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HomeMy WebLinkAbout2022-02-01 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 Town Council C hambers and Virtual on Zoom 1:00 P M, February 1, 2022 Meeting to be held in C ouncil Chambers and Virtually (access High Five Access Media livestream day of the meeting) 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.Presentation / Discussion 1.1.Suggestions for Success (and Reducing the Risk of Liability) in Public Office 45 min. Presenter(s): Krista Miller, Director of Human Resources, Sam Light, C I RS A General Counsel Action Requested of Council: I nformational only. No action required. Background: Training for elected officials occurs after every election as presented by General Counsel for the Colorado I ntergovernmental Risk Agency (C I RS A). Topics addressed include: Role of Public Officials, Town Structure, Transparency, Ethical Conduct, Due Process, Quasi-J udicial Process and Leadership. 1.2.Destination Stewardship Plan Update 15 min. Presenter(s): Mia Vlaar, Economic Development Director; Cathy Ritter, C E O Better Destinations L L C Action Requested of Council: Listen to presentation and ask questions. Background: The Destination Stewardship Plan Request for Proposals (RF P) was published in November 2021 to meet the requirement for Vail's certification as a top 100 Sustainable Destination. Several proposals were submitted and vetted by a staff selection committee and group of Vendors was chosen for their exceptional experience in tourism, global sustainability, community engagement and alignment and values based marketing. Staff Recommendation: Approve Professional Services Agreement under Consent Agenda during evening meeting. 1.3.Vail Mountain School Conditional Use Permit Discussion 45 min. Presenter(s): Matt Gennett, Community Development Director and Dominic Mauriello representing Vail Mountain School Action Requested of Council: Discussion and Council input. Background: The purpose of this item is to provide an opportunity for Council and Vail Mountain School (V MS) to discuss the existing conditional use permit as it relates to enrollment and traffic improvements in the vicinity of the V MS Campus. See attached memorandum. 1.4.W ildland Urban I nterface Proposed Code Amendments Discussion 30 min. Presenter(s): Paul Cada, W ildland Program Manager, Mark Novak, Fire February 1, 2022 - Page 1 of 224 Chief Action Requested of Council: Provide feedback. Background: I n support of implementation of the Vail Community W ildfire Protection Plan, staff is proposing amendments to the Vail W ildland Urban I nterface Code which would require the creation of a 5' non-combustible zone around all structures (Fire Free Five). Staff is seeking feedback from council on this issue. 1.5.Compensation Strategy Update and Compensation Consulting RF P 30 min. Presenter(s): Krista Miller, Director of Human Resources and Scott Robson, Town Manager Action Requested of Council: Listen to the presentation and provide feedback. Background: Town Council approved an updated Compensation Philosophy as a part of the 2022 budget process. This presentation will present an update on the implementation of this strategy and provide an overview of the compensation consulting request for proposals (RFP) for 2022. 2.D R B / P E C Update (5 min.) 2.1.D RB / P E C Update Presenter(s): J onathan Spence, Planning Manager 3.Information Update 3.1.J anuary Revenue Update 3.2.C S E Meeting Minutes from J anuary 2022 4.Matters from Mayor, Council and Committee Reports (10 min.) 5.Executive Session 5.1.Executive Session, pursuant to: 1) C.R.S. §24-6-402(4)(a)(b)(e) – concerning the purchase, acquisition, lease, transfer, or sale of any real, personal, or other property interest; 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: i) Potential real property acquisition by the Town; ii) negotiations with the Vail Corporation regarding potential development of the ‘EverVail’ site; and iii) Residences at Main Vail Development Agreement between the Town of Vail and Triumph Development West, L L C. 90 min. Presenter(s): Matt Mire, Town Attorney 6.Recess 6.1.Recess 5:30 pm (estimate) Meeting agendas and materials can be accessed prior to meeting day on the Town of Vail website February 1, 2022 - Page 2 of 224 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. February 1, 2022 - Page 3 of 224 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: Suggestions for Success (and Reducing the Risk of L iability) in Public Office P RE S E NT E R(S ): K rista Miller, Director of Human Resources, S am L ight, C I R S A General Counsel AC T IO N RE Q UE S T E D O F C O UNC I L: I nformational only. No action required. B AC K G RO UND: Training for elected officials occurs after every election as presented by General Counsel for the Colorado I ntergovernmental Risk A gency (C I R S A). Topics addressed include: Role of P ublic Officials, Town S tructure, Transparency, Ethical Conduct, Due P rocess, Quasi-J udicial Process and L eadership. AT TAC H ME N TS: Description Presentation Ethics Liability & Best Practices Handbook For Elected Officials Email Suggestions for Elected Officials February 1, 2022 - Page 4 of 224 Suggestions for Success (and Reducing the Risk of Liability) in Public Office Presented by Sam Light, CIRSA General Counsel February 1, 2022 - Page 5 of 224 2 Town Council Training –February 1, 2022 February 1, 2022 - Page 6 of 224 3 One: Commit to the Role of Public Official •Being a public official means your role has changed: •Citizen-government official (24/7!) •Outsider-insider •Critic/proponent-representative •In the eyes of the community, you are always a public official! February 1, 2022 - Page 7 of 224 4 One: Commit to the Role of Public Official •Whatever your role may have been to the Town previously, you are now all elected leaders –guardians –stewards –of the Town . •The protection of the Town ’s interests and assets is perhaps your most critical function now. •The guiding principle in decision making should always be, “what is the right thing for the Town ?” February 1, 2022 - Page 8 of 224 5 One: Commit to the Role of Public Official •As local government officials, part of your role is delivering good governance which, at root, is based both practically and legally on a few core concepts: •Openness & Transparency (open meetings/records laws); •Fundamental Fairness (due process); •Predictability & Evenhandedness (equal protection, certiorari claims, etc.); and •Mutuality of Respect February 1, 2022 - Page 9 of 224 6 Two: Commit to Supporting the Town Structure •Another role for everyone within the organization is to recognize and honor their role—it is important that everyone “stay in their lane” to avoid risks of liability, including the risk of personal liability! •You have protection from personal liability if you are “within the scope of employment” and not acting “willfully and wantonly.” •Means everyone needs to know and respect their “job description.” •Conduct that is “outside the scope” or “willful and wanton” can result in a loss of governmental immunity and create liability, including the potential of personal liability for you. Can also result in potential loss of insurance coverage. February 1, 2022 - Page 10 of 224 7 Two: Commit to Supporting the Town Structure •Tips to support the structure and avoid concerns around “role discipline” and “scope”: •Understand “job description” and stay within it. Respect the delegations of power and authority already made via your ordinances and organizational structure. •Your role is a group role; if you are thinking of acting individually, ask whether you have authority to act (and if you don’t, don’t do it). •Recognize that elected officials act primarily as a BODY and exercise responsibilities mainly by VOTING in a PUBLIC MEETING. •Therefore, think “We” ... not “I”! If you find yourself about to act in terms of “I” rather than “we” ...that’s a red flag. Another warning sign: He/she/they did what?! February 1, 2022 - Page 11 of 224 8 Two: Commit to Supporting the Town Structure •Role discipline (and its positive impacts) requires recognition that the governing body is not “seven councils of one” but rather one council of seven…the VOICE OF THE COUNCIL. •This commitment sometimes requires: •Setting aside a personal interest or agenda when there is lack of support. •Accepting “the Council has spoken” though one may have preferred a different outcome. •Patience in terms of waiting until a matter is “ripe” for council’s involvement. •Recognizing that others may look to hold you accountable for “making promises” or “assuring outcomes.” February 1, 2022 - Page 12 of 224 9 Two: Commit to Supporting the Town Structure •Adherence to the organizational structure is important in the area of employee relations. Except for the Council’s few direct reports, elected officials are not employee supervisors. Thus: •Don’t get individually and improperly involved in personnel issues, or engage in or facilitate activities that bypass the Town’s chain of command. •Focus appropriate Council attention on supervision of direct reports. Commit to speak with one voice to your direct reports. That is how you achieve clarity, credibility and accountability. •Remember your Charter: Section 6.4 -Relationship Of Council To Administrative Service. February 1, 2022 - Page 13 of 224 10 Three: Honor Transparency •Commit to the “openness” and other requirements of the Open Meetings Law (OML). •The “openness” clause of the OML applies to 3 or more or a quorum, whichever is less. •Requires discussion/action on public business to take place at a meeting open to the public. •And, if action will be taken or a quorum will be present, there must be timely notice—agenda posted at least 24 hours in advance. •A “meeting” includes any gathering to discuss public business, in person, by phone, or electronically (e-mail, etc.). February 1, 2022 - Page 14 of 224 11 Three: Transparency –Electronic Communications •Using email? See CIRSA Handout. The recently adopted HB 21-1025 will bring some clarity regarding application of the OML to e-mails; see, https://www.cirsa.org/news/how- the-colorado-open-meetings-law-applies-to-elected-officials-email/). •And while HB 21-1025 brings clarity re: certain non-meetings, it also confirms what the OML intends—discussions of the “merits or substance”—that is, “the essence”—of a matter of public business are subject to the OML’s openness requirement. •Be cognizant of social media risks for public officials; see https://www.cirsa.org/wp- content/uploads/2019/06/Social-Media-Use-by-Elected-Officials.pdf. •Beyond OML concerns, be cognizant of the intent of the OML –citizens expect and appreciate your full and open discussions! February 1, 2022 - Page 15 of 224 12 Four: Commit to Ethical Conduct •Ethical scandals don’t happen all that often and they can be exciting to read about—when they don’t involve us! •Become familiar with the Code of Ethics. Make it your “best friend” in resolving ethics issues. Some key areas: •Conflicts of Interest: Disclose, recuse, don’t vote, and don’t influence others. •Don’t disclose or use any confidential information for personal benefit. •Decline any gifts that seem to be connected to your service (and abide by gift rules). •Avoid situations that may create an appearance of impropriety. February 1, 2022 - Page 16 of 224 13 Five: Commit to Providing Due Process •Much of the time you’re acting as “legislators”—making policy and general rules that apply generally—or handling Council level business matters. •But sometimes you make a decision affecting a specific applicant’s property rights. For these “quasi-judicial” matters you are essentially acting as judges. In this role you have heightened responsibilities to provide “due process” and a failure to provide due process exposes you and the Town to liability. •So, be familiar with the due process “rules of engagement” that apply to quasi-judicial matters. They have a familiar source: “No person shall be…deprived of life, liberty, or property, without due process of law.” •See these CIRSA videos: https://www.youtube.com/watch?v=mPz-P7A_qIc and https://www.cirsa.org/wp-content/uploads/2020/05/Quasi-Judicial-Proceedings.mp4. February 1, 2022 - Page 17 of 224 14 Due Process -Tips for Quasi-Judges •Limit your involvement to just your participation at the Council public hearing. •Remain neutral; don't make up your mind before the hearing and don’t make prejudicial pre-hearing statements. •Don't participate if you have a prohibited conflict of interest in the matter (code of ethics). •Don't engage with one side or the other, or with your fellow Council members, before or outside the hearing (ex parte contacts). •Deliberations Matter. Make sure your deliberations are focused on, and your decision is based upon, the relevant, existing criteria and not other factors. Use Sam’s “Rule of Why.” February 1, 2022 - Page 18 of 224 15 Six: Embrace Wise Leadership •As a body, commit to a “no surprises” approach while dealing with one another and staff. Commit to meetings free of “gotcha” moments and “staff-bashing.” •Deal effectively with discord. Every public body has disagreements but discord should not drive meetings, your agenda, or how you interact with the community, each other, or staff. •Recognize that certain liability risks—in particular civil rights claims—can be exacerbated by “bad facts” that suggest (or are perceived to be based upon) retaliatory or reactive conduct. Use courtesy, tact, and diplomacy in interactions, especially in public settings. •Recognize you set the tone for the whole organization…and always keep in mind that you are the stewards of the Town’s best interests and assets. February 1, 2022 - Page 19 of 224 16 Conclusion Thank you for your public service! And for the opportunity to present. February 1, 2022 - Page 20 of 224 17 Resources CIRSA Elected Officials Handbook: https://www.cirsa.org/wp- content/uploads/2019/06/EthicsLiabilityBestPr acticesHandbookForElectedOfficials.pdf CIRSA Executive Director Tami Tanoue’s Webinar on Ethics, Liability, and Best Practices for Elected Officials: https://www.cirsa.org/wp- content/uploads/2020/05/Ethics-Liability-and- Best-Practices-Webinar-2020.mp4 Other CIRSA elected and appointed officials’ resources: https://www.cirsa.org/safety- training/elected-officials/. February 1, 2022 - Page 21 of 224 18 Introduction Colorado Intergovernmental Risk Sharing Agency •Not a commercial insurance company; CIRSA is a Colorado public entity self-insurance pool for property, liability, and workers’ compensation coverages. •Formed in 1982 by an intergovernmental agreement of 18 municipalities pursuant to CML study committee recommendations. •Total membership today stands at 282 member municipalities & affiliated entities: •278 are members of the PC pool •139 are members of WC pool •CIRSA views proactive approaches to risk management as critical member services –is a win-win. •More information at www.cirsa.org. February 1, 2022 - Page 22 of 224 19 Conclusion Speaker Bio Sam Light is General Counsel for the Colorado Intergovernmental Risk Sharing Agency (CIRSA). Previously Mr. Light was a partner with the Denver law firm of Light | Kelly, P.C., specializing in municipal and other public entity law, insurance law and defense of public entities and elected officials. Sam is a frequent speaker on municipal law and has practiced in Colorado since 1993. February 1, 2022 - Page 23 of 224 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 February 1, 2022 - Page 24 of 224 Tami A. Tanoue CIRSA Executive Director Sam Light CIRSA General Counsel Robert Widner Widner Juran LLP Linda Michow Michow Cox & McAskin LLP Christiana McCormick Michow Cox & McAskin LLP ETHICS, LIABILITY & BEST PRACTICES HANDBOOK FOR ELECTED OFFICIALS CIRSA 3665 Cherry Creek North Drive Denver, Colorado 80209 800.228.7136 www.cirsa.org CML 1144 Sherman Street Denver, Colorado 80203 303.831.6411 www.cml.org EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 5EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 5 6/4/2019 1:02:41 PM6/4/2019 1:02:41 PM February 1, 2022 - Page 25 of 224 TABLE OF CONTENTS ABOUT THE AUTHORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 FOREWORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 CHAPTER 1: Th e Oath of Offi ce: Ethics, Liability and Best Practices . . . . . . 7 CHAPTER 2: Healing Divisions on the Governing Body: Can’t We All Just Get Along . . . . . . . . . . . . . . . . . . . . 11 CHAPTER 3: Governing Bodies and Th e Outlier Syndrome . . . . . . . . . . 17 CHAPTER 4: Liability Protections and You. . . . . . . . . . . . . . . . . . . . 21 CHAPTER 5: Open Meetings and Executive Sessions . . . . . . . . . . . . . . 25 CHAPTER 6: Ethical Conduct in Local Government . . . . . . . . . . . . . . 29 CHAPTER 7: Harassment Issues: What Elected Offi cials Need to Know . . . 35 CHAPTER 8: Elected Offi cials’ Involvement in Personnel Matters. . . . . . . 41 CHAPTER 9: Social Media Use by Elected Offi cials . . . . . . . . . . . . . . . 47 CHAPTER 10: Appointment and Removal of Offi cials in Statutory Towns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 2 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 6EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 6 6/4/2019 1:02:41 PM6/4/2019 1:02:41 PM February 1, 2022 - Page 26 of 224 ABOUT THE AUTHORS Tami A. Tanoue Tami Tanoue has been CIRSA’s Executive Director since August, 2018. Her previous positions with CIRSA include General Counsel/ Deputy Executive Director and General Counsel/Claims Manager. She was previously in private practice with the fi rm of Griffi ths, Tanoue, Light, Harrington & Dawes, where she served CIRSA as its contract General Counsel for 12 years, and was City or Town Attorney for several Colorado municipalities. Prior to that, she was Staff Attorney for the Colorado Municipal League, where she represented the collective interests of Colorado municipalities. Tami is a regular speaker on local government liability topics and has written several publications on liability issues. Sam Light Sam Light joined CIRSA as General Counsel in 2018 and was previously in private practice with the Denver fi rm of Light Kelly PC, where he practiced for over twenty years in the areas of municipal and public entity law, and government liability and insurance issues. Sam has served as general and special counsel to home rule and statutory municipalities and other public entities throughout Colorado, and frequently provides training for municipal elected and appointed offi cials and staff . Robert Widner Robert (Bob) Widner is a founding partner with the law fi rm of Widner Juran LLP. Bob’s practice focuses on the general representation of local governments with a special emphasis in advising and training governmental bodies on best practices to foster ethics, transparency, and meeting effi ciency. Bob currently serves as the City Attorney for the City of Centennial. Prior to founding his law fi rm, Bob was a partner with the Denver law fi rm of Gorsuch Kirgis LLP where Bob served as the city, town, or county attorney for a wide variety of communities throughout Colorado. Linda Michow Linda Michow is a founding partner of the law fi rm of Michow Cox & McAskin LLP in Greenwood Village, Colorado where she maintains a robust local government practice. Ms. Michow is an experienced local government attorney well-versed in annexation, land use, urban renewal and zoning matters as well as in the day-to-day issues facing Colorado local governments including TABOR, elections, open records, and liquor licensing. Ms. Michow enjoys participating in educational seminars and training of the fi rm’s elected and appointed offi cials and municipal staff and is also a frequent presenter to the broader local government community on current and recurring local government issues. Christiana McCormick Christiana McCormick is an associate attorney at the law fi rm of Michow Cox & McAskin LLP. Her practice involves representation of local governments and covers a variety of areas, including taxation, land use, urban renewal, and law enforcement matters. Before joining Michow Cox & McAskin, Christiana served as a judicial law clerk to the Honorable Norma A. Sierra in Boulder District Court and completed a legal fellowship at the Denver City Attorney’s Offi ce, where she assisted with state and federal civil litigation matters primarily involving the Colorado Governmental Immunity Act and constitutional claims arising under 42 U.S.C. Section 1983. 3 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 7EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 7 6/4/2019 1:02:41 PM6/4/2019 1:02:41 PM February 1, 2022 - Page 27 of 224 If you’ve stepped up to the challenges of serving as an elected offi cial in your community, congratulations! You’re dedicating your energy, wisdom, and experience towards making your city or town the best it can be. But the job of an elected offi cial is not an easy one. Missteps can make you less eff ective, undermine your credibility, and even lead to liability. In this newly revised and expanded edition of the popular Ethics, Liability & Best Practices Handbook for Elected Offi cials, we discuss many of the issues of greatest concern to elected offi cials from the standpoint of maximizing excellence and eff ectiveness, while minimizing the risk of liability. Th e contributors have provided decades of service to municipalities, individually and collectively. We’ve tried to keep the content engaging, on-point, and light on the legalese. At CIRSA and CML, we pride ourselves on partnering with our member local governments. CIRSA off ers a wide range of risk management services, from providing property, liability, and workers’ compensation coverage, to managing claims, assisting in managing your risks, providing training to elected offi cials and staff , and consulting on virtually every liability-related topic. Founded in 1923, CML is a nonprofi t, nonpartisan organization providing services and resources to assist municipal offi cials in managing and serving Colorado cities and towns. CML works to empower Colorado cities and towns through legislative and legal advocacy, training, research and information, and leadership on matters of municipal interest. We hope you will fi nd this publication to be of value to you as you undertake the challenging and rewarding work of governing your community. Tami A. Tanoue Kevin Bommer CIRSA Executive Director CML Executive Director PREFACE 4 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 8EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 8 6/4/2019 1:02:41 PM6/4/2019 1:02:41 PM February 1, 2022 - Page 28 of 224 By: William E. Bell, MPA, ICMA-CM City Manager for the City of Montrose & former Executive Board President of the Colorado Municipal League (CML) and the Colorado City & County Management Association (CCCMA). We have all heard the old saying: “Ethics is doing the right thing when no one is watching.” Well, what about doing the right thing while everyone is watching? How refreshing it might be to sit in a nice quiet offi ce or out on a park bench with the birds chirping in the distance, while pondering our options prior to making a decision that aff ects hundreds, or even thousands of people for years to come. How reassuring it might be to run all of our ideas by a panel of experts to vet the pros and cons over an extended period prior to making our next decision. Sound good? Of course it does! However, that is simply not reality for a local government offi cial in today’s fast-paced world. But no matter the pace or pressures, this overarching point of municipal leadership remains the same: MAINTAINING ETHICAL INTEGRITY—AND DOING THE RIGHT THING—AT ALL TIMES IS A REQUIREMENT for elected and appointed offi cials alike. Our communities are microcosms of our society, and with an ever-changing demographic we are facing ever-changing expectations as to what role we should play as local government leaders. We are all facing the unique pressures of being public servants and although it is most defi nitely a worthwhile and rewarding calling for most of us, it can also be frustrating, unpredictable and complicated at times. More oft en than not, elected and appointed offi cials reach at least one point in their tenure where doubt creeps in, making them wonder about the true value of being in local government. Is it worth it? Can I handle this? Questioning oneself and our actions during times of uncertainty and chaos is normal and does not mean that we are doing anything wrong. In fact, I would argue the opposite. In working with thousands of constituents, hundreds of employees, and dozens of elected offi cials during my 16 years of managing communities, it is those individuals who were interested in self-refl ection and continuous improvement that I have truly admired for answering the call to public service. Th eirs is an example worthy of emulation and one that safeguards public offi cials from ethical missteps. We all struggle to fi nd our place when we are new to an organization, and it is a time when we are most susceptible to outside persuasion and manipulation. During times of transition, it is especially important to rely on each other’s experience and expertise and to reach out for support and guidance whenever there is uncertainty. Here in Colorado we are lucky to have several well-versed organizations such as CIRSA and CML at our disposal to off er advice on how to handle ethical dilemmas and complex situations. However, we must be willing to tap these valuable resources prior to getting ourselves into trouble. Asking for help is not a sign of weakness, but is rather an indication of care, thoughtfulness and wisdom. While there is no single blueprint to success for local government leaders, no recipe to follow to create the perfect outcomes, building strong and healthy relationships is the foundation of both achievement and sound ethical practice. Whether it is the idealistic vision shared between two newly elected offi cials, or the mutual respect and deference exhibited between a seasoned manager and his or her councilmembers; one thing is certain: the relationships connecting our local government leaders are what lay the foundation for sustainable and productive local governance in today’s society. I hope you are able to spend some time reviewing the information in this second edition of Ethics, Liability & Best Practices Handbook for Elected Offi cials and taking to heart its content. Th is material off ers a common ground from which all Colorado offi cials can work to make the communities of this great State even better. FOREWORD 5 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 9EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 9 6/4/2019 1:02:41 PM6/4/2019 1:02:41 PM February 1, 2022 - Page 29 of 224 6 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 10EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 10 6/4/2019 1:02:41 PM6/4/2019 1:02:41 PM February 1, 2022 - Page 30 of 224 CHAPTER 1 By: Tami A. Tanoue, CIRSA Executive Director & Sam Light, CIRSA General Counsel THE OATH OF OFFICE: ETHICS, LIABILITY AND BEST PRACTICES A typical oath of offi ce might go as follows: “I solemnly swear or affi rm that I will support the Constitution and laws of the United States of America and the State of Colorado, [the Charter,] the ordinances and other laws of the City/Town, and that I will faithfully perform the duties of the offi ce upon which I am about to enter.” With the passage of time since you took offi ce, does your oath have continuing meaning as an ethical commitment? Th is chapter examines the oath as a commitment to best practices in carrying out your responsibilities, and as a path to avoiding liability. We’ll focus on four key areas: allocation of responsibilities, transparency in meetings, quasi- judicial rules of engagement, and personal conduct. Honoring the Allocation of Responsibilities As in other levels of government, municipal powers and responsibilities are typically allocated among the governing body, judge, staff , and possibly others, according to charter or statutory requirements. Th us, for instance, the governing body is responsible for all legislation, the municipal judge is responsible for determining ordinance violations, and the manager/administrator and staff are responsible for administrative matters. To the extent the charter or statutory provisions set forth a clear allocation of responsibilities, respecting that allocation is part of an elected offi cial’s oath. Inappropriate involvement in administrative matters, then, could be a violation of your oath. Personnel matters are among those in which inappropriate involvement tends to occur. Th e governing body typically supervises a limited number of its own direct reports— for example, the chief administrator, judge, attorney, and perhaps a few others. As an individual elected offi cial, if you are asked by an employee who’s not one of the governing body’s direct reports to become involved in an employment issue, or if you take the initiative to become involved, that could be a red fl ag in terms of your oath to respect the allocation of responsibilities. 7 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 11EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 11 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM February 1, 2022 - Page 31 of 224 From a best practices standpoint, inappropriate involvement in personnel matters can eff ectively destroy the chain of command. While most municipal offi ces are not operated according to a military-style chain of command, some version of a chain of command is critical for eff ective functioning no matter how large, small, formal, or informal your operations are. Once you allow inappropriate involvement to occur, you have eff ectively disempowered managers and supervisors throughout the organization, and sent the message that employees are free to disregard the chain of command. Personnel matters are also a high-risk liability area. Th e more you’re personally involved, the more likely it is that your name may some day appear on the wrong end of a lawsuit, or come up in an executive session where your fellow members are assessing the risks your conduct has created. So, you can see that honoring the allocation of responsibilities by staying out of most personnel matters is a means of avoiding or reducing liability. Honoring Transparency in Meetings In local government, transparency of the governing body in its discussions and decisions is a basic expectation of the citizenry. Citizens take great interest in the goings-on of the governing body, and are quick to notice when their transparency expectations are not met. A perception that governing body members are conducting discussions secretly, that executive sessions are being held for improper purposes, or that decisions are being made in “smoke-fi lled back rooms,” can quickly erode trust and confi dence in government. Transparency in meetings means that governing body meetings are open to the public and held only aft er proper public notice, that executive sessions are strictly limited to the purposes authorized by law, and that discussions of public issues take place in a meeting setting rather than by email or in hidden locations. Is this part of your oath? Most certainly! Th e statewide open meetings law applies to all local public bodies, including city councils and boards of trustees. If you’re a home rule municipality, there may be charter provisions concerning transparency as well. Is honoring transparency in governing body meetings a best practice? It is, if you want to maintain the public’s confi dence and trust! Citizens expect and appreciate your body’s commitment to discussing and deciding diffi cult issues with full transparency. And making a commitment to transparency can also help ensure that your municipality doesn’t become Exhibit A in an eff ort to make draconian changes to the open meetings law. You surely don’t want to be held up as a bad example in the legislature. It’s happened. Is honoring transparency a liability-reducing suggestion? At CIRSA, we’ve seen our members become involved in litigation over their meeting practices. Based on our experience, the answer to that question is yes. Th ere are watchdogs out there scrutinizing you, and they will pounce on you with allegations of violations and a lawsuit if your meetings practices don’t pass muster under the law. CIRSA has open meetings/executive session defense cost coverage for member governing bodies, but by honoring the letter and spirit of the open meetings laws, you can avoid costly and potentially embarrassing litigation. 8 CHAPTER 1 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 12EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 12 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM February 1, 2022 - Page 32 of 224 Honoring the Quasi-Judicial Rules of EngagementGoverning body activities can be pigeonholed broadly into two areas: legislation and quasi-judicial decision-making. Th e rules of engagement diff er depending on which pigeonhole fi ts. For legislative matters, the rules of engagement are free-wheeling. Th ink of the state legislature when it’s in session, and the lobbying that goes on there. But for quasi-judicial matters, the rules of engagement have a basis in constitutional due process requirements: when you are making a decision that aff ects individual property rights, the constitution requires a properly noticed and fair hearing before a neutral decision maker— you. Th us, in quasi-judicial matters, you must conduct yourself similarly to the way a judge does in deciding a case. No doubt your municipal attorney has discussed the quasi-judicial rules of engagement with you. Th e attorney is trying to protect the integrity of the hearing process, the defensibility of the outcome, and your prerogative to participate as a decision-maker. Th ese rules of engagement include: • You will follow the applicable legal criteria and apply those criteria to the evidence you hear at the hearing, to arrive at your decision. • You will refrain from “ex parte” or “outside the hearing” contacts regarding a pending quasi-judicial matter. • You will not participate in decision-making in a quasi-judicial matter in which you have a confl ict of interest. Th ese rules fl ow from constitutional due process requirements, so they are most certainly a part of your oath. Following these rules is also a way to avoid or reduce liability. In quasi- judicial matters, the process by which you arrive at a decision is at least as important as the substance of the decision itself. If you’ve ensured that the process is letter-perfect, then you have eliminated a huge portion of the possible quarrels that could turn into a claim. And it’s a best practice, because following the rules of engagement will enhance the reality and the perception that all who come before you with quasi-judicial matters will be heard and treated fairly. Honoring Standards of Personal Conduct Th e way you conduct yourself in relation to other members of the body, staff , and the community greatly impacts your eff ectiveness as an elected offi cial. No matter where you are on the political spectrum, you can probably agree that politics today are infected with divisiveness and incivility. Municipal government being non-partisan, its elected offi cials should, at least in theory, be able to rise above the nastiness of partisan politics! With respect to the governing body, do all members understand that governance is a team activity? An individual elected offi cial does not have the power to accomplish anything on his or her own. Rather, the allocation of responsibilities to the governing body is to the body as a whole. Only through collaboration and consensus-building can an individual’s priority become the priority of the governing body. While the governing body is comprised of individuals and will “deliberate with many voices,” all members must recognize the governing body “acts with one voice.” 9 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 13EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 13 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM February 1, 2022 - Page 33 of 224 Has the governing body been able to “gel” as a team, or are members viewing one another with a sense of distrust? Are you lining up along the same divisions on every issue? Are you unable to disagree without being disagreeable? Perhaps some team building is in order if these things are happening. With respect to staff , is an incoming council or board viewing staff as the “enemy”? A staff exists to carry out the goals set by the governing body. Sometimes, with the changing of the guard at the governing body level, there’s an assumption that there needs to be a changing of the guard at the staff level, too. But if this staff faithfully carried out the goals of the prior governing body, why wouldn’t you expect that they will be equally able and willing to carry out the goals of the new body? With respect to the community, are public comment periods turning into “public inquisition” or “public argument” periods? Is “staff bashing” or “elected offi cial bashing” happening at meetings? Perhaps another look at your rules of order, and your approach to meetings, would be appropriate. Certainly the public has every right to appear at meetings and make complaints. It’s a sign of faith in local government that people care enough to complain! But the manner in which those complaints are made, and the manner in which you respond, can mean the diff erence between a constructive, productive exchange or a nasty, embarrassing, unproductive, or morale-crushing attack. Is the observance of personal conduct standards part of your oath? At least arguably, yes. Aft er all, the oath implies faithfully performing a role where you must work with others. And you have a fi duciary duty to act in the best interests of your municipality. It doesn’t seem a far stretch to impute to your oath a commitment to respectful conduct towards one another and the best interests of the municipality. Is it a best practice to observe personal conduct standards? It certainly seems so. Maintaining harmonious and productive working relationships with your fellow elected offi cials, staff , and the public can only increase your eff ectiveness. And keep in mind that harmony doesn’t mean you all have to agree all the time. Indeed, healthy discussion, debate, and disagreement are the engine for understanding issues and solving problems. But the idea of disagreeing without being disagreeable is important to keep in mind. Does the observance of personal conduct standards help with liability reduction? We think so. In CIRSA’s experience, turmoil at the top levels of the municipality means turmoil throughout the organization. Aft er all, you know what rolls downhill. Over and over, we’ve seen that disharmony and dysfunction at the top means claims throughout the organization. Th ese types of claims not only cost dollars to defend, but also can sap the governing body’s energy, destroy staff morale and cause reputational harm, all with long- lasting impacts. Conclusion Honoring your oath of offi ce isn’t just something you do when your raise your right hand at the beginning of your term. You can look at just about any arena in which you operate as an elected offi cial, and ask yourself, “What did I commit to do when I took my oath?” By asking and answering this question, you can stay on the path of best practices, and avoid or reduce personal liability. 10 CHAPTER 1 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 14EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 14 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM February 1, 2022 - Page 34 of 224 CHAPTER 2 HEALING DIVISIONS ON THE GOVERNING BODY: CAN’T WE ALL JUST GET ALONG By: Tami A. Tanoue, CIRSA Executive Director At CIRSA, we’re seeing more and more instances of governing bodies with intractable divisions that cut across virtually all of the body’s decision-making. Th is division is aff ecting productivity, driving away opportunity, and undermining citizen confi dence. It also lends itself to disputes and claims, with corresponding risks of liability. In this chapter, we’ll explore the causes and impacts of such divisions, and explore some possible ways to break out of the patterns that cause them. Introduction First, though, let’s be clear about the situation we’re discussing: Every governing body has disagreements, and there’s nothing wrong with that. It would be strange, indeed, if all members agreed on all issues all the time. If that were the case, why would we even need fi ve, seven, or nine members? Sometimes, disagreements create a residue of misunderstanding or hurt feelings, but that’s to be expected, too. Most governing body members are able to leave that residue behind and move on to the next matter at hand. We’re also not talking about the “outlier” issue, where one or some members of the governing body have made it their mission to separate themselves from the rest of the group, with the sole goal of embarrassing the rest and proving that they are the only “ethical,” “transparent,” or “responsive” (or insert description of your choice) member of the body, at least in their opinion. Th ere are ways to address the “outlier” issue (see Chapter 3). What we’re talking about here is a governing body in a state that we can all agree is severely dysfunctional. We’re talking about a body that’s intractably divided, and whose every debate, discussion, and decision are characterized by lingering unresolved matters, mutual contempt, and hard feelings that calcify into hardline positions. We’re talking about meetings that staff and citizens refer to as the “Th ursday night fi ghts” (or insert evening of your choice). We’re talking about meetings where members regularly yell or snipe at each other, name-call, storm out, or maybe even resort to threats or fi sticuff s. 11 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 15EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 15 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM February 1, 2022 - Page 35 of 224 And even if it’s not that dramatic, meetings may still be characterized by tension, frustration, passive-aggressive behavior, an inability to see beyond the players and focus on the merits of any issue, and maybe an angry social media post or two aft er the meeting.Whatever the level of dysfunction, destructive consequences can result. Once you “write off ” or “demonize” your colleagues (“she’s just clueless,” “he’s completely hopeless,” “I can’t even look at the guy,” “there’s no reasoning with her, so why even bother”), there may be no coming back. Why Can’t We All Get Along? A Look at Some Possible Causes “ Happy families are all alike; every unhappy family is unhappy in its own way.” ~Tolstoy “ Happy councils are all alike; every unhappy council is unhappy in its own way.” ~Tanoue Th ere are any number of reasons why the “marriage” of governing body members can go bad. Here are a few: Underlying divisions. Underlying divisions within the community may be refl ected on the governing body. Communities can have fracture lines. Th ere may be friction between the “old timer” part of the community and more newly developed areas that are full of “newcomers.” Th e interests of “old timers” and “newcomers” may not always be the same. “Newcomers” may not recognize the history and traditions of the community in the same way that “old timers” do. “Old timers” may discount the concerns raised by “newcomers,” or vice versa. Th ese diff erences may be refl ected in the makeup of the governing body. Members may have been swept into offi ce as a result of a controversial issue that divided the community. Perhaps there was a recall election. Unless the slate was wiped clean, the governing body makeup may refl ect the divisions that grew from the underlying issue. It may be diffi cult to get past that issue. New or younger members may clash with veteran members. Sentiments that “you young ‘uns haven’t been around long enough to understand this town” or “you old timers are stuck in your ways” may cause unwarranted rift s. And expressing or acting on such sentiments can contribute to a feeling that each member isn’t being accorded an equal voice in discussion and decision-making. Th at sense of inequality can also be the result of partisanship, and partisanship doesn’t necessarily have to spring from the type of political partisanship that exists at other levels of government. Of course, municipal government is avowedly and proudly non-partisan in the political sense (and by law its elections are non-partisan). But an “in crowd” and an “out crowd” based on other considerations can be a type of partisanship that’s just as problematic. Personalities. Voters aren’t judging whether the individuals they elect will be compatible with each other, so it’s possible that fundamentally incompatible personalities will end up on the body. If you have some “alpha dogs” on the body who are in constant competition, friction might be a predictable result. If others then line up behind their favorite “alpha,” division can ensue. If several “alphas” dominate the meetings, resentments may arise. 12 CHAPTER 2 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 16EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 16 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM February 1, 2022 - Page 36 of 224 Sometimes, an elected offi cial’s personality and proclivities seem to be just plain incompatible with holding elected offi ce! Politics, at the governing body level, has to be a team sport: decision-making requires collaboration and consensus. One member’s “agenda” can become the “agenda” of the body only by successful team play. A “lone wolf” who lacks the capacity or desire to be a team member is not going to be successful on the body. Add a few more “lone wolfs,” and frustration and paralysis may result. Governance is also about leadership. If the voters put someone in offi ce who is afraid to take a stand, is perennially “on the fence,” or is strictly a follower, leadership qualities may be lacking. A majority of non-leaders can create a perception of a “rubber stamp” governing body, resulting in extreme frustration for those members who are willing to stick their necks out. Preconceived personal agenda. Th ere are many good reasons why citizens run for public offi ce. However, the workings of municipal government are not always clear until well aft er you’re seated. So the agenda that a candidate ran on may collide with reality, and turn out not to be a workable agenda aft er all. Under those circumstances, clinging to the preconceived agenda is only going to sow the seeds of discord. If you have several members, each bent on pursuing only his or her own particular agenda, a fractured body can result. I once spoke with a newly elected councilmember who said his one campaign promise was to ensure that water and sewer rates were lowered. But when he took offi ce, he began to understand the economic realities of operating the town’s water and sewer system, and he saw that demanding the lowering of rates was unrealistic and fi scally irresponsible. He said he had some explaining to do to the citizens, but he wasn’t going to cling to his agenda given the realities he now understood. Th at’s a smart elected offi cial. Impacts Th e impacts of severe dysfunction and discord are manifold. Th ey include: • Lack of productivity. Th e body’s agenda may hit a standstill. Or getting through it might be slow and painful. Even if decisions are made, they may not necessarily be the best decisions. • Power transfer to tie-breaker. If you’re constantly split down the middle, then you may be transferring all decision-making power to the tie-breaker (oft en the Mayor). Is that desirable? • Financial consequences. If you’ve developed a public reputation as a dysfunctional body, then your community may be missing out on economic opportunities. Businesses want a predictable environment. Volatility may be driving them away. • Public embarrassment and loss of public confi dence. If you’re airing your discord for the camera, your viewership may be up, but public confi dence will be down! Residents want to be confi dent that their elected leaders function at a high level and in their best interests. • Driving away the best and brightest. I’ve heard people say they were reluctant to run for offi ce because they witnessed the discord and didn’t want to be a part 13 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 17EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 17 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM February 1, 2022 - Page 37 of 224 of it. So you may end up repelling, not attracting, potential leaders who could make great contributions to the community. Or you may lose great members to “burnout.” Likewise, if your community’s developed a reputation for governing body dysfunction, you may not be able to attract and keep the “best and brightest” for key staff positions. So You Think You May be Part of a Dysfunctional Governing Body? You may have experienced some jolts of recognition in reviewing the foregoing. If so, condolences and congratulations! Th e condolences are self-evident, but congratulations are also due, because recognition of a problem is the fi rst step to dealing with it! So now, what do you do? Here are some steps to consider: • See if you can gain a consensus that there’s a problem. Even if you recognize it, if no one else does, you’re not going to get anywhere. If there’s a consensus, then you’re halfway to solving the problem! • Start by talking about “values.” In working with CIRSA members experiencing severe governing body dysfunction, I’ve begun to realize that the “values” discussion is a critical fi rst step. By “values,” I’m talking about the philosophical underpinnings that you want as guides for behavior in your interactions with one another. If you can agree on these values, then additional steps are possible. If you can’t, you’re going to stall out. Such values might include: • Courtesy and civility towards one another, staff , and citizens? • Non-partisanship? • Equality of participation? Th is would include equal opportunities to be part of the discussion and decision, and equal opportunities to gain, insofar as possible, the same information at the same time as needed for good decision-making. • Acknowledgement of the role of the Mayor or presiding offi cer in presiding over meetings? Every meeting needs a presiding offi cer, and in most communities, that’s the Mayor. Th e role of the presiding offi cer must be honored if you want to have orderly, productive, and effi cient meetings. And, the presiding offi cer must embrace that responsibility. If there’s no acknowledgement of this fundamental need, then you won’t get anywhere. • Engagement? Th is includes a commitment to be prepared for meetings, to arrive on time, to stay for the whole meeting, to give your undivided attention during the meeting, to participate in decision-making, and to be absent no more than necessary. • Others? • Norms or rules of conduct. If you can form a consensus around values, you’re close to the point where you can discuss (and, it’s hoped, agree upon) the norms or rules of conduct that you want for the body. Th e content of your norms or rules won’t be discussed here, because they’ll be specifi c to your community and the values that serve as the jumping-off point for them. It’s worthwhile to look at 14 CHAPTER 2 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 18EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 18 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM February 1, 2022 - Page 38 of 224 examples from other communities around the state and nation, but it’s important to develop your own norms or rules from the ground up with your values as the foundation, so there’s buy-in. Why rules OR norms? It’s because the level of formality to be accorded really depends on your governing body’s needs and desires. If you have members whose attitude is “Rules? We don’t need no stinkin’ rules,” then perhaps a soft er approach of agreeing on “norms” of conduct may be a good starting point. On the other hand, you might see reasons to elevate the adoption process by using a resolution or even an ordinance. In Despair? You Can Still Help You may feel your governing body will never come together to recognize the problem, much less move on towards seeking solutions. Should you give up? No! Th ere are still things you can do as an individual. If enough individuals on the body do these things, then perhaps there will be an opening to go further! Suggestions for individuals include: • Assume good faith and best intentions on the part of everyone on the body. Some smart person once said that we judge ourselves by our intentions, and others solely by their actions. Th is perceptual gap can lead to misunderstandings and unfounded assumptions. Let’s give everyone the same benefi t of the doubt we give ourselves, by assuming that they, too, are acting on the basis of honorable intentions. • Listen more than you talk. Do your best to see and understand things from the perspective of others. Ask questions before reaching your own conclusions, and repeat back what you think you’re hearing from others, so that you know you’re on the same page. Listen for points of agreement, and emphasize and build on them. • Try to meet others more than halfway. If everyone only goes so far to try to bridge the gaps, then you may never meet in the middle. Sometimes one person’s generosity in going more than halfway is the catalyst for breaking down misunderstandings. • Use the postures, tone, and body language of respect and engagement. Do this even if you’re not “feeling it”; “acting as if” can be helpful in bringing a hoped- for harmony closer to reality. Make sure your body language and tone of voice aren’t inadvertently communicating something you didn’t intend. Keep your voice DOWN, even if others are starting to yell. Avoid the hair-trigger, knee-jerk, angry response. • Try some things to break down barriers. Maybe switch up positions where you sit on the dais. Suggest a pre-meeting dinner; breaking bread together can be a way to get people talking (make sure you have a “no-business” rule in eff ect). Team-building, especially in a retreat setting, can be productive. An outside facilitator or mediator might be helpful in identifying issues that are hard to see from the “inside.” 15 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 19EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 19 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM February 1, 2022 - Page 39 of 224 • If you’re an experienced member, mentor the newbies! You have valuable experience from which newer members can benefi t. Show them the ropes, teach them your own hard-earned lessons, and model the behaviors you want them to emulate. And if you’re a new member, seek out mentors! • Acknowledge and appreciate when you see others making the same eff ort. Conclusion: “Until Next Election Do You Part.” A governing body might be characterized as a kind of arranged marriage—a marriage arranged by the citizens. If the conditions for civil and productive discourse are lacking from the start, it’s no wonder that such a “marriage” can go bad quickly. But divorce isn’t an option! So start looking at ways to improve your relationships, as individuals and as a body. And take to heart the idea that, by “acting as if,” your deepest hope for a strong, high-functioning team can come closer to becoming a reality. 16 CHAPTER 2 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 20EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 20 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM February 1, 2022 - Page 40 of 224 CHAPTER 3 GOVERNING BODIES AND THE OUTLIER SYNDROME By: Tami A. Tanoue, CIRSA Executive Director Th ose who have been working with municipalities for an extended period have observed a phenomenon that occurs at the governing body level. Let’s call this phenomenon the Outlier Syndrome. Th e Outlier is the “lone wolf” who sits on a city council or board of trustees and steadfastly refuses to act like a member of the team. Even while isolating himself or herself as the only person on the losing side of just about every vote, the Outlier manages to create havoc with the rest of the body. Th e Outlier may be obstreperous and obstructionist. Th e Outlier may refuse to recognize and respect the norms that guide the rest of the body’s conduct. Th e Outlier may position himself or herself as the only “ethical” or “transparent” member of the body. Th e Outlier’s every statement and action seems to be aimed at preserving that self-assumed distinction rather than making any concrete achievements. Sometimes, a governing body is unfortunate enough to have more than one Outlier. Have you ever experienced the Outlier Syndrome in action? We call it a syndrome because of the recognizable features or symptoms that seem to fester whenever an Outlier sits on a governing body. Do you have an Outlier on your governing body? Could you possibly be an Outlier? Should the Outlier Syndrome be viewed as an affl iction or malady? And if so, what can be done? We’ll explore these questions in more detail below. Power, Goals, and the Outlier To understand the Outlier’s impact on a governing body, let’s start with the idea that elected offi cials can only act as part of a body – a collaborative decision-making body. You can search throughout the laws governing statutory municipalities, or just about any home rule charter, and you’ll likely fi nd no powers or duties that are to be exercised by a singular elected offi cial (other than the mayor, who may have certain defi ned responsibilities). Th is means that, as elected offi cials, the only way you can get anything accomplished is to have a majority of the governing body on your side. It’s likely that each elected offi cial has an individual list of goals, goals that those who voted for you want you to accomplish. But your goals can be accomplished only if they’re part of the goals of the body as a whole. Th at means your success depends on creating a consensus 17 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 21EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 21 6/4/2019 1:02:42 PM6/4/2019 1:02:42 PM February 1, 2022 - Page 41 of 224 of the majority! And where does the Outlier fi t in on a collaborative decision-making body? Why, nowhere! Perpetually being on the losing side of a vote means that the Outlier gets nowhere on his or her goals…unless, of course, he or she feels that being an Outlier is its own reward. Are You an Outlier? Perhaps you’ve met your share of Outliers, who tend to share one or more of these characteristics: • Th ere is an element of the lone crusader in them. Th ey feel they were elected to shake up the status quo in some way. Maybe they think their predecessors were too cozy with developers, not friendly enough with the business community, too close to the municipality’s staff , not close enough to the municipality’s staff , etc. • Th ey view themselves as independent thinkers. Th ey are oft en highly intelligent, but not “people persons.” In kindergarten, their report cards might have refl ected a poor score on “plays well with others.” • Th ey take a perverse glee in being the “outsider,” relish arguments for argument’s sake, and place little value on matters like courtesy and regard for the feelings of others. • Th ey hate having to endure “soft ” discussions such as a council or board retreat, the establishment of a mission or vision statement, the development of consensus around rules of procedure or rules of conduct, a session to discuss goals and priorities, or a CIRSA liability training session. • Th ey feel they are always right, and everyone else is always wrong. Th ey feel they are always ethical, and everyone else is not. Th ey feel they are looking out for the citizens, and everyone else is not. • Initially, they may just have been unfamiliar with the ways of local government, and needed to build the skills to work eff ectively in a new environment. One or more gaff es may have caused them to be pegged as Outliers and treated accordingly, initiating an unhealthy Outlier dynamic. • Th ere may have been some explosive moments in private or public with the Outlier’s colleagues, or indeed, the colleagues may have made some attempt at an “intervention.” Th ese observations may or may not be totally on the mark. But one characteristic of the Outlier cannot be denied: he or she is seldom on the prevailing side of a vote, and is oft en at loggerheads with the rest of the body. Do you think you may be an Outlier? If so, you might examine what your goals as an elected offi cial really are. Do you want to have a list of concrete accomplishments at the end of your term? Or will it be accomplishment enough to have been the “loyal opposition”? If the former, then your behavior may be working at cross-purposes with your goals. If the latter, really? Will the people who voted for you be satisfi ed with that accomplishment? Will you? 18 CHAPTER 3 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 22EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 22 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM February 1, 2022 - Page 42 of 224 Is the Outlier a Problem for the Rest of the Body? For the Municipality?Most people who’ve had to deal with an Outlier would say that yes, the Outlier is a problem! How? Well, here are some ways: • Anger and frustration build when a council or board has to deal with an Outlier, siphoning away energy that could be spent on more positive endeavors. Th is is a particular problem if tensions have built to the point that confrontations have begun to occur. No reasonable person wants to attend or view a council meeting and have a hockey game break out! It may be entertaining, but mostly, it’s embarrassing to the governing body and to the community. • Healthy teams seek to build a sense of camaraderie and cohesiveness. Th at’s not entirely possible when there’s an Outlier. It’s not healthy to build a team around a shared hatred of one of its own members, and most reasonable people would prefer not to have that happen. • Th e Outlier’s perspective tends to be oppositional. From a liability standpoint, such a perspective is risky. If you’re taking positions on an oppositional basis, are you really meeting your fi duciary duty to look out for the best interests of the entity? • A disharmonious governing body is a dysfunctional governing body. It’s been CIRSA’s experience that liability claims thrive in an environment of disharmony and dysfunction. • Your staff members are aff ected by the Outlier Syndrome, too. From the staff ’s perspective, seeing dysfunction on the governing body is a little like watching discord between one’s own parents. It’s unsettling, distressing, and morale- crushing. • Most importantly, it’s a shame for the governing body to lose a potentially valuable contributing member. In a worst case scenario, the Outlier becomes completely disempowered as he or she is ignored and marginalized. But this means that the body isn’t running on all cylinders, and is deprived of the valuable perspectives that the Outlier might otherwise bring. Ultimately, the voters, and the community, are the losers. Dealing with the Outlier Syndrome You can’t cure an affl iction until you recognize it. And you can’t recognize what you haven’t named and defi ned. If your municipality is affl icted with Outlier Syndrome, you’ve taken the fi rst steps towards a cure by naming, defi ning, and recognizing it! Here are some other steps you might consider. • Confront the issue forthrightly and compassionately in a neutral environment. A council or board meeting is likely not a neutral environment! Perhaps the matter could be discussed as one item on a retreat agenda. Be prepared with specifi c examples of how the Outlier has negatively impacted the body. 19 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 23EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 23 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM February 1, 2022 - Page 43 of 224 • Consider addressing the issue in the context of a larger discussion about governing body rules of procedure or rules of conduct. Th e “norms” that guide members’ interactions with one another may be obvious to some but not all, especially to newer members. Th ose norms could be part of the discussion, and the process of articulating them can facilitate a consensus to honor them. • Consider bringing in an outside facilitator to assist you. A governing body is a bit like a marriage that’s been arranged for you by the citizens! Th ere’s nothing wrong with getting some outside help for perspective and to fi nd solutions. If you think you might have the Outlier label pinned on you, consider these suggestions: • First, get a reality check. Find out how you’re being perceived by your peers. It may be very diff erent from your own perception of yourself. Ask each of your colleagues to give you a frank assessment. • Check your motivations. If you have concrete goals you want to accomplish as an elected offi cial, you must accept that success in your position can’t happen without collaboration and consensus building. Th ere is nothing that you can accomplish alone. So set a goal to be on the “prevailing” side…indeed to bring others over to establish a “prevailing” side. • If you’ve already burned some bridges, understand consensus-building can’t happen without mutual trust, respect, and a sense of cohesion. Th ese will take time to build. Look for a retreat or other opportunities to clear the air and start fresh. • Use staff as a resource! Your manager or administrator wants nothing more than to assist newly elected offi cials in learning the ropes, and understanding the best time, place, and approach to raising issues. Don’t get off on the wrong foot with blunders that might peg you as an Outlier. What if all eff orts to deal with the Outlier Syndrome fail? Well, it might be time for the rest of the governing body to cut its losses and move on. Don’t continue to agonize over the Outlier and his or her impact on the body’s functioning. Continue to accord the Outlier the same opportunities to participate in discussion and decision-making as any other member, but don’t allow the Outlier to keep pushing your buttons. Remember, arguments and confrontations require more than one participant. You may need to simply say “thank you” or move on to the next point of discussion. Ultimately, the responsibility for putting an Outlier into offi ce rests with the citizens, so there’s only so much you can do. Try to go about your business without having the Outlier become the dysfunctional center around which the rest of you swirl. Conclusion Governing body members don’t all have to be in lockstep, or think and behave in the same way. On the contrary, diversity of thinking, styles, opinions, experiences, and approaches are healthy and necessary for a collaborative decision-making body. Th ere is truly a collective wisdom that comes forth when many diverse minds work together on common goals. But the Outlier Syndrome is detrimental to a high-functioning governing body, and therefore, to the community. If your governing body is affl icted with the Outlier Syndrome, it’s time to do something about it! 20 CHAPTER 3 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 24EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 24 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM February 1, 2022 - Page 44 of 224 CHAPTER 4 LIABILITY PROTECTIONS AND YOU By: Tami A. Tanoue, CIRSA Executive Director & Sam Light, CIRSA General Counsel Are you acquainted with the protections you have through your entity’s membership in the CIRSA property/casualty pool? In this chapter, we provide you with a brief introduction to the two key coverage parts of the liability policy that apply to you as elected offi cials of CIRSA member entities.1 What Liability Coverages do We Have? General Liability and Auto Liability Coverage applies to claims for bodily injury, property damage, and auto liability, among others. Th is is the coverage part that pertains to most allegations of “hard” injuries, such as an allegation of physical injury to a person or to tangible property. Th us, for instance, this coverage part would respond for an auto accident while you’re driving your entity’s vehicle on public entity business. Th is coverage part also includes law enforcement liability coverage. Public Offi cials Liability Coverage applies to “wrongful acts” you are alleged to have committed. Th is coverage part applies to allegations of civil rights violations, improper activities concerning employment practices, and violations of federal and state law. Th us, for instance, this coverage part would respond when someone claims that he or she has suff ered employment-related discrimination, harassment, or a violation of constitutional rights. Who’s Covered? “Covered Parties” under the policy include, of course, your entity as a member of CIRSA. Any elected or appointed offi cial, trustee, director, offi cer, employee, volunteer, or judge of a CIRSA member is also considered a covered party. So is each governing body, board, commission, authority, or similar unit operated “by or under the jurisdiction of” a member entity. Th us, elected offi cials, board and commission members, appointed offi cials, employees, and even authorized volunteers of your entity are all considered covered parties. 21 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 25EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 25 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM February 1, 2022 - Page 45 of 224 What Limits of Coverage do We Have?2 • For general liability and law enforcement liability, the coverage limit is $10,000,000 per claim/occurrence. • For auto liability, the coverage limit is $5,000,000 million per claim/occurrence. • For public offi cials’ liability, the coverage limit is $10,000,000 per claim/ occurrence, subject to an annual per-member aggregate of $10,000,000. Defense costs are included in these limits. Th ere is also a member-selected deductible that applies to each claim/occurrence. Members have chosen deductibles that vary from $500 to as much as $250,000 per claim/occurrence, so you should check with your own CIRSA contact to fi nd out what your entity’s deductibles are. What Key Exclusions do We Need to be Concerned About? Th ere are several exclusions of concern, and a few are highlighted here. Th ese exclusions are universal in most liability policies. Th e “willful and wanton” exclusion is probably the exclusion of greatest concern to elected and other public offi cials. Th is exclusion applies to both coverage parts of the liability policy, and states that coverage does not apply to any loss arising out of the actions of any elected or appointed offi cial, trustee, director, offi cer, employee, volunteer or judge of a member entity when such acts or omissions are deemed to be willful and wanton. And remember, you are a “Covered Party” only while in the performance of your duties for the member entity, and acting within the scope of your authorized duties for the member entity. As you probably know, the Colorado Governmental Immunity Act’s protections are lost when you are determined to have been acting outside the “scope of employment,” that is, outside the course and scope of your authorized duties as an elected offi cial. But such conduct has a double consequence: the loss of your liability coverages through CIRSA. Th is is the reason that our public offi cials’ liability training places a heavy emphasis on the need to understand your “job description” as an elected offi cial, and the need to stay within the parameters of that “job description.” Staying within the “scope of employment” is also important to lessening your risks of liability where federal civil rights claims are concerned. You probably know that, under 42 U.S.C. Section 1983, you can be sued for a civil rights violation in your individual or offi cial capacity. An individual capacity suit is one that alleges that you violated someone’s constitutional or other federally protected right while acting under the auspices of your public offi ce. (An offi cial capacity suit, on the other hand, is a suit against the entity, rather than you individually.) A fi nding of individual liability in a Section 1983 suit essentially means that you’ve violated a clearly established constitutional or statutory right of which a reasonable person should have been aware, and that your conduct was unreasonable. Such conduct can fall within the “outside the scope” exclusion; violating someone’s civil rights is likely not within the “job description.” Th us, elected offi cials need to be especially cautious about conduct that could be actionable as an intentional civil rights violation. 22 CHAPTER 4 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 26EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 26 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM February 1, 2022 - Page 46 of 224 Th e sexual harassment exclusion is another exclusion that has impacts on claims based on an individual offi cial’s conduct. Th is exclusion to the Public Offi cials Liability coverage part applies to sexual harassment claims. Let’s say that a sexual harassment claim is made both against the entity, for failure to deal eff ectively with sexual harassment in the workplace, and against the harassing employee or volunteer. Under this exclusion, the entity will probably be covered. However, with respect to the individual offi cial, employee, or volunteer, the entity will have the option to direct CIRSA to defend or not defend the individual. Th us, if the entity so directs, the individual will be left out in the cold as to any defense of a sexual harassment claim against him or her! And in any event, even if the entity directs CIRSA to provide a defense, any liability imposed on the individual based upon a fi nding that harassment occurred would not be covered through CIRSA. Th e sexual abuse exclusion operates in a similar fashion. Th e punitive or exemplary damages exclusion is also pertinent in the context of an individual offi cial’s conduct. Punitive or exemplary damages can be awarded in circumstances where an individual’s conduct is willful and wanton in the disregard of someone’s rights, or callously indiff erent or motivated by evil intent. Th e purpose of punitive damages is, as the term suggests, to punish a wrongdoer for such egregious conduct. Because the punitive eff ect would be considerably blunted if an insurer were available to cover a punitive damages award, punitive damages are deemed uninsurable by the appellate courts of many jurisdictions, including Colorado. Consistently with this judicial position, the CIRSA liability policy contains an express exclusion for punitive or exemplary damages. Th e breach of contract exclusion can be pertinent to the activities of governing bodies. Governing bodies approve a wide variety of contracts, and sometimes are alleged to have dishonored them. It is not the intent of a liability policy to cover the kinds of liability that can arise when someone alleges a breach of contract, so there is an exclusion for the breach of an express or implied contract. Th is exclusion does not apply when a claim is based upon an allegation by an offi cial or employee of wrongful termination of employment. Th e condemnation/inverse condemnation exclusion can be relevant to a land use action taken by a governing body. A landowner may claim that all or a portion of his or her property was “taken” by governmental action, or that vested property rights were impaired by governmental action. Th ese types of claims, involving the value of private property, are not covered. As you can imagine, liability policies aren’t suited to cover these types of claims, because they would require insurers to try to underwrite the risk of having to pay for the property values of privately owned real estate throughout the state! Th e bonds or taxes exclusion applies to any liability based upon or arising out of the issuance of bonds, securities, or other fi nancial obligations, or taxes, fees, or assessments, or the collection, retention, or expenditure of funds. Th us, when a claim is made of an improperly levied tax, or retention of funds in violation of the Taxpayer’s Bill of Rights, or impropriety in the issuance of bonds or other fi nancial obligations, this exclusion would apply. 23 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 27EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 27 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM February 1, 2022 - Page 47 of 224 What Else Should You Know About Coverage Issues?A lawsuit against you may involve one of several responses from CIRSA. We may determine, based on the allegations, that we owe you an unconditional duty of defense (i.e., the assignment of a defense attorney) and indemnity (i.e., covering any judgment or settlement). Or we may determine that none of the allegations invoke any duty of defense or indemnity, and send you a denial letter. Sometimes, though, a suit will contain a mixture of covered claims and uncovered/potentially uncovered claims and, in this case, we will defend you under a “reservation of rights.” A “reservation of rights” letter will be sent telling you of the areas where there may be no coverage, and reserving our right not to indemnify you, and our right to terminate your defense (and potentially seek reimbursement of legal fees paid on your behalf) should circumstances warrant. One or more CIRSA defense counsel will be assigned in circumstances where we fi nd that there is a duty to defend. In some cases, a single attorney can represent multiple defendants; however, in cases where defenses may be inconsistent between or among the covered parties, or other circumstances for a confl ict of interest may exist in representation, we will assign multiple counsel. CIRSA-assigned defense attorneys, although paid by CIRSA, owe their duty of loyalty to you, their client. We hope that you never have to delve into the details of these coverages in the context of an actual claim against you, but it’s a good idea to be familiar with the broad outlines of those coverages. As always, if you have questions, please contact CIRSA. Footnotes: 1. Th is is only a summary of certain provisions of the CIRSA liability coverage documents. Th e language of the applicable coverage document must be reviewed for a complete and accurate understanding of the applicable coverages, and the application of the coverage document to any specifi c situation will require the advice of your entity’s attorney. 2. Please refer to the Declarations pages of the Liability Coverage form for more specifi c information on the limits and sublimits for all coverages. 24 CHAPTER 4 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 28EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 28 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM February 1, 2022 - Page 48 of 224 CHAPTER 5 OPEN MEETINGS AND EXECUTIVE SESSIONS By: Tami A. Tanoue, CIRSA Executive Director & Sam Light, CIRSA General Counsel At CIRSA, we’ve seen a steady stream of claims against our members for alleged violations of the open meetings law in the conduct of meetings and executive sessions. Th ese types of claims are usually excluded from most commercial insurance coverages. However, CIRSA provides some defense cost coverage for claims alleging executive session violations by governing bodies. In this chapter, we’ll go over the basics of the open meetings law and summarize CIRSA’s coverage for allegations of open meetings violations. The Open Meetings Law Under the Colorado open meetings law, C.R.S. Section 24-6-401 et seq. (COML), it is “the policy of this state that the formation of public policy is public business and may not be conducted in secret.” Note this statement’s focus on the formation of public policy. Th us, the law intends openness in the policymaking process, and councils and boards are well-served by honoring not only the letter of the COML but the spirit of this purpose statement. Th e core requirement of this law is that all meetings of a local public body (a term which includes the governing body and other formally constituted bodies of a public entity), at which public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times. “Full and timely notice” must be given of all meetings. Th e COML deems this requirement to have been met if notice of the meeting is posted at least 24 hours prior to the holding of the meeting; however, your charter or local ordinances may require posting further in advance. Th e notice shall include specifi c agenda information where possible. No action taken at a meeting is valid unless it meets the requirements of the open meetings law. A “meeting” under the open meetings law includes “any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication.” Th ere are a few exceptions to this core requirement of public openness, and a properly convened executive session may be held to discuss matters that fall into those exceptions. 25 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 29EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 29 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM February 1, 2022 - Page 49 of 224 Some of the more commonly arising subjects that are proper matters for an executive session include: • Th e purchase, acquisition, lease, transfer, or sale of any real, personal, or other property interest; • Conferences with an attorney for the local public body for the purposes of receiving legal advice on specifi c legal questions; • Certain personnel matters; and • Determining positions on matters that may be subject to negotiations, developing strategy for negotiations, and instructing negotiators. Th e open meetings law should be reviewed in its entirety for all of the applicable legal requirements, and legal advice should be obtained on its meaning. Home rule municipalities may have their own meeting and executive session procedures established pursuant to their home rule powers; this discussion is not intended to cover the variances in local practice in home rule municipalities. Th e “courts of record” of the state have jurisdiction to issue injunctions to enforce the purposes of the open meetings law. Any citizen of the state may apply for such an injunction. Th e open meetings law states that, in any case in which the court fi nds a violation of the law, the court shall award the citizen prevailing in such action his or her costs and reasonable attorney fees. In addition, a citizen may apply to the court for access to the record of an executive session; if the court determines, aft er listening to the record, that the local public body engaged in substantial discussion of any matters that were not proper subjects for an executive session, or took formal action while in executive session, then the record may be made accessible to the public. Executive Session Coverage Through CIRSA Defense costs coverage for executive session claims is provided to CIRSA property/ casualty members by way of an amendment to the “non-monetary damages, fi nes or penalties” exclusion in the public offi cials liability section of the coverage document. Th is coverage is subject to the following terms: • It applies only to reasonable attorney’s fees and reasonable and necessary costs included in the defense of an action brought solely under C.R.S. Section 24-6- 402(9) of the open meetings law. • It applies only to such an action brought against the member’s governing body; subordinate boards and commissions holding executive sessions do not have this coverage. • It does not apply to any plaintiff ’s attorney fees or costs that are assessed against the member as a result of losing such an action. Such fees and costs must be borne by the member. • Th ere is a sublimit for this coverage that is shared with certain other non- monetary defense coverages. Th e sublimit is $10,000 any one action, subject to a $30,000 annual aggregate per member. Th e member deductible does not apply to this coverage. 26 CHAPTER 5 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 30EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 30 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM February 1, 2022 - Page 50 of 224 • Submitting an executive session claim to CIRSA is optional with the member; the member may choose to defend such a claim itself. If a member wants to avail itself of this coverage, the claim must be submitted to CIRSA, for handling by CIRSA-assigned defense counsel, at the time of commencement of the action. A Few Suggestions Th e risks of open meetings violations can be greatly reduced by favoring transparency and using caution in cases of uncertainty. Aft er all, the courts interpret the rules and will resolve doubts in favor of openness. Toward that end, elected and appointed offi cials should be cognizant of when their discussions will trigger open meetings requirements, so that violations can be avoided. To avoid claims of improper notice, a full meeting agenda should be timely posted, and the body and staff alike should avoid adding substantive items to the agenda at the meeting (as claims and distrust can result from such surprises). Of course, claims of executive session violations could be avoided entirely by never having an executive session! However, this may be an unrealistic goal because, as discussed above, there is a legitimate need for confi dentiality in some matters. But consider the following: • Hold executive sessions to the absolute minimum necessary to protect legitimately confi dential matters. • Confi rm with your city or town attorney that the proposed subject of the executive session is authorized under the law. Th e statutory bases for having an executive session are specifi c and narrowly construed, and bodies should resist eff orts to pound a square peg in a round hole in searching for authority where it does not exist. • Utilize an executive session “script” to help guide you in the proper procedures for convening an executive session. CIRSA members may obtain a CIRSA sample by contacting saml@cirsa.org. • When participating in an executive session, be vigilant of yourself and others to make sure that the discussion doesn’t stray from the specifi c subject that was announced in the motion to go into executive session. Participants in the executive session must commit to “stay on topic” and not stray from the specifi c subject. • Make sure you keep an electronic record of each executive session as required by the open meetings law. Th e only exception to the recording rule is an executive session for an attorney-client conference; these sessions should not be recorded. • Stay out of the loop on personnel matters when feasible. One of the more common reasons for holding an executive session is the discussion of a personnel matter. However, if the employee who is the subject of the executive session so demands, the discussion must be done in public. Moreover, personnel matters that are not personal to a particular employee are not proper subjects for an executive session (unless some other lawful basis for holding an executive session applies). Th ese and other complexities of the “personnel matters” basis for holding an executive session can be avoided if your personnel policies have been set up in a manner that delegates most personnel matters to your staff . 27 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 31EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 31 6/4/2019 1:02:43 PM6/4/2019 1:02:43 PM February 1, 2022 - Page 51 of 224 • If you have to take one of your own governing body members to the “woodshed,” don’t do it in an executive session. Some years ago, the “personnel matters” basis for holding an executive session was amended to state that executive sessions are not permitted for discussions concerning any member of the local public body or appointment of a person to fi ll a vacancy on the local public body. Th us, the idea that the governing body can convene in executive session to discuss one of its own members as a governing body “personnel matter,” is no longer viable. • If the confi dentiality of a matter is such that it warrants an executive session, then be sure to honor that confi dentiality once the executive session is over, until and unless public discussion of the matter becomes legally permissible. Don’t act outside the scope of your legal authority as an individual member of the governing body to waive confi dentiality on your own. If the executive session concerns negotiations or other matters where some information will be shared with third parties in follow up to the session, ask “Who are our spokespersons?” and “What information will we share at this time?” and honor the answers arrived at in the session. Conclusion Open meetings missteps are hard to overcome in terms of maintaining your constituents’ trust in you. Further, each and every executive session your entity holds exacts a price in terms of expectations of open government and, if done improperly, can subject your entity to claims. By complying with the strict requirements of the open meetings law, keeping executive sessions to the minimum necessary, and observing all of the formalities for holding meetings and executive sessions, you can keep that price low and public confi dence high. 28 CHAPTER 5 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 32EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 32 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM February 1, 2022 - Page 52 of 224 CHAPTER 6 ETHICAL CONDUCT IN LOCAL GOVERNMENT By: Robert Widner, Widner Juran LLP Introduction Citizens have a right to expect ethical behavior from local government offi cials. In the municipal context, “ethical behavior” generally means the conduct of public business in a manner that will preserve or restore the public’s trust in government. In many instances, local government offi cials are unaware of the rules and guidelines governing their offi cial behavior. Th is chapter outlines a basic regulatory framework for ethical behavior for local government offi cials and advocates on the premise that limited but enforceable local regulation is necessary to protect the public trust. Th e fi rst part of this chapter focuses upon “what” ethical activity should be regulated at the local level. Th e second part focuses upon “how” local ethical standards should be enforced. Why Regulate Local Ethics? Both media stories and national studies of local government decision-making highlight the need for regulation of ethical behavior by local government offi cials. Unfortunately, ethical violations do occur at all levels of government and may range from the use of a public offi ce to help a friend secure special treatment from the government to corruption, self-dealing, or just plain poor decision-making. Although the vast majority of public offi cials ably conduct offi cial business without ethical missteps, a single publicized violation can cast a cloud upon the entire government organization and raise suspicion that other public offi cials are engaged in similar misconduct. Simply put, ethical violations erode public trust. Colorado state law attempts to describe appropriate standards of conduct for local government offi cials in Title 18, Article 24 of the Colorado Revised Statutes. Th e state law fails in many respects to articulate clearly the standards for ethical behavior or to defi ne key statutory phrases, such as what constitutes “personal or private interest.” State law further fails to serve the needs of local government by delegating the enforcement of alleged local ethical violations to the local district attorney’s offi ce. Th is delegation oft en proves ineff ective as it requires district attorneys to divert their limited resources from the enforcement of criminal conduct to the investigation and enforcement of 29 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 33EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 33 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM February 1, 2022 - Page 53 of 224 state misdemeanor ethical misconduct. Moreover, enforcement of statutory standards of conduct against elected public offi cials by elected district attorneys can—fairly or unfairly—lead observers to assume that politics, rather than justice, will dictate the outcome. In addition to state statutory law, in 2006 the Colorado voters enacted Amendment 41, a constitutional citizen initiative. Amendment 41 was codifi ed into Article XXIX of the Colorado Constitution. Th e purpose of Article XXIX was to establish new statewide rules governing the receipt of gift s and other considerations by government offi cials. It also allows a state independent ethics commission to hear complaints, issue fi ndings, and assess penalties in connection with ethics issues arising under Article XXIX and under any other state standards of conduct and reporting requirements. Th e state’s independent ethics commission has proven a less than eff ective means of addressing ethics at the local level due to lengthy hearing timelines and the need for local offi cials to defend conduct in a state tribunal located in Denver using state, and not locally, created and imposed ethics regulations. Of signifi cant importance to the creation of local ethics regulation, Article XXIX includes an explicit exemption which limits the state’s independent ethics commission’s jurisdiction: Home rule municipalities that have enacted local ethics codes which address the topics of Article XXIX are not subject to the jurisdiction of the independent ethics commission. Municipalities may overcome these state statutory and constitutional shortcomings through local regulation and local enforcement of ethical behavior. Eff ective local regulation of public offi cials’ ethics necessarily involves two distinct elements. Th e fi rst is a set of clearly written directives identifying what constitutes unacceptable or unethical behavior. Th e second is a process for enforcing the written directives in a reasonable, fair, and effi cient manner.1 What Should be Regulated? Th e most common problems with local rules of ethical conduct are vagueness and overbreadth. Sweeping general statements such as “city offi cials should comport themselves at all times in a professional manner” are too vague to help either the offi cials or their constituents understand what is and is not acceptable. Likewise, regulations that attempt to set standards for the offi cials’ personal life may seem admirable, but are really beyond the scope of good ethical regulation. Consequently, any set of ethical regulations should focus on the conduct of public offi cials while performing their public duties and should be specifi c enough to clearly defi ne what constitutes an ethical violation. Engaging in criminal conduct while in the course of one’s public responsibilities should always be an ethical violation. However, criminal acts committed by public offi cials outside of their offi cial role and in their private capacity are best left to local law enforcement or, as discussed below, the public’s right of recall. It may be true that a public offi cial’s criminal activity unrelated to public offi ce can still undermine public trust, but if your ethical code provides that “any felony or misdemeanor criminal activity” committed by a public offi cial constitutes an ethical violation, are you prepared to sanction a board or council member who receives a jaywalking ticket? A criminal act committed by a public offi cial in his private life will typically only call into question the qualifi cations of that particular public offi cial to serve the public. To that end, 30 CHAPTER 6 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 34EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 34 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM February 1, 2022 - Page 54 of 224 state law provides a remedy in the right of recall, a process by which the voters can decide whether that individual should continue to serve. Local ethical regulations, however, should avoid putting members of the municipal governing body in the role of overseeing and enforcing the private activities of one of their own. It is also customary, and a good idea, for local ethics regulations to incorporate as an ethical violation any failure of the public offi cial to adhere to important provisions of the municipal charter or ordinances, such as provisions that prohibit elected offi cials’ interference with the city manager’s supervisory role over city employees. In addition, ethics regulations should prohibit: • the intentional disclosure of confi dential governmental information; • the acceptance of gift s of substantial value; • the misuse of public resources or public equipment; and • engaging in contractual relationships for the personal benefi t of the public offi cial and/or the offi cial’s relatives or any business in which the offi cial has an interest. In summary, local ethical regulations should prohibit the conduct that will most directly impair the public’s trust in the local government organization as a whole. If draft ed with appropriate attention to specifi city, eff ective local regulation will put public offi cials on notice of precisely what constitutes inappropriate behavior related to their public service, and will clearly inform constituents of what is expected of their local representatives. Accompanying the regulations should be well-defi ned steps for disclosure and recusal in circumstances giving rise to confl icts of interest. Finally, local codes should include terms and phrases designed to avoid vagueness and ambiguity. How Should Ethics Codes be Enforced? Ethics regulations eff ectively inform offi cials what conduct is permitted and prohibited in public service. However, without a means to enforce the ethical requirements, the regulations become largely meaningless. Creating a process to enforce ethical regulations requires careful thought. Ensuring that the regulations are enforced fairly is a paramount concern. Fair enforcement is fostered when regulations clearly articulate the requirements and expectations of every step of the enforcement action. Where a step is optional, such as whether an investigation of the ethics complaint will be performed, the criteria and procedures for determining whether the step will be employed should be clearly identifi ed and followed. Th e regulations should contemplate the need for issuing subpoenas for documents and compelling witness testimony and attendance. Th e typical process will include a complaint, the identifi cation of the hearing body or hearing offi cer, an initial review, investigation, a hearing, a decision and, if appropriate, a penalty. Complaint Th e initiation of the process to enforce an ethical standard should require a written complaint or allegation of unethical conduct. Th e form of the written complaint is 31 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 35EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 35 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM February 1, 2022 - Page 55 of 224 important. Th e person charged with unethical conduct has a right to know what conduct is alleged to have violated the ethical rules. At a minimum, the complaint should include a detailed description of the action alleged to have violated the rules and citation to the ethical rules alleged to be violated by such conduct. Requiring the complaining party to verify or certify under penalty of perjury or other sanction that the allegations are truthful may aid in preventing complaints that are merely intended to harass or which might be politically motivated. Once received, the complaint must be must formally delivered or served upon the person alleged to have violated the rules. Hearing Body or Officer A critical decision for any ethical enforcement action is the selection of the appropriate hearing body or offi cer to hear the allegations, render a decision, and impose a penalty, if appropriate. Th e enforcement regulations should identify the process for selection, composition, and qualifi cations of the hearing body or hearing offi cer. Th e options are numerous. Th e hearing body might, for example, be composed of the entire governing body of the local government, a governing body subcommittee, a citizen ethics board, or an independent hearing offi cer. Moreover, the decision of the hearing body or offi cer can be considered advisory and made subject to fi nal review and ratifi cation by the governing body. Each option presents advantages and disadvantages. Th e elected governing body is a logical selection when judging the conduct of its fellow members or public servants due to its role as representing the citizens who demand ethical action by government. However, selecting the governing body or individual members of the governing body risks injecting elements of political favoritism into the ethics process, and raises complications where other members are necessary witnesses to facts alleged in the complaint. Similarly, while citizen members have a direct interest in ethical governmental action, citizens can oft entimes be politically aligned with elected offi cials or lack the experience to understand the allegations in the context of public service. Individual hearing offi cers, while perhaps free of any political motivations, may lack accountability to the citizens. Initial Review A preliminary or initial review of the complaint may be a benefi cial step. A complaint may fail to assert any actions by the public servant that constitute an ethical misstep or may assert actions that are unrelated to the servant’s public duties. In addition, a complaint may, on its face, be submitted for the sole purpose of harassing the public servant. At a preliminary review, the hearing body or offi cer can elect to dismiss the complaint, thereby saving the local government time and money in processing spurious or specious allegations. Any decision to dismiss the complaint should be made in writing and provided to the complaining party and the person against whom the allegations were raised. 32 CHAPTER 6 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 36EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 36 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM February 1, 2022 - Page 56 of 224 InvestigationFor some but not all complaints, an investigation might be warranted. If warranted and approved by the hearing body or offi cer, the investigation should be undertaken by an independent and neutral party. Th is investigation might involve the interview of witnesses and review of the evidence, and may culminate in a written summary of disputed and undisputed facts relevant to the issues to be decided by the hearing body or offi cer. Hearing For complaints that warrant prosecution, a hearing should be held to consider the complaint. In some circumstances, the hearing may include a preliminary stage whereby the hearing body or offi cer reviews the investigative report and, if appropriate, may elect to dismiss the allegations if the investigation established that the evidence does not support a fi nding of wrongdoing. Conducted in a manner similar to a judicial proceeding, the hearing should permit the presentation of evidence to support the allegations of unethical conduct and an opportunity to provide a defense against the allegations. Th e local government may employ a prosecutor to present the allegations and evidence. Any decision by the hearing body or offi cer should be made in writing to ensure an adequate record and formally conclude the proceeding. Decision and Penalty In the event that the hearing body or offi cer fi nds a violation of the ethical standards, a penalty may be in order. Obviously, the severity of the penalty can vary depending upon the seriousness of the violation. Penalties may range from a simple letter of admonition or censure, to removal of the public servant from certain duties or responsibilities, to more drastic action including removal from elective offi ce. It is exceedingly rare for ethical violations to result in a monetary fi ne. A monetary fi ne or action to void a contract resulting from unethical conduct is most appropriate where the ethical violation caused probable fi nancial harm to the community. Th ese types of violations are best prosecuted by the district attorney under the public trust provisions of state law. Importantly, removal from offi ce is a power best reserved for the governing body which holds the power of removal pursuant to the charter (for home rule municipalities) or state statutes (for statutory cities and towns). Moreover, it is important to acknowledge that elected offi cials remain accountable to the citizens and are subject to recall from offi ce should their constituents feel the ethical standards of their offi cial are lacking. For that reason, removal from offi ce should be considered only in the most egregious cases. 33 Footnote: 1 . Many home rule and statutory municipalities in Colorado have adopted local ethics regulations, ranging from comprehensive charter provisions and ordinances to a few local supplements to state law. CIRSA members can obtain examples of local ethics ordinances by contacting saml@cirsa.org. EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 37EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 37 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM February 1, 2022 - Page 57 of 224 34 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 38EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 38 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM February 1, 2022 - Page 58 of 224 CHAPTER 7 HARASSMENT ISSUES: WHAT ELECTED OFFICIALS NEED TO KNOW By: Tami A. Tanoue, CIRSA Executive Director Introduction Harassment allegations have been a media fi xture for the past few years, as the “me too” movement spreads across the world of entertainment, media, the corporate sector, and even into federal, state, and local government. In municipal government, many of us feel like seasoned veterans in dealing with harassment issues. At least in the employment arena, we know how to deal with harassment. We have the policies in place, and we take them seriously. We do regular training on the issues. We know how to undertake a fair and credible investigation when allegations surface, and we understand the need to impose appropriate consequences for well-founded allegations. But now, harassment issues are surfacing at the level of governing bodies and elected offi cials. Like an unexpected virus variant, this permutation has left some municipalities unprepared to deal with the consequences. Th e results have included ineff ective responses, public embarrassment, and loss of public confi dence. Why Should You Care About Harassment Issues at Your Level? You might be thinking that the governing body working environment is not the same as the employee workplace. You’re all co-equals, elected by and accountable only to the voters. Th e people “hired” you, and the people are the only ones who should be able to “fi re” you. You each got into this voluntarily for the love of your municipality, and not as your livelihood, and those who can’t stand the heat should get out of the kitchen. Right? Well, wrong! Let’s start by looking at your place in the municipal organization. You’re at the very top of the organizational chart and the chain of command. As such, you are a key infl uencer of the organizational climate. A recent study concludes that the organizational climate is the most potent predictor of harassment in the workplace!1 You’re setting the tone for how people throughout the organization interact with one another. If the tone you set is disrespectful, inhumane, or dysfunctional, then that behavior will be modeled and replicated throughout the organization! Do you want that? 35 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 39EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 39 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM February 1, 2022 - Page 59 of 224 Another reason you should care: the higher up in the organization a harassment issue surfaces, the more diffi cult it is to deal with. Because of legal requirements and public expectations for transparency, you must necessarily conduct most of your work in public. If you think that a harassment allegation at your level can be dealt with behind closed doors, you may be disappointed. Also, the consequence for a well-founded allegation of harassment isn’t straightforward when it comes to an elected offi cial. How is an elected offi cial to be “disciplined” by his or her peers? Concepts such as “corrective action up to and including termination” don’t necessarily translate well when applied to elected offi cials. And assuming you’ve laid out a process for dealing such allegations, who gets involved in that process? Th ose in the administrative team who normally provide you with support, advice, and assistance may well say, “sorry, this is above my pay grade,” requiring you to go outside your organization, at great expense, for help. Policies, Legal Definitions, Civil Liability Laws, and Their Limitations Th e defi nition of “harassment” diff ers from policy to policy. One common factor, though, is that harassment generally must be “severe or pervasive” in order to constitute a policy violation. Th e “severe or pervasive” standard is consistent with the U.S. Equal Employment Opportunity Commission’s (EEOC) view of off ensive conduct that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, or the Americans with Disabilities Act of 1990: the conduct must be severe enough that enduring the off ensive conduct “becomes a condition of continued employment”; or must be “severe or pervasive” enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.2 Th us, policies, as well as civil rights laws aff ording protection from harassment, set a high bar for liability. A common question, then, becomes: “well, if my conduct is short of ‘severe or pervasive,’ there’s no problem, right?” Stated diff erently, if someone’s behaving badly, but the behavior doesn’t quite hit the high bar for a policy violation or for civil liability, does that make the conduct acceptable? Another form of liability is criminal culpability. How oft en have you heard someone justifying their bad behavior in this way: “Well, I haven’t committed any conduct that could be described as criminal.” Does that make the conduct OK? Let’s think about this! In any other aspect of your work as a public offi cial, is the standard for acceptable conduct this low? When it comes to ethical or confl ict of interest issues, for example, would we be able to get by with a low bar like “well, just don’t commit a crime,” or “just don’t expose yourself or our municipality to civil liability”? No! Municipal offi cials pride themselves in meeting the highest standards of conduct when it comes to ethical issues or confl icts of interest. So why should we set such a low bar for the way we behave towards one another? And here’s another critical issue. Harassment laws are generally aimed at employment matters: employee-employee issues, supervisor-employee relationships, employer- employee responsibilities, and the like. Th ese laws aren’t designed for issues between elected offi cials, who aren’t employees, aren’t accountable to an employer, and are beyond 36 CHAPTER 7 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 40EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 40 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM February 1, 2022 - Page 60 of 224 the reach of common workplace remedies like termination, suspension, demotion, etc. Th us, you’ll run across investigations of elected offi cials’ conduct that might reach a conclusion along these lines: “Th e allegation of a hostile work environment based on sexual harassment was unfounded. Th is conclusion is reached because the Civil Rights Act of 1964 does not apply to elected offi cials.” But, does that make the conduct acceptable? Should exposure to civil liability be the standard by which conduct is gauged? Most reasonable people would not live their lives by the guideline, “I’m OK as long as I avoid civil or criminal liability.” We would want to hold ourselves to a much higher standard! And, as leaders, we certainly wouldn’t want to model such a low bar for the rest of the organization. So let’s ditch the legal parsing. Let’s focus away from the “h” word, harassment. Let’s not spend too much time arguing over defi nitions. What we need to do is to confront and articulate the expectations we should have for ourselves, and for our colleagues, in the environment in which we operate. Risk Factors for Harassment Th e EEOC has been doing some interesting work around harassment issues in recent years. Risk factors have been identifi ed that, if present, increase the likelihood that there will be harassment issues in the workplace. You can view the complete list on the EEOC’s website,3 but some of the risk factors include: • Homogeneity – lack of diversity, “currently only one minority among us.” • Workplaces where some employees don’t conform to workplace norms – “rough and tumble” or single-sex dominated workplace culture. • Cultural and language diff erences – arrival of new personnel with diff erent cultures or nationalities; segregation of personnel with diff erent cultures or nationalities. • Workplaces with “high value” personnel. • Workplaces that rely on customer service or client satisfaction. Could any of these factors apply to your governing body? For example, if diversity in terms of gender, race, ethnicity, age, and other factors is a new phenomenon on your governing body, then one might expect misunderstandings and gaff es to occur. Certainly, elected offi cials are “high value” personnel within the organization; there’s no one higher in the org chart than you! And most municipalities pride themselves on a high degree of customer service and customer satisfaction. Th ese are all things to be proud of—but they are also factors for the presence of harassment issues. So, What Can We Do? If you’ve read this far, congratulations! You’re more than halfway towards dealing with these complex issues in a positive and successful way. Th e recent work of the EEOC includes a recognition that a “committed and engaged leadership” is one of the most important factors in preventing and addressing harassment.4 So the fact that you, as an organizational leader, care about this issue is a great thing in itself. 37 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 41EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 41 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM February 1, 2022 - Page 61 of 224 First, take a look at the prevailing culture on the governing body. Are old ways of interacting with one another no longer working well? Or making some members feel like less than equal participants on the governing body? Have you had complaints or concerns raised about the behavior of one or some members? If so, it may be time to discuss the prevailing dynamics openly and honestly to start identifying the concerns. Once you know what the concerns are, then you can begin discussing how to deal with them. You can identify what types of conduct are not acceptable. You can identify the values that are important to the group. You can work towards commitments about how you will communicate and interact with one another. Th ose commitments can form the basis for norms or standards of conduct. Not everyone may end up on the same page, but the “peer pressure” brought about by the consensus of a majority is powerful! If you can get on the same page on norms or standards of conduct, it may be desirable to put them into a written document, perhaps a set of governing body rules of conduct. Th e rules can articulate the standards explicitly, so that everyone understands what is expected. A process for bringing forward concerns or complaints can be identifi ed, as well as the manner in which such concerns or complaints will be investigated. CIRSA members can obtain an example of such rules by contacting tami@cirsa.org. And very importantly, the rules can provide consequences for violations of the standards. Th ose consequences may be limited by your home rule charter (for home rule municipalities) or the state statutes (for statutory cities and towns). But even if the consequences don’t necessarily include a severe consequence like expulsion from the governing body, they are still powerful! Even a “public censure” is a powerful consequence; your wayward colleague, as well as the citizens, will understand that you take your conduct standards seriously and that violations are unacceptable. Bystanders and Peers It’s important to stress that we are all leaders, and we all have a role to play. Each of us is likely a supervisor, role model, or mentor to someone else. We may be part of a peer’s support system, sounding board, or confi dant. We may even just be a witness. And that’s where the concept of “bystander” empowerment or intervention—another concept recently embraced by the EEOC5 — comes in. Perhaps “peer” would be a better term than “bystander,” but the idea is this: that someone who doesn’t directly experience concerning behavior, but who observes it happening, can step in and make a diff erence. Th is doesn’t necessarily mean that you, as a bystander or peer, should intervene superhero-style, to swoop in and “rescue” someone that you think may be in a problematic situation. Indeed, you don’t need to expose yourself to a situation that could escalate. But what you can do is to talk to that person away from the situation: let him or her know that you saw what was happening. Say something like, “Hey, I happened to hear what Kyle said (or did) to you, and I didn’t think it was OK. Were you OK with that?” If the person responds in the affi rmative, fi ne; you can all move on. But if the person indicates that the behavior to which he or she was subjected was a problem, then think of the impacts of your intervention! First, that person knows that he or she is not alone: you are a witness. Second, you are affi rming that the behavior is not 38 CHAPTER 7 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 42EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 42 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM February 1, 2022 - Page 62 of 224 acceptable. And third, you can be of help in identifying resources for further follow-up. Bystander intervention is about empowering yourself to be part of the solution. If you’re comfortable doing so, you can talk to the person engaging in the problem behavior: “Th at joke wasn’t funny.” Or, maybe the situation calls for some kind of interruption…maybe standing in proximity will extinguish the behavior. Or, perhaps, drop something on the fl oor and create a small diversion! Th ere are other ways in which a bystander or peer can positively aff ect a problem situation. Training on this topic is available and can provide a powerful peer-to-peer tool for communicating and reinforcing workplace values.6 Although a formal complaint/ follow-up process should always be available, an eff ective bystander or peer intervention may help resolve issues without the need to escalate them into a formal process. Conclusion: It’s All About Respect In the fi nal analysis, this discussion shouldn’t be about the “h” word, harassment. It should be about the “r” word, respect. A working environment where everyone’s scrutinizing whether the harassment line has or hasn’t been crossed in any given interaction is not a good working environment. A working environment where everyone’s striving for a sense of mutual respect, trust, collegiality, and inclusion, is an environment where things are going to get done, and done well. Footnotes: 1. National Academies of Sciences, Engineering, and Medicine, 2018: Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine. Washington, DC: Th e National Academies Press. https://doi.org/10.17226/24994. 2. https://www1.eeoc.gov/laws/types/harassment.cfm?renderforprint=1. 3. https://www.eeoc.gov/eeoc/task_force/harassment/risk-factors.cfm. 4. https://www.eeoc.gov/eeoc/publications/promising-practices.cfm. 5. https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm. 6. https://hbr.org/2018/10/to-combat-harassment-more-companies-should-try-bystander-training; https://www.ocwr.gov/sites/default/fi les/compliance-bystanders.pdf. 39 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 43EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 43 6/4/2019 1:02:44 PM6/4/2019 1:02:44 PM February 1, 2022 - Page 63 of 224 40 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 44EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 44 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM February 1, 2022 - Page 64 of 224 CHAPTER 8 ELECTED OFFICIALS’ INVOLVEMENT IN PERSONNEL MATTERS By Tami A. Tanoue, CIRSA Executive Director and Sam Light, CIRSA General Counsel Introduction CIRSA doesn’t take many member cases all the way through trial. When we do, it’s usually because we expect a jury verdict in our member’s favor. But one area where we’ve sometimes been disappointed by a jury has been in the area of employment liability. CIRSA members’ experience with employment claims in the judicial system refl ects certain realities. Every juror has probably had to deal with a “bad boss” at some time in his or her working life. It’s much harder to fi nd a juror who’s had to deal with “bad employees” as a manager or supervisor. So juries are naturally tilted in the employee’s favor rather than the employer’s. Another reality is that employment litigation is extremely stressful. Careers and reputations are at stake. Th e supervisor’s and manager’s (and sometimes elected offi cial’s) every move is subjected to scrutiny, and the documents they’ve generated are nit-picked by attorneys and blown up into super-sized exhibits. One’s fate is entrusted to the decision of a group of complete strangers. Sometimes, that fate is a dire one, indeed. One mayor in New Mexico (which is in the same federal circuit that encompasses Colorado) was handed a verdict in which a jury determined that his retaliatory and discriminatory conduct in an employment matter warranted a punitive damages award of $2,250,000 against him.1 Even when the stakes aren’t that high, no one who’s ever been through employment litigation relishes the thought of ever going through it again. Th e suggestions in this chapter are intended to help you, as an elected offi cial, to minimize the chances that you’ll be caught up in employment-related litigation and, if you are, to maximize the chances of a better outcome than that faced by the New Mexico mayor. 41 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 45EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 45 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM February 1, 2022 - Page 65 of 224 Establish a Structure That Allows Delegation of Personnel FunctionsIn a word, the single most important suggestion is: delegate! Th e chances that you’ll be pulled into an employment claim, much less sued successfully, go way down if you’ve appropriately delegated the responsibility to hire, train, evaluate, supervise, manage, and discipline all but your key employee or employees. To do this, you need to have an administrative structure in place that will permit delegation, such as a manager or administrator form of government. If your entity is fortunate enough to have a manager/administrator, the governing body should take full advantage of the organizational structure this position allows. Th e manager/administrator should be the only position (except for city/town attorney, municipal judge, and similar positions) that reports directly to the governing body. All other personnel should be accountable to the organization solely through the manager/ administrator. Every organization that has more than a few employees should strive to put such a structure into place. Honor the Structure Once you’ve achieved a manager/administrator form of government, you must honor it. Th ese types of actions, if allowed, would violate your commitment to that form and waste the resources that you’ve allocated to it, and encourage dysfunction and disorder: • Elected offi cials reaching down below the level of the manager/administrator to infl uence what goes on with personnel administration below that level. • Elected offi cials reaching down below the level of manager/administrator to give orders to employees below that level on how to do their job, particularly if the orders are contrary to the established policies and/or the direction of their supervisors. • Elected offi cials permitting an employee below the level of manager/administrator to bypass his/her own supervisor and take personnel issues directly to them. Th us, for instance, if your entity has committed to a manager/administrator form, there’s no call for elected offi cials, individually or collectively, to demand the hiring or fi ring of a specifi c employee below the level of manager/administrator. Such an action raises questions of propriety from several perspectives: • Do your personnel enactments reserve any such authority to the elected offi cials? If you have a manager/administrator, your charter, ordinances and/or personnel handbook probably don’t (and shouldn’t) call for you to be involved in decisions involving subordinate employees. If you get involved in such decisions, you may be outside the scope of your authority and could get in trouble (see “Be aware of the scope of your authority” below). • What’s the reason for doing an “end run” around the manager/administrator? Do you have a “favorite” candidate for employment, or an employee who’s on your “hit list”? Why are you championing or condemning someone rather than trusting your manager/administrator to make the right decision? Do you question his or her judgment or ability to make the right choice? If so, confront that concern; 42 CHAPTER 8 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 46EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 46 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM February 1, 2022 - Page 66 of 224 don’t skirt it with an “end run.” And, if the governing body does not share your concern about the manager/administrator, don’t “end run” your governing body’s collective decisions on oversight of its direct reports. • Could what you’re doing be perceived as retaliatory? Along with all the other reasons why involvement in personnel matters can be very risky, consider the retaliation claim. Everyone is potentially in the category of persons who are legally protected from acts of retaliation. Retaliation claims are among the most diffi cult to defend. And, these kinds of claims can lead to massive liability. But oft en, it’s not the elected offi cial who seeks, in the fi rst instance, to become inappropriately involved in a personnel matter. Rather, there’s pressure put on the offi cial from outside. For instance, a department head may have curried disfavor with a segment of the citizenry because of the perceived manner in which a service or program is being carried out. Either way, though, such involvement is the wrong thing to do. Don’t be pressured by a member of the public, for instance, to interfere in a personnel issue that’s been delegated to the manager/administrator. Th at citizen’s not going to be around to help you if you get into trouble at his or her urging! Similarly, don’t give in when a subordinate employee is trying to use you to get around his or her supervisor, or when an applicant is trying to get a leg up on employment through you. Let the process unfold the way it’s meant to unfold. If you have a concern about the way the manager/administrator is handling things, address that concern directly. If you cave in to pressure to involve yourself inappropriately, though, you may be enabling someone who wants to “game the system,” or unfairly disempowering a manager or supervisor. Be Aware of the Scope of Your Authority, and Stay Within That Scope From a liability standpoint, one of the worst things you can do is to act outside the scope of your legal authority. An area where authority issues oft en arise, particularly in smaller communities, is in the “committee,” “commissioner” or “liaison” format for personnel administration. In this format, an individual councilmember or trustee is in a supervisory or oversight relationship with respect to a department, department head, or employee. Th us, a town might designate a trustee as “water commissioner,” “police commissioner,” etc. What’s troubling about this format is that it’s oft en not described anywhere in the community’s enactments, nor is the authority of each commissioner set forth in writing. Rather, this format seems to be a relic of oral history and tradition. But the lack of written guidelines means that there are signifi cant personal risks to the commissioner. What if the commissioner takes an adverse job action, such as seeking to terminate an employee? Under what authority is the commissioner acting? If the commissioner can’t prove that the action was within the scope of his or her authority, there may be consequences from a liability and insurance coverage standpoint. Th e Governmental Immunity Act, for instance, provides protections for public offi cials only when in the performance of their authorized duties. Likewise, liability coverage 43 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 47EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 47 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM February 1, 2022 - Page 67 of 224 protections through CIRSA only apply when a public offi cial is acting within the scope and performance of offi cial duties. Finally, even if there is authority on the books, this format in particular can lend itself to uncertainty over who does what—“Is this a decision for the board, commissioner or department head?” Similar questions arise when an individual elected offi cial chooses to become involved in a personnel matter in a way that isn’t authorized by the entity’s personnel enactments. Where is the authority for such involvement? If you can’t fi nd a fi rm source of authority, you may be heading for trouble. An individual elected offi cial’s inappropriate action can not only create liability exposure for the offi cial, but put him or her crosswise with the other members of the governing body. Respect the Principle That Each Employee Should Have Only One Boss Th is seems like an obvious principle that every organization should follow. You don’t want an employee confused by multiple directions from multiple supervisors. You also don’t want an employee playing one supervisor off against another. When elected offi cials become inappropriately involved in personnel matters, this basic principle is violated, and the result is chaos. If you allow yourself to become embroiled in a personnel matter involving a subordinate employee, the employee may then feel that the word of his or her supervisor can be disregarded. You may have forever undermined that supervisor’s authority, or allowed the subordinate to do so. Likewise, if you were involved in lobbying for the hiring of a favorite applicant (even if it was for good reasons), that person may always feel that you, not his or her supervisor, are the go-to person on personnel issues. Similar principles apply with respect to your governing body’s oversight of its manager/ administrator and other direct reports. Elected offi cials should recognize the council/ board is not a group of seven or other multiple number of bosses, but one boss. Th erefore, members of the body should commit themselves to speaking with one voice to their direct reports and to exercising their oversight role—e.g. performance reviews, goal setting, etc.—as a group. Even when there are diff erences of opinion as to how to address an issue with the manager/administrator, the body should arrive at its position. If the governing body does not work to speak with one voice to its direct reports, it’s undermining its credibility as a board and its ability to gain accountability at the highest levels in the organization. Th is is not to suggest that a militaristic chain of command is required in every workplace. In fact, fl exibility in reporting relationships is desirable in some situations. For instance, you wouldn’t want to lock your employee into reporting a harassment claim only to an immediate supervisor, if the immediate supervisor is the one alleged to be engaging in the harassment. But you can maintain the needed fl exibility without collapsing into the chaos that your inappropriate involvement in personnel matters will beget. 44 CHAPTER 8 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 48EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 48 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM February 1, 2022 - Page 68 of 224 ConclusionTh ere’s certainly a place for elected offi cial-level decision-making in personnel matters, but those decisions should be reserved for the high-level issues that involve the entire organization. Examples of such high-level issues could include establishing overall policies for the entity; selection, evaluation, and discipline for the council/board’s few “direct reports”; salary and benefi ts plan for the workforce; and overall goals and priorities for departments. But when these issues begin devolving into the details of hiring, training, evaluating, supervising, managing, or disciplining particular employees below the level of your direct reports, it’s time to delegate them to your manager/administrator. Footnote: 1. Th e award was later reduced to $1,500,000 but affi rmed by the 10th Circuit Court of Appeals. Hardeman v. City of Albuquerque, 377 F.3d 1106 (10th Cir. 2004). 45 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 49EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 49 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM February 1, 2022 - Page 69 of 224 46 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 50EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 50 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM February 1, 2022 - Page 70 of 224 CHAPTER 9 SOCIAL MEDIA USE BY ELECTED OFFICIALS By: Tami A. Tanoue, CIRSA Executive Director & Sam Light, CIRSA General Counsel Social media engagement has become a regular part of life. Daily, we check our emails and texts, and then probably go on to check our favorite social media sites, such as Facebook, Instagram, Twitter, and others. Local governments and their constituents are also mutually interested in connecting via social media, whether to conveniently transact business or provide timely information about everything from street closures to street festivals. So it’s no wonder that elected offi cials, too, have integrated social media into their public lives. But if you’re an elected offi cial, you should know that, because of the powers and responsibilities conferred on you by virtue of your position, your social media use has some legal dimensions that may not apply to the rest of us. Th is chapter explores a few of them. Open Meetings Law While Chapter 5 outlines the basics of the Colorado open meetings law (COML), it’s worth examining more specifi cally how its requirements can extend to your social media use. Consider this scenario: You have a Facebook page for yourself under the category of “Politician.” You post information about city happenings and resources, and welcome others to post there as well. One day, you post on a controversial topic that the council will be tackling at its next meeting, and two of your fellow councilmembers get wind. All three of you go back and forth posting about your respective views and how you intend to vote on the topic. Is this a “meeting” within the meaning of the open meetings law? Well, it seems at least arguable that it is! Remember, a “meeting” under the law includes a gathering convened electronically to discuss public business. When there are three or more members of the local public body (or a quorum, whichever is less) participating in such a gathering, that can trigger the notice and “open to the public” requirements of the law. If triggered in this type of social media discussion, how do you comply with the 24-hour “timely” posting requirement in the COML when you’re posting on Facebook? How do you meet the “open to the public” requirement? Th ese are questions for which there are not clear answers, but you see the point…discussions of public business by the requisite number of governing 47 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 51EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 51 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM February 1, 2022 - Page 71 of 224 body members can certainly take place in an electronic forum, and then these questions (and others) may come into play.Constitutional Concerns A scenario: You post about the upcoming agenda item on your Facebook page featured in the previous scenario. For some reason, the discussion on the post starts to go completely sideways, with lots of negative comments, including some hateful attacks from the citizen you defeated in the last election, and some uncalled-for memes and photos. You decide the hateful attacks aren’t helpful to the discussion—keep it positive, people!—and so you “block” your prior campaign rival from posting and you start deleting some of the particularly disagreeable comments. A few days later you ultimately decide that the better part of valor is to just delete the whole darn post. Did your act of “blocking” your rival raise free speech concerns? It may well have! Remember, the constitution provides strong protections for free speech and generally prohibits the government from censoring speech that occurs within those venues established for the open exchange of ideas on matters of public concern. Th ese principles have raised the question of whether a public offi cial’s Facebook page or Twitter account is a public forum such that commenters cannot be blocked, or their comments removed, based on their content. While the law in this area is still developing, a few courts have concluded that if a public offi cial has a social media page or feed that essentially “walks and talks” like a governmental forum, then the medium is a public forum subject to the principles regulating free speech. So, for example, where an elected offi cial designates the page as their offi cial page as a member of an elected body, uses the page to communicate with constituents as an elected offi cial about government events, and invites followers to use that page for discussion of any topics relating to the government, the offi cial cannot block persons who post critical content. Th e takeway? A social media site can be a great way to communicate with constituents but if that’s how you use your accounts, don’t block people from posting. Also in the above scenario, if you’ve decided to delete the whole darn post: Are the post, and the comments, considered “public records” within the meaning of the Colorado Open Records Act (CORA)? Again, it seems at least arguable that they are! Th e term “public records” is defi ned to include “the correspondence of elected offi cials,” subject to certain exceptions. And public records are open for public inspection and copying. Your municipality has most likely adopted a records retention and destruction schedule that governs how long various documents, including electronic documents, must be maintained prior to destruction. So, could someone request a copy of a post that was on your Facebook page under CORA? What if you deleted the post? Is there a record retention schedule that applied? Was that schedule violated when you deleted the post? More of those infernal questions for which there isn’t a clear answer…but you see the point! If there’s a chance that the posts are subject to CORA, then it might be smart to tolerate the replies you get on your post. Alternatively, make sure you have some reasonable and defensible posting rules in place so that everyone knows up front your expectations for your page. 48 CHAPTER 9 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 52EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 52 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM February 1, 2022 - Page 72 of 224 Quasi-Judicial Rules of EngagementA further word of caution on social media concerns your duties as a decision-maker in quasi-judicial matters. Consider this scenario: A site-specifi c land use application is scheduled to be considered by the planning commission on an upcoming agenda, with the commission’s recommendation to be referred to the council for fi nal action at a later date. You consider the proposed use to be an extremely controversial one. But you’re worried that it’s a bit “under the radar,” what with summer vacations, holidays, and all. Of course, proper notice has been given by the planning department, but you’re still concerned that the proposal may get a favorable recommendation from the commission without any citizen testimony. You decide to post this on your Facebook page: “Citizens, please read this IMPORTANT NOTICE! You need to know that the planning commission is going to be considering a proposal for _____ at its upcoming meeting on _____ at 7:00 p.m. As a councilmember, I am taking no position on the proposal at this time. But if you care about our community’s future, then you will want to attend this very important hearing before the planning commission.” See any problems here? You’ve certainly stated that you’re “taking no position” at this time, right? But it may appear to others, particularly the applicant, that you are opposed to the proposal and are trying to “gin up” opposition to it! Is that congruent with the “neutral decision-maker” role that you will need to take on once this quasi-judicial proposal goes up to the council? Could the applicant take the position that it looks like you made up your mind, without evidence, long before the council hearing, and therefore, you should be recused from participation? “But, but, all I’m doing is making sure the public knows about this proposal,” you protest. Well, do you do that with EVERY proposal that comes before the planning commission, or did you just happen to pick out this one for the Facebook spotlight? Th e essence of procedural “due process” rights that attach to a quasi-judicial matter is notice and a fair hearing before neutral, impartial decision-makers. With a post like this you can see how, even if your intentions may have been honorable, doubts can be cast on your impartiality and neutrality. Th ose doubts increase if your involvement goes beyond this scenario—say, for example, that you are also posting or responding to comments about the merits of the application. When it comes to social media buzz around quasi-judicial matters, remember that due process requires you to be impartial and base your decision upon evidence presented at your public hearing. Remember also that defensible quasi-judicial decisions are about good process. As part of that process you will ultimately hear the case and have the power to make the decision—at the time that it’s ripe for your body’s decision! Avoid the temptation to leap into the social media fray, as that will protect your ability to serve as a quasi-judge, and protect your governing body’s decision. 49 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 53EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 53 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM February 1, 2022 - Page 73 of 224 Some SuggestionsSocial media use by elected offi cials implicates new and evolving legal issues, and this chapter only touches upon a few of them. Th e uncertainty is real! But you can avoid uncertainty and stay on solid ground if you follow these suggestions: • Consider whether you really need to be on social media in your elected offi cial capacity. If only 23 people “like” your page, it may not be worth the hassle. And keep in mind that only a fraction of those 23 people may even be seeing your posts. • If you feel that the use of social media is a net plus and/or a service to your constituents, be extremely careful about what is posted! Stay away from discussions of items that will be or could be on your governing body’s agenda. Th ere’s a time and place for discussion of those items, and it’s most likely not social media. Stick to public service announcements, photos and posts about things you did (“It was great to meet so many of you when I volunteered at City Cleanup Day last week”), upcoming events like “Town Halls,” re-posts of City newsletters, links to articles that tout your great city, and the like. If you’re careful about what you post, you’re not going to have to confront the uncertainties of COML, CORA, and other laws. If you stick with helpful but non-controversial posts, then there won’t be much of a need to delete posts. • Be particularly careful to stay away from commenting on a pending quasi-judicial matter. Th is is where the stakes are highest! In a worst case scenario, an imprudent post could require your recusal from participating in the matter on the basis that you’ve revealed your non-neutrality, buttress someone’s constitutional claim, serve as a basis to attack the body’s decision, or all of the above. • Check to make sure you created your page under the right category. “Politician” is more accurate than “Governmental Organization.” And don’t use the offi cial city/ town logo, to avoid any implication that yours is an “offi cial” city/town page. 50 CHAPTER 9 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 54EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 54 6/4/2019 1:02:45 PM6/4/2019 1:02:45 PM February 1, 2022 - Page 74 of 224 CHAPTER 10 APPOINTMENT AND REMOVAL OF OFFICIALS IN STATUTORY TOWNS By: Linda Michow, Partner, and Christiana McCormick, Associate, Michow Cox & McAskin LLP, and Tami A. Tanoue, CIRSA Executive Director Introduction Colorado law grants elected offi cials in statutory towns the power to appoint and remove certain municipal offi cials, including members of the governing body and offi cers such as the clerk or treasurer. If you’re an elected offi cial in a statutory town, it’s important for you to have a working understanding of the rules and potential pitfalls in this area. An improper appointment or removal can not only result in disputes or claims, but also create uncertainty within the organization and a cloud over the governing body. Th is chapter provides information on appointment and removal of offi cials in statutory towns, including the fi lling of vacancies and guidance regarding best practices. In general, statutory cities operate under diff erent statutes, and home rule municipalities operate under charter provisions that are likely diff erent than the statutory requirements outlined in this chapter, and so neither are addressed here.1 Filling Vacancies on the Town Board A vacancy on the town board can occur under a variety of circumstances, including: resignation; inability to fulfi ll the duties of offi ce; failure or refusal to take the oath of offi ce; failure to meet residency requirements (including moving out of the ward or municipality); removal from offi ce; a seat left unfi lled aft er an election, or an offi cial passing away during the term of offi ce. Once a vacancy arises, the town board is faced with several considerations. • Sixty-day time frame. First, state law provides that a vacancy on the town board may be fi lled either by appointment or by election. However, this option only lasts for 60 days. If the town board does not fi ll the vacancy by appointment or order an election within 60 days, then the board is required to order an election to fi ll the vacancy. • Resolution declaring vacancy. Th e board should consider adopting a resolution that declares the vacancy, sets forth the vacancy eff ective date, and states whether the board chooses to fi ll the vacancy by appointment or by election. While such a resolution is not required for a statutory town, the board should consider this 51 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 55EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 55 6/4/2019 1:02:46 PM6/4/2019 1:02:46 PM February 1, 2022 - Page 75 of 224 approach, as passing a resolution declaring a vacancy provides a written record of when the statutory 60-day clock begins and makes known the intent of the town board regarding its choice on how to fi ll the position. • Special considerations for vacancy in mayor’s offi ce. Generally, a vacancy in the offi ce of mayor is fi lled in the same manner as vacancies of other members of the town board. However, if the town board will appoint someone, it may wish to consider qualifi cations or circumstances unique to the position, including the mayor’s voting rights and role as presiding offi cer. Term of Office for an Appointee Filling a Vacancy Th e term of offi ce of a vacated seat fi lled by appointment or election only runs until the next regular election. Th is is true even if the original term would not be expiring at such election. Th ere is no authority in state law for a statutory town to extend the term of offi ce of an appointee fi lling a vacancy. If terms of offi ce are four years, this rule can sometimes create confusion at the next regular election, where some seats are up for a full four-year term while another seat is on the ballot solely for purpose of electing a person to fi ll a vacant seat for the remainder of the term. Proper parlance can reduce the confusion— candidates running for that vacant seat aren’t running for an offi ce having a new two- or four-year term but for a shortened, two-year term to fi ll the vacancy. Qualifications of an Appointee Filling a Vacancy Colorado statutes do not separately mandate qualifi cations for an appointee who is to serve in the event of a vacancy. However, the Colorado Constitution and related statutes require that persons holding any elective offi ce shall be qualifi ed. To be qualifi ed, an appointee must be: at least 18 years old as of the date of the election [or appointment]; a U.S. citizen; a resident of Colorado for at least 22 days prior to the election [or appointment]; a resident of the municipality (and ward, if applicable) for at least 12 consecutive months prior to the date of the election [or appointment]; not serving a sentence in any public prison; and registered to vote. An appointment is void if the person appointed is not qualifi ed. Th erefore, it is important to ensure that a person appointed to fi ll a vacancy in an elective offi ce has the qualifi cations set forth in state law, as summarized above. Although state law does not dictate the process for selecting a qualifi ed person to fi ll a vacancy, governing bodies should be mindful that appointments to elective positions, to some extent, remove the people’s opportunity to choose their own representative. Th erefore, it is prudent to implement a formal process with suffi cient advertisement of the vacancy to provide transparency and ample opportunity for participation. Other considerations and pitfalls to avoid include: • Making an appointment that benefi ts or appears to benefi t any member of the governing body personally (see chapter 6); • Appointing someone who will create turmoil or dysfunction within the governing body or other areas of municipal government (see chapters 1 - 3); or 52 CHAPTER 10 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 56EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 56 6/4/2019 1:02:46 PM6/4/2019 1:02:46 PM February 1, 2022 - Page 76 of 224 • Failing to provide the appointee with proper training once appointed. Like any other person serving in an elective position, an appointee should receive proper training. Appointment of Officers in Statutory Towns State law requires the town board appoint or provide for the election of certain offi cers, including a clerk, treasurer and town attorney. Th e applicable statute, C.R.S. Section 31-4- 304, states in pertinent part: Th e board of trustees shall appoint a clerk, treasurer, and town attorney, or shall provide by ordinance for the election of such offi cers, and may appoint such other offi cers, including a town administrator, as it deems necessary for the good government of the corporation…. [N]o appointment of any offi cer shall continue beyond thirty days aft er compliance with section 31-4-401 by the members of the succeeding board of trustees. In some cases, the town board fails to act within 30 days to appoint or re-appoint offi cers of the town. Further, in many cases, these positions are staff ed with municipal employees, which can lead to uncertainty in employment when the town board fails to re-appoint an employee to one of these appointed positions. Th ese and other circumstances raise the question: What is the impact of not making appointments within the 30-day period aft er the new board members are seated? In short, if the 30-day period set forth in this section passes, the term of the offi cer expires. However, it is important to note that the expiration of the term does not necessarily or automatically oust the individual holding the offi ce from that position and create a vacancy. Rather, absent provisions to the contrary in state law or local ordinance, the public interest requires that public offi ces should be fi lled at all times without interruption. Th e Colorado Constitution adheres to this principle, stating in Article XII, Section 1 that “[e]very person holding any civil offi ce under the state or any municipality therein, shall, unless removed according to law, exercise the duties of such offi ce until his successor is duly qualifi ed….” Th erefore, an individual holding an appointive offi ce in a statutory town remains in that position aft er his or her term has expired (i.e. holds over) until a successor properly appointed by the town board takes offi ce. Moreover, if the incumbent is an employee, he or she would remain in their appointive position and on the town’s payroll as a holdover. To avoid confusion and confl ict regarding holdovers, when the term of an appointive offi ce expires, the town board should timely act to either re-appoint the incumbent or appoint a new person to the offi ce. Th e board should also seek advice of legal counsel before deciding to not re-appoint an incumbent appointive offi cer who is also an employee of the town. Removal from Office in Statutory Towns Th e following identifi es some of the key requirements pertaining to the removal of an elected offi cial in a statutory town pursuant to a proceeding under C.R.S. Section 31-4- 307. Many of these requirements are not present in the statute itself; rather, they are found in some old judicial decisions concerning the statute. Removal of an elected offi cial by 53 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 57EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 57 6/4/2019 1:02:46 PM6/4/2019 1:02:46 PM February 1, 2022 - Page 77 of 224 the governing body essentially overrides the will of the people who elected the offi cial. For this reason, it is critical that any removal proceedings take place in accordance with the guidance provided by these decisions. Th e advice of counsel is also critical given the potential for missteps. While these decisions are more than a century old, they came into play more recently in the recommendation of a United States Magistrate Judge in a case involving a CIRSA member municipality.2 While the Magistrate Judge’s recommendation is unpublished and does not serve as precedent, it was cited with approval by the Colorado Supreme Court.3 Th us, the Magistrate Judge’s recommendation highlights the importance of these older decisions and may off er some good guidance to a statutory town contemplating a removal proceeding. Given this recent resurrection of old case law, the way in which a town may have applied Section 31-4-307 in past proceedings may not serve as a sound guide to the conduct of such proceedings today. Th us, past practice should not be used as a basis to avoid compliance with the following requirements gleaned from the old but resurrected case law: • Th e basis for removal (unless the elected offi cial has moved out of town) must be “misconduct or malfeasance in offi ce,” as those terms are used in Article XIII, Section 3 of the Colorado Constitution. Th ese constitutional provisions contemplate offi cial misconduct of such a magnitude that it aff ects the performance of the offi cer’s duties, and off enses against the town “of a character directly aff ecting its rights and interests.”4 Political or personal disagreements, or a stalemate resulting from failure to obtain a requisite number of votes on matters coming before the town board, may not be suffi cient grounds to eff ect a removal. • Th e removal proceeding is quasi-judicial in nature, subject to the safeguards commonly found in judicial proceedings. Th is means: • Th ere must be a charge or charges against the offi cial sought to be removed. Th e charges must be specifi c and stated with substantial certainty.5 Vague or general charges likely will not meet this requirement. • Th ere must be a hearing in support of the charges, and an opportunity to make a defense.6 Th e charges must in the fi rst instance be proven by testimony and evidence, with the opportunity given to the offi cer sought to be removed to rebut such testimony and evidence, and off er his or her own. • Th e hearing must be held under the same limitations, precautions, and sanctions as in other judicial proceedings.7 A basic requirement of judicial proceedings is that decision-makers must be neutral and impartial. Th is is why in most judicial proceedings, investigative, prosecutorial, and adjudicatory functions are separated. However, in removal proceedings, the adjudicatory body (the town board) may also have carried out an investigative function by establishing the charges that are the basis for the proceeding. Involvement in presenting 54 CHAPTER 10 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 58EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 58 6/4/2019 1:02:46 PM6/4/2019 1:02:46 PM February 1, 2022 - Page 78 of 224 testimony and evidence would further diminish the separation of these functions, and the lack of separation may compromise the appearance or reality of a neutral and impartial decision-maker. Th ese requirements highlight one of the most diffi cult procedural aspects of a removal proceeding: who will present the evidence and testimony? Th e town board serves as the decision-maker. It would likely be problematic, from a fairness standpoint, if the decision-makers also served as witnesses. One option to address this issue is use of a hearing offi cer whose decision is made subject to fi nal review and action by the town board. Another option is to limit involvement in non-adjudicatory functions to one (or at most two) members of the governing body who understand their need to then recuse themselves from the board’s decision-making. • Th e decision will be subject to judicial review.8 Th is means that under Rule 106(a)(4) of the Colorado Rules of Civil Procedure, a transcript of the proceedings as well as the evidentiary record, will be produced to the district court for review. Th e standard of review will be whether the governing body’s decision was “arbitrary or capricious.” Constitutional due process violations may be raised, and considerations of bias may be raised to set aside a decision as well. Other questions and issues to consider in holding the proposed removal hearing include: • Have provisions been made for the issuance of subpoenas to compel the attendance of witnesses, the administration of oaths, the right of discovery, and the cross-examination of witnesses? • Are rules of procedure in place, has a standard of proof been established, and will rules of evidence be followed? • Does the offi cer sought to be removed have the right to be represented by counsel? Is the governing body working with the advice of counsel? • Have adequate time and opportunity been given to the offi cer sought to be removed to prepare his or her case in answer to the charges? Have provisions been made for the granting of reasonable continuances? • Has some means of recording the hearing been arranged, preferably by a stenographer who can prepare a verbatim transcript? • Who will prepare written fi ndings of facts, conclusions of law, and a fi nal decision and order? Conclusion A town board’s powers of appointment are eff ective tools. Th ey can be used to timely fi ll a board vacancy and appoint key staff who will help drive the town’s vision and success. But, if not handled appropriately, appointments can become the source of intractable disputes and potential liability. Th us, board members should work together to understand their options, duties and obligations when it comes to making appointments, and make wise use of their appointment powers. 55 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 59EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 59 6/4/2019 1:02:46 PM6/4/2019 1:02:46 PM February 1, 2022 - Page 79 of 224 Likewise, a town board’s power of removal is undoubtedly an important one; but, an imprudent or improper removal proceeding can be the source of signifi cant liability. As noted, recently resurrected case law suggests the bar for exercising the removal power is high, for situations where serious misconduct or malfeasance in offi ce can be proven. Further, the removal power should be exercised only with the procedural safeguards summarized above in place, and only with the assistance of legal counsel. Otherwise, the governing body may be taking on an unacceptable risk of liability. Footnotes: 1. Offi cials in statutory cities and home rule municipalities should obtain from their counsel and staff information on the appointment and removal requirements specifi c to their organization. 2. Russell v. Buena Vista, 2011 WL 288453 (D. Colo. 2011). 3. Churchill v. University of Colorado, 2012 WL 3900750 (Colo. 2012). 4. Board of Trustees v. People ex rel. Keith, 59 P. 72, 74 (Colo.App. 1899). 5. Board of Alderman v. Darrow, 22 P. 784, 787 (Colo. 1889). 6. Darrow, 22 P. at 787. 7. Keith, 59 P. at 75. 8. Id. 56 CHAPTER 10 EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 60EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 60 6/4/2019 1:02:46 PM6/4/2019 1:02:46 PM February 1, 2022 - Page 80 of 224 SAFERTOGETHER 3665 Cherry Creek North Drive Denver, Colorado 80209 800.228.7136 www.cirsa.org EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 2EthicsLiability&BestPracticesHandbookForElectedOfficialsFinal.indd 2 6/4/2019 1:02:12 PM6/4/2019 1:02:12 PM February 1, 2022 - Page 81 of 224 Providing Risk Management Solutions E: info@CIRSA.org P: 303.757.5475 www.cirsa.org 1 The use of email by elected or appointed officials to discuss public business raises issues under both the Colorado Open Meetings Law (“OML”), C.R.S. § 24-6-401 et seq., and the Colorado Open Records Law (“CORA”), C.R.S. § 24-72-201 et seq. The OML recognizes that discussions by email can trigger notice and openness requirements. Specifically, the OML provides that any meeting of a quorum, or three or more members of a local public body (whichever is less), at which public business is discussed or at which formal action may occur must be open to the public. Also, the meeting must be preceded by proper notice if a quorum will be present, or any action will be taken. A meeting can include a discussion that occurs by phone or email. Additionally, CORA recognizes that public records can include emails of elected and appointed officials where the communications involve City/Town business or public funds and are made, maintained or kept by the City/Town as part of its operations. Under CORA, emails may be public records even if they do not trigger open meetings rules. Based on these rules, the following are suggested email “dos and don’ts:” Email – Okay to Do • Have a one-on-one discussion with another council/board member. • Respond to constituent emails consistent with “role discipline.” • Correspond directly with City/Town staff. • Email other council/board members concerning scheduling and availability, or posing a question for later discussion, or sharing “FYI” only information. But, such communications must not morph into a discussion of the merits or substance of any public business. • Copy other council/board members on an email, subject to the same limitation. • Do use your City/Town-assigned email address and device, if applicable. Email – Don’ts • Do not use email (or similar technology) to discuss the merits or substance of any matter of public business among a quorum or more than two members (whichever is less), whether simultaneous and/ or serial or not. • Do not use email as a substitute for open public meeting discourse. • Do not use email as a substitute for taking any official action. • Do not “reply to all” on emails sent to more than two council/board members, excepting only emails that clearly have no policy purpose (e.g., “FYI” emails). • Do not send messages that discuss both personal matter and public business. • Most importantly, do not use email to discuss pending quasi-judicial matters. By Sam Light, CIRSA General Counsel CIRSA Training: Email Suggestions for Elected & Appointed Officials Safer Together P: 800-228-7136 www.cirsa.org 1 February 1, 2022 - Page 82 of 224 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: Destination Stewardship Plan Update P RE S E NT E R(S ): Mia Vlaar, E conomic Development Director; Cathy Ritter, C E O Better Destinations L L C AC T IO N RE Q UE S T E D O F C O UNC I L: L isten to presentation and ask questions. B AC K G RO UND: The Destination Stewardship Plan Request for P roposals (R F P ) was published in November 2021 to meet the requirement for Vail's certification as a top 100 S ustainable Destination. Several proposals were submitted and vetted by a staff selection committee and group of Vendors was chosen for their exceptional experience in tourism, global sustainability, community engagement and alignment and values based marketing. S TAF F RE C O M M E ND AT IO N: A pprove P rofessional S ervices Agreement under Consent A genda during evening meeting. AT TAC H ME N TS: Description Council Memo Destination Stewardship Plan Contract Revised Vail Destination Stewardship Budget - 12-30-21 February 1, 2022 - Page 83 of 224 To: Vail Town Council From: Economic Development Department Date: 2/1/2022 Subject: Destination Stewardship Plan I. PURPOSE The purpose of this memorandum is to provide a recommendation to move forward with a Professional Services Agreement (PSA) to develop a Destination Stewardship Plan for the Town of Vail. II. BACKGROUND As part of Vail’s designation as a top 100 Sustainable Destination by Green Destinations, and as a Mountain IDEAL certified sustainable destination, recognized by the Global Sustainable Tourism Council, the Town of Vail is required to develop a Destination Stewardship Plan (DSP) by the end of 2022. The DSP is defined in the Mountain IDEAL standard as “an up-to-date multiyear destination stewardship strategy and action plan to guide planning, development and stewardship of tourism and recreation activities.” The criteria require that the plan be based on the major tenants of sustainable tourism management practices, incorporating socio-economic sustainability, as well as cultural and environmental sustainability, and an assessment of environmental issues and risks. Each of these will integrate into and inform the unified vision for tourism in Vail. The Destination Stewardship Plan Request for Proposals (RFP) was published in November 2021 and three proposals were considered for this important work. The selection committee was comprised of the town manager, the environmental sustainability director, and the director of economic development. Criteria for selection included global sustainable tourism expertise, mountain resort experience, values- based marketing, and the ability to take Vail’s position as a sustainable destination to the next level. Following several meetings with each of the two finalist group members, the committee selected the proposal submitted by the combined team comprising Better Destinations LLC, MMGY NextFactor and The Travel Foundation (Attachment A) The group was chosen due to the following key skills and experience: Proven Experience in Destination Management Planning: February 1, 2022 - Page 84 of 224 Town of Vail Page 2 • MMGY NextFactor has delivered insights and strategies for more than 250 global destinations, including Breckenridge’s Destination Management Plan. • Better Destinations Founder Cathy Ritter co-led and co-wrote the Colorado Tourism Roadmap, now widely recognized as one of the first destination management plans in the U.S. • The Travel Foundation’s seminal report, “Destinations at Risk: The Invisible Burden of Tourism,” is inspiring destinations to account more holistically for the costs and benefits of tourism. Global Thought Leadership in Destination Stewardship: • MMGY NextFactor recently completed the DestinationNEXT 2021 Futures Study, which tapped insights from 500+ global destinations to identify transformational opportunities and key trends and strategies for Destination Marketing Organizations. • Better Destinations Founder Cathy Ritter’s contribution to “Overtourism: Lessons for a Better Future” (Island Press, 2021) shared insights into the making of the “Are You Colo-Ready?” Destination Stewardship Plan, widely credited for launching a national sustainable tourism movement. Extensive Experience Facilitating Multi-Stakeholder Consultation Processes: • MMGY NextFactor offers proven facilitation strategies to build alignment and generate recommendations with support of key industry stakeholders, community leaders and residents. • Collectively, the team has managed and conducted hundreds of sensitive consultation and engagement processes, at times uniting divided communities around common long-term goals. Unmatched expertise in sustainable tourism and destination stewardship: • As a founding member and Chair of the Future of Tourism Coalition, The Travel Foundation is a global leader in identifying strategies to address the impacts of tourism on communities, environment and resources. With deep experience and understanding of how tourism works -- whether in private companies, in communities or in policy – the organization is skilled in finding root causes and issues and then offering practical solutions to solve them and drive benefits. CEO Jeremy Sampson is well-acquainted with Vail’s past sustainability work, having collaborated in developing its Actively Green program in a prior role with Sustainable Travel International. The selection committee believes that the combination of Better Destinations, MMGY NextFactor and the Travel Foundation will provide the highest level of expertise and experience to guide the development of Vail’s Destination Stewardship Plan. The project is scheduled to kick off with a meeting in early February. The second phase of the project is focused on community engagement. Beginning in March, this phase will include 20 one-on-one consultation meetings, 10-12 focus groups, and three visioning workshops for community engagement. February 1, 2022 - Page 85 of 224 Town of Vail Page 3 III. PROJECT FUNDING The plan comprises the original budget of $156,000 and the Optimizing Value Framework $13,500 as outlined in the attached proposal (Attachment A). The revised budget is included in Attachment B. By including the Optimizing Value Framework, Vail will be among the first destinations globally to prototype a proprietary concept that provides a methodical approach to visualizing the components of a balanced tourism economy, mapping the various benefits and drawbacks. Stakeholders will prioritize key indicators of success based on a shared vision for a tourism economy that delivers true value and net positive benefits for Vail. The total cost of the development of the plan is $169,500 and will be funded from two budget accounts as follows: Vail Local Marketing District $ 100,000 Destination Stewardship Plan $ 69,500 IV. STAFF RECOMMENDATION Staff recommends the Vail Town Council authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with Better Destinations, LLC to provide professional services for the development of a Destination Stewardship Plan in an amount not to exceed $169,500. February 1, 2022 - Page 86 of 224 1 COMPANY OVERVIEWS & EXPERTISENovember 19, 2021 Destination Stewardship Plan Proposal Guided by principles of sustainability to support economic prosperity and quality of life in a beloved global destination Please consider the environment before printing this document town of vail, colorado February 1, 2022 - Page 87 of 224 Dear Mia, Thank you for this opportunity to submit our proposal for a Destination Stewardship Plan for the Town of Vail, Colorado. Your RFP makes it clear. You are seeking a best-in-class strategy, guided by principles of sustainability, to create a shared vision. Your goal is to create a lasting framework for a thriving tourism and recreation-based economy that supports quality of life and quality of place for all of those who care about Vail. By framing this work as a Destination Stewardship Plan, you are signalling a forward-thinking commitment to a holistic planning approach that engages your entire community in addressing challenges and maximizing your considerable opportunities. In response to your request, we have assembled a first-time partnership among three leading tourism organizations -- MMGY NextFactor, Better Destinations and The Travel Foundation. Our shared purpose is to empower the Town of Vail to design and activate timely destination- building stewardship strategies through proven planning resources, exceptional destination management and marketing expertise, and thought leadership in sustainable and regenerative tourism. (For administrative purposes, MMGY NextFactor will serve as lead agency) We are committed to working collaboratively with your team and stakeholders to develop an actionable strategy for the next 10 to 20 years. We will be your partners in creating a plan to ensure the future viability of your visitor-powered economy while sustaining and celebrating your remarkable social, cultural and environmental assets and quality of life. We believe our team is uniquely qualified to deliver on all aspects of your request, based on: +Proven Experience in Destination Management Planning: Over the past five years, MMGY NextFactor has delivered insights and strategies for more than 250 destinations across the globe, including Breckenridge’s Destination Management Plan. Better Destinations Founder Cathy Ritter co-led and co-wrote the Colorado Tourism Roadmap, now widely recognized as one of the first destination management plans in the U.S. Together, MMGY NextFactor and Better Destinations now are creating one of the first Destination Stewardship Plans in North America for an eight-county region surrounding Glacier National Park. +Global Thought Leadership in Destination Stewardship: All three of our organizations are at the forefront of a new industry focus on destination stewardship and aligning tourism with community shared values. MMGY NextFactor recently completed the DestinationNEXT 2021 Futures Study, which tapped insights from 500+ global destinations to identify transformational opportunities and key trends and strategies for DMOs. The Travel Foundation’s seminal report, “Destinations at Risk: The Invisible Burden of Tourism,” is inspiring destinations to account more holistically for the costs and benefits of tourism. Better Destinations Founder Cathy Ritter’s contribution to Overtourism: Lessons for a Better Future (Island Press, 2021) shared insights into the making of the “Are You Colo-Ready?” Destination Stewardship Plan, widely credited for launching a national sustainable tourism movement. MIA VLAAR Economic Development Director TOWN OF VAIL, CO November 19, 2021 February 1, 2022 - Page 88 of 224 November 19, 2021 PAUL OUIMET President, Partner MMGY NextFactor 5 Strachan Point Road West Vancouver, BC, V7W 1C1 pouimet@nextfactorinc.com 1.250.317.5838 Address 5 Strachan Point Rd. West Vancouver, BC Canada V7W 1C1 Phone +1.250.317.5838 Website nextfactorinc.com NEXTFACTOR ENTERPRISES INC. Email pouimet@nextfactorinc.com +Extensive Experience Facilitating Multi-Stakeholder Consultation Processes: All three of our organizations have been recognized for expertise and experience managing complex community engagement processes. In particular, MMGY NextFactor offers proven facilitation strategies to build alignment and generate recommendations with support of key industry stakeholders, community leaders and residents. Collectively, our team has managed and conducted hundreds of sensitive consultation and engagement processes, at times uniting divided communities around common long-term goals. +Unmatched expertise in sustainable tourism and destination stewardship: As a founding member and Chair of the Future of Tourism Coalition, The Travel Foundation is a global leader in identifying strategies to address the impacts of tourism on communities, environment and resources. With deep experience and understanding of how tourism works -- whether in private companies, in communities or in policy – the organization is skilled in finding root causes and issues and then offering practical solutions to solve them and drive benefits. CEO Jeremy Sampson is well-acquainted with Vail’s past sustainability work, having collaborated in developing its Actively Green program in a prior role with Sustainable Travel International. It would be our privilege to assist you not only in achieving this final step toward full compliance with the Mountain IDEAL, but in further enhancing Vail’s position as a global leader in the practice of destination stewardship. Please let us know if you have any questions, and we look forward to hearing from you. Best wishes, JEREMY SAMPSON CEO The Travel Foundation CREATE Centre Bristol, UK BS1 6XN jeremy.sampson @thetravelfoundation,.org.uk 509.499.2194 CATHY RITTER Founder & CEO Better Destinations 631 Monroe St. Denver, CO 80206 Cathy@BetterDestinations.us 847.774.0106 February 1, 2022 - Page 89 of 224 4 TABLE OF CONTENTS17 understanding of the project 20 proposed work plan 05 agency overview 10 project team 36 relevant experience 40 references table of contents31 timeline and budget February 1, 2022 - Page 90 of 224 agency overview February 1, 2022 - Page 91 of 224 a. AGENCY OVERVIEWMMGY NextFactor is an industry-leading consulting firm specializing in travel and tourism. Our team of experts has delivered insights and strategies to more than 260 destinations across the globe. We empower our clients and the travel industry at large to deliver sustainable growth to visitor economies and build stronger communities. Our firm was founded by Paul Ouimet in 2015, following the launch of our ground-breaking DestinationNEXT initiative. Our collective team saw the opportunity to blaze a new trail for visitor economies and help destinations prepare for the next era of travel. We believe in the transformative power of travel. We realize that to be a leader in the tourism sector today is to be an architect of future economies, societies and possibilities. We provide the intelligence, insight and inspiration these leaders require to make a meaningful, sustainable and equitable difference in their communities. In 2019, we joined forces with MMGY Global, the world’s largest integrated marketing company specializing in the travel, tourism and hospitality industries. As part of the MMGY Global family, our clients have access to insights and experts across multiple agencies throughout the world. agency overview 06 Better Destinations is a flexible consulting practice founded on a belief that healthy visitor ecosystems grow from addressing a holistic range of considerations. Based in Denver, the woman- owned consultancy is equipped to assist destinations and other organizations in maximizing the benefits of tourism while addressing impacts to achieve overall positive outcomes, including stakeholder support. Since its founding in May 2021, Better Destinations has taken on projects with Glacier Country Tourism in Western Montana, the Tennessee Department of Tourist Development, the Port Aransas (TX) Tourism Bureau & Chamber of Commerce, Destination North Myrtle Beach and Visit Durango. It also serves as a strategic advisor to CrowdRiff, a tourism-focused technology company. The consultancy draws upon Founder & CEO Cathy Ritter’s decade of experience as state tourism director for two powerhouse states and her track record of creating customized, insight-led solutions to pressing tourism challenges. A specialty is action- oriented destination management planning, especially relating to sustainable or regenerative tourism. Another is guiding creation of initiatives to address specific objectives, whether low-impact tourism, visitor preparedness, inclusion in travel, workforce development or other interests requiring stakeholder engagement. Better Destinations is fueled by the power of partnership. Like few others, it offers a strong capability for bringing people together to create timely and innovative solutions. It also draws strength from a deep awareness of emerging trends and readiness to leverage the right expert resources, whether local or global, at the right time. February 1, 2022 - Page 92 of 224 a. AGENCY OVERVIEWFounded in 2003, the Travel Foundation (TTF), works globally to understand and improve the impacts of tourism on communities, environment, and resources. The organization’s deep experience and understanding of how tourism works - in companies, in communities, and in policy – allows it to identify issues and root causes and offer practical solutions towards solving them. TTF offers a unique and global perspective, having worked in more than 40 countries, and with more than 100 years combined tourism experience, TFF has built a vast international network, through which it can draw and share expertise and know-how. TTF has worked with many destination authorities, supporting them to develop inclusive, equitable and low-impact tourism development and innovative management strategies, with a particular focus on understanding and addressing the impacts of tourism to generate a net-positive for communities. In 2019, TTF’s seminal report, “Destinations at Risk: The Invisible Burden of Tourism,” helped reveal the hidden costs of tourism. The report has helped destinations more holistically account for the costs and benefits of tourism. As a founding member and Chair of the Future of Tourism Coalition, TTF will continue to play a leading role in defining the solutions and knowledge that will help the tourism sector respond to the clarion call for continuous improvement. TTF has recently supported destinations (including Colorado Tourism Office and Visit California) with a Destination Recovery and Resilience program, using a proprietary framework, integrated into tools and training, to help DMOs understand impacts, trends and demands, and future-proof their tourism sectors. 07 Strategic Marketing and Research Insights (SMARInsights) In its 30 years of conducting research for tourism destinations, SMARInsights has worked with more than 35 state tourism organizations, more than 85 local convention and visitors bureaus, and 20 attractions. its mission is to provide each client with personalized consultation and research design based on fully integrated marketing research services. It works with a variety of local, regional, national and international clients and has experience with many types of research techniques, both traditional and new. SMARInsights has steadily evolved throughout its history, as the travel and research industries have changed and developed new technologies and techniques. The firm has worked with numerous destinations to gain insight into their image and appeal, whether for a broad tourism audience or targeted segments. It also is experienced in identifying the best messaging to influence interest and visitation. SMARInsights also has built expertise in conducting studies of resident opinion to help guide tourism development and marketing issues. Its key staff has experience heading DMOs, and thus understand the issues and challenges that a DMO faces. February 1, 2022 - Page 93 of 224 08SECTION NAME ADD HERE08AGENCY OVERVIEW +BestCities Global Alliance +Blue Mountain Village Assoc. +Boulder CVB +Coastal Mississippi +Destination Ann Arbor +Destination Canada +Destination Cleveland +Destination Missoula +Discover Lancaster +Discover Lehigh Valley +Discover Puerto Rico +Discover Saint John +Discover the Palm Beaches +Experience Grand Rapids +Experience Olympia & Beyond +Glacier Country Tourism +Greater Fort Lauderdale CVB +Greater Lansing CVB +Greater Madison CVB +Greater Miami CVB +Greater Palm Springs CVB +Hawai’i Tourism Authority +Hilton Head Island CVB +Hocking Hills Tourism Assoc. +ICCA +Lake Placid (ROOST) +Maine Office of Tourism +Marquette County CVB +Meet Chicago Northwest +Meetingplace Copenhagen +Great Lakes Bay Regional CVB +New Smyrna Beach CVB +Newport Beach & Co +Ottawa Valley Tourism Assoc. +Providence Warwick CVB +Pure Michigan +Reno-Sparks CVB +Roseville Visitors Assoc. +Ruston-Lincoln CVB +Shreveport-Bossier CVB +Temple CVB +Tourism Kamloops +Tourism Toronto +Tourism Vancouver +Valley Forge CVB +Visit Aurora +Visit Albuquerque +Visit Anaheim +Visit Cape Breton +Visit Corpus Christi +Visit Dallas +Visit Frisco +Visit Mesa +Visit Milwaukee +Visit Napa Valley +Visit Newport Beach +Visit Norfolk +Visit Orlando +Visit Pittsburgh +Visit Phoenix +Visit San Antonio +Visit Temecula Valley +Visit Tri-Cities +Visit Tucson +Visit Walla Walla A list of current and past clients for strategic planning, state assessments, and destination master planning projects is provided below: +Branson Lakes Area Chamber of Commerce & CVB +Breckenridge Tourism Office +Destination Ann Arbor +Explore Edmonton +Explore Waterloo Region +Frontenac County +Galena Country Tourism +Glacier Country Tourism +Greater Birmingham CVB +Greater Miami CVB +Greater Palm Springs CVB +Haliburton Highlands +Hilton Head Island CVB +Lake Placid (ROOST) +Travel Manitoba +Visit Buffalo Niagara +Visit Colorado Springs +Visit Denver +Visit Fort Worth +Visit Indy Strategic Plans Destination Master Plans current & past clients COLORADODENVERMIAMIBRECKENRIDGEMANITOBABIRMINGHAMHILTON HEAD ISLANDFORT WORTHFebruary 1, 2022 - Page 94 of 224 AGENCY OVERVIEWMMGY NextFactor believes in the importance of cultivating a tourism industry that represents a wide variety of individuals at every level of our organization. We celebrate the broad range of human differences among us, while also embracing the commonalities we all share. We firmly stand by our belief that all industries should be open to everyone for opportunities and growth and that it is critical for industry CEOs and executive leaders to commit to Equity, Diversity and Inclusion to drive a vision for change and be accountable for implementing that change. A diverse and inclusive workplace is central to our industry’s ability to attract, develop, and retain the talent it needs to remain competitive, drive innovation and maintain relevance. We stand committed to our vision to implement Equity, Diversity and Inclusion strategies and best practices and promise to work with our members and industry leaders to be the catalyst for change. There is much work to be done and we must all come together to advance these dialogues to drive solutions. our commitment to diversity, equity & inclusion 09 Our Commitment to Promoting Diversity in Travel MMGY Global recognizes its position as a leader in the global travel, tourism and hospitality industry. We are committed to lending our voice, our reach, and the work that results from our partnerships to better reflect the true diversity of our communities. “Inspiring People To Go Places” is more than a mantra; it is a commitment to ensure that the equitable promotion of communities, no matter their race, ethnicity, sexual orientation, gender affiliation, and ability is a priority. MMGY Global continues to lead as a purveyor of primary research in North America and across the world. MMGY Travel Intelligence, the company’s research and insights division, maintains one of the most comprehensive databases of leisure and business travelers anywhere, helping hundreds of destination, hospitality and travel brands power strategic, data-driven marketing campaigns. MMGY NextFactor, the premier strategic planning firm focused on destination development, guides C-suite destination decision-makers globally in enacting change and openly discussing how the industry moves forward. Through a renewed focus on the development of Black, Latinx, Asian, Indigenous and LGBTQIA+ traveler studies and reports, including alliances with prominent advocacy groups for these groups, MMGY Global is enriching and promoting a deeper understanding of travelers across all communities. February 1, 2022 - Page 95 of 224 project team February 1, 2022 - Page 96 of 224 11 SECTION NAME ADD HERE11 SECTION NAME ADD HEREPaul is President of NEXTFactor Enterprises Inc., a privately held company he established in 2015. In 2019, Paul sold a portion of NEXTFactor to MMGY Global, joining their global group of companies as Partner, President of MMGY NextFactor. He also serves as Managing Director of DestinationNEXT in a partnership with Destinations International, a professional trade association based in Washington DC. He was one of three founding partners of lnterVISTAS Consulting Inc. in 1997. For 20 years, he played a major role in building it into a multinational company with offices in the U.S., Canada, and Europe. He continues as an executive consultant for lnterVISTAS. In March 2020, in partnership with Tourism Economics, MMGY NextFactor launched OrganizationNEXT, a project on Strategic Recovery Planning. Paul has successfully delivered strategic plans and master plans for many destination organizations, governments, non profit organizations, hotels and airports around the world. He has also completed organization reviews and developed start-up plans and business plans for new ventures. During the past six years, Paul has led the team that developed and delivered DestinationNEXT, an important Destinations International initiative informing the future of destination organizations. DestinationNEXT was ranked by Skift Magazine as one of the top 10 biggest developments in the global tourism industry in 2015. To date, the team has conducted over 260 assessments and workshops around the world. President, Partner | MMGY NextFactor Responsibilities: Chief Strategist, Project Advisor Visit Orlando Strategic Plan 2021 | Orlando, FL DestinationNEXT Futures Study (Ongoing) | Global ICCA Kaohsiung Protocol 2020 - Global Thought Leadership Initiative Destination Canada 2030 Strategic Plan 2020 | Canada Tourism Vancouver Mandate Review 2021 | Vancouver, BC Hilton Head Island Destination Master Plan 2019 - 2020 | Hilton Head, SC Washtenaw 2030 Destination Management Plan 2019 | Ann Arbor, MI Greater Victoria Destination Strategic Marketing & Management Plan Underway - Victoria, BC Discover Saint John Strategic Plan 2019 | Saint John, NB Breckenridge Destination Management Plan 2019 | Breckenridge, CO Madison Destination Strategy 2019 and 2016 | Madison, WI Greater Miami CVB 5-Year Strategic Plan 2019 | Miami, FL Visit New Smyrna Beach Strategic Plan 2019 | New Smyrna Beach, FL Discover Lehigh Valley Strategic Plan 2019 | Allentown, PA Manitoba Provincial Tourism Strategy 2018 | Manitoba Visit San Antonio Strategic Plan 2018 | San Antonio, TX Tourism Toronto Strategic Plan 2018 | Toronto, ON Colorado Springs & Pikes Peak Region Destination Master Plan 2018 | Colorado Springs, CO Visit Anaheim Strategic Plan 2015-2018 | Anaheim, CA Visit PITTSBURGH Strategic Tourism Plan 2018 and 2015 | Pittsburgh, PA Discover Puerto Rico Strategic Business Plan 2018 | San Juan, PR Greater Fort Lauderdale CVB Strategic Plan 2018 | Fort Lauderdale, FL Fort Worth Destination Master Plan 2017 | Fort Worth, TX Birmingham 2025 Destination Master Plan 2016 | Birmingham, AL Denver Destination Plan 2025 2016 | Denver, CO Regional Indianapolis Tourism Master Plan 2015 | Indianapolis, IN Hotel Association of Canada Strategic Plan 2013 | Toronto, ON Canada Destination Organization Best Practices and Benchmarking Study 2012, 2011, 2010 and 2009 paul ouimet Relevant Project Experience 11 PROJECT TEAMFebruary 1, 2022 - Page 97 of 224 12 SECTION NAME ADD HERE12PROJECT TEAMManaging tourism dynamics during times of prosperity and crisis, Cathy has built a strong reputation for partnership and turning insights into action. From her award-winning journalism career to top roles in government and nonprofits, she has cultivated a network of expert resources, now a key asset for Better Destinations’ collaborative approach. Drawing from a decade of experience as state tourism director for two powerhouse states, Cathy has built a record of success in developing customized, insight-led solutions to emerging tourism challenges. In serving as Director of the Colorado Tourism Office from 2015 to 2021, she led development of the Colorado Tourism Roadmap, now recognized as an early model for destination management planning. Embracing the Roadmap’s new measures of success, she re- focused Colorado’s $20 million domestic and international marketing effort from attracting ever more visitors to driving a collection of benefits across the state, including increased traveler spending and rural economic development. Her work to build out the Roadmap’s new focus on stewardship is often credited with leading a national movement toward responsible tourism. To educate Colorado travelers about protecting resources, she approached the Leave No Trace Center for Outdoor Ethics in 2017, creating a ground-breaking alliance that has become a model for other destinations and fueled the state’s widely recognized Care for Colorado campaign. While at the helm of Colorado tourism, Cathy led five winter marketing campaigns touting not just ski and non-ski experiences, but Colorado’s winter state of mind. She led the agency to phase messaging through the winter season, rather than share a season-long static message. She led the state away from its “Best Skiing in America” winter platform to “Snow’s Perfect State” to create a unifying message for the entire snow industry. To offset impacts of the 2017-2018 low-snow season, she steered emergency funds to a national campaign. The pointed message -- “It’s snowing in Colorado. Don’t miss it.” -- was widely credited, by Vail Resorts included, with saving the season. Last year, she led a major collaboration to field Colorado’s first-ever winter backcountry safety awareness campaign and raise funds for Colorado Search and Rescue. Promotion of emerging on-mountain activities became a staple of Colorado’s summer campaign in recent years. Cathy has built strong connections with a wide range of North American and global travel experts and thought leaders. She currently serves as a Trustee of the Travel Foundation, a leading NGO focused on global tourism sustainability. Immediate past chair of the National Council of State Tourism Directors, she has served on the Executive Committee of the U.S. Travel Association and as an officer of the Western States Tourism Policy Council. She joined the travel industry in 1999 as Illinois’ state tourism director, leading the creation of a strategic plan that ultimately guided the state for nearly two decades. The Colorado Hotel and Lodging Association named her Industry Partner of the Year in 2018. Cathy is a contributing author for Overtourism: Lessons for a Better Future (Island Press, May 2021). She recently was named as an advisor to America 250, the official planning organization for the U.S. semiquincentennial in 2026. Founder & CEO | Better Destinations Responsibilities: Project Leader, Chief Strategist, Stakeholder Engagement, Visitor and Resident Research cathyritter February 1, 2022 - Page 98 of 224 13 SECTION NAME ADD HERE13PROJECT TEAMJim is Senior Vice President of Destination Stewardship at MMGY NextFactor. He helps cities worldwide curate more immersive destination experiences, manage sustainable visitor growth, promote equitable economic development and elevate quality of life and quality of place. Jim leads the development and evolution of MMGY NextFactor’s destination master planning team and consulting practices. Jim has successfully delivered destination master plans for iconic cities such as Los Angeles, burgeoning ‘second cities’ such as Richmond, VA and emerging destinations such as the Quad Cities. Prior to joining MMGY NextFactor, Jim held senior positions with Destinations International, the global trade association for destination marketing organizations. Along with a Masters in Tourism with a focus on Sustainable Destination Management from George Washington University, Jim also holds a certificate in Placemaking and Community-Based Urbanism from New York University. SVP, Destination Stewardship | MMGY NextFactor Responsibilities: Project Leader, Chief Strategist, Stakeholder Engagement, Visitor and Resident Research jim mccaul Greg is SVP Innovation at MMGY NextFactor, focusing on the convergence of global trends driving tourism, community, and economic development. Greg is a lead destination management strategist and developer of MMGY NextFactor’s destination master plans and tourism strategy plans. He also oversees the ongoing evolution of Destination International’s industry-leading DestinationNEXT framework. Greg specializes in sustainable tourism strategy and equitable community growth, aligning public and private sector mandates to ensure the long-term social, economic and environmental viability of destinations worldwide. Prior to joining MMGY NextFactor, Greg led tourism research and brand partnerships at Skift, leveraging the industry shifts reshaping the global visitor economy. During his career, he has collaborated with many destination organizations of all sizes and budgets to help position them as thought leaders in their communities. SVP Innovation | MMGY NextFactor Responsibilities: Chief Strategist, Project Advisor, Trends Analysis greg oates February 1, 2022 - Page 99 of 224 14 SECTION NAME ADD HERE14PROJECT TEAMShirin is the Destination Development Manager at MMGY NextFactor. She creatively helps destinations implement sustainable tourism strategies that lead to community engagement, socioeconomic growth, environmental conservation, and efficient destination management. Shirin spearheads the DestinationNEXT assessment program at MMGY NextFactor and has also worked with various destinations including Orlando, Ottawa, Buffalo, Edmonton, and Oregon on successfully delivering comprehensive long-term strategic and master planning projects. Prior to joining MMGY NextFactor, Shirin worked with San Francisco Travel Association on the development of an innovative citywide sustainable tourism development plan. She was also the lead consultant in an ecotourism development project in Abruzzo, Italy, in collaboration with the International Union for Conservation of Nature (IUCN). Having worked with the International Institute of Tourism Studies (IITS) as a consultant and graduate research assistant, Shirin is a published researcher with extensive background in international relations and policy, data analysis, and multi-language stakeholder communication. Shirin holds a Master of Tourism Administration degree with a concentration in Sustainable Tourism Development from The George Washington University, and has completed part of her graduate studies at the prestigious Bocconi University in Milan, Italy. She also holds a Bachelor of Arts in International Relations and a minor in Economics from the San Francisco State University. Destination Development Manager | MMGY NextFactor Responsibilities: Data Analysis shirin jafari With extensive experience in more than 30 countries, Jeremy Sampson is a globally recognized leader, facilitator, speaker, and advocate in sustainable tourism. During his career he has supported business and destinations around the world on issues related to impact management, marketing, product development, and sustainability, and was one of the assessors for the Early Adopters Program, which encapsulated the initial pilot testing of the GSTC Destination Criteria. Jeremy has very recently been named one of the Top 100 Innovative People in Tourism Policy for 2021 (announcement forthcoming) and was instrumental in setting up the Future of Tourism Coalition in 2020. He currently serves as the Chair of this global coalition representing 6 NGOs and nearly 600 signatories. Prior to joining TTF as its CEO in 2019, he spent five years as VP of Communications and Partnerships at Sustainable Travel International and another two years as President of international tour operator, GreenSpot Travel. He also served as an Adjunct Professor at the George Washington University International Institute of Tourism Studies, teaching sustainable tourism communications and marketing, was elected to serve on the Executive Committee for the WCPA Tourism and Protected Areas Specialist Group (TAPAS), and currently serves on the GSTC’s Destination Working Group. Immediately prior to joining TTF, Jeremy worked at the IUCN Centre for Mediterranean Cooperation, where he designed and managed large-scale European Union-funded transnational cooperation initiatives, such as DestiMED, and was instrumental in launching the MEET Network, a region- wide ecotourism network and destination management organization that promotes ecotourism in protected areas and gateway communities across the Mediterranean. CEO | The Travel Foundation Chair | Future of Tourism Coalition Responsibilities: Strategist, Advisor - Optimizing Value Framework, Sustainability Analysis jeremy sampson February 1, 2022 - Page 100 of 224 15 SECTION NAME ADD HERE15PROJECT TEAMRebecca is an experienced sustainable tourism consultant, passionate about using tourism responsibly to generate social and economic development benefits; empowering and engaging local communities in that process; whilst carefully managing the relationship between visitors and the landscape. She is skilled in stakeholder engagement as well as strategic analysis, with an ability to see the ‘big picture’ as well as focus on the detail needed to implement change. Her previous career as a solicitor also gives her a valuable insight into relevant policy, legal and regulatory frameworks. Rebecca has an MSc in Responsible Tourism Management (Distinction), for which her research focused on conditions for success of community- based tourism, and has worked with a variety of organisations ranging from large mainstream travel companies to destination-based assignments in the UK and internationally. Rebecca’s recent experience includes supporting development of a COVID recovery action plan for the Scottish Tourism Alliance and proposals to the Scottish Government, as well as a plan for future partnership and delivery arrangements for Edinburgh’s visitor economy. Both projects have provided her with valuable insight into the current challenges and opportunities for Scottish tourism, as well as the wider strategic landscape. Destination Specialist | The Travel Foundation Responsibilities: Analyst, Project Lead - Optimizing Value Framework rebeccaarmstrong Currently on sabbatical, Elke is Marketing Director of Visit Flanders, responsible for all the place-marketing activities for Flanders. She leads a team of 50 overseas and 40 at the Brussels head office, strengthening the reputation of Flanders and engaging the region’s community with a destination development and management agenda. Elke is the current chair of the European Tourism Commission Marketing Group, responsible for aligning European national tourist boards to creating and executing a pan- European marketing strategy, and a member of the board of trustees for both the Travel Foundation and the Impact Travel Alliance, the largest community of eco and social conscious travelers. Elke was voted Marketer of the Year 2019 by the Belgian Association of Marketing and recognized as one of the Top Women in Travel (2020). She holds a PHD in Communications, her research focusing on the influence of social media and online ‘word of mouth’ on travel decision making. Destination Strategist, Marketing Director | Visit Flanders (sabbatical) Responsibilities: Project Advisor, Resident Engagement & Marketing elkedens February 1, 2022 - Page 101 of 224 16 SECTION NAME ADD HERE16PROJECT TEAMCo-founder of Tourism Declares a Climate Emergency, an initiative that supports tourism destinations, businesses and organisations working together to reduce their carbon emissions in line with the Science-Based Targets and to develop a resilient future for their industry, Jeremy was instrumental in the creation of the Glasgow Declaration, launched at COP 26 in November 2021 . Created in partnership with UNWTO, UNEP, Visit Scotland and the Travel Foundation, the Glasgow Declaration is a catalyst for increased urgency about the need to accelerate climate action in tourism and to secure strong actions and commitment to cut tourism emissions in half over the next decade and reach Net Zero emissions as soon as possible before 2050. Jeremy also co-founded and edits Travindy, the first travel industry news site to focus on the ideas, innovations and issues shaping a sustainable future for tourism and is a published author - Transforming Travel - realising the potential of sustainable tourism - was published in January 2018. He speaks regularly about responsible and sustainable tourism and provides copywriting and other communication services for sustainable tourism, ranging from digital campaigns and communication audits, to branding and sustainability strategy. Current and recent clients include Bruges Ommeland, GSTC, Travalyst, Tripadvisor, Rotterdam Partners, WTM, European Travel Commission, English National Parks, the Travel Foundation, Visit Finland, PATA, WTTC, and various independent hotels, lodges and tour companies. Jeremy co-wrote Clean Breaks - 500 New Ways to See the World, Rough Guides' only book dedicated to responsible tourism, and from 2001-2007 edited The Ecologist, the world's longest running environmental magazine. Climate Specialist & Founder | Tourism Declares a Climate Emergency Responsibilities: Project Advisor, Sustainability Analysis, Climate jeremysmith February 1, 2022 - Page 102 of 224 understanding of the project February 1, 2022 - Page 103 of 224 18 SECTION NAME ADD HEREUNDERSTANDING OF PROJECTIn the past, the tourism sector typically defined itself by a single tactic: driving demand. To measure impact, it defined overall success by a single metric: volume. There are few sectors apart from tourism in which organizations expend so much more effort and resources on marketing a product than they do in developing and managing it. Addressing that gap in recent years, the world’s most progressive tourism organizations have been expanding beyond destination marketing to destination management. Vail is now at the forefront of a movement toward an even more enhanced role for DMOs -- destination stewardship. This mindset marks a further shift toward engaging with and caring for communities, which in turn, yields more liveable, lovable and sustainable destinations. understanding of the project Our team shares a belief that a healthy visitor economy should be designed to thrive, not necessarily to grow. Today, the majority of visitor economies around the world are designed to grow, regardless of whether growth makes a community better. We believe the critical question now facing destinations is this: “How can we create a visitor economy that meets the needs of our community, with or without growth?” As North America’s premier international mountain resort community, Vail already has achieved global recognition for ground-breaking work to sustain the integrity of its stunning resources and setting. With this project, the Town of Vail seeks to complete its last remaining task to achieve certification to the Mountain IDEAL. Further, reflecting the farsightedness that built Vail from the ground up in just 60 years, the community is creating a bold opportunity to shape its economic engine, culture, recreational assets and approach to natural resource management for its next decade or two. February 1, 2022 - Page 104 of 224 19 SECTION NAME ADD HEREUNDERSTANDING OF PROJECTAs a Founding Signatory of the Future of Tourism Coalition, Vail is committed to using the Coalition’s 13 Guiding Principles as its lodestone for planning. It is seeking a planning partner with genuine expertise and a record of accomplishment in leading change and aligning destination stakeholders around shared goals. While recent consumer research indicates Colorado’s winter season is losing ground to Montana, Vail’s home state is still North America’s preeminent snow destination. Vail is seeking real solutions to the pressures of increasing visitor volume on resources amidst an eroding supply of affordable/attainable housing and skilled workers and the challenge of climate change-induced shifts in weather patterns. As a global destination requiring a year round economy, it needs deep insight into how to leverage its marketing and communications channels to attract visitors who will support and respect the destination. It seeks guidance on how to create even better experiences for guests, including strategies for providing more equitable access to all that Vail offers. It also sees opportunity in more fully celebrating the remarkable stories of its people and place. From its origins as the 10th Mountain Division’s training ground, Vail has played a pivotal role in Colorado’s history of winter sport, serving now as training ground and home for champions as well as host for numerous prestigious global ski and snowboarding championships. Its tradition of welcoming international visitors has broadened its community perspective in profound ways that merit telling. Our proposal is responsive to each of these requests. In the following pages, our planning team will explain how our proposed approach is built upon the three transformational opportunities identified in MMGY NextFactor’s DestinationNext 2021 Futures Study -- Destination Alignment, Sustainable Development and Values-Based Marketing. These three opportunities were identified from extensive research and input from destination leaders across the globe. They appear to be a perfect fit for framing the vision Vail has outlined for its Destination Stewardship Plan. February 1, 2022 - Page 105 of 224 proposed work plan February 1, 2022 - Page 106 of 224 21 SECTION NAME ADD HEREDuring our project initiation meeting, we will discuss and finalize with the Town of Vail management team: +Project objectives, approach, timelines, and key milestones +Discussion of whether to form a steering committee and its composition +Approach to stakeholder engagement +Approach for capturing both resident sentiment and visitor insights +Communication plan +Approach to project management, including repository of key planning and source documents for review by the planning team Due to her Denver location, Cathy Ritter can be readily available for in-person meetings. In general, planning team members will be available for both in-person and online meetings (based on approval of travel). We propose using the project initiation meeting as an opportunity for key project team members to connect with the Town management team and familiarize themselves with the Vail destination. Following the project launch, we will finalize the work plan, which will form the basis for monitoring and reporting on project status throughout the engagement. project initiation & management PROPOSED WORK PLANTasks Consultations Deliverables a. Hold kickoff meeting to finalize the project plan and management structure b. Participate in a 1.5-day familiarization trip c. Identify existing research, destination plans and other planning documents d. Prepare a stakeholder consultation plan e. Project planning, management and monitoring +Town of Vail +Members of the Steering Committee (if relevant) +Updated project work plan +Stakeholder consultation plan February 1, 2022 - Page 107 of 224 22SECTION NAME ADD HEREA comprehensive Destination Stewardship Plan requires a detailed examination of the current and future state of Vail’s planning terrain, as well as a thorough analysis of resident sentiment and visitor perceptions and attitudes. We will work with the Town of Vail to undertake the following: +Data Analysis: This will involve gathering and analyzing destination metrics such as visitor count, visitor profile, spending, seasonality, source markets, and length of stay. +Resident Sentiment: Our team proposes to engage Strategic Research and Marketing Insights (SMARInsights) to deliver a formal resident sentiment survey. SMARInsights will manage the resident sentiment survey to ensure a representative response and an accurate measure of resident attitudes and preferences. The survey will be designed in consultation with you to address key issues of interest. Additionally, SMARI will align the resident survey with the visitor survey described below to provide side-by-side comparisons and understand both similarities and differences in the attitudes of residents and consumers. +Visitor Brand Perception Study: Vail is expressing a desire to identify travelers whose interests align with the goals of the community and to gain insight into how to influence visitors to travel more sustainably. Simply stated, by attracting the right consumers with the right messaging, Vail can fuel the primary driver of its economy, while addressing resident interests. We propose engaging SMARInsights at a cost of $20,000 to deliver a Brand Perception and Consumer Segmentation Study. This approach not only will provide Vail with insight into its unique market position, but will deliver valuable guidance for its Destination Stewardship Plan. By fielding this study after a thorough review of existing research, we can ensure that it will build on existing knowledge, is steeped in Vail’s current situation, and addresses gaps in existing research. This research will assess Vail’s competitive environment and overall image, including both strengths and weaknesses, for winter and for summer and fall, based on the perspective of recent and potential visitors, being mindful of the appeal and impact of its major resort. We also will examine how Vail’s stand on sustainable tourism influences its image and appeal. Statistical analysis of findings will point to what differentiates Vail, what is important for visitors who value sustainable travel and opportunities for influencing behavior. A key deliverable is a perceptual map, pointing Vail to opportunities for differentiating its messages and product offerings for visitors and ultimately how visitor patterns might change based on promotion of various messages. Among other benefits, SMARInsights’ perceptual maps also can be used to assess the size of the audience that values sustainability, profile this audience, and identify the key messaging to differentiate Vail from the competition. The survey will be shared with 1,200 past and potential Vail visitors across the U.S. Potential visitors are those with past visitation to similar mountain communities or who express interest in visiting Vail in the future. +DestinationNEXT Assessment: MMGY NextFactor will provide the Town of Vail with its first-ever DestinationNEXT Assessment. This will benchmark key components of Vail’s power as a destination against those of hundreds of other global destinations. This assessment is a comprehensive stakeholder survey that measures both destination strength and community alignment, based on a series of 24 variables. To date, MMGY NextFactor has led more than 250 detailed assessments of destinations around the world. Its assessment tool is the only platform officially endorsed by Destinations International. foundationalresearch PROPOSED WORK PLAN1phase February 1, 2022 - Page 108 of 224 23SECTION NAME ADD HERE +Trend Analysis: MMGY NextFactor will leverage its ongoing research and knowledge of industry trends and best practices, including more than 400 powerful case studies of proven NEXTPractices in sustainable destination management and community alignment developed through our proprietary DestinationNEXT initiative. +Sustainability Analysis and Recommendations: The Travel Foundation will document, review and analyze Vail’s existing initiatives relating to sustainable tourism and destination management, as well as benchmark current global trends in these areas, identifying recent case studies and good practices that can serve as relevant inspiration for this project’s outcomes. This review will build on Vail’s progress in addressing the requirements of the Global Sustainable Tourism Council destination criteria and the Mountain IDEAL, exploring further areas in more depth such as impact management, optimizing tourism’s value, climate action, and destination stewardship. The Travel Foundation will utilize the Future of Tourism Coalition’s 13 Guiding Principles as a framework, to identify gaps and opportunities in current policies and practices and identify ways to address them consistent with Town policies and plans. +Situational Analysis: Upon completion of the foundational research, we will prepare a synthesis and analysis presentation of our key findings. The synthesis and analysis will summarize the current state of the tourism ecosystem in Vail as well as potential challenges and opportunities. foundationalresearch PROPOSED WORK PLANTasks Consultations Deliverables a. Collect and analyze destination metrics b. Identify relevant local, national, global trends c. Conduct DestinationNEXT assessment d. Analyze and identify gaps and opportunities related to Vail’s sustainability and destination management practices e. Situational analysis +Residents +Past and prospective visitors +Industry and community leaders and stakeholders +Government leaders +Vail’s six Memorandum of Understanding Partners +Resident Sentiment Study +Brand Perception and Customer Segmentation Survey +Comprehensive DestinationNEXT assessment of destination strength and community alignment +Analysis and Identification of gaps and opportunities for Vail’s destination management and sustainability practices 1phase February 1, 2022 - Page 109 of 224 24SECTION NAME ADD HERE24COMPANY OVERVIEWS & EXPERTISEPROPOSED WORK PLANDuring the past six years, Paul Ouimet created and has led the ground- breaking DestinationNEXT initiative, on behalf of Destinations International. This work has included: +Four Futures Studies that identified: +Key trends in leisure tourism and business events; and +Implications for DMOs and key strategies required in today’s changing world. +The development of a powerful scenario model & online diagnostic tool to assess destinations. Using this model, we have completed over 280 detailed assessments of destinations in 11 countries. We have also compiled over 400 case studies of recommended NEXTPractices to help DMOs improve visitor experiences and community alignment. leveraging destinationnext VOYAGERS Strong Community Alignment Developing DestinationEstablished DestinationWeak Community Alignment EXPLORERS TRAILBLAZERS MOUNTAINEERS Scenario Model 24 1phase February 1, 2022 - Page 110 of 224 25SECTION NAME ADD HERE25PROPOSED WORK PLANDestinationNEXT is the only self-assessment tool that combines the most wide-ranging industry research available with community and stakeholder input, to provide destinations with strategies for sustainable growth. The online diagnostic tool is designed to assist DMOs in conducting an objective self-assessment which will help them determine priorities and strategies for the future. The tool presents a framework that DMO leaders and communities can use to critically assess the destination. It also helps to start a conversation and provide focus on what needs to be done in the future. The tool is based on 24 variables related to destination strength and alignment. Within each variable, a series of metrics are also identified which offer the opportunity for DMOs to gather data and provide a more in-depth look at the variable. DestinationNEXT 2.0 To ensure proper representation of all new and future industry trends, we recently launched DestinationNEXT 2.0 assessment. Updated variables include but are not limited to health & safety, sustainability & resiliency, arts, culture & heritage, equity, diversity & inclusion, and emergency preparedness. In consultation with the client, a survey will be prepared using the DestinationNEXT scenario model. Additional questions to address some specific issues and topics can be added. An email with a link to the survey will be prepared for distribution by the client to key stakeholders and clients. Destination Strength Destination Alignment +Attractions & Experiences +Arts, Culture & Heritage +Dining, Shopping & Entertainment +Outdoor Recreation +Conventions & Meetings +Events & Festivals +Sporting Events +Accommodations +Local Mobility & Access +Destination Access +Communication Infrastructure +Health & Safety +Business Support +Community & Resident Support +Government Support +Organization Governance +Workforce Development +Hospitality Culture +Equity, Diversity & Inclusion +Funding Support & Certainty +Regional Cooperation +Sustainability & Resiliency +Emergency Preparedness +Economic Development destinationnext assessment 1phase February 1, 2022 - Page 111 of 224 26SECTION NAME ADD HERE2phase Our Destination Stewardship Plans begin with a vision and framework for tourism in the destination, with a focus on ensuring economic sustainability while preserving the quality of life for residents and quality of place for visitors. Throughout this phase of work, our team will draw inspiration from the key trends and strategies identified in the DestinationNEXT 2021 Futures Study. The proposed Pillars for our planning framework will be the three transformational opportunities identified in the Futures Study: +Destination Alignment: Identifying strategies to drive destination performance through alignment among Vail’s key sectors -- civic, public and private, including residents. +Sustainable Development: Identifying strategies to drive destination management and product development in ways that marry people, planet, prosperity and policy. +Values-Based Marketing: Creating a new competitive advantage and attracting preferred visitor segments by tapping into community values, goals and energy. Collectively, these three opportunities are a close fit for the areas of focus the Town of Vail has outlined in its RFP -- from aligning the Vail community around solutions to its most pressing issues to advancing sustainability practices to focusing future marketing efforts on communicating community values, including sustainable tourism. Our Destination Stewardship Planning process will include extensive stakeholder consultation. Regardless of which stakeholders we are consulting, we will be framing discussions in ways that shed light on how Vail can maximize the three transformational opportunities above. Another focus for stakeholder consultation will be identifying costs and benefits of tourism to inform the Optimizing Tourism Framework. We recognize and respect the work already done in the destination and consider these already developed and implemented plans, goals, efforts, and objectives a strong foundation to build upon. The ultimate goal of Phase II is to achieve community alignment around a Destination Stewardship Plan that will be shared with the Vail Town Council for adoption. To ensure the best use of budget, we propose the Town of Vail management team take the lead on scheduling stakeholder consultation sessions as well as managing logistics for in-person meetings and workshops. One-on-one Interviews: An interview guide will be developed with key questions for one-on-one consultations with up to 20 key stakeholders. Focus Groups:These sessions will include a short presentation, followed by a highly interactive discussion on addressing key opportunities and challenges for Vail’s visitor economy. A total of 10 to 12 focus groups may be allocated by industry segment (hotels and accommodations; culinary and restaurants; ski and outdoor recreation; arts, history and culture, etc.) or by topic (sustainable tourism, public lands management, marketing, transportation, etc.) destination stewardship plan PROPOSED WORK PLANFebruary 1, 2022 - Page 112 of 224 27SECTION NAME ADD HERE2phasedestination stewardship plan PROPOSED WORK PLANVisioning workshops: Engaging a diverse set of stakeholders throughout the planning process is foundational for a destination stewardship plan. We propose three visioning workshops open to all community members, whether businesses, nonprofits, land managers, MOU partners, elected leaders and of course, residents. We will employ a facilitation tool called Mentimeter to ensure that all voices, not just the loudest in the room, are heard. Our team is practiced in using initial responses on Mentimeter as a springboard for deeper exploration and discussion. +Session One: We will invite participants to take an honest look at the benefits and drawbacks of Vail’s tourism economy, assess impacts of visitor volume, explore preferred visitor characteristics and consider opportunities to advance Vail’s commitment to sustainability. The aim is to understand costs and benefits across four desired ‘well-being’ states: economic, environmental, social, and cultural. +Session Two: Participants will hear initial findings, weigh in on a draft impact map for the Optimizing Value Framework (see description below) and consider initial recommendations. +Session Three: Participants will share feedback on draft vision, mission and purpose statements as well as validate key components for the draft Destination Stewardship Plan and the Optimizing Value Framework. Optimizing Value Framework: A key purpose for stakeholder consultation will be consideration of the Travel Foundation’s Optimizing Value Framework. This proprietary concept provides a methodical approach to help key stakeholders visualize what balanced tourism can look like in the local context and map the various impacts and costs of tourism, whether positive or detrimental. Stakeholders also will be able to prioritize key indicators of success based on a shared vision for a tourism economy that delivers true value and net positive benefits for the people of its destination. The Optimizing Value Framework will point to actionable recommendations for balance in Vail’s tourism economy. Half-Day Visioning Workshop: The objective of the visioning process is to build steady momentum toward a shared vision for the future of Vail’s visitor economy. A pivotal step in this process is to convene a final half-day visioning workshop for the Town’s management team and key stakeholders, perhaps its steering committee or the six MOU Partners, This facilitated engagement will present these key leaders with a synthesis of findings from throughout the planning process as well as a draft of the Optimizing Value Framework. Participants will be supported to identify priorities and share further insights. The goal is to end the workshop with strong alignment around a shared vision that can motivate disparate stakeholders to unite in achieving what otherwise might be unachievable. Draft Recommendations: Following the Half-Day Visioning Workshop, we will develop a draft vision, mission and purpose statements for the Town of Vail along with a set of goals and recommendations for the Destination Stewardship Plan. We will then conduct validation sessions with key stakeholders and the third and final community visioning workshop to ensure buy-in and consensus. Final Plan: Once the draft recommendations have been validated by key stakeholders, we develop a final Destination Stewardship Plan for the Town of Vail. To ensure the budgeted dollars are maximized, we propose that the Town of Vail and MOU partners complete the design of the report. If this is not feasible, our team of designers will lay out and design the plan according to your organization's brand guidelines for an additional $7,000. Once the final plan is approved, we will join you in presenting the plan to the Vail Town Council for approval. February 1, 2022 - Page 113 of 224 28SECTION NAME ADD HERE2phase Communication Plan: To ensure the full engagement of the Vail community and transparency throughout the planning process, we propose that Vail develop a microsite or webpage to share findings, research, media coverage, and planning milestones as well as to facilitate signups for communitywide visioning workshops. Based on our recommendation, Glacier Country Tourism developed this microsite for its website’s Partner Center. We also will work with Vail on methods to publicize the resident workshops and survey work as well as the planning process in general, whether through paid or earned media. All three of our organizations will seek opportunities for Vail to share the ground-breaking nature of its Destination Stewardship Plan as both a national and global model for others. destination stewardship plan PROPOSED WORK PLANTasks Consultations Deliverables Stakeholder Engagement a. Prepare discussion guides b. Conduct 20 one-on-one consultation meetings c. Facilitate 10 to 12 focus groups d. Facilitate 3 visioning workshops for community engagement e. Support development of Communication Plan and messaging Stakeholder Analysis a. Prepare a synthesis and analysis of key takeaways of stakeholder engagement Half-day Visioning Workshop a. Prepare the draft impact map b. Prepare session materials c. Facilitate a half-day visioning workshop Draft Recommendations a. Prepare draft vision, mission and purpose statements b. Draft goals and objectives c. Draft Optimizing Value Framework d. Conduct validation sessions with key stakeholders, including the final community workshop Finalize Plan a. Prepare draft Destination Stewardship Plan b. Work with the Town of Vail to review/edit/finalize the plan for Town Council consideration +Town of Vail +Key Industry, Government, Community Leaders +Steering Committee (if applicable) +Vail’s 6 MOU Partners +Community stakeholders +Residents +PowerPoint deck of key takeaways from research and engagement +Optimizing Value Framework for Vail +Final Destination Stewardship Plan February 1, 2022 - Page 114 of 224 29SECTION NAME ADD HERE29 facilitation methods Our proven facilitation strategy builds alignment and generates proactive recommendations, supported by all stakeholders. We use Mentimeter, an innovative technology to facilitate meetings efficiently and effectively. It is a web-based collaborative and interactive tool that allows individuals to submit and prioritize ideas and actions. Menti provides the following benefits: +High volume idea generation from which important ideas emerge +The ability to engage a diverse group of individuals, in an anonymous environment to promote honest idea generation, voting and collaboration +A transparent means to immediately compare, prioritize and evaluate ideas to generate consensus and momentum +An effective and time-sensitive means to synthesize and organize ideas directly into strategic plans The software can be used in real-time, involving on-site and off-site participants or as a survey instrument sent as an email with a link to a direct, secure site.PROPOSED WORK PLAN2phase February 1, 2022 - Page 115 of 224 30SECTION NAME ADD HERE3phase While the Destination Stewardship Plan tackles the “what” and “why” of the destination, the Implementation and Action Plan is all about “how” the recommendations will be carried out, “who” will be responsible for them and “when” they will be delivered. The reality is that no single individual or organization will be able to implement this plan alone. It will require the support of a broad reaching group of contributors and a ‘Team Vail’ philosophy. Our approach to developing an implementation and action plan lays out the goals and recommendations in the Destination Stewardship Plan and articulates how we’ll get there, how success will be measured and who will be responsible for executing on each. To this end, our team is prepared to assist Vail in developing a transparent way of sharing both the one-year action plan and the long-term action plan, as well as its progress in implementing it. A fine example can be found in the way Visit Indy is portraying the outcomes of its planning work. The Travel Foundation will take the lead on developing concrete recommendations for advancing Vail’s sustainability goals, including ongoing governance and collaborative mechanisms to support identified priorities. The Travel Foundation also will work with the Vail management team and its six MOU Partners to identify potential destination- level climate action recommendations. Ultimately, the Implementation & Action Plan will reflect the full range of recommendations emerging from the planning process for each planning Pillar, whether Destination Alignment, Sustainable Development or Values-Based Marketing -- or other key Pillars identified through this shared work. implementation & action plan PROPOSED WORK PLANTasks Consultations Deliverables a. Prepare Implementation & Action Plan b. Work with Town of Vail to review/edit plan +Town of Vail +Implementation & Action Plan February 1, 2022 - Page 116 of 224 timeline and budget February 1, 2022 - Page 117 of 224 32SECTION NAME ADD HERETIMELINEPhases & Tasks Month (January - December) 1 2 3 4 5 6 7 8 9 10 11 12 Project Initiation & Management a. Hold kickoff meeting to finalize the project plan and management structure b. Participate in a 1.5-day familiarization trip c. Identify existing research, destination plans and other planning documents d. Prepare a stakeholder consultation plan e. Project planning, management and monitoring Phase 1 - Foundational Research a. Collect and analyze destination metrics b. Identify relevant local, national, global trends c. Conduct resident sentiment study d. Conduct visitor brand perception study e. Conduct DestinationNEXT assessment f. Analyze and identify gaps and opportunities related to Vail’s sustainability and destination management practices g. Situational analysis Phase 2 - Destination Stewardship Plan Stakeholder Engagement a. Prepare discussion guides b. Conduct 20 one-on-one consultation meetings c. Facilitate 10 to 12 focus groups d. Facilitate 3 visioning workshops for community engagement e. Support development of Communication Plan and messaging Stakeholder Analysis a. Prepare a synthesis and analysis of key takeaways of stakeholder engagement Half-day Visioning Workshop a. Prepare the draft impact map b. Prepare session materials c. Facilitate a half-day visioning workshop Draft Recommendations a. Prepare draft vision, mission and purpose statements. b. Draft goals and recommendations, proposing both immediate and long-term priorities as well as roles and responsibilities for implementing them. c. Draft Optimizing Value Framework d. Conduct validation sessions with key stakeholders Finalize Plan a. Prepare draft master plan report b. Work with the Town of Vail to review/edit/finalize plan for Town Council consideration Phase 3 - Implementation & Action Plan a. Prepare Implementation & Action Plan b. Work with Town of Vail to review/edit plan February 1, 2022 - Page 118 of 224 relevant experience February 1, 2022 - Page 119 of 224 37SECTION NAME ADD HERE37RELEVANT EXPERIENCEBackground The Town of Breckenridge, Colorado wanted to elevate and protect its authentic character and brand while retaining a hometown feel and friendly atmosphere. But, as the destination grew in popularity, so did friction between visitors, residents, governments, and tourism organizations. If left unmanaged, the increasing number of travelers could undermine the quality of life for residents and lessen the destination experience for visitors. The Breckenridge Tourism Office wanted a Destination Management Plan to help mitigate those types of challenges by providing inspired solutions to protect and enhance the town’s authentic character. Results The Destination Management Plan delivered a new vision to harmonize “Quality of Life for Residents and Quality of Place for Visitors.” The plan outlined four strategic goals aligned around elevating the long-term viability of the local economy, maintaining the community’s authentic character, protecting the environment, and improving the overall destination experience for both visitors and residents. +Deliver a balanced year-round visitor economy by 2024 +Elevate and fiercely protect Breckenridge’s authentic character and brand — our hometown feel and friendly atmosphere +More boots and bikes, less cars +Establish Breckenridge at the leading edge in mountain environmental stewardship and sustainable practices The plan was so well received, in fact, Breckenridge’s Town Hall adopted the visitor strategy as its own. Approach Our approach was anchored in a robust series of community engagement initiatives to ensure key stakeholders and residents were aligned around a collective vision for their future. Community members from across Breckenridge shared their views on the opportunities and challenges in the local visitor economy in a variety of formats including: 35+ one-on-one interviews, 13 focus groups with various industry and community segments, and three town halls with a wide cross section of participants. All together, there were more than 250 individual engagements and more than 1,100 survey participants, leading to a broad coalition of agreed upon priorities and strategies between the Town of Breckenridge, Breckenridge Tourism Office, and local people who make Breckenridge such a dynamic destination. 1 breckenridgedestination plan The full planning document can be found here.February 1, 2022 - Page 120 of 224 38SECTION NAME ADD HERE38SECTION NAME ADD HERERELEVANT EXPERIENCEBackground Upon completion of Denver’s DestinationNEXT Assessment, Visit Denver sought a blueprint and aligned plan on how the tourism experience in Denver would define the destination community. NEXTFactor and InterVISTAS were engaged in early 2016 to complete Denver’s first ever community-wide Destination Plan. Approach The approach and methodology have now been established in creating Denver’s Destination Plan, and key initiatives are now underway, including: +Marketplace advisory group sessions +Consultation with community advisory groups and key stakeholders +Development of a survey to generate input from local residents on tourism in the Greater Denver area +Development of a competitive analysis of key competing destinations +Development of current major industry trends for leisure and group sectors denver 2025destination plan 2 Results The Destination Plan was unanimously approved by the Board of Directors. It included bold, new initiatives to: expand meeting and convention business infrastructure; attract more visitor-driven events; create more world-class attractions; and enhance connectivity & mobility. The full planning document can be found here.February 1, 2022 - Page 121 of 224 39SECTION NAME ADD HERE39SECTION NAME ADD HERERELEVANT EXPERIENCEBackground Colorado’s visitor industry has grown tremendously in recent years, increasing at twice the national average since 2009 and becoming one of the very top U.S. vacation destinations in the western United States. In May 2016, the Colorado Tourism Office (CTO) initiated a strategic planning process to ensure that the state’s tourism industry maximizes its full potential. Approach Led by the Colorado Tourism Office, the Roadmap incorporates the voices of more than 1,000 tourism industry professionals, elected leaders and Coloradans. The plan was shaped not only by these insights, gathered in more than 20 listening sessions across the state and via survey posted on a public website, but from extensive analysis of existing CTO research as well as original research. Initial findings were compiled into a State of the Industry report shared first at the annual Colorado Governor’s Tourism Conference in September 2016 and, subsequently, during a fresh round of statewide listening sessions. colorado tourismroadmap 3 Results This body of work inspired development of both Mission and Vision statements as well as four key Pillars — Compete, Create, Steward and Advocate — that form the Roadmap’s foundation. Each Pillar is supported by objectives, strategies and tactics aimed at guiding the CTO and its industry partners in building Colorado’s competitive advantage through both prosperous and challenging times. The full planning document can be found here.February 1, 2022 - Page 122 of 224 our references February 1, 2022 - Page 123 of 224 41 SECTION NAME ADD HEREour references Lucy Kay President & CEO Breckenridge Tourism Office 111 Ski Hill Rd Breckenridge, CO 80424 Phone: 970.453.5054 Email: lkay@gobreck.com Project: Breckenridge Destination Management Plan Racene Friede President & CEO Glacier Country Tourism 4852 Kendrick Pl Missoula, MT 59808 Phone: 406.532.3235 Email: racene@glaciermt.com Project: Glacier Country Destination Stewardship Plan Mary Kerr President & CEO Destination Ann Arbor 315 W. Huron Street Ann Arbor, MI 49103 Phone: 734.995.7281 Email: mkerr@annarbor.org Project: Washtenaw 2030 Destination Master Plan REFERENCESFebruary 1, 2022 - Page 124 of 224 NEXTFACTOR ENTERPRISES INC. ADDRESS 5 Strachan Point Rd. West Vancouver, BC Canada V7W 1C1 PHONE +1.250.317.5838 WEBSITE nextfactorinc.com February 1, 2022 - Page 125 of 224 Project Budget - Town of Vail Destination Stewardship Plan Destinations Foundation SMARI Revised Pricing 12/29/2021 Cathy Ritter Paul Ouimet Greg Jim Shirin Teresa (Blended rate)(hard cost)Total Hours Total Budget Hourly Rate - Budget (USD) 200$ 250$ 250$ 250$ 150$ 150$ 150$ Hourly Rate - Cost (USD) 200$ 250$ 250$ 250$ 150$ 150$ 150$ Activities & Tasks -$ Project Planning & Management -$ a. Hold kickoff meeting to finalize the project plan and management structure 2 2 2 2 2 10 2,000$ b. Participate in a 1-day project kickoff and grounding trip 8 8 16 3,600$ c. Review existing research, destination plans and other planning documents 16 12 16 44 8,600$ d. Prepare a stakeholder consultation plan 4 4 4 2 14 2,700$ e. Project planning, management and monitoring 48 48 7,200$ Phase 1 - Foundational Research 0 -$ a. Analyze destination metrics, including marketing and visitor metrics 16 4 20 4,200$ b. Identify gaps/opportunities in Vail's current sustainability policies & practices 4 8 8 20 40 7,800$ c. Deliver situational analysis 16 12 8 36 7,400$ Phase 2 - Destination Stewardship Plan 0 -$ Stakeholder Engagement 0 -$ a. Prepare discussion guides 8 2 1 11 2,250$ b. Conduct 20 one-on-one consultation meetings 20 15 2 37 8,050$ c. Facilitate 10 to 12 focus groups (one designated for sustainable tourism)16 16 4 36 7,800$ d. Facilitate 3 visioning workshops for community engagement 12 12 24 5,400$ e. Support development of Communication Plan and messaging 8 4 12 2,600$ Stakeholder Analysis 0 -$ a. Prepare a synthesis and analysis of key takeaways of stakeholder engagement 8 4 12 2,600$ Analysis of Sustainable Destination Practices 0 -$ a. Benchmark Vail against global trends, best practices 4 20 24 4,000$ b. Share report summarizing analysis and opportunities 24 24 3,600$ c. Develop/Facilitate workshop to envision new directions for sustainability 12 12 1,800$ Half-day Visioning Workshop 0 -$ a. Prepare the draft impact map 8 2 8 2 20 4,400$ b. Prepare session materials 6 4 2 12 2,500$ c. Facilitate a half-day visioning workshop 6 6 6 6 24 5,100$ Draft Recommendations 0 -$ a. Prepare draft vision, mission and purpose statements.12 4 4 8 2 30 6,700$ b. Draft goals and recommendations, proposing both immediate and long-term priorities as well as roles and responsibilities for implementing them.24 4 4 16 8 56 12,000$ d. Conduct validation sessions with key stakeholders 16 8 2 26 5,500$ Finalize Plan 0 -$ a. Prepare draft master plan report 32 4 4 24 4 68 15,000$ b. Work with the Town of Vail to review/finalize plan for Town Council 12 8 20 4,400$ Phase 3 - ImplementaƟon & AcƟon Plan 0 -$ a. Prepare Implementation & Action Plan 30 4 4 24 8 70 15,200$ b. Work with Town of Vail to review/edit plan 8 8 16 3,600$ Totals - Revised Professional Fees 292 26 28 217 0 55 144 762 $58,400 $6,500 $7,000 $54,250 $0 $8,250 $21,600 156,000$ Professional Fees Budget MMGY Next Factor February 1, 2022 - Page 126 of 224 OpƟonal Components a. Identify relevant local, national, global trends and best practices 8 8 16 4,200$ b. Conduct resident sentiment study - SMARI $6,000.00 6,000$ c. Conduct visitor brand perception study - SMARI $20,000.00 20,000$ d. Conduct DestinationNEXT assessment - fee 6 14 20 3,550$ e. Conduct DestinationNEXT assessment - hard cost of $3,850 3,850$ f. Develop Optimizing Value Framework 90 90 13,500$ Totals - All Optional Costs 0 0 8 14 14 0 90 126 51,100$ Optional Components Budget Total Proposal with Revised Professional Fees plus All Optional Costs 207,100$ Original bid: $211,600 February 1, 2022 - Page 127 of 224 Detail for Travel Foundation Travel Foundation (Blended rate) Team Lead Team Support Total Budget Blended Hourly Rate - Budget (USD) 150$ Blended Hourly Rate - Cost (USD) 150$ Activities & Tasks Project Planning & Management a. Hold kickoff meeting to finalize the project plan and management structure 2 Jeremy Sampson 300$ b. Participate in a 1-day project kickoff and grounding trip -$ c. Review existing research, destination plans and other planning documents 16 Rebecca Armstrong Kelly Galaski 2,400$ d. Prepare a stakeholder consultation plan 2 Rebecca Armstrong Kelly Galaski 300$ e. Project planning, management and monitoring -$ Phase 1 - Foundational Research a. Analyze destination metrics, including marketing and visitor metrics -$ b. Identify gaps/opportunities in Vail's current sustainability policies & practices 18 Rebecca Armstrong Kelly Galaski 2,700$ c. Deliver situational analysis 8 Rebecca Armstrong Kelly Galaski 1,200$ Phase 2 - Destination Stewardship Plan Stakeholder Engagement a. Prepare discussion guides -$ b. Conduct 20 one-on-one consultation meetings 2 Rebecca Armstrong Kelly Galaski 300$ c. Facilitate 10 to 12 focus groups (one designated for sustainable tourism)4 Elke Dens Jeremy Sampson 600$ d. Facilitate 3 visioning workshops for community engagement -$ e. Support development of Communication Plan and messaging 4 Rebecca Armstrong Kelly Galaski 600$ Stakeholder Analysis a. Prepare a synthesis and analysis of key takeaways of stakeholder engagement -$ Analysis of Sustainable Destination Practices a. Benchmark Vail against global trends, best practices 18 Rebecca Armstrong Kelly Galaski 2,700$ b. Share report summarizing analysis and opportunities 24 Rebecca Armstrong Kelly Galaski 3,600$ c. Develop/Facilitate workshop to envision new directions for sustainability 12 Jeremy Sampson Elke Dens 1,800$ February 1, 2022 - Page 128 of 224 Half-day Visioning Workshop a. Prepare the draft impact map 2 Elke Dens Jeremy Sampson 300$ b. Prepare session materials 2 Elke Dens Jeremy Sampson 300$ c. Facilitate a half-day visioning workshop 6 Jeremy Sampson Elke Dens 900$ Draft Recommendations a. Prepare draft vision, mission and purpose statements.2 Elke Dens Jeremy Sampson 300$ b. Draft goals and recommendations, proposing both immediate and long-term priorities as well as roles and responsibilities for implementing them.8 Elke Dens Jeremy Sampson Jeremy Smith 1,200$ d. Conduct validation sessions with key stakeholders 2 Elke Dens Jeremy Smith 300$ Finalize Plan a. Prepare draft master plan report 4 Elke Dens Jeremy Sampson Jeremy Smith 600$ b. Work with the Town of Vail to review/finalize plan for Town Council -$ Phase 3 - ImplementaƟon & AcƟon Plan a. Prepare Implementation & Action Plan 8 Elke Dens Jeremy Sampson Jeremy Smith 1,200$ b. Work with Town of Vail to review/edit plan -$ Totals - Revised Professional Fees 144 $21,600 21,600$ Professional Fees Budget OpƟonal Components f. Develop Optimizing Value Framework 90 13,500$ Totals - Optional Costs 90 13,500$ Optional Components Budget Totals for Travel Foundation (Professional Fees Budget plus Optional Components Budget)35,100$ February 1, 2022 - Page 129 of 224 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 Mountain School Conditional Use P ermit Discussion P RE S E NT E R(S ): Matt Gennett, Community Development Director and Dominic Mauriello representing Vail Mountain School AC T IO N RE Q UE S T E D O F C O UNC I L: Discussion and Council input. B AC K G RO UND: The purpose of this item is to provide an opportunity for Council and Vail Mountain School (V MS ) to discuss the existing conditional use permit as it relates to enrollment and traffic improvements in the vicinity of the V MS Campus. See attached memorandum. AT TAC H ME N TS: Description Staff Memorandum Presentation public input February 1, 2022 - Page 130 of 224 TO: Vail Town Council FROM: Community Development Department DATE: February 1, 2022 SUBJECT: Vail Mountain School - Conditional Use Permit, Enrollment, and Traffic Mitigation Improvements Discussion I. SUMMARY The purpose of this item is to provide an opportunity for Council and Vail Mountain School (VMS) to discuss the existing conditional use permit as it relates to enrollment and traffic improvements in the vicinity of the VMS Campus. VMS has temporarily withdrawn the application to amend the existing Conditional Use Permit (CUP) to allow this discussion to occur. The application to amend the existing CUP is intended to address enrollment and traffic improvements stemming from a condition of approval of the 2000 Conditional Use Permit. II. CONDITION OF APPROVAL In 2000, the Planning and Environmental Commission approved a Conditional Use Permit for the new VMS campus to be constructed on its exiting property, supplemented by a land contribution form Vail Resorts (site of the employee housing to the east of Katsos Ranch Road). Included in the conditions of approval was Condition #6 that stated: “6. If future student enrollment exceeds 330 students, the applicant will be required to appear before the Planning and Environmental Commission again for a revised conditional use permit.” It appears from the information provided by VMS that the enrollment exceeded 330 students beginning in the 2006-2007 school year and has continued to exceed that number to the present. Enrollment for the last five (5) years has plateaued and remained consistent in the 420-440 student range. Staff has been meeting with VMS over the last year to discuss the outstanding condition and appropriate steps forward. Given the context of deliberations in the public record regarding the 330-student limitation stated in the condition of approval, the applicant and the town have surmised that the purpose of the condition is to address associated impacts to traffic, access, and transportation. VMS believes that an enrollment of 450 students is possible without any changes to the existing campus other than access improvements and traffic mitigation. February 1, 2022 - Page 131 of 224 Town of Vail Page 2 Many in the Booth Falls neighborhood and the community at large have experienced traffic congestion on the Frontage Road during peak school drop off/pick up times. At the recommendation of the town engineer, the applicant has undertaken a study on possible turn lane improvements. This study is included in the applicant’s narrative. The installation of the following improvements are recommendations of the study: • Eastbound North Frontage Road to northbound Booth Falls Road left‐turn deceleration lane. • Combined westbound North Frontage Road to northbound Booth Falls Road right turn deceleration lane and southbound school parking lot exit to westbound North Frontage Road right‐turn acceleration lane. • Southbound school parking lot exit to eastbound North Frontage Road left‐turn acceleration lane. • Frontage Road right-turn acceleration lane. Also discussed with VMS is the possibility of obtaining a school zone designation along the North Frontage Road in the vicinity of the school. The school zone designation will have an effect on the design and extent of the recommended improvements. Although supportive of this approach in principle, Public Works performed an initial speed study whose results indicate that the chances of a successful application through CDOT are extremely low. Prior to withdrawing the application to amend the Conditional Use Permit, the project appeared before the Planning and Environmental Commission on April 12, 2021. Commissioner Kjesbo requested meeting minutes from the April 24, 2000 PEC meeting at which the original Conditional Use Permit was approved. III. BACKGROUND On April 24, 2000, the Vail Mountain School received approval for a development plan and a conditional use permit for the expansion of the school facilities, including eight Type Ill employee housing units. It is this approval that Condition #6 was attached to. On August 12, 2002, the Vail Mountain School was granted approval for the following: • Rezoning three parcels to General Use to allow for consolidation, • Amending the Town of Vail Land Use Map, • Amending the development plan and Conditional Use Permit to allow for temporary classroom structures, • A conditional use permit to allow the construction of eight Type Ill Employee Housing Units, • A conditional use permit to allow for temporary modular classroom structures, • A recommendation to the Vail Town Council to modify the official Town of Vail Rockfall Hazard Map, and • A major subdivision. February 1, 2022 - Page 132 of 224 Town of Vail Page 3 The Vail Mountain School Master Plan involved significant improvements constructed in three separate phases. • 2003-04: Soccer field constructed, and cabin relocated. • 2004-05: Eight faculty housing units and the eastern half of the new school building constructed. 15 parking spaces were proposed with the development of Vail Mountain School's faculty housing, but due to neighborhood opposition, the additional parking was omitted from the final development proposal. The only approved parking for this site was for the faculty housing, which included eight enclosed parking spaces and eight unenclosed parking spaces. Since the development of the site, it has served as informal overflow parking for employees of the school. The existing lot can accommodate nine vehicles parallel parked along the south edge of the pavement. • 2005-06: Original building, gymnasium, and temporary classroom buildings demolished and removed, making way for the western half of the new school. Landscaping planted and parking lot constructed. In September of 2005, the new building was dedicated as the new Vail Mountain School. The last amendment to the Conditional Use Permit for the Vail Mountain School occurred in 2014, when approval was granted for the addition of a 1,040 square foot greenhouse and an increase to the Employee Housing parking lot. February 1, 2022 - Page 133 of 224 Vail Mountain School Vail Town Council Worksession February 1, 2022 February 1, 2022 - Page 134 of 224 Why We’re Here Receive Town Council feedback on new proposed school enrollment and ideas for traffic enhancement February 1, 2022 - Page 135 of 224 Historical Enrollment February 1, 2022 - Page 136 of 224 Enrollment Demand and a New Normal ●330 CUP cap was put in place based on traffic trigger ●A request to increase the cap by 120 = a responsibility to appropriately address necessary traffic enhancements ●Currently engaged in traffic studies and Town staff discussions ●Ideas we’re bringing forward enhances traffic circulation and maintains fiscal accountability February 1, 2022 - Page 137 of 224 Aerial Map of Neighborhood - 2019 School Housing Cabin Frontage RoadBoothfalls Katsos Ranch Rd February 1, 2022 - Page 138 of 224 Existing VMS Conditions -Drop-off generally runs from 7:45 to 8:10 am with most traffic between 8:00 - 8:10 am -Morning drop-off rarely backs up onto the Frontage Road -Afternoon pick-up generally runs from 3:00 - 3:30pm with the most traffic at 3:05 - 3:15 pm (typically 10 - 20 minutes per day) -Afternoons are when back-up occurs: This is the problem -And we’re not alone in creating traffic congestion -Over 20,000 vehicles used the parking lot last summer (trail users)February 1, 2022 - Page 139 of 224 Results of Preliminary Traffic Studies -Traffic Counts taken in August (before school started) and on a weekend in September of 2021 -Left Turn Lane: Friday, Saturday, and Sunday Counts when School is NOT in session show that CDOT standards for a left turn lane from Frontage Road to Boothfalls is met without VMS traffic -Per CDOT codes, trailhead and neighborhood traffic alone generate the need (15 VPH Friday, 25 VPH Saturday) February 1, 2022 - Page 140 of 224 Results of Preliminary Traffic Studies -Right Turn Lane: Saturday and Sunday Counts when School is NOT in session show that CDOT standards for a right turn lane from Frontage Road to Boothfalls is already met -Per CDOT codes, trailhead and neighborhood traffic alone generate the need (41 VPH) February 1, 2022 - Page 141 of 224 CDOT Requirements -CDOT requirements: CDOT standards for the need for right and left turn lanes is a very low threshold -Left Turn Lane - 10 vehicles per hour -Right Turn Lane (deceleration) - 25 vehicles per hour -These standards are triggered without VMS traffic (trail and background traffic) but VMS traffic adds significantly more twice a day for 30 mins in each peak hour -VMS didn’t cause the need for turn lanes but contributes significant traffic to the system February 1, 2022 - Page 142 of 224 CDOT Requirements 1.Buffehr Creek Road/NFR 2.Lionsridge Loop/NFR 3.Red Sandstone Road/NFR 4.Vail Valley Drive/Elkhorn Dr -The following additional intersections on the Frontage Roads are also noncompliant with CDOT standards for turn lanes: February 1, 2022 - Page 143 of 224 Proposed Traffic Solutions -Physical improvements to the VMS campus will help traffic issues significantly -Management solutions will help significantly -Together, the proposed solutions should resolve the back-up issues -School is in session 172 days a year -So the back up issues exist on about 172 days of a 365 day year February 1, 2022 - Page 144 of 224 Applications and Studies Underway -CDOT is performing a speed study to determine if the speed limit should be lowered from 45 MPH -No results are yet available from CDOT -VMS/Town have applied for a school zone designation to also lower the speed limit during peak hours -Submitted August 2021 -No results from CDOT yet February 1, 2022 - Page 145 of 224 Pursue Improvements to Eliminate Backups -Add new exit lane to Frontage Road -Creates a two lane exit with left and right lanes -Allows traffic to exit more quickly and efficiently -Reduces congestion at Boothfalls and Frontage Road -Widen parking lot -Allow for 3 stacking/waiting lanes and 1 thru lane during afternoon peak traffic February 1, 2022 - Page 146 of 224 Pursue Improvements to Eliminate Backups -Reduce pinch points in parking lot to improve flow -Add turn lane on Boothfalls into parking lot to improve access -Make full two-lane entrance parking lot February 1, 2022 - Page 147 of 224 Parking Lot Modifications Expand Parking Width Two lane exit Turn lane Widen Pitch Point Two lanes February 1, 2022 - Page 148 of 224 Pursue Improvements to Eliminate Backups -Move Middle School Pick-Up to Housing Parcel -Removes about 25% of the traffic from Boothfalls Road -Reduces back-ups and congestion Katsos Ranch Rd February 1, 2022 - Page 149 of 224 Pursue Improvements to Eliminate Backups -Staggered Start Times -Move start times for class division an hour later and end time one hour later -Reduces the peak hour traffic in morning and afternoon -Staggered schedule was implemented on Tuesdays and Thursdays this year for high school with positive traffic results -Will reduce back-ups February 1, 2022 - Page 150 of 224 Pursue Improvements to Eliminate Backups -Shuttles -Contract with Van Service for remote pick-up/drop-off -Reduces car trips to site at peak hours -Carpooling -Formal program using carpool apps -Will result in reduction in traffic over time -Hire personnel focused on traffic and traffic management February 1, 2022 - Page 151 of 224 Working Together with the Town -Collaborate on an approach to CDOT to support the School Zone request, lowering speed limit (40 mph versus 45 mph) and appropriately-sized turn lanes -Pair turn lanes with a package of physical improvements and management programs -We would like to work with staff on a package and a cost-share partnership that both staff and council can support -Seek a new enrollment cap that reflects the carrying capacity of the school -Work with staff on trailhead use and parking -Continue neighborhood outreach February 1, 2022 - Page 152 of 224 Thank you. February 1, 2022 - Page 153 of 224 February 1, 2022 - Page 154 of 224 From:Tammy Nagel To:Stephanie Bibbens Subject:FW: Concerns with Vail Mountain School Conditional Use Permit Date:Monday, January 31, 2022 2:41:58 PM Attachments:image002.png Tammy Nagel Town Clerk 75 S. Frontage Road W. Vail, Colorado 81657 970.479.2136 vailgov.com From: Penny Wilson <penlynwilson@gmail.com> Sent: Monday, January 31, 2022 7:46 AM To: Council Dist List <TownCouncil@vailgov.com> Subject: Concerns with Vail Mountain School Conditional Use Permit Good morning Vail Town Council Members, I want to express concern about Vail Mountain School's conditional use permit. I live on Bald Mountain Road. Bald Mountain Road is one road west of Booth Falls Road on the west side of Booth Falls Park. Bald Mountain Road splits just north of the frontage road and becomes Manns Ranch on the east and Bald Mountain on the west. It seems as if everyone - those who work for the town as well as VMS - forgets that our roads are impacted by the traffic at Vail Mountain School. Currently, we are having issues during pick-up times with cars on our road waiting for students February 1, 2022 - Page 155 of 224 to pick up. The students will walk through Booth Creek Park to be picked up by the person waiting in the car on Bald Mountain or Manns Ranch. The issue is that these cars don't park on the side of the road - they'll sit at the stop sign or just wait in the middle of the road. This causes confusion and traffic impacts for those of us on this road by having to navigate around these cars when you're unsure if they are parked, going to move, or what to do when they are just sitting at the stop sign. This is unacceptable and dangerous. Not to mention when the kids are released from school and go to the cars, it gets even more confusing. The previously parked cars start leaving, and there are still kids coming to the other cars. It is a mess. Much less, have any of you tried going east on the frontage road during pick-up or drop-off times? If you get stuck in traffic, you could be sitting there for a while. It is even a challenge to turn left on the frontage road when traffic is building. Something needs to be done to reduce the number of cars traveling the school twice each school day. Given all of the issues with traffic and the current number of students, how much worse will the traffic on the frontage road and our road be by increasing the allowed enrollment of 470 students? Consideration should also be given to the environmental impacts given all the idling cars during these times. That is a lot of pollution going into the air every day school is in session. Can the school be required to limit the number of cars that travel to campus every day? Perhaps provide transportation (buses) from down valley? Require a certain number of students per car? Of course, requiring a reduction in cars may impact Bald Mountain/Manns Ranch even more because people will drop/pick up their kids on these roads rather than travel at the school to get around the rules. I would also ask that town staff remember that those on Manns Ranch/Bald Mountain are impacted by changes at the school. Don't keep the mypoic view that stops at the streets adjacent to VMS. ALL my best, Penny Penny Wilson, PhD, RDN p: (713) 822-8500 e: penlynwilson@gmail.com w: DrPennyWilson.com February 1, 2022 - Page 156 of 224 February 1, 2022 - Page 157 of 224 From:Tammy Nagel To:Stephanie Bibbens Subject:FW: Vail Mountain School -- input from a neighbor Date:Monday, January 31, 2022 3:03:32 PM Tammy Nagel Town Clerk 75 S. Frontage Road W. Vail, Colorado 81657 970.479.2136 vailgov.com -----Original Message----- From: ALAN DANSON <adanson@me.com> Sent: Monday, January 31, 2022 12:20 PM To: Council Dist List <TownCouncil@vailgov.com> Subject: Vail Mountain School -- input from a neighbor Dear friends on the Vail Town Council. I know that you will be having a conversation with the VMS leadership tomorrow that focuses on enrollment numbers and traffic issues. I live in the first house on Booth Falls Road, so traffic is of particular concern to me. I can tell you that in my opinion VMS is doing an excellent job dealing with the traffic issue. It is apparent that VMS has communicated effectively with the parents and students who drive to the school, so that during the rush hour, especially in the afternoons, the VMS drivers make a real effort to accommodate those of us who need to turn onto Booth Falls Road from the frontage road. Obviously, a turn lane would improve the situation immeasurably, but pending such an addition, I want you to know that at least this neighbor is satisfied. Alan Danson 970-376-0232 February 1, 2022 - Page 158 of 224 From:Tammy Nagel To:Stephanie Bibbens Subject:FW: VMS amendment to CUP & traffic Date:Monday, January 31, 2022 3:08:05 PM Attachments:image007.png Tammy Nagel Town Clerk 75 S. Frontage Road W. Vail, Colorado 81657 970.479.2136 vailgov.com From: pamelas <pamelas@vail.net> Sent: Monday, January 31, 2022 2:53 PM To: Council Dist List <TownCouncil@vailgov.com> Subject: VMS amendment to CUP & traffic Dear Mayor and Council: I note that discussion of the VMS CUP is on the afternoon Council Agenda for February 1. As a resident on Manns Ranch Road, I am aware of periods of time when the Frontage Road gets backed up with students arriving/departing and parent drop-off/pick-up. VMS has otherwise been a good neighbor and the traffic issue is largely a result the school being attractive to an increased number of families. Further to student arrival/departure is the traffic attracted by the Booth Lake trail. Addressing the traffic issue is appropriate and we hope that mutually acceptable solutions can be reached. We recognize that TOV has initiated programs to reduce hiker traffic but more needs to be done on that matter. As neighbors we hope that solutions with minimal impact to the berm and what is essentially open space near the Booth Falls intersection can be reached. Those areas serve February 1, 2022 - Page 159 of 224 multiple purposes as; creating a ‘barrier’ between young students and Frontage Road vehicle traffic and serving as a visual break for travelers on the Frontage Road or I-70 rather than seeing more rows of vehicles. Hopefully Town staff and Council can work with VMS on creative solutions and not just look at this project as adding more asphalt on the valley floor. Regards, Pam Stenmark Pamela Stenmark pamelas@vail.net (c) 970-376-1124 February 1, 2022 - Page 160 of 224 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: W ildland Urban I nterface Proposed Code Amendments Discussion P RE S E NT E R(S ): P aul Cada, W ildland P rogram Manager, Mark Novak, F ire Chief AC T IO N RE Q UE S T E D O F C O UNC I L: Provide feedback. B AC K G RO UND: I n support of implementation of the Vail Community W ildfire P rotection P lan, staff is proposing amendments to the Vail W ildland Urban I nterface Code which would require the creation of a 5' non-combustible zone around all structures (Fire F ree F ive). S taff is seeking feedback from council on this issue. AT TAC H ME N TS: Description Staff Memo Regarding Wildland Urban Interface Code Amendments Presentation W ildland Urban Interface Code February 1, 2022 - Page 161 of 224 To: Vail Town Council From: Mark Novak, Fire Chief and Paul Cada, Wildland Program Manager Date: January 21, 2022 Subject: Proposed Amendments to Code for Reduction of Wildfire Hazards I. Background The wildfire situation in the Western US is continuing to grow worse, fueled by climate change, community development and excessive fuel loading. Scientific studies released in 2021 have pointed to expanded risks to higher elevation communities such as Vail. Since 2001 fires above 8000ft in elevation have nearly tripled in frequency and acres burned. Another study pointed to a near doubling of moderate and high intensity fires during that same period, leading to significantly higher damage to ecosystems and the communities that are built within them. This intensification of wildfire events has also led to a steep increase in impacts on communities throughout Colorado and the west. Fires such as December’s Marshall Fire, burning in areas previously not thought of as “at risk” from wildfires are sustaining significant loss. These losses have led to a growing body of research on what is causing both individual and community losses from wildfire. Two studies released in late 2021 focusing on the Camp Fire in Paradise California point to spatial arrangement of homes (distance between homes), home hardening and fuels modification in the home ignition zone (within 100 feet of the building) as the greatest predictors of home survivability. Homes that have been hardened and have good defensible space are statistically much more likely to survive, however this protection is significantly diminished if nearby structures (less than 30 feet separation) catch fire. Additional studies have analyzed survivability of structures within wildfire perimeters comparing the economic losses in areas where codes are mandatory vs. voluntary. Clear evidence demonstrates limited acceptance (and therefore effectiveness) of voluntary wildfire protections in comparison to areas with mandatory code compliance. This limited acceptance of voluntary actions has led to significant losses in communities which otherwise may have had minimal loss. The study also points out the risk that homes who have not mitigated wildfire risk pose to nearby structures. Simply stated, homes that do not meet Wildland Urban Interface (WUI) codes are more likely to burn down homes that are code compliant if they are in close proximity. February 1, 2022 - Page 162 of 224 Town of Vail Page 2 At the June 1st, 2021 Vail Town Council meeting Vail Fire presented a strategy to accelerate implementation of the Vail Community Wildfire Protection Plan (CWPP), measurably reducing wildfire risk to the entire community. During this meeting Town Council conceptually supported amending codes to increase protection of homes built within the Wildland Urban Interface including requiring a 5 foot zone of non-combustible landscaping around all buildings in Vail. Since that time, Vail Fire staff has been working with the Community Development Department to identify ways to strengthen existing codes and implement a 5-foot-wide zone of non-combustible landscaping while maintaining the look and feel of our community. II. Current Situation Vail Fire is proposing amendments to Title 5- Public Safety, requiring that all structures in the Town of Vail create and maintain an ignition resistant landscaping feature from the foundation wall extending 5 feet from the structure. This area is described as the Fire Free Five. The Fire Free Five represents the largest area where embers may accumulate during a wildfire and is the most critical part of defensible space. Creating a Fire Free Five is the most critical step that property owners can do to protect their structure as well as prevent structure to structure ignition. The Fire Free Five will be consistent with the currently adopted Vail Fire Ignition Resistant Landscaping standards that were vetted by DRB and PEC. These Ignition Resistant Landscape standards are currently required for new development and significant additions. Under the proposed code each building shall create an area of ignition resistant landscaping which extends from the foundation wall or attachment, such as deck or stairs, whichever is greater, out five feet. Within this area allowable landscaping would include: • Hardscaping such as on-grade patios, walkways, driveways, etc. • Non-combustible mulch • Well maintained and irrigated lawn • Perennial flower beds • Perennial ground cover Trees and shrubs would not be allowed to be planted (stem within 5’ zone) within the Fire Free Five however accommodations can be made for existing plant materials that hang over into the 5’ zone. Trees planted outside the 5’ zone that hang over into the zone must be limbed up to a height of 6’ or 1/3 the total height whichever is less and must be trimmed to leave at least a 2’ gap between the nearest branch and the building. Heritage trees, those greater than 12” DBH and 40’ tall, within the village core may be exempted from the requirements of this code. The Fire Free Five would also apply to material placed or stored within this area. Combustible materials such as firewood, construction materials or other combustibles may not be stored within this zone. Combustibles may be allowed to be stored within February 1, 2022 - Page 163 of 224 Town of Vail Page 3 this zone if they are enclosed in a manner to prevent the ignition from wildfire flames or embers. To reasonably implement a mandatory Fire Free Five, we propose to have an extended implementation period of 3 years from the date of adoption. During this time each property will be evaluated again, the follow-up information provided to each property owner will explain the Fire Free Five requirement and the implementation timeline. Beginning in 2025 each property would be evaluated once every 3 years for compliance. Properties not in compliance will be noticed and mitigation actions may be mandated by the municipal judge. This extended implementation period would also allow town staff to work together to develop resources to assist community members as well as evaluate alternative methods to maintain aesthetics. These methods may include use of art to reduce the scale of buildings, identifying alternative screening materials and locating plantings in public right of ways where they may be better suited. Implementation of the Fire Free Five is critical. Between 2017 and 2021 Vail Fire conducted a curbside wildfire hazard evaluation of every parcel in Vail and the results were shared with each property owner. During this process we identified that 79% of structures within the community do not have an adequate Fire Free Five. The concept of the Fire Free Five was brought before the Building and Fire Code Board of Appeals at their December 2021 meeting and the Design Review Board on January 19th, 2022. Both bodies recognized that this may be a significant change in some portions of the community, however they also saw the great value in reducing the shared risk from wildfire. III. Staff Recommendation Review the proposal for amendments to Title 5- Public Safety, mandating that all structures in the Town of Vail create and maintain an ignition resistant landscaping feature from the foundation wall extending 5 feet from the structure and provide feedback to staff. February 1, 2022 - Page 164 of 224 Vail Wildland Urban Interface Code Amendments Paul Cada-Wildland Program Manager February 1, 2022 - Page 165 of 224 Changing Fire Environment Town of Vail | www.vailgov.com/fire | •Since 2001 wildfires above 8000 ft have nearly tripled in frequency and acres burned •Moderate and high severity fires have nearly doubled leading to significantly higher damage to ecosystems and the communities that are built within them •Fire seasons are 78-112 days longer than they were in the 1970s •Recently released studies directly link structure loss to home hardening and defensible space and define the shared risk between nearby structures. •Colorado is experiencing substantial community loss outside of “traditional fire seasons” and in areas not previously presented as at “High Risk” of wildfire. •All of Vail is at risk from wildfire February 1, 2022 - Page 166 of 224 What Causes Structure Loss During Wildfire Town of Vail | www.vailgov.com/fire | •Direct Flame Contact-Flames of wildfire ignite portion of structure •Least common cause •Ember Ignition-Occurs generally before fire front passage or hours to days after fire front passage •Most common •Structure to Structure Conflagration-Occurs when heat from burning structure ignites structures nearby. The closer structures are together the more likely this is. •Rare, but represents disproportionally high amount of overall loss in fires such as Marshall Fire February 1, 2022 - Page 167 of 224 Accelerating Progress Town of Vail | www.vailgov.com/fire | Community impact from wildfire is WHEN, not if. To accelerate our community's preparedness at the June 1st, 2021 Town Council Meeting Council conceptually supported: •Amended codes to increase protection of homes built in the wildland urban interface •Expand applicability of codes to include reskins and entire landscapes of development projects •Create mandatory 5’ non-combustible zone around all buildings •Allocate annual funding for fuels reduction projects •Expand wildland division staffing to support CWPP project implementation February 1, 2022 - Page 168 of 224 Mandatory 5’ non-combustible zone around all buildings-Fire Free Five Town of Vail | www.vailgov.com/fire | •Currently mandated for projects requiring WUI code review (new development, substantial additions) •Each building shall create a zone of non-combustible materials that extends from the foundation wall or attachment out five feet. •Within this area allowable landscaping would include: •Hardscaping such as on-grade patios, walkways, driveways, etc. •Non-combustible mulch •Well maintained and irrigated lawn •Perennial flower beds •Perennial ground cover •Trees planted outside the 5’ zone that hang over into the zone must be limbed up to a height of 6’ or 1/3 the total height whichever is less and must be trimmed to leave at least a 2’ gap between the nearest branch and the building. •Heritage trees, those greater than 12” DBH and 40’ tall, within the villages may be exempted from the requirements of this code. February 1, 2022 - Page 169 of 224 Accelerating Progress through Amended Code Town of Vail | www.vailgov.com/fire | Create mandatory 5’ non-combustible zone around all buildings-Fire Free Five February 1, 2022 - Page 170 of 224 Fire Free Five Proposed Implementation Town of Vail | www.vailgov.com/fire | •Between 2017 and 2021 every property in Vail had a Curbside Wildfire Evaluation Completed •Results were shared with each individual property owner •79% of properties evaluated did not meet recommendations for the Fire Free Five •Utilize an extended implementation period to aggressively educate property owners and develop resources to assist with implementation •Proposed to re-evaluate every property over the next 3 years using same process previously used. •Extra targeted outreach will be made to properties with non-conforming features •This time can also be used to develop resources (art in place of landscaping, planting in public right of ways, cost share programs, etc.) •Beginning in 2025 properties will be inspected on a rotating basis. Non-conforming properties will be noticed, and issues may be addressed in municipal court. February 1, 2022 - Page 171 of 224 Fire Free Five Proposed Implementation Town of Vail | www.vailgov.com/fire | IBHS Twitter February 1, 2022 - Page 172 of 224 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: Compensation S trategy Update and Compensation Consulting R F P P RE S E NT E R(S ): K rista Miller, Director of Human Resources and Scott Robson, Town Manager AC T IO N RE Q UE S T E D O F C O UNC I L: L isten to the presentation and provide feedback. B AC K G RO UND: Town Council approved an updated Compensation P hilosophy as a part of the 2022 budget process. T his presentation will present an update on the implementation of this strategy and provide an overview of the compensation consulting request for proposals (R F P) for 2022. AT TAC H ME N TS: Description Presentation February 1, 2022 - Page 173 of 224 PRESENTATION BY Human Resources/Risk Management2022Compensation Strategy - UpdateFebruary 1, 2022 - Page 174 of 224 2Compensation Strategy Update• Compensation Strategy & Philosophy Review• Compensation Consulting RFP• Next StepsTown of Vail   |   Human Resources   |   vailgov.comFebruary 1, 2022 - Page 175 of 224 Town Council Action Plan & Total Rewards StrategyPremier International Mountain Resort CommunityCompensation & Benefits PackageTown of Vail   |   Human Resources   |   vailgov.comFebruary 1, 2022 - Page 176 of 224 Provide a Competitive Total Rewards PackageEmployee ExperienceCultureLeadershipConnectionCompensation PackageCompetitive base payCore benefits offeringLivability (Housing, day care etc..)Learning OpportunitiesMeaningful workCareer progressionLearning and DevelopmentTown of Vail   |   Human Resources   |   vailgov.comFebruary 1, 2022 - Page 177 of 224 Compensation Philosophy - A Changing LandscapeCompensation Philosophy:• Brand Alignment – Premier Pay for Premier Work (65+%)• Effective in motivating, retaining and attracting employees• Data Driven decision-making• Responsive and flexible for changing market and employee dynamics Compensation PackageCompetitive base payCore benefits offeringLivability (Housing, day care etc..)Town of Vail   |   Human Resources   |   vailgov.comFebruary 1, 2022 - Page 178 of 224 Compensation Philosophy - Brand AlignmentCompensationPhilosophyBrandOur compensation philosophy should align with our brand – a world class resort with world class people• Premium service and work outcomes in exchange for the opportunity to earn premium pay• Premium pay will be demonstrated by pay grades with midpoints that are aligned with the 65thto 75thpercentile of the Colorado market adjusted for cost of labor differences in the Vail valley.• Individual advancement through the ranges will be based on performance.Town of Vail   |   Human Resources   |   vailgov.comFebruary 1, 2022 - Page 179 of 224 Compensation Philosophy - EffectivenessOur programs will be built, and evaluated for effectiveness, considering three goals. Programs must:•Motivateemployees to deliver the highest quality service and performance.•Retainquality employees with competitive pay, and opportunity to improve earnings through performance driven increases and advancement•Attractcandidates that are by nature aligned with our brand and deliver premium performance. We will be data drivenTown of Vail   |   Human Resources   |   vailgov.comFebruary 1, 2022 - Page 180 of 224 Compensation Philosophy - Data DrivenOur programs and decisions will be data driven. We will survey the market annually to identify trends and changes that may impact our ability to motivate, retain, and attract quality employees.• Compensation Surveys used will be from reputable sources such as the Employers Council, with statistically valid data collection processes.• Cost of Labor adjustments will be based on data collected by reliable sources such as the Bureau of Labor StatisticsFebruary 1, 2022 - Page 181 of 224 Compensation Philosophy - ResponsiveWe recognize that one size doesn’t fit all. Our programs will be responsive to changing employee demographics. Flexibility may allow employees to add cash to their paychecks.For example, some ideas:• Lower cost plan (coverage) levels in medical plan• Trade vacation for cash to support housing purchaseTown of Vail   |   Human Resources   |   vailgov.comFebruary 1, 2022 - Page 182 of 224 Compensation Market - 2022Leading Internal Indicators• GPTW Survey results note compensation as largest challenge (2016 & 2021) along with affordability challenges (2021)• Turnover increasing• Increased overtime due to staffing shortages• Recruitment info • Time to fill • Fewer applicants • Increased competitionTown of Vail   |   Human Resources   |   vailgov.comFebruary 1, 2022 - Page 183 of 224 Compensation Market - 2022Leading Economic Indicators• Market Trends• CPI up 7.0% (annual Dec 2021 – largest increase since 1982)• Colo avg hourly earnings up 6.6% (annual)• Colo job growth 5.8% (annual)• Unemployment down to pre-pandemic levels• Vail - 10 months record sales tax revenueLeading Local Indicators• Recent Destimetrics Report• OCC up 75.6% over 20/21 (up 12.8% over 19/20)• ADR up 32.5% over 20/21 (up 20.6% over 19/20) Town of Vail   |   Human Resources   |   vailgov.comFebruary 1, 2022 - Page 184 of 224 Compensation Market - 2022Market Reference Info• Comparison data (mountain region employers)• Eagle County – 2021 & 2022 budget• Eagle County Schools (October & December increases)• Vail Resorts ($2/hr end of season bonus)• Many employer raising starting wages and/or providing sign on bonuses and other short-term incentivesTown of Vail   |   Human Resources   |   vailgov.comFebruary 1, 2022 - Page 185 of 224 Compensation Market - 2022Town of Vail - Well Positioned Financially• TOV’s 2022 budget includes enough to preserve average market position (50%), not gaining much ground toward 65thpercentile•60thpercentile is estimated to cost another $750,000 to $800,000• Compensation Study 2022 to confirm market targets and project 65thpercentile for 2023 budget• The increase in compensation funding aligns with 65% five year average of personnel costs compared to total GF expenditures• The proposed personnel expenditure is sustainable into future years with current conservative revenue projectionsTown of Vail   |   Human Resources   |   vailgov.comFebruary 1, 2022 - Page 186 of 224 Compensation Study 2022Request for Proposals:• Compensation Consulting RFP:• Confirm market groups• Survey market positions• Review position classification• Create recommendations• Present multi-year plan for budget planning and implementation•Timeframe:• February RFP responses• March/April– collect survey data & analyze• Summer – Recommendations for immediate, 2023 and futureTown of Vail   |   Human Resources   |   vailgov.comFebruary 1, 2022 - Page 187 of 224 Compensation What questions does the Town Council have on the market information? What additional information do you need to support the 60thpercentile for 2022?Are there additional areas you would like the Town to consider for Compensation Consulting RFP?Town of Vail   |   Human Resources   |   vailgov.comFebruary 1, 2022 - Page 188 of 224 Thank youFebruary 1, 2022 - Page 189 of 224 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 January 19, 2022 D R B Meeting Results January 24, 2022 P E C Meeting Results February 1, 2022 - Page 190 of 224 D E S IG N R E V IE W B O AR D January 19, 2022, 2:00 P M Virtual on Zoom 75 S. Frontage Road - Vail, Colorado, 81657 1.Call to Order 1.1.Register in advance for this webinar: https://us02web.zoom.us/webinar/register/W N_xA P RvX H9S7qy9hu8Xr-Zjw After registering, you will receive a confirmation email containing information about joining the webinar. 1.2.Attendance Present: Doug Cahill, J ohn Rediker, Kit Austin, Peter Cope Absent: Kathryn Middleton 2.Main Agenda 2.1.D R B21-0547 - Laird Residence Final review of a separation request Address/Legal Description: 1967 Circle Drive/Lot 24, Buffehr Creek Resubdivision Applicant: Stephen & Rebecca Laird, represented by Pierce Austin Architects Planner: Greg Roy J ohn Rediker moved to approve with the findings that the application meets 10-10-2 and 10-10-6B.. Peter Cope seconded the motion and it passed (3- 0). Abstain:(1)Austin Absent:(1)Middleton 2.2.D R B21-0531 - Laird Residence Final review of new construction Address/Legal Description: 1967 Circle Drive/Lot 24, Buffehr Creek Resubdivision Applicant: Rebecca & Stephen Laird, represented by Pierce Austin Architects Planner: Greg Roy J ohn Rediker moved to table to February 2nd, or another date acceptable to the applicant.. Peter Cope seconded the motion and it passed (3-0). Abstain:(1)Austin Absent:(1)Middleton February 1, 2022 - Page 191 of 224 2.3.D R B21-0550 - Zurich 1326 L LC Residence Final review of new construction Address/Legal Description: 1326 Spraddle Creek Road / Lot 14, Spraddle Creek Estates Applicant: Zurich 1326 LLC, represented by Davis Urban, L L C Planner: Greg Roy J ohn Rediker moved to table to February 2nd, or another date acceptable to the applicant.. seconded the motion and it passed (4-0). Absent:(1)Middleton 2.4.D R B22-0001 - Highline Hotel Conceptual review of an exterior alteration/E HU reconfigure Address/Legal Description: 2211 North Frontage Road W est/Lot 1, Highline Sub Applicant: Highline Hotel, represented by Pierce Austin Architects Planner: Greg Roy 2.5.D R B21-0045.002 - Manor Vail Final review of a change to approved plans (pool fencing) Address/Legal Description: 595 Vail Valley Drive/ Lot A-C, Block 1, Vail Village Filing 7 Applicant: Manor Vail, represented by Zehren and Associates Planner: Greg Roy J ohn Rediker moved to approve with the findings that the application meets 10-10-2.. Peter Cope seconded the motion and it passed (4-0). Absent:(1)Middleton 2.6.D R B21-0539 - Owens Residence Final review of new construction Address/Legal Description: 272 W est Meadow Drive/ Lot 9, Vail Village Filing 2 Applicant: J ames & Virginia Owens, represented by Berglund Architects L L C Planner: J amie Leaman-Miller J ohn Rediker moved to table to February 2nd, or another date acceptable to the applicant.. Peter Cope seconded the motion and it passed (4-0). Absent:(1)Middleton 2.7.D R B22-0012 - 5013 Snowshoe Lane LL C Conceptual review of new construction Address/Legal Description: 5013 Snowshoe Lane/Lot 24, Vail Meadows Filing 1 Applicant: 5013 Snowshoe Lane L L C, represented by Segerberg Mayhew & Assoc. Planner: J amie Leaman-Miller February 1, 2022 - Page 192 of 224 2.8.D R B19-0689.002 - Lion's View Development Final review of a change to approved plans (landscaping) Address/Legal Description: 500 East Lionshead Circle/Lot 1 & 3, Block 1, Vail Lionshead Filing 1 Applicant: Lazier Lionshead Parcel L LLC, represented by OZ Architecture Planner: J onathan Spence J ohn Rediker moved to approve with the findings that the application meets 10-10-3 and 10-10-5.. Peter Cope seconded the motion and it passed (4-0). Absent:(1)Middleton 2.9.Landscape Determination - Vail Town Code 14-10-8 Final review of administrative determination Applicant: Dominic Mauriello Planner: Greg Roy J ohn Rediker moved to Overturn administrative determination. Kit Austin seconded the motion and it passed (3-1). Ayes:(3)Rediker, Austin, Cahill Nays:(1)Cope Absent:(1)Middleton 3.I nformational Update 3.1.W U I Update 3.2.Landscaping Code Proposal 4.Staff Approvals 4.1.D R B21-0335 - Beringause Residence Final review of exterior alteration (landscaping and solar) Address/Legal Description: 1190 Casolar Del Norte Drive B/Lot 6, Casolar Vail Applicant: Eric H. Beringause, represented by Colorado Land Art Studios, I nc. Planner: Greg Roy 4.2.D R B21-0537 - Pitkin Residence Final review of an exterior alteration (deck/roofs) Address/Legal Description: 95 Forest Road/Lot 32, Block 7, Vail Village Filing 1 Applicant: Edward & J udith Pitkin, represented by Current Architects Planner: J amie Leaman-Miller 4.3.D R B22-0002 - Smith Residence Final review of exterior alteration (gutters/snow guards/heat tape) February 1, 2022 - Page 193 of 224 Address/Legal Description: 2614 Larkspur Lane/ Lot 7, Block 1, Vail I ntermountain Development Subdivision Applicant: Mary Smith, represented by Patrick Brown Planner: J amie Leaman-Miller 4.4.D R B22-0013 - Fuller Trust Residence Final review of an exterior alteration (doors) Address/Legal Description: 4301 Columbine Drive/Lot 1, Block 7, Bighorn Subdivision 3rd Addition Applicant: Fuller Trust, represented by Gies Architects Planner: J onathan Spence The applic ations and information about the proposals are available for public inspection during regular office 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 visits that precede the public hearing in the Town of Vail Town C ounc il Chambers. Times and order of items are approximate, subject to c hange, and cannot be relied upon to determine at what time the Design Review Board will c onsider an item. Please call 970-479-2138 for additional information. Sign language interpretation available upon request with 24-hour notification, dial 711. February 1, 2022 - Page 194 of 224 P L ANNI NG AND E NV I RO NM E NTAL C O M M IS S IO N J anuary 24, 2022, 1:00 P M Virtual on Zoom 75 S . Frontage Road - Vail, Colorado, 81657 1.Call to Order 1.1.Register in advance for this webinar: https://us02web.zoom.us/webinar/register/W N_QJ ybkNzgQ2eMGMYxH6F E0g After registering, you will receive a confirmation email containing information about joining the webinar. 1.2.Attendance Present: Ludwig Kurz (via phone), J enn Bruno, Brian Gillette, Rollie Kjesbo, Karen Perez, Henry Pratt, Reid Phillips (departed at 4:15pm) Absent: None 2.Executive Session 2.1.C.R.S. Section 24-6-402(4)(b) - to have a conference with the Town Attorney to receive legal advice on specific legal questions regarding proposed code amendments. 10 min. No action as a result of executive session. 3.Main Agenda 3.1.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 12-14-17 Setback From Watercourse and add a new Section 12-21-17 Riparian Protection and W aterbody Setback Regulations, Vail Town Code, to change the waterbody setbacks, and setting forth details in regard thereto. (P E C21-0043) 90 min. Applicant:Town of Vail, represented by Pete W adden Planner:Greg Roy Karen Perez calls meeting back to order. All members other than Ludwig Kurz are present. Perez says information germane to the executive session was not present in the session. Therefore, the board has decided to hear item 3.1 today but not reach a final decision due to this fact. Pratt and Bruno agree. Planner Roy introduces the proposal. Water Quality Education Coordinator Peter Wadden gives a presentation on the proposal. He talks about the strategic plan and town efforts along the February 1, 2022 - Page 195 of 224 river in the past. He talks about the process of reaching the proposed ordinance. Gillette asks about the science behind the 25’ setback. Wadden says it comes from the 2008 Planners Guide to W etland Buffers. Gillette asks if this is from the Environmental Law I nstitute. Wadden confirms. Wadden continues presentation. He talks about the community input process. He talks about the criteria for an effective regulation and the goals of an effective regulation. Gillette says he wants elaboration on moving from the center line to high- water mark setback. Wadden says this will be addressed in presentation. W adden talks about the number of non-conforming properties in town. He talks about past code changes, non-conforming properties in town, and the grandfathering process. The proposed code language will increase the number of non- conforming properties from 102 to 128. He says non-conforming status has not impacted home insurance rates. Perez asks if multifamily structures were included as they are usually under commercial insurance. She believes this will increase the commercial liability, asks if Wadden can clarify that point. Wadden says he will follow up. He talks about Town Code 12-18-19 Restoration. Gillette and Perez talk about the challenges of providing restoration within one year per non-conforming code section (12-18-19). Bruno agrees, says we need to give people more time. Gillette says we should move forward with the process on getting that language changed. Wadden talks about the reasoning for using the Ordinary High-W ater Line (OHW L). A centerline-based setback is not effective at places where the stream is widest, where the setback is within the waterway. Wadden introduces Bill Hoblitzell with Lotic Hydrological. Hoblitzell gives a presentation about the difference between the Ordinary High-Water Mark (OHW M) and the Ordinary High Water Line (OHW L), as well as the 2-year flood line. He defines the 2-year flood line in hydrological terms. He talks about the 2-year flood, 10-year flood, and 100-year flood measurements for planning and engineering purposes. He talks the process for going from flow rates to inundation maps for planning. February 1, 2022 - Page 196 of 224 Gillette asks about creating cross-sections at Gore Creek as well as the different between the High-W ater Mark and the 2-year flood line. Hoblitzell explains why the 2-year flood line is a great proxy for the active stream channel boundary. He defines bankfull flows, they form the physical marks on the side of the bank. He talks about the US Army Corps of Engineers definition for the OHW M as well as the limitations of the measure. Hoblitzell says the 2-year flood elevation is a good objective baseline. Field surveying will get you a bunch of different elevations from different people. He talks about the safety benefits for larger setbacks. Pratt asks about difference between the Army Corps’ OHW M method and the OHW L. Hoblitzell says the OHW M is based on physical indicators in field surveys. Wadden adds that both measures try and determine the elevation where the stream fills it banks. Gillette says the lines now are a computer simulation, but the proposed ordinance allows homeowners to do a visual survey for the appeals process. Wadden says the OHW L is the best baseline for regulation. He acknowledges that there will be instances where a homeowner can appeal the OHW L to the Planning and Environmental Commission (P E C) by enlisting a qualified professional. Gillette asks if the previous version of the proposal had appeals going to Town Council. Wadden says this was amended and the recent version has the P E C as reviewing body for this kind of appeal. Gillette asks if currently staff cannot make a determination is that correct? Wadden says right now the buck falls to the property owner and surveyor to provide that data. Gillette questions the additional level of review. Wadden says the higher level of review would only kick in during an appeal. Pratt says the proposed ordinance requires a letter from the Army Corps for the appeal. W hy can’t we just rely on the surveyor? Wadden says that is why staff is recommending the OHW L over OHW M. He talks about the subjectivity involved in OHW M determinations. A hired consultant needs to have their lines verified by the Army Corps. Perez asks for clarification between the OHW L and OHW M. February 1, 2022 - Page 197 of 224 Wadden talks about the methodology for determining both measures. Gillette asks about the appeal process, is that using statistical modeling or observation? Wadden says as proposed the town would adopt a series of elevations along the stream based on the OHW L. An applicant could hire a consultant to conduct a OHW M study as part of the appeals process. Perez asks how often the OW HL is recalculated. Wadden says the Town Council can choose to update it when they feel it’s time. Perez asks for clarification about the 2-year floodline. Hoblitzell clarifies the timeframe for change, it is about 30 years for significant change to occur. Gillette asks what the P E C is reviewing during the proposed appeal process? He not qualified to review these, could staff review these appeals? Wadden says the appeals would come to the P E C with a staff recommendation. This is a large enough decision that it rises to a town commission. Wadden continues presentation. The OHW M is an Army Corps methodology that uses field indicators. The OHW L is a FE MA method. The ordinance proposes that the OHW L is used for the baseline and the OHW M for appeals. He talks about the method for finding the centerline-based setback. He talks about the method for determining the OHW L in the proposal. Gillette asks what type of professional can determine the high-water mark. Wadden says it would be a qualified professional. Gillette asks if we want to strengthen that language. Wadden says staff didn’t want to limit the number of people qualified to do this. Perez references the proposed appeal language. W hy are we using the OHW M if it is not a reliable standard as presented? Wadden says the method has drawbacks, but neither model is perfect. The best outcome is to incorporate data from both methods and allow applicants to bring that data into the equation. Additionally, it is important to have the Army Corps verify that data. Gillette asks about the process for verification from the Army Corps. February 1, 2022 - Page 198 of 224 Wadden says there is a regional office, they typically verify in three to six weeks in the summer months. They provide a letter that endorses or doesn’t endorse the surveyor ’s line. Bruno asks about the setbacks of neighboring communities. W hich method do they use? Wadden says it varies, some still use the centerline method. Most recently adopted setbacks have used the OHW L as the basis. Pratt asks about challenging the OHW L. Could I get a surveyor to remap the elevations for the OHW L and get new cross sections? Wadden clarifies could a property owner get specific cross sections for their property. Hoblitzell says the cross-section are used to determine the elevations. I t may be more precise, it’s unlikely it will move the elevation towards or from the stream. Pratt asks if it will give you a different line. Hoblitzell says the engineering models will get a similar line even across different computer programs. Wadden gives a case study on Middle Creek. Two qualified wetland scientists found different delineations using the OHW M methodology. Gillette asks if they’re on same side of stream. Wadden confirms. The difference here is why Staff recommends that the Army Corps verify the lines for appeals. Perez asks if the Army Corps will verify these delineations. Wadden says we have not done that yet, but we could, the Corps could do it in the spring. Phillips asks about the appeal language, and references Aspen’s appeal language. He suggests that the language should require a licensed professional for the appeal. W e can clean up that portion of language of who can make the new determination. He likes the option of an appeal process. He has no problem with the P E C reviewing this because it is elevated to that level. Wadden says he will follow up on that. Gillette asks if the Army Corps has a stipulation on who has to prepare the survey that they review. Wadden says he can look further into it. February 1, 2022 - Page 199 of 224 Gillette says the town language should be congruent with the Corps requirements. Perez references public comment, a memo from Mauriello Planning Group regarding a grandfathering provision. Has staff reviewed this? Wadden says an applicant will need a completed application submitted before the code changes, the laws currently in effect will apply. Gillette disagrees with this. He talks about his past experience; we don’t give people enough time. There should always be some sort of waiting period where people can plan ahead for changes. Wadden says he understand the sentiment. He will need to speak to the town attorney regarding that process. Perez says there is specific language on grandfathering. Wadden says staff opinion is that there should not be. Gillette disagrees and thinks that there should be a grandfathering clause. Like at the Evergreen, these projects take years to plan, there needs to be an allowance. Planning Manager Spence says you could delay the date of enactment. However, we can’t go by applicants claiming maybe they’re thinking about developing, that’s not a legal standard. There’s no grandfathering of properties that might be considered. Pratt agrees and recommends picking a deferred implementation date, maybe J anuary 1, 2023. Gillette wants to keep looking at it and maybe get more public comment. Wadden references images of existing and proposed setbacks in relation to the Evergreen Lodge Gillette says the diagram is not clear without a scale. Phillips says the appeal process is still available to applicants. He doesn’t see a whole lot of difference between the existing and proposed in the images. He says at some point we have to draw a line that allows us to keep the river healthy. I f we keep kicking the can, it doesn’t help us protect one of our greatest assets. I f we continue to allow variances, I don’t think we’re doing much as a commission. Phillips says if the Army Corps has a certain threshold, that is theirs not ours. I f we’re requesting their verification then this is included in their verification, we don’t need that exact language. He likes the fact that they will ask for the Corps verification and put the burden on the homeowners to show evidence. He says there are certain protections that we need to put February 1, 2022 - Page 200 of 224 into place. Gillette says an appeal on the lines may be different than the hardship proposed on the hotel. The grandfathering or the delay is a better tool to deal with these issues. Phillips has no problem with a delay. He doesn’t want to see grandfathering of unverified projects. He agrees with Pratt in terms of delaying the ordinance. Perez says we should continue moving through the Staff presentation. Wadden reiterates the reasons for changing the setback, including the direction from the Gore Creek Strategic Plan. He reiterates why staff is recommending the 25’ building setback from the OHW L. He says these actions could help get Gore Creek off the 303D list of impaired waterways. Perez asks for public comment. Kurz returns. He was listening to the presentation. He would like to ask Perez to continue running the meeting since he does not have video. He says the whole issue is being taken seriously by everybody on the board and community. He says staff is doing an amazing job with presenting the materials. He agrees with comments that Phillips made, we’re losing site a little bit of what we’re trying to do to protect the creek. W e get caught up in individual issues and not looking at protecting the asset that is the creek. Perez asks for a copy of the two presentations. She asks for public comment. She says it is an opportunity for comments but not a question and answer or debate session. Gillette asks if the public can receive these presentations. Bellm says they can be added to the P E C webpage. Dominic Mauriello speaks on behalf of the Evergreen Lodge owners. He talks about the work done by Heather Huston on Mill Creek and that they would have appreciated the opportunity to look at that with the town. The data displayed by the town regarding the setbacks in that area is probably not accurate. He applauds the goals of the proposal and doesn’t have issues with 10 foot no mow area. He references his letter to the P E C and asks what are the things that are allowed within the setback. He says the assumption being made is that the 2-year flood is the accurate measure to be using. He says we need to look at the areas throughout town, the 1.5-year measure might be more accurate for this proposal. The problem is the implementation of this, 5 feet matters, it is not trivial to some people. The point of the grandfathering is what Pratt suggested, giving people time to get their applications in before the changes. He talks about the two methodologies, there should be an allowance that you can go out there and have everyone agree on the marking of the line. He says it would be a good idea to look at the current GI S maps. February 1, 2022 - Page 201 of 224 J essica Hernreich is a Vail Village landowner and citizen. She says if you change the setbacks without a grandfathering clause you are setting up some property owners for failure because they were built under the previous regulations. She would also like to know more about how often the high water line is changed or addressed. How is that reconciled with the purchasing of water rights for snowmaking with Vail Resorts? Wendell Porterfield appears on behalf of property owners in the 11th filing. He wants clarification on how the OHW L is established. W ill the town be required to revisit the dataset used to determine the OHW L? Regarding the setbacks, who makes determination on structures that lawfully exist on a certain date? Blondie Vucich is an East Vail resident of 30 years. She says at one point the creek had gold medal fishing status. Landscaping practices have contributed to the degradation of the creek. The Vucich family reinstituted riparian habitat on their property, they no longer mow or fertilize. The proposed setbacks and moderation are not unreasonable, living here requires coexisting with ecosystems. Perez says the board has read a lot of written public comment that was submitted. Blondie Vucich says this type of shared information is really helpful and not everyone goes back to the record to review the comments. Dan J ohnson is General Manager at the Grand Hyatt Vail. He is thankful for the thorough proposal and the concern they have is that Gore Creek is their front yard. They have been good stewards over the years, they respect the no-mow zone. The conversation about a deferred enactment and defining intent to develop should receive more consideration. Gillette asks what timeframe do you think is appropriate? As a community member how many months do you think is appropriate? J ohnson says four to six months may be appropriate for their projects. I t should be more than 90 days; it also includes the availability of purveyors. Len W right is a Vail resident and Planning and W ater Resources Manager at Eagle River Water and Sanitation District. He thinks staff has done a phenomenal job at addressing the complex topics. He says enhancing riparian vegetation has the benefit of shading and better water temperatures. The OHW L model is deterministic so you get the same answer every time, his advice from a policy perspective is to be objective as possible. He advocates for a fixed objective line, he cautions that a F E MA floodplain model is different than the hydrology of a 2-year model, and advocates for a more detailed modeling survey. Staff addressed the horizontal equity issue but should also consider the vertical equity and the steepness of the banks. I n terms of variances and appeals it would be good to consider locations where you could get closer to the stream based on the vertical height. Gillette asks if you’re suggesting that appeals should not use the Army Corps method? February 1, 2022 - Page 202 of 224 Wright says yes, the subjective piece changes season to season and expert to expert. The real question is the appropriate flow rate to be used. He doesn’t want to get in a situation where you pick your expert, would rather be objective and have it defined from the Town’s perspective Gillette asks where the number should lie. Wright would step back from an opinion on that. He says climate change is also changing the statistics which are referenced. The frequency of intense events is changing. Wayne Forman is an attorney representing 1 W illow Bridge Road. They want more time to evaluate the proposal. The 10’ no mow zone is far less of a concern than the 25’ setback that would put the building in non-conforming status. Tom Hopkins lives on the creek in East Vail. He fears a 25’ setback won’t do much for the environment, it’s a minimal aspiration. Are there stretches along the creek where a bigger setback could be accommodated, the golf course for instance. And if we can do that, let’s take the opportunity before there is a lot of development. Perez asks if we could see how that could impact some of those areas. Richard Strauss is from Arvada and visits Gore Creek and Eagle River for flyfishing. He references his written comments and says the OHW M is the line between public and private lands. He recommends the book “Public Rights on Rivers.” He says that public rights should also be considered. Perez says his forum is now to discuss these issues. She asks if there is anything in particular regarding public or private rights that he would like to reference. Strauss suggests the book and says there are a lot of competing issues regarding water rights. Perez asks about the letter sent by Strauss, to make sure that the board receives his letter. Gillette says this is a legislative item, not a quasi-judicial item. The public is allowed to lobby the P E C, but they need to debate in a public forum. Heather Houston speaks from Birch Ecology. She wants to clarify the mapping they did in the field. She says they did do a good job of representing the high-water mark, it’s important to note that there is a new culvert upstream. The photos shown in the presentation were in an anomalous area. I t is not rocket science to see where there is a distinct change in vegetation. They have to look closely at the banks on both sides, and snow complicates the interpretation. She says the discrepancies shown in the presentation were based on old data. She wanted to provide more context to that section. Gillette asks if she can explain the process with the Army Corps verification. February 1, 2022 - Page 203 of 224 Houston says it’s a wetland delineation report, a verification goes to the bottom of their stack. I t is rare for them to visit delineations these days. They process things more quickly with a wetland permit application, a straight delineation can take some time, she had a process that took more than six months. The three to six weeks timeframe is not consistent with her experience. Gillette asks how she would value the verification. Houston says it depends on the applicant, and the level of scrutiny the Corp applies. Gillette asks what kind of consultant has the expertise to dispute the line. Houston says ecologists do wetlands delineations and there is no one measure you have to look at everything. Gillette asks what other kinds of ecologists? Houston says surveyors have asked her for advice, most of the time its fairly obvious, there’s a distinct change in vegetation and topography. Hydrologists, ecologists, wetland scientists, and surveyors can do the work. She doesn’t think the OHW M is guesstimating, it is a direct measurement in the field. The modeling method is based on the quality of the inputs. Lidar data may or may not be accurate enough for an individual property. Perez asks for Houston to be promoted to be able to share some images on her screen. Houston shows a photo of the bank and explains the placement of her flags. Gillette asks does this accurately depict the 2-year floodplain. Houston says no, the 2-year floodplain is not equal to the OHW M in a place like Vail. The 1.5-year measurement might be more equivalent. Gillette says it’s an important thing to resolve, the closer we can get the line to observation is important. We want to lower the discrepancy down from what you see to what we map. Houston says Black Creek Hydrology agrees on the 1.5-year line. I nstead of speculating what the 2-year line is we should go out and measure it on the ground. She doesn’t feel it is imprecise to measure on the ground. Gillette asks about the cost of the measuring. Houston says depending on the project and the size of the property it may be around $2,000. Pratt clarifies the distance between the 2-year statistical average and the bankfull measurement. February 1, 2022 - Page 204 of 224 Houston says you would expect to see the difference between the 2-year line and the OHW M, as shown in the presentation. Depending on the verticality of the bank, the difference between the 2-year line and OHW M varies. She provides additional examples in photographs. Gillette thanks Houston for the explanation. Hoblitzell reiterates that the benefit of the 2-year line is that it is not typically going to be outside of the bank. I t provides a safety margin that benefits the stream. By picking a conservative flow (2-year) over 1.5 year were putting our intent on the side of stream health, the errors fall towards that side. Russ Craney is the General Manager of Vail Residences at Cascade Village. All homeowners are in favor of the riparian zone proposal but are concerned about the 25’ setback as it pertains to decks and other features. I s there some give and take, can a two-story deck encroachment be offset by a larger riparian zone? Regarding the suggested six month window for a Design Review Board (D RB) submittal, he would suggest closer to a nine month window. J ason Carey is a Principal Engineer at River Restoration and consultant to the Town of Vail. He wants to thank everyone for consideration on this nuanced issue. He says everyone’s comments are generally correct because it’s a dynamic system. He encourages the Town to set up a system that can be regulated and managed by the staff. The task is not to fix a dynamic system but set up a way to regulate and manage that. Staff has done an admirable job of that. Tom Vucich is an East Vail resident and wants to support the comments of Phillips and Kurz. He wants to keep the big picture here and not get burdened down with the minutia of specific properties. He hopes that the P E C will support the effort of preserving the creek. J essica Hernreich says that as a resident in the village, she would appreciate if more consideration could be given to the appeals process which sounds daunting in the given timeframe. Gillette asks about the appropriate timeframe for delaying the enactment. Dominic Mauriello likes the idea of delaying until the end of the year. W e’ve had the current setback for 50 years and another nine months isn’t going to make a difference. A minimum could be 120 days, but until the end of the year could be good. Another thing to think about is separating the core area from other areas of town. Perez talks about her experience on the Denver Planning Board. She says the delay there was 11-12 months but that was for rewriting the entire zoning code, not one section. She says until the end of the year might be appropriate in this case. She says it is a complicated issue and would recommend that form based zoning could be applied. She says the P E C needs to balance environmental and planning considerations. February 1, 2022 - Page 205 of 224 Bruno says no one has had issues with the no-mow zone. W e need to enforce this regulation. She would like to reevaluate 1.5 versus 2-year lines and rethink if the Corps of Engineers is the best backup. A more detailed model should be researched. She has no issues with delaying the adoption of this and thinks that the setbacks should be universal and not have different distances in different zones. Gillette is more comfortable with the 2-year line given that it is conservative. He thinks we should take the Corps verification off the appeals process and should trust the ecologists. People didn’t get into the business to cheat it, they got into the business because they care. Kjesbo agrees with Bruno and Gillette. He agrees on the 2-year line and not needing the Corps verification. He also agrees with delaying implementation and not grandfathering projects. He also agrees 25’ is the minimum setback that should be considered. Gillette agrees with Kjesbo on using mapping for the high-water line and using the surveying method for appeals. Pratt brings up the setbacks for tributaries and would like to hear more discussion on that. He doesn’t want the Army Corps involved in appeals. He is in favor of setbacks and no-mow zone as long as we don’t impact too many people negatively. Kurz agrees on the 2-year line as well as on delaying the implementation but not for too long. He doesn’t want to look at the core areas any different than other areas as would defeat some of the purpose we’re trying to accomplish here. He says the discussion is benefitting the community. Perez is not convinced the OHW L is the right measurement. She is concerned about creating more non-conforming properties. She thinks the current system works fine and is clear. One of the board’s jobs is to make things clear, not more confusing. W e haven’t gotten to the other Takings concerns and if the proposal is clear it will be more easily enforceable. She is also in favor of the no-mow zone. Gillette says we need to give staff direction. Can we agree on delaying implementation to the end of the year? Kurz would prefer that was a shorter time. Bruno says we’ve waited 49 years to fix this, a few extra months won’t hurt. I t is the fair thing to do to not blindside people. This is a long-term plan and J anuary 1, 2023 is a fair date and gets us to our goal. Gillette is also in support of the High-Water Line, with an appeals process. Bruno likes the 2-year line but would like to see if the Army Corps can give a better timeframe on their process. Gillette asks if staff needs clarification on additional items. February 1, 2022 - Page 206 of 224 Wadden lists board comments: who is qualified to perform appeals using the OHW M as well as insurance of multi-family properties and the implications of non-conformity. Perez clarifies Phillips had a family event and had to leave. She says any determinations should include his feedback. Kurz suggests tabling for a month to give staff time for the requested information. Gillette asks for staff input. Wadden recommends returning at the next meeting. Karen Perez moved to table to February 14, 2022. Brian Gillette seconded the motion and it passed (6-0). Absent:(1)Phillips 4.I nformational Update 4.1.Update on the implementation of the West Vail Master Plan. 30 min. Applicant:Town of Vail Planner:Matt Gennett 5.Approval of Minutes 5.1.J anuary 10, 2022 P E C Results Perez has a correction to the minutes from J anuary 10th. She stated the memo wasn't included in the packet, not that should couldn't read the item in the packet.Ludwig Kurz moved to approve as amended.. Brian Gillette seconded the motion and it passed (6-0). Absent:(1)Phillips 6.Adjournment 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 Published in the Vail Daily January 21, 2022 February 1, 2022 - Page 207 of 224 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: J anuary Revenue Update AT TAC H ME N TS: Description January Revenue Update February 1, 2022 - Page 208 of 224 TOWN OF VAIL REVENUE UPDATE February 1, 2022 Sales Tax Upon receipt of all sales tax returns, December collections are estimated to be $5,725,058 up 57.9% from last year and up 45.3% compared to amended budget. December collections were the highest monthly collections on record and exceeded 2019 collections by 35.1%. Year to date collections of $34,467,170 are up 38.0% from prior year and up 9.8% from amended budget. 2021 collections exceeded 2019 collections by 17.9%. Inflation as measured by the consumer price index was up 7.0% for December. The 2021 amended budget totals $31.4 million. Real Estate Transfer Tax (RETT) 2021 RETT collections through December 31st total $13,650,878, up 30.6% from 2020. The 2021 RETT amended budget totals $11,500,000. During 2021 there were a total of 20 properties sold over $10 million, 40 properties sold between $5 and $10 million, 102 properties sold between $2.5 and $5 million, and 331 properties sold under $2.5 million. The average property value, including sales of garage spaces and land, was $2.7 million. The median property value was $1.6 million. January RETT collections through January 25th total $294,297. The 2022 RETT budget totals $7,500,000. Construction Use Tax Use Tax collections through December 31st total $3,683,545 compared to $2,078,577 from this time last year. The 2021 amended budget totals $3,450,000. Construction activity was up in 2021, with many large residential projects and the construction of the new Marriott Residence Inn. January 2022 collections total $68,521. The 2022 use tax budget totals $2,800,000. Lift Tax Lift Tax collections for the 21/22 ski season total $1,122,048 up $140,085 or 14% from the prior winter season and up $47,987 or 4% from the 19/20 ski season. Parking Revenue Season to date: Pass sales for the 21/22 ski season total $1,218,306 up $170,908 or 16.3% from prior winter season. 21/22 sales are down (28.0)% or ($474,026) from the same February 1, 2022 - Page 209 of 224 period in the 19/20 ski season. The majority of the decrease in pass sales is due to fewer purchases of blue passes with the completion of Vail Health's parking structure. Daily sales from the parking structures from November through January 23rd total approximately $2,547,771, up $393,216, or 18.3% from this time last year. Compared to the 19/20 ski season, daily parking sales are up $780,706 or 44.2%. Summary Across all funds, 2021 annual revenues of $85.8 million is up 8.9% from amended budget and up 27.2% from prior year. The increase compared to budget is a reflection of better than expected sales tax collections, real estate transfer tax, construction use tax, as well as other construction related activities. In comparing to the town’s last “normal” fiscal year, 2021 revenue is also up 23.8% from 2019. Reasons for the increase include grant funding as well as growth in sales tax, real estate transfer tax, property tax collections, daily parking sales during January through April, and construction activities. February 1, 2022 - Page 210 of 224 2021Budget % change % change % change 20162017201820192020 Amended BudgetVariance from 2020 from 2019 from BudgetJanuary3,738,824$ 3,725,212$ 3,597,610$ 4,079,994$ 4,076,145$ 3,400,000              3,421,282$ 21,282$ -16.07% -16.14% 0.63%February3,746,055 3,692,592 3,818,356 4,137,087 4,285,633 3,680,000              3,691,062 11,062$ -13.87% -10.78% 0.30%March4,225,921 3,642,407 4,167,880 4,237,933 2,243,518 4,370,000              4,364,009 (5,991) 94.52%2.97% -0.14%April1,089,749 1,386,780 1,233,474 1,445,071 427,518 1,650,000              1,750,739100,739 309.51% 21.15% 6.11%May654,462 659,475 830,193 763,756 503,828 965,000 1,060,72895,728 110.53% 38.88% 9.92%June1,318,092 1,389,982 1,648,443 1,606,748 1,023,517 2,140,000              2,148,0668,066 109.87% 33.69% 0.38%July2,053,773 2,215,649 2,412,425 2,480,292 2,084,644 3,480,000              3,489,8239,823 67.41% 40.70% 0.28%August1,849,815 1,863,949 2,195,175 2,237,050 2,138,838 2,850,000              2,875,18925,189 34.43% 28.53% 0.88%September 1,349,929 1,385,462 1,540,490 1,600,100 1,767,393 2,300,000              2,357,49657,496 33.39% 47.33% 2.50%October906,385 936,954 1,106,596 1,165,176 1,371,727 1,270,000              1,721,865 451,865 25.53% 47.78% 35.58%November989,320 997,716 1,264,600 1,260,314 1,425,461 1,345,000              1,861,853516,853 30.61% 47.73% 38.43%December 3,840,919 3,695,305 4,070,870 4,237,178 3,625,189 3,940,000              5,725,058 1,785,058 57.92% 35.11% 45.31%Total25,763,244$ 25,591,483$ 27,886,112$ 29,250,698$ 24,973,411$ 31,390,000$ 34,467,170$ 3,077,170$ 38.02% 17.83% 9.80%Actual CollectionsCollected Sales TaxFebruary 1, 2022Town of Vail Revenue UpdateSALES TAX2021 Budget ComparisonFebruary 1, 2022 - Page 211 of 224 Through December 31 December Sales Tax Collections by Year Through December 31 Town of Vail Revenue Update February 1, 2022 YTD Sales Tax Collections by Year $25,591,483 $27,886,112 $29,250,698 $24,973,411 $34,467,170 $0 $5,000,000 $10,000,000 $15,000,000 $20,000,000 $25,000,000 $30,000,000 $35,000,000 2017 2018 2019 2020 2021 • YTD collections of $34.5M are up 38.0% from prior year and up 9.8% from amended budget. YTD collections are up 17.8% from 2019. • Inflation as measured by the consumer price index was up 7.0% in December. • The 2021 amended sales tax budget totals $31.4M. $3,695,305 $4,070,870 $4,237,178 $3,625,189 $5,725,058 $0 $1,000,000 $2,000,000 $3,000,000 $4,000,000 $5,000,000 $6,000,000 2017 2018 2019 2020 2021 • December collections of $5.7M are up 57.9% from prior year and up 45.3% from amended budget. December collections are up 35.1% from 2019. $248K of the increase from 2019 was due to increased collections from online retailers and $700K was due to online lodging sales. Collections for the month set the record for the single highest monthly collections ever. February 1, 2022 - Page 212 of 224 Town of Vail Revenue Update February 1, 2022 Real Estate Transfer Tax by Year Construction Use Tax by Year YTD Through December 2021 YTD Through December 2021 $1,754,375 $3,967,787 $2,468,068 $2,078,577 $3,683,545 $0 $500,000 $1,000,000 $1,500,000 $2,000,000 $2,500,000 $3,000,000 $3,500,000 $4,000,000 $4,500,000 2017 2018 2019 2020 2021 • This chart shows YTD collections of 1% RETT, segmented by individual home sale value. • 2021 RETT collections through December 31 total $13,650,878 up 30.6% from the prior year. 249 + 149  Timeshares 327 + 141  Timeshares 331 + 205  Timeshares 50 61 102 21 31 40 9  Properties 14     Properties 20  Properties $0 $2,000,000 $4,000,000 $6,000,000 $8,000,000 $10,000,000 $12,000,000 $14,000,000 2017 2018 2019 2020 2021 Sales Less Than $2.5 Million Sales $2.5 to $5 Million Sales $5 to $10 Million Sales Over $10 Million $6,313,611 $7,649,014 $7,224,668 $10,448,526 $13,650,878 • Use Tax collections through December 31 total $3,683,545 compared to $2,078,577 from this time last year. This is an increase of 77.2% February 1, 2022 - Page 213 of 224 Vail Business Review November 2021 February 1, 2022 The Vail Business Review breaks down the four percent sales tax collected for the month of November. Overall, November sales tax increased 30.2% with retail increasing 19.2%, lodging increased 52.2%, food and beverage increased 44.2%, and utilities/other increased by 2.9%. Excluding the out of town category; sales tax for the month of increased 27.7%. Town of Vail sales tax forms, the Vail Business Review and sales tax worksheets are available on the internet at www.vailgov.com/finance. Please remember when reading the Vail Business Review that it is produced from sales tax collections, as opposed to actual gross sales. If you have any questions or comments, please feel free to call me at (970) 479-2125 or Carlie Smith at (970) 479-2119. Sincerely, Alex Jakubiec Town of Vail Revenue Manager February 1, 2022 - Page 214 of 224 Town of Vail Business Review November Tax Collections By Year November 2021 Sales Tax November 2020November 2021 Sales Tax Collections by Business Type Retail $805,851 Lodging $577,195 Food & Beverage $325,753 Utilities & Other $153,054 $0 $200,000 $400,000 $600,000 $800,000 19.1%44.2% 2.9% RLFU -$8,000,000 $12,000,000 $1,002,793 $1,268,974 $1,260,472 $1,430,285 $1,861,853 $0 $500,000 $1,000,000 $1,500,000 $2,000,000 2017 2018 2019 2020 2021 52.2% • This report represents collections of Town of Vail 4% sales tax, as opposed to actual gross sales • Overall, 2021 November sales tax collections were up 30.2% from the prior year and up 47.7% from November 2019. • November 2021 retail sales increased 19.1%, lodging increased 52.2%, food and beverage increased 44.2% and utilities and other increased 2.9%. Retail $676,355 Lodging $379,207 Food & Beverage $225,923 Utilities & Other $148,800 $0 $200,000 $400,000 $600,000 $800,000 February 1, 2022 - Page 215 of 224 Town of Vail Business Review November 2021 Sales Tax November 2020November 2021 Geographic Area Trends by Year November Sales Tax Sales Tax by Location Other Areas 13% Lionshead 12% Out of Town 40% Vail Village 35% Other Areas 17% Lionshead 12% Out of Town 39% Vail Village 32% • Vail Village sales tax increased 42.4%, Lionshead increased 32.8%, Other Areas decreased (3.0)%, and Out of Town increased 34.1%. Excluding Out of Town collections, all areas were up 27.7%. $155,183 $235,135 $216,327 $247,428 $239,917 $165,120 $200,468 $182,880 $164,969 $219,156$243,815 $340,000 $365,144 $561,166 $752,377 $438,675 $493,371 $496,121 $456,723 $650,403 $0 $200,000 $400,000 $600,000 $800,000 2017 2018 2019 2020 2021 Other Areas Lionshead Out of Town Vail Village • This chart shows November sales tax collections, by geographic area over time. February 1, 2022 - Page 216 of 224 Retail Business Sales Tax Detail November 2021 Sales Tax Town of Vail Business Review November Sales Tax Accommodation Services Sales Tax by Year Apparel $135,994 Grocery $100,448 Gallery $16,149 Gifts $3,978 Jewelry $23,953 Retail Liquor $37,487Retail Other $281,647 Sporting Goods $139,642 Online Retailers $66,335 Retail Home Occupation $217 • Overall, November 2021 accommodations services were up 52.2%, short-term rentals were up 40.9% and hotels and lodges were up 69.7%. • Short-term rental sales tax collection numbers include online marketplace facilitators like Airbnb and VRBO. Revenue collections from facilitators may include some hotels and lodges. Facilitators first began collecting and remitting sales taxes on behalf of individual owners in October of 2020. $203,015 $77,645 $230,465 $148,741 $324,721 $252,474 $0 $100,000 $200,000 $300,000 Hotel and Lodges Short-Term Rentals 2021 2020 2019 February 1, 2022 - Page 217 of 224 Retail 120,744.79                               148,333.47                                ‐18.60% Lodging 71,579.52                                 59,758.28                                 19.78% F & B 41,730.28                                 34,494.04                                 20.98% Other 5,862.57                                   4,842.03                                   21.08% Total 239,917.16                               247,427.82                                ‐3.04% Retail 68,333.12                                 62,274.60                                 9.73% Lodging 90,514.39                                 64,583.68                                 40.15% F & B 58,766.79                                 38,108.87                                 54.21% Other 1,541.72                                   1.40                                           110022.62% Total 219,156.01                               164,968.55                               32.85% Retail 344,078.78                               270,034.06                               27.42% Lodging 266,116.10                               151,483.34                               75.67% F & B 807.01                                       41.81                                         1830.18% Other 141,374.77                               139,606.44                               1.27% Total 752,376.66                               561,165.65                               34.07% Retail 272,694.49                               195,713.21                               39.33% Lodging 148,985.18                               103,381.27                               44.11% F & B 224,448.51                               153,278.59                               46.43% Other 4,275.08                                   4,349.71                                    ‐1.72% Total 650,403.27                               456,722.78                               42.41% Retail 805,851.18                               676,355.34                               19.15% Lodging 577,195.20                               379,206.57                               52.21% F & B 325,752.59                               225,923.31                               44.19% Other 153,054.14                               148,799.58                               2.86% Total 1,861,853.10                           1,430,284.80                           30.17% Retail Apparel 135,994.11                               90,953.00                                 49.52% Retail Food 100,448.29                               114,335.12                                ‐12.15% Retail Gallery 16,149.20                                 6,891.96                                   134.32% Retail Gift 3,977.54                                   3,365.21                                   18.20% Retail Home Occupation 216.80                                       143.81                                       50.75% Retail Jewelry 23,953.22                                 14,979.69                                 59.90% Retail Liquor 37,487.44                                 38,353.63                                  ‐2.26% Retail Other 281,647.49                               228,903.92                               23.04% Retail Sport 139,641.66                               116,672.20                               19.69% Retail Online Retailer 66,335.44                                 61,756.79                                 7.41% Total 805,851.18                               676,355.34                               19.15% Cascade Village / East Vail / Sandstone / West Vail Town of Vail Business Review November Sales Tax 2021 Collections   2020 Collections YoY % Change Total ‐ All Areas Lionshead Out of Town Vail Village Retail Summary February 1, 2022 - Page 218 of 224 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 J anuary 2022 AT TAC H ME N TS: Description C S E Meeting Minutes from January 5, 2022 February 1, 2022 - Page 219 of 224 COMMISSION ON SPECIAL EVENTS MEETING Virtual via zoom. https://us02web.zoom.us/webinar/register/WN_MmqB4tnTQpekr7fUWJGk_A Wednesday, January 5, 2022 @ 8:30a.m.-10:30a.m. AGENDA: Meeting materials can be accessed at the following link. https://vailgovrecords.com/WebLink/Browse.aspx?id=736148&dbid=0&repo=TownofVailLaserfic he Zoom Meeting: Roll Call CSE: Kim Newbury Rediker, Alison Wadey, Nick Conover, Douglas Smith, Samantha Biszantz, Marco Valenti, Jill Lau Staff: Mia Vlaar, Jeremy Gross, Abby Oliveira, Liz Gladitsch, Scott Robson Attendees: Nicole Marsh, Val Mello, Amanda Blevins, Alex Ballesteros, Austin Gavlak, Beth Pantzer, Carol Johnson, Denise Kipp, Diane Moudy, Karah Maloley, Kristen Slater, Nanette Kuich, Patty McKenny, Piet Geldhof., Bryce Bastolich, Scott Rednor 1. 8:30 a.m.: Staff Update (5 minutes) a. Budget Update 2. 8:35 a.m.: Event Recap (90 Minutes) Vail Snow Days (15 Minutes) -Nicole Marsh and Val Mello • VIP Area sold out. Positive guest experience and positive sponsor feedback. • 7500 foot/skier traffic at expo. 6500 total concert attendance. • New ROI/Attendance Expenditures data compared to previous years • Rediker: How many survey respondents? Marsh: Sent to all ticket buyers. Had a solid return quickly then it tapered. • Wadey: There were some issues with the way the survey was conducted. The data is missing analysis. Survey was conducted in- house. • Overall: Not satisfied with financial performance, Ratcliff added 2 shows in Denver which hurt tickets sales • Conover: Can you break down the guest sentiment between in town and out of town visitors? We can go back and look at the data. • Conover: Are the expo visitor numbers of raw counts of all traffic on the mountain? They are more than the concert attendance. Marsh, the number is all traffic at the lift. • Valenti: Snows Days is there to insulate from poor snow year. Additional marketing push help and learning for next year with this? Marketing push did help, mainly similar marketing segments that previously used. • Rediker: you are professionals that produce reliable events. But based on the ROI and what we spend on the events, is that where we want to spend our money? I appreciate you’re doing the events. You do a great job. The bigger question is how the town wants to proceed with funding. February 1, 2022 - Page 220 of 224 • Smith: Can we compare revenue of the town pre covid for event weekends. Marsh: Snow Days traditionally occurred the following weekend so data year over year would be different. • Motion to release final funding. 1. Valenti/Rediker 2nd 2. Biszantz and Smith opposed b. Powabunga (15 Minutes) - Alex Ballesteros, Austin Gavlak • Sold out in advance of the show. Guests attended from as far as Brazil and Sweden. Event had a strong social presence. • Venue didn’t support the attendance that was predetermined. Will reduce by 20% in the future. • 80% overnight visitors based on survey data. Attributing it to production level, talent and selling multiday pass rather than individual day passes. • Operations issues on Friday due to snow and road issues. Opened box office late. Approximately 150 fraudulent tickets sold. • Refunded 50% of ticket price to attendees who were not checked in by 8:00 pm Friday due to ticketing issues. • Wadey: Inquired if hired a company outside of the Survey Monkey used for the guests, they were not, and some data was hard to piece out. • Smith: Would like a much more detailed dive into this data to look at numbers. 319 people engaged (similar to 2019). • Gavlak: We can add more questions and send out the survey link again. • Gross: Thank you for offering to continue surveying but changing the survey after the first 350 responses will invalidate those and surveying guests over a month after the event is not as valuable. • Wadey: Management and ability to pivot with issues was a concern for this event, received large feedback about these issues. Cleanup and breakdown were delayed, which caused some issues with businesses in town and need to stick to deadlines in the future. • Rediker: Website did list you were screening for vaccination status, did not happen with her and no masking. Struggled with the setup of stage, did not work for event. Gavlak: When picked up tickets at box office tickets, they were screen for vaccination status. • Smith: confirm the profit for $386,096 Gavlak: As of today. Pending final invoices on a few items. • Lau: Rufus was great, execution was improved from Friday/Saturday and thanks to TOV staff to improve this. Good to hear reduction of volume of guests for future events. After Party: how did this go? 1. 1600 first day and 2000 2nd day: Separate security team running this, had issues getting into the venue, experience was what they wanted and proud of this. Send the photo link and videos for CSE to see this. • Biszantz: After Party really drew crowds which was great. Thank for ROI and positive return on TOV investment • Motion to release final funding. 1. Biszantz/Lau 2. Smith Opposed c. Shakedown Presents (15 Minutes) – Bryce Scott • Increased attendance from last year, and good advertising with front page in Vail Daily. February 1, 2022 - Page 221 of 224 • More engaged guests onsite with social and interest • Have capacity to livestream (potentially on DV.com), would like to incorporate this for future events. • Wadey: Challenge to change up location to evenly distribute among equal business to ensure the funds are used throughout all business. • Rediker: Recap shows loss and budget shows profit. New budget was submitted. Initial confusion on what was expenses for the town and profit for the producer, and what was expenses for the producer. • Motion to release final funding. 1. Conover/ Rediker/Unanimous d. Speak Up Reach Out Comic Cop (15 Minutes)- Carol Johnson • Initially holding event in April but postponed to December. • 150 locals in attendance, with a non-alcoholic bar with mocktails which was a popular feature. • Did conduct survey in-house and received 26 replies • Motion to release final funding. 1. Smith/Valenti /Unanimous e. Mountain Youth (15 Minutes) – Denise Kipp • Events for 2021 continually pivoted to in-person/virtual, did incur additional costs with this and went over budget • Piloted “Move, Chat, Parent” for a fitness fun for families based on needs • Wadey: Continue to push utilizing Town of Vail locations • Motion to release final funding. 1. Rediker/Valenti/Unanimous f. Winter Après Music (15 Minutes) – Diane Moudy • Slower start in November, solid momentum/drew crowds. Purchased tents in town, think performers in each village would be well received. • Seemed to really increase positivity/interaction in guests once they see the performers • Motion to release final funding. 1. Rediker/Lau /Unanimous 3. 10:05 a.m.: Town of Vail Event Funding Program Update – Scott Robson, Mia Vlaar (20 Minutes) a. Looking into a work session to promote a more robust conversation b. Components are being researched, compared to other comparable models and how to establish based on Town of Vail needs. c. Wadey: when looking to present to Town Council 4. 10:25 a.m.: Meeting Reports (10 Minutes) a. Motion to approve minutes from December meeting • Valenti/Lau /Unanimous b. Council Update c. VEAC Update d. VLMDAC Update e. Upcoming Events - See discovervail.com/events 5. Adjournment @ 10:42 a.m. a. Motion to adjourn Valenti/Conover/unanimous February 1, 2022 - Page 222 of 224 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)(a)(b)(e) – concerning the purchase, acquisition, lease, transfer, or sale of any real, personal, or other property interest; to have a conference with the Town A ttorney to receive legal advice on specific legal questions; and to determine positions, develop a negotiating strategy and instruct negotiators regarding: i) P otential real property acquisition by the Town; ii) negotiations with the Vail Corporation regarding potential development of the ‘E verVail’ site; and iii) Residences at Main Vail Development A greement between the Town of Vail and Triumph Development West, L L C. P RE S E NT E R(S ): Matt Mire, Town Attorney February 1, 2022 - Page 223 of 224 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 5:30 pm (estimate) February 1, 2022 - Page 224 of 224