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
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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
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• 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
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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
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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
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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
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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.
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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
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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
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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.
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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.
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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.”
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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.
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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.
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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.
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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
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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
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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.”
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• 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.
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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
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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?
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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.
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• 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!
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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.
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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.
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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.
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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.
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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.
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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.
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• 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 .
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• 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.
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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
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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,
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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
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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.
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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.
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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.
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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?
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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
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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.
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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
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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.
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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.
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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;
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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
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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.
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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).
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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
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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.
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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.
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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.
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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
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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
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• 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
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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
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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.
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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.
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SAFERTOGETHER
3665 Cherry Creek North Drive
Denver, Colorado 80209
800.228.7136
www.cirsa.org
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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)
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