the reach of common workplace remedies like termination, suspension, demotion, etc. Th us, you’ll run across investigations of elected offi cials’ conduct that might reach a conclusion along these lines: “Th e allegation of a hostile work environment based on sexual harassment was unfounded. Th is conclusion is reached because the Civil Rights Act of 1964 does not apply to elected offi cials.” But, does that make the conduct acceptable? Should exposure to civil liability be the standard by which conduct is gauged? Most reasonable people would not live their lives by the guideline, “I’m OK as long as I avoid civil or criminal liability.” We would want to hold ourselves to a much higher standard! And, as leaders, we certainly wouldn’t want to model such a low bar for the rest of the organization. So let’s ditch the legal parsing. Let’s focus away from the “h” word, harassment. Let’s not spend too much time arguing over defi nitions. What we need to do is to confront and articulate the expectations we should have for ourselves, and for our colleagues, in the environment in which we operate. Risk Factors for Harassment Th e EEOC has been doing some interesting work around harassment issues in recent years. Risk factors have been identifi ed that, if present, increase the likelihood that there will be harassment issues in the workplace. You can view the complete list on the EEOC’s website,3 but some of the risk factors include: • Homogeneity – lack of diversity, “currently only one minority among us.” • Workplaces where some employees don’t conform to workplace norms – “rough and tumble” or single-sex dominated workplace culture. • Cultural and language diff erences – arrival of new personnel with diff erent cultures or nationalities; segregation of personnel with diff erent cultures or nationalities. • Workplaces with “high value” personnel. • Workplaces that rely on customer service or client satisfaction. Could any of these factors apply to your governing body? For example, if diversity in terms of gender, race, ethnicity, age, and other factors is a new phenomenon on your governing body, then one might expect misunderstandings and gaff es to occur. Certainly, elected offi cials are “high value” personnel within the organization; there’s no one higher in the org chart than you! And most municipalities pride themselves on a high degree of customer service and customer satisfaction. Th ese are all things to be proud of—but they are also factors for the presence of harassment issues. So, What Can We Do? If you’ve read this far, congratulations! You’re more than halfway towards dealing with these complex issues in a positive and successful way. Th e recent work of the EEOC includes a recognition that a “committed and engaged leadership” is one of the most important factors in preventing and addressing harassment.4 So the fact that you, as an organizational leader, care about this issue is a great thing in itself. 37 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 41EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 41 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 118 of 139 First, take a look at the prevailing culture on the governing body. Are old ways of interacting with one another no longer working well? Or making some members feel like less than equal participants on the governing body? Have you had complaints or concerns raised about the behavior of one or some members? If so, it may be time to discuss the prevailing dynamics openly and honestly to start identifying the concerns. Once you know what the concerns are, then you can begin discussing how to deal with them. You can identify what types of conduct are not acceptable. You can identify the values that are important to the group. You can work towards commitments about how you will communicate and interact with one another. Th ose commitments can form the basis for norms or standards of conduct. Not everyone may end up on the same page, but the “peer pressure” brought about by the consensus of a majority is powerful! If you can get on the same page on norms or standards of conduct, it may be desirable to put them into a written document, perhaps a set of governing body rules of conduct. Th e rules can articulate the standards explicitly, so that everyone understands what is expected. A process for bringing forward concerns or complaints can be identifi ed, as well as the manner in which such concerns or complaints will be investigated. CIRSA members can obtain an example of such rules by contacting tami@cirsa.org. And very importantly, the rules can provide consequences for violations of the standards. Th ose consequences may be limited by your home rule charter (for home rule municipalities) or the state statutes (for statutory cities and towns). But even if the consequences don’t necessarily include a severe consequence like expulsion from the governing body, they are still powerful! Even a “public censure” is a powerful consequence; your wayward colleague, as well as the citizens, will understand that you take your conduct standards seriously and that violations are unacceptable. Bystanders and Peers It’s important to stress that we are all leaders, and we all have a role to play. Each of us is likely a supervisor, role model, or mentor to someone else. We may be part of a peer’s support system, sounding board, or confi dant. We may even just be a witness. And that’s where the concept of “bystander” empowerment or intervention—another concept recently embraced by the EEOC5 — comes in. Perhaps “peer” would be a better term than “bystander,” but the idea is this: that someone who doesn’t directly experience concerning behavior, but who observes it happening, can step in and make a diff erence. Th is doesn’t necessarily mean that you, as a bystander or peer, should intervene superhero-style, to swoop in and “rescue” someone that you think may be in a problematic situation. Indeed, you don’t need to expose yourself to a situation that could escalate. But what you can do is to talk to that person away from the situation: let him or her know that you saw what was happening. Say something like, “Hey, I happened to hear what Kyle said (or did) to you, and I didn’t think it was OK. Were you OK with that?” If the person responds in the affi rmative, fi ne; you can all move on. But if the person indicates that the behavior to which he or she was subjected was a problem, then think of the impacts of your intervention! First, that person knows that he or she is not alone: you are a witness. Second, you are affi rming that the behavior is not 38 CHAPTER 7 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 42EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 42 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 119 of 139 acceptable. And third, you can be of help in identifying resources for further follow-up. Bystander intervention is about empowering yourself to be part of the solution. If you’re comfortable doing so, you can talk to the person engaging in the problem behavior: “Th at joke wasn’t funny.” Or, maybe the situation calls for some kind of interruption…maybe standing in proximity will extinguish the behavior. Or, perhaps, drop something on the fl oor and create a small diversion! Th ere are other ways in which a bystander or peer can positively aff ect a problem situation. Training on this topic is available and can provide a powerful peer-to-peer tool for communicating and reinforcing workplace values.6 Although a formal complaint/ follow-up process should always be available, an eff ective bystander or peer intervention may help resolve issues without the need to escalate them into a formal process. Conclusion: It’s All About Respect In the fi nal analysis, this discussion shouldn’t be about the “h” word, harassment. It should be about the “r” word, respect. A working environment where everyone’s scrutinizing whether the harassment line has or hasn’t been crossed in any given interaction is not a good working environment. A working environment where everyone’s striving for a sense of mutual respect, trust, collegiality, and inclusion, is an environment where things are going to get done, and done well. Footnotes: 1. National Academies of Sciences, Engineering, and Medicine, 2018: Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine. Washington, DC: Th e National Academies Press. https://doi.org/10.17226/24994. 2. https://www1.eeoc.gov/laws/types/harassment.cfm?renderforprint=1. 3. https://www.eeoc.gov/eeoc/task_force/harassment/risk-factors.cfm. 4. https://www.eeoc.gov/eeoc/publications/promising-practices.cfm. 5. https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm. 6. https://hbr.org/2018/10/to-combat-harassment-more-companies-should-try-bystander-training; https://www.ocwr.gov/sites/default/fi les/compliance-bystanders.pdf. 39 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 43EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 43 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 120 of 139 40 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 44EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 44 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 121 of 139 CHAPTER 8 ELECTED OFFICIALS’ INVOLVEMENT IN PERSONNEL MATTERS By Tami A. Tanoue, CIRSA Executive Director and Sam Light, CIRSA General Counsel Introduction CIRSA doesn’t take many member cases all the way through trial. When we do, it’s usually because we expect a jury verdict in our member’s favor. But one area where we’ve sometimes been disappointed by a jury has been in the area of employment liability. CIRSA members’ experience with employment claims in the judicial system refl ects certain realities. Every juror has probably had to deal with a “bad boss” at some time in his or her working life. It’s much harder to fi nd a juror who’s had to deal with “bad employees” as a manager or supervisor. So juries are naturally tilted in the employee’s favor rather than the employer’s. Another reality is that employment litigation is extremely stressful. Careers and reputations are at stake. Th e supervisor’s and manager’s (and sometimes elected offi cial’s) every move is subjected to scrutiny, and the documents they’ve generated are nit-picked by attorneys and blown up into super-sized exhibits. One’s fate is entrusted to the decision of a group of complete strangers. Sometimes, that fate is a dire one, indeed. One mayor in New Mexico (which is in the same federal circuit that encompasses Colorado) was handed a verdict in which a jury determined that his retaliatory and discriminatory conduct in an employment matter warranted a punitive damages award of $2,250,000 against him.1 Even when the stakes aren’t that high, no one who’s ever been through employment litigation relishes the thought of ever going through it again. Th e suggestions in this chapter are intended to help you, as an elected offi cial, to minimize the chances that you’ll be caught up in employment-related litigation and, if you are, to maximize the chances of a better outcome than that faced by the New Mexico mayor. 41 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 45EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 45 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 122 of 139 Establish a Structure That Allows Delegation of Personnel FunctionsIn a word, the single most important suggestion is: delegate! Th e chances that you’ll be pulled into an employment claim, much less sued successfully, go way down if you’ve appropriately delegated the responsibility to hire, train, evaluate, supervise, manage, and discipline all but your key employee or employees. To do this, you need to have an administrative structure in place that will permit delegation, such as a manager or administrator form of government. If your entity is fortunate enough to have a manager/administrator, the governing body should take full advantage of the organizational structure this position allows. Th e manager/administrator should be the only position (except for city/town attorney, municipal judge, and similar positions) that reports directly to the governing body. All other personnel should be accountable to the organization solely through the manager/ administrator. Every organization that has more than a few employees should strive to put such a structure into place. Honor the Structure Once you’ve achieved a manager/administrator form of government, you must honor it. Th ese types of actions, if allowed, would violate your commitment to that form and waste the resources that you’ve allocated to it, and encourage dysfunction and disorder: • Elected offi cials reaching down below the level of the manager/administrator to infl uence what goes on with personnel administration below that level. • Elected offi cials reaching down below the level of manager/administrator to give orders to employees below that level on how to do their job, particularly if the orders are contrary to the established policies and/or the direction of their supervisors. • Elected offi cials permitting an employee below the level of manager/administrator to bypass his/her own supervisor and take personnel issues directly to them. Th us, for instance, if your entity has committed to a manager/administrator form, there’s no call for elected offi cials, individually or collectively, to demand the hiring or fi ring of a specifi c employee below the level of manager/administrator. Such an action raises questions of propriety from several perspectives: • Do your personnel enactments reserve any such authority to the elected offi cials? If you have a manager/administrator, your charter, ordinances and/or personnel handbook probably don’t (and shouldn’t) call for you to be involved in decisions involving subordinate employees. If you get involved in such decisions, you may be outside the scope of your authority and could get in trouble (see “Be aware of the scope of your authority” below). • What’s the reason for doing an “end run” around the manager/administrator? Do you have a “favorite” candidate for employment, or an employee who’s on your “hit list”? Why are you championing or condemning someone rather than trusting your manager/administrator to make the right decision? Do you question his or her judgment or ability to make the right choice? If so, confront that concern; 42 CHAPTER 8 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 46EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 46 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 123 of 139 don’t skirt it with an “end run.” And, if the governing body does not share your concern about the manager/administrator, don’t “end run” your governing body’s collective decisions on oversight of its direct reports. • Could what you’re doing be perceived as retaliatory? Along with all the other reasons why involvement in personnel matters can be very risky, consider the retaliation claim. Everyone is potentially in the category of persons who are legally protected from acts of retaliation. Retaliation claims are among the most diffi cult to defend. And, these kinds of claims can lead to massive liability. But oft en, it’s not the elected offi cial who seeks, in the fi rst instance, to become inappropriately involved in a personnel matter. Rather, there’s pressure put on the offi cial from outside. For instance, a department head may have curried disfavor with a segment of the citizenry because of the perceived manner in which a service or program is being carried out. Either way, though, such involvement is the wrong thing to do. Don’t be pressured by a member of the public, for instance, to interfere in a personnel issue that’s been delegated to the manager/administrator. Th at citizen’s not going to be around to help you if you get into trouble at his or her urging! Similarly, don’t give in when a subordinate employee is trying to use you to get around his or her supervisor, or when an applicant is trying to get a leg up on employment through you. Let the process unfold the way it’s meant to unfold. If you have a concern about the way the manager/administrator is handling things, address that concern directly. If you cave in to pressure to involve yourself inappropriately, though, you may be enabling someone who wants to “game the system,” or unfairly disempowering a manager or supervisor. Be Aware of the Scope of Your Authority, and Stay Within That Scope From a liability standpoint, one of the worst things you can do is to act outside the scope of your legal authority. An area where authority issues oft en arise, particularly in smaller communities, is in the “committee,” “commissioner” or “liaison” format for personnel administration. In this format, an individual councilmember or trustee is in a supervisory or oversight relationship with respect to a department, department head, or employee. Th us, a town might designate a trustee as “water commissioner,” “police commissioner,” etc. What’s troubling about this format is that it’s oft en not described anywhere in the community’s enactments, nor is the authority of each commissioner set forth in writing. Rather, this format seems to be a relic of oral history and tradition. But the lack of written guidelines means that there are signifi cant personal risks to the commissioner. What if the commissioner takes an adverse job action, such as seeking to terminate an employee? Under what authority is the commissioner acting? If the commissioner can’t prove that the action was within the scope of his or her authority, there may be consequences from a liability and insurance coverage standpoint. Th e Governmental Immunity Act, for instance, provides protections for public offi cials only when in the performance of their authorized duties. Likewise, liability coverage 43 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 47EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 47 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 124 of 139 protections through CIRSA only apply when a public offi cial is acting within the scope and performance of offi cial duties. Finally, even if there is authority on the books, this format in particular can lend itself to uncertainty over who does what—“Is this a decision for the board, commissioner or department head?” Similar questions arise when an individual elected offi cial chooses to become involved in a personnel matter in a way that isn’t authorized by the entity’s personnel enactments. Where is the authority for such involvement? If you can’t fi nd a fi rm source of authority, you may be heading for trouble. An individual elected offi cial’s inappropriate action can not only create liability exposure for the offi cial, but put him or her crosswise with the other members of the governing body. Respect the Principle That Each Employee Should Have Only One Boss Th is seems like an obvious principle that every organization should follow. You don’t want an employee confused by multiple directions from multiple supervisors. You also don’t want an employee playing one supervisor off against another. When elected offi cials become inappropriately involved in personnel matters, this basic principle is violated, and the result is chaos. If you allow yourself to become embroiled in a personnel matter involving a subordinate employee, the employee may then feel that the word of his or her supervisor can be disregarded. You may have forever undermined that supervisor’s authority, or allowed the subordinate to do so. Likewise, if you were involved in lobbying for the hiring of a favorite applicant (even if it was for good reasons), that person may always feel that you, not his or her supervisor, are the go-to person on personnel issues. Similar principles apply with respect to your governing body’s oversight of its manager/ administrator and other direct reports. Elected offi cials should recognize the council/ board is not a group of seven or other multiple number of bosses, but one boss. Th erefore, members of the body should commit themselves to speaking with one voice to their direct reports and to exercising their oversight role—e.g. performance reviews, goal setting, etc.—as a group. Even when there are diff erences of opinion as to how to address an issue with the manager/administrator, the body should arrive at its position. If the governing body does not work to speak with one voice to its direct reports, it’s undermining its credibility as a board and its ability to gain accountability at the highest levels in the organization. Th is is not to suggest that a militaristic chain of command is required in every workplace. In fact, fl exibility in reporting relationships is desirable in some situations. For instance, you wouldn’t want to lock your employee into reporting a harassment claim only to an immediate supervisor, if the immediate supervisor is the one alleged to be engaging in the harassment. But you can maintain the needed fl exibility without collapsing into the chaos that your inappropriate involvement in personnel matters will beget. 44 CHAPTER 8 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 48EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 48 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 125 of 139 ConclusionTh ere’s certainly a place for elected offi cial-level decision-making in personnel matters, but those decisions should be reserved for the high-level issues that involve the entire organization. Examples of such high-level issues could include establishing overall policies for the entity; selection, evaluation, and discipline for the council/board’s few “direct reports”; salary and benefi ts plan for the workforce; and overall goals and priorities for departments. But when these issues begin devolving into the details of hiring, training, evaluating, supervising, managing, or disciplining particular employees below the level of your direct reports, it’s time to delegate them to your manager/administrator. Footnote: 1. Th e award was later reduced to $1,500,000 but affi rmed by the 10th Circuit Court of Appeals. Hardeman v. City of Albuquerque, 377 F.3d 1106 (10th Cir. 2004). 45 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 49EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 49 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 126 of 139 46 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 50EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 50 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 127 of 139 CHAPTER 9 SOCIAL MEDIA USE BY ELECTED OFFICIALS By: Tami A. Tanoue, CIRSA Executive Director & Sam Light, CIRSA General Counsel Social media engagement has become a regular part of life. Daily, we check our emails and texts, and then probably go on to check our favorite social media sites, such as Facebook, Instagram, Twitter, and others. Local governments and their constituents are also mutually interested in connecting via social media, whether to conveniently transact business or provide timely information about everything from street closures to street festivals. So it’s no wonder that elected offi cials, too, have integrated social media into their public lives. But if you’re an elected offi cial, you should know that, because of the powers and responsibilities conferred on you by virtue of your position, your social media use has some legal dimensions that may not apply to the rest of us. Th is chapter explores a few of them. Open Meetings Law While Chapter 5 outlines the basics of the Colorado open meetings law (COML), it’s worth examining more specifi cally how its requirements can extend to your social media use. Consider this scenario: You have a Facebook page for yourself under the category of “Politician.” You post information about city happenings and resources, and welcome others to post there as well. One day, you post on a controversial topic that the council will be tackling at its next meeting, and two of your fellow councilmembers get wind. All three of you go back and forth posting about your respective views and how you intend to vote on the topic. Is this a “meeting” within the meaning of the open meetings law? Well, it seems at least arguable that it is! Remember, a “meeting” under the law includes a gathering convened electronically to discuss public business. When there are three or more members of the local public body (or a quorum, whichever is less) participating in such a gathering, that can trigger the notice and “open to the public” requirements of the law. If triggered in this type of social media discussion, how do you comply with the 24-hour “timely” posting requirement in the COML when you’re posting on Facebook? How do you meet the “open to the public” requirement? Th ese are questions for which there are not clear answers, but you see the point…discussions of public business by the requisite number of governing 47 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 51EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 51 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 128 of 139 body members can certainly take place in an electronic forum, and then these questions (and others) may come into play.Constitutional Concerns A scenario: You post about the upcoming agenda item on your Facebook page featured in the previous scenario. For some reason, the discussion on the post starts to go completely sideways, with lots of negative comments, including some hateful attacks from the citizen you defeated in the last election, and some uncalled-for memes and photos. You decide the hateful attacks aren’t helpful to the discussion—keep it positive, people!—and so you “block” your prior campaign rival from posting and you start deleting some of the particularly disagreeable comments. A few days later you ultimately decide that the better part of valor is to just delete the whole darn post. Did your act of “blocking” your rival raise free speech concerns? It may well have! Remember, the constitution provides strong protections for free speech and generally prohibits the government from censoring speech that occurs within those venues established for the open exchange of ideas on matters of public concern. Th ese principles have raised the question of whether a public offi cial’s Facebook page or Twitter account is a public forum such that commenters cannot be blocked, or their comments removed, based on their content. While the law in this area is still developing, a few courts have concluded that if a public offi cial has a social media page or feed that essentially “walks and talks” like a governmental forum, then the medium is a public forum subject to the principles regulating free speech. So, for example, where an elected offi cial designates the page as their offi cial page as a member of an elected body, uses the page to communicate with constituents as an elected offi cial about government events, and invites followers to use that page for discussion of any topics relating to the government, the offi cial cannot block persons who post critical content. Th e takeway? A social media site can be a great way to communicate with constituents but if that’s how you use your accounts, don’t block people from posting. Also in the above scenario, if you’ve decided to delete the whole darn post: Are the post, and the comments, considered “public records” within the meaning of the Colorado Open Records Act (CORA)? Again, it seems at least arguable that they are! Th e term “public records” is defi ned to include “the correspondence of elected offi cials,” subject to certain exceptions. And public records are open for public inspection and copying. Your municipality has most likely adopted a records retention and destruction schedule that governs how long various documents, including electronic documents, must be maintained prior to destruction. So, could someone request a copy of a post that was on your Facebook page under CORA? What if you deleted the post? Is there a record retention schedule that applied? Was that schedule violated when you deleted the post? More of those infernal questions for which there isn’t a clear answer…but you see the point! If there’s a chance that the posts are subject to CORA, then it might be smart to tolerate the replies you get on your post. Alternatively, make sure you have some reasonable and defensible posting rules in place so that everyone knows up front your expectations for your page. 48 CHAPTER 9 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 52EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 52 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 129 of 139 Quasi-Judicial Rules of EngagementA further word of caution on social media concerns your duties as a decision-maker in quasi-judicial matters. Consider this scenario: A site-specifi c land use application is scheduled to be considered by the planning commission on an upcoming agenda, with the commission’s recommendation to be referred to the council for fi nal action at a later date. You consider the proposed use to be an extremely controversial one. But you’re worried that it’s a bit “under the radar,” what with summer vacations, holidays, and all. Of course, proper notice has been given by the planning department, but you’re still concerned that the proposal may get a favorable recommendation from the commission without any citizen testimony. You decide to post this on your Facebook page: “Citizens, please read this IMPORTANT NOTICE! You need to know that the planning commission is going to be considering a proposal for _____ at its upcoming meeting on _____ at 7:00 p.m. As a councilmember, I am taking no position on the proposal at this time. But if you care about our community’s future, then you will want to attend this very important hearing before the planning commission.” See any problems here? You’ve certainly stated that you’re “taking no position” at this time, right? But it may appear to others, particularly the applicant, that you are opposed to the proposal and are trying to “gin up” opposition to it! Is that congruent with the “neutral decision-maker” role that you will need to take on once this quasi-judicial proposal goes up to the council? Could the applicant take the position that it looks like you made up your mind, without evidence, long before the council hearing, and therefore, you should be recused from participation? “But, but, all I’m doing is making sure the public knows about this proposal,” you protest. Well, do you do that with EVERY proposal that comes before the planning commission, or did you just happen to pick out this one for the Facebook spotlight? Th e essence of procedural “due process” rights that attach to a quasi-judicial matter is notice and a fair hearing before neutral, impartial decision-makers. With a post like this you can see how, even if your intentions may have been honorable, doubts can be cast on your impartiality and neutrality. Th ose doubts increase if your involvement goes beyond this scenario—say, for example, that you are also posting or responding to comments about the merits of the application. When it comes to social media buzz around quasi-judicial matters, remember that due process requires you to be impartial and base your decision upon evidence presented at your public hearing. Remember also that defensible quasi-judicial decisions are about good process. As part of that process you will ultimately hear the case and have the power to make the decision—at the time that it’s ripe for your body’s decision! Avoid the temptation to leap into the social media fray, as that will protect your ability to serve as a quasi-judge, and protect your governing body’s decision. 49 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 53EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 53 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 130 of 139 Some SuggestionsSocial media use by elected offi cials implicates new and evolving legal issues, and this chapter only touches upon a few of them. Th e uncertainty is real! But you can avoid uncertainty and stay on solid ground if you follow these suggestions: • Consider whether you really need to be on social media in your elected offi cial capacity. If only 23 people “like” your page, it may not be worth the hassle. And keep in mind that only a fraction of those 23 people may even be seeing your posts. • If you feel that the use of social media is a net plus and/or a service to your constituents, be extremely careful about what is posted! Stay away from discussions of items that will be or could be on your governing body’s agenda. Th ere’s a time and place for discussion of those items, and it’s most likely not social media. Stick to public service announcements, photos and posts about things you did (“It was great to meet so many of you when I volunteered at City Cleanup Day last week”), upcoming events like “Town Halls,” re-posts of City newsletters, links to articles that tout your great city, and the like. If you’re careful about what you post, you’re not going to have to confront the uncertainties of COML, CORA, and other laws. If you stick with helpful but non-controversial posts, then there won’t be much of a need to delete posts. • Be particularly careful to stay away from commenting on a pending quasi-judicial matter. Th is is where the stakes are highest! In a worst case scenario, an imprudent post could require your recusal from participating in the matter on the basis that you’ve revealed your non-neutrality, buttress someone’s constitutional claim, serve as a basis to attack the body’s decision, or all of the above. • Check to make sure you created your page under the right category. “Politician” is more accurate than “Governmental Organization.” And don’t use the offi cial city/ town logo, to avoid any implication that yours is an “offi cial” city/town page. 50 CHAPTER 9 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 54EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 54 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 131 of 139 CHAPTER 10 APPOINTMENT AND REMOVAL OF OFFICIALS IN STATUTORY TOWNS By: Linda Michow, Partner, and Christiana McCormick, Associate, Michow Cox & McAskin LLP, and Tami A. Tanoue, CIRSA Executive Director Introduction Colorado law grants elected offi cials in statutory towns the power to appoint and remove certain municipal offi cials, including members of the governing body and offi cers such as the clerk or treasurer. If you’re an elected offi cial in a statutory town, it’s important for you to have a working understanding of the rules and potential pitfalls in this area. An improper appointment or removal can not only result in disputes or claims, but also create uncertainty within the organization and a cloud over the governing body. Th is chapter provides information on appointment and removal of offi cials in statutory towns, including the fi lling of vacancies and guidance regarding best practices. In general, statutory cities operate under diff erent statutes, and home rule municipalities operate under charter provisions that are likely diff erent than the statutory requirements outlined in this chapter, and so neither are addressed here.1 Filling Vacancies on the Town Board A vacancy on the town board can occur under a variety of circumstances, including: resignation; inability to fulfi ll the duties of offi ce; failure or refusal to take the oath of offi ce; failure to meet residency requirements (including moving out of the ward or municipality); removal from offi ce; a seat left unfi lled aft er an election, or an offi cial passing away during the term of offi ce. Once a vacancy arises, the town board is faced with several considerations. • Sixty-day time frame. First, state law provides that a vacancy on the town board may be fi lled either by appointment or by election. However, this option only lasts for 60 days. If the town board does not fi ll the vacancy by appointment or order an election within 60 days, then the board is required to order an election to fi ll the vacancy. • Resolution declaring vacancy. Th e board should consider adopting a resolution that declares the vacancy, sets forth the vacancy eff ective date, and states whether the board chooses to fi ll the vacancy by appointment or by election. While such a resolution is not required for a statutory town, the board should consider this 51 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 55EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 55 6/4/2019 1:02:46 PM6/4/2019 1:02:46 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 132 of 139 approach, as passing a resolution declaring a vacancy provides a written record of when the statutory 60-day clock begins and makes known the intent of the town board regarding its choice on how to fi ll the position. • Special considerations for vacancy in mayor’s offi ce. Generally, a vacancy in the offi ce of mayor is fi lled in the same manner as vacancies of other members of the town board. However, if the town board will appoint someone, it may wish to consider qualifi cations or circumstances unique to the position, including the mayor’s voting rights and role as presiding offi cer. Term of Office for an Appointee Filling a Vacancy Th e term of offi ce of a vacated seat fi lled by appointment or election only runs until the next regular election. Th is is true even if the original term would not be expiring at such election. Th ere is no authority in state law for a statutory town to extend the term of offi ce of an appointee fi lling a vacancy. If terms of offi ce are four years, this rule can sometimes create confusion at the next regular election, where some seats are up for a full four-year term while another seat is on the ballot solely for purpose of electing a person to fi ll a vacant seat for the remainder of the term. Proper parlance can reduce the confusion— candidates running for that vacant seat aren’t running for an offi ce having a new two- or four-year term but for a shortened, two-year term to fi ll the vacancy. Qualifications of an Appointee Filling a Vacancy Colorado statutes do not separately mandate qualifi cations for an appointee who is to serve in the event of a vacancy. However, the Colorado Constitution and related statutes require that persons holding any elective offi ce shall be qualifi ed. To be qualifi ed, an appointee must be: at least 18 years old as of the date of the election [or appointment]; a U.S. citizen; a resident of Colorado for at least 22 days prior to the election [or appointment]; a resident of the municipality (and ward, if applicable) for at least 12 consecutive months prior to the date of the election [or appointment]; not serving a sentence in any public prison; and registered to vote. An appointment is void if the person appointed is not qualifi ed. Th erefore, it is important to ensure that a person appointed to fi ll a vacancy in an elective offi ce has the qualifi cations set forth in state law, as summarized above. Although state law does not dictate the process for selecting a qualifi ed person to fi ll a vacancy, governing bodies should be mindful that appointments to elective positions, to some extent, remove the people’s opportunity to choose their own representative. Th erefore, it is prudent to implement a formal process with suffi cient advertisement of the vacancy to provide transparency and ample opportunity for participation. Other considerations and pitfalls to avoid include: • Making an appointment that benefi ts or appears to benefi t any member of the governing body personally (see chapter 6); • Appointing someone who will create turmoil or dysfunction within the governing body or other areas of municipal government (see chapters 1 - 3); or 52 CHAPTER 10 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 56EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 56 6/4/2019 1:02:46 PM6/4/2019 1:02:46 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 133 of 139 • Failing to provide the appointee with proper training once appointed. Like any other person serving in an elective position, an appointee should receive proper training. Appointment of Officers in Statutory Towns State law requires the town board appoint or provide for the election of certain offi cers, including a clerk, treasurer and town attorney. Th e applicable statute, C.R.S. Section 31-4- 304, states in pertinent part: Th e board of trustees shall appoint a clerk, treasurer, and town attorney, or shall provide by ordinance for the election of such offi cers, and may appoint such other offi cers, including a town administrator, as it deems necessary for the good government of the corporation…. [N]o appointment of any offi cer shall continue beyond thirty days aft er compliance with section 31-4-401 by the members of the succeeding board of trustees. In some cases, the town board fails to act within 30 days to appoint or re-appoint offi cers of the town. Further, in many cases, these positions are staff ed with municipal employees, which can lead to uncertainty in employment when the town board fails to re-appoint an employee to one of these appointed positions. Th ese and other circumstances raise the question: What is the impact of not making appointments within the 30-day period aft er the new board members are seated? In short, if the 30-day period set forth in this section passes, the term of the offi cer expires. However, it is important to note that the expiration of the term does not necessarily or automatically oust the individual holding the offi ce from that position and create a vacancy. Rather, absent provisions to the contrary in state law or local ordinance, the public interest requires that public offi ces should be fi lled at all times without interruption. Th e Colorado Constitution adheres to this principle, stating in Article XII, Section 1 that “[e]very person holding any civil offi ce under the state or any municipality therein, shall, unless removed according to law, exercise the duties of such offi ce until his successor is duly qualifi ed….” Th erefore, an individual holding an appointive offi ce in a statutory town remains in that position aft er his or her term has expired (i.e. holds over) until a successor properly appointed by the town board takes offi ce. Moreover, if the incumbent is an employee, he or she would remain in their appointive position and on the town’s payroll as a holdover. To avoid confusion and confl ict regarding holdovers, when the term of an appointive offi ce expires, the town board should timely act to either re-appoint the incumbent or appoint a new person to the offi ce. Th e board should also seek advice of legal counsel before deciding to not re-appoint an incumbent appointive offi cer who is also an employee of the town. Removal from Office in Statutory Towns Th e following identifi es some of the key requirements pertaining to the removal of an elected offi cial in a statutory town pursuant to a proceeding under C.R.S. Section 31-4- 307. Many of these requirements are not present in the statute itself; rather, they are found in some old judicial decisions concerning the statute. Removal of an elected offi cial by 53 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 57EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 57 6/4/2019 1:02:46 PM6/4/2019 1:02:46 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 134 of 139 the governing body essentially overrides the will of the people who elected the offi cial. For this reason, it is critical that any removal proceedings take place in accordance with the guidance provided by these decisions. Th e advice of counsel is also critical given the potential for missteps. While these decisions are more than a century old, they came into play more recently in the recommendation of a United States Magistrate Judge in a case involving a CIRSA member municipality.2 While the Magistrate Judge’s recommendation is unpublished and does not serve as precedent, it was cited with approval by the Colorado Supreme Court.3 Th us, the Magistrate Judge’s recommendation highlights the importance of these older decisions and may off er some good guidance to a statutory town contemplating a removal proceeding. Given this recent resurrection of old case law, the way in which a town may have applied Section 31-4-307 in past proceedings may not serve as a sound guide to the conduct of such proceedings today. Th us, past practice should not be used as a basis to avoid compliance with the following requirements gleaned from the old but resurrected case law: • Th e basis for removal (unless the elected offi cial has moved out of town) must be “misconduct or malfeasance in offi ce,” as those terms are used in Article XIII, Section 3 of the Colorado Constitution. Th ese constitutional provisions contemplate offi cial misconduct of such a magnitude that it aff ects the performance of the offi cer’s duties, and off enses against the town “of a character directly aff ecting its rights and interests.”4 Political or personal disagreements, or a stalemate resulting from failure to obtain a requisite number of votes on matters coming before the town board, may not be suffi cient grounds to eff ect a removal. • Th e removal proceeding is quasi-judicial in nature, subject to the safeguards commonly found in judicial proceedings. Th is means: • Th ere must be a charge or charges against the offi cial sought to be removed. Th e charges must be specifi c and stated with substantial certainty.5 Vague or general charges likely will not meet this requirement. • Th ere must be a hearing in support of the charges, and an opportunity to make a defense.6 Th e charges must in the fi rst instance be proven by testimony and evidence, with the opportunity given to the offi cer sought to be removed to rebut such testimony and evidence, and off er his or her own. • Th e hearing must be held under the same limitations, precautions, and sanctions as in other judicial proceedings.7 A basic requirement of judicial proceedings is that decision-makers must be neutral and impartial. Th is is why in most judicial proceedings, investigative, prosecutorial, and adjudicatory functions are separated. However, in removal proceedings, the adjudicatory body (the town board) may also have carried out an investigative function by establishing the charges that are the basis for the proceeding. Involvement in presenting 54 CHAPTER 10 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 58EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 58 6/4/2019 1:02:46 PM6/4/2019 1:02:46 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 135 of 139 testimony and evidence would further diminish the separation of these functions, and the lack of separation may compromise the appearance or reality of a neutral and impartial decision-maker. Th ese requirements highlight one of the most diffi cult procedural aspects of a removal proceeding: who will present the evidence and testimony? Th e town board serves as the decision-maker. It would likely be problematic, from a fairness standpoint, if the decision-makers also served as witnesses. One option to address this issue is use of a hearing offi cer whose decision is made subject to fi nal review and action by the town board. Another option is to limit involvement in non-adjudicatory functions to one (or at most two) members of the governing body who understand their need to then recuse themselves from the board’s decision-making. • Th e decision will be subject to judicial review.8 Th is means that under Rule 106(a)(4) of the Colorado Rules of Civil Procedure, a transcript of the proceedings as well as the evidentiary record, will be produced to the district court for review. Th e standard of review will be whether the governing body’s decision was “arbitrary or capricious.” Constitutional due process violations may be raised, and considerations of bias may be raised to set aside a decision as well. Other questions and issues to consider in holding the proposed removal hearing include: • Have provisions been made for the issuance of subpoenas to compel the attendance of witnesses, the administration of oaths, the right of discovery, and the cross-examination of witnesses? • Are rules of procedure in place, has a standard of proof been established, and will rules of evidence be followed? • Does the offi cer sought to be removed have the right to be represented by counsel? Is the governing body working with the advice of counsel? • Have adequate time and opportunity been given to the offi cer sought to be removed to prepare his or her case in answer to the charges? Have provisions been made for the granting of reasonable continuances? • Has some means of recording the hearing been arranged, preferably by a stenographer who can prepare a verbatim transcript? • Who will prepare written fi ndings of facts, conclusions of law, and a fi nal decision and order? Conclusion A town board’s powers of appointment are eff ective tools. Th ey can be used to timely fi ll a board vacancy and appoint key staff who will help drive the town’s vision and success. But, if not handled appropriately, appointments can become the source of intractable disputes and potential liability. Th us, board members should work together to understand their options, duties and obligations when it comes to making appointments, and make wise use of their appointment powers. 55 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 59EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 59 6/4/2019 1:02:46 PM6/4/2019 1:02:46 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 136 of 139 Likewise, a town board’s power of removal is undoubtedly an important one; but, an imprudent or improper removal proceeding can be the source of signifi cant liability. As noted, recently resurrected case law suggests the bar for exercising the removal power is high, for situations where serious misconduct or malfeasance in offi ce can be proven. Further, the removal power should be exercised only with the procedural safeguards summarized above in place, and only with the assistance of legal counsel. Otherwise, the governing body may be taking on an unacceptable risk of liability. Footnotes: 1. Offi cials in statutory cities and home rule municipalities should obtain from their counsel and staff information on the appointment and removal requirements specifi c to their organization. 2. Russell v. Buena Vista, 2011 WL 288453 (D. Colo. 2011). 3. Churchill v. University of Colorado, 2012 WL 3900750 (Colo. 2012). 4. Board of Trustees v. People ex rel. Keith, 59 P. 72, 74 (Colo.App. 1899). 5. Board of Alderman v. Darrow, 22 P. 784, 787 (Colo. 1889). 6. Darrow, 22 P. at 787. 7. Keith, 59 P. at 75. 8. Id. 56 CHAPTER 10 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 60EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 60 6/4/2019 1:02:46 PM6/4/2019 1:02:46 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 137 of 139 SAFERTOGETHER 3665 Cherry Creek North Drive Denver, Colorado 80209 800.228.7136 www.cirsa.org EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 2EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 2 6/4/2019 1:02:12 PM6/4/2019 1:02:12 PM Tammy Nagel / Town of Vail Order # 45977 / Order Date: 8/3/2020 Copyright by CML August 18, 2020 - Page 138 of 139 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Recess 4:50 pm (estimate) August 18, 2020 - Page 139 of 139