HomeMy WebLinkAbout2024-01-02 Agenda and Supporting Documentation Town Council Afternoon Meeting1.Call to Order
2.Presentation/Discussion
2.1 Suggestions for Success (and Reducing the Risk of
Liability) in Public Office Presentation
60 min.
Information only. No action Required.
Presenter(s): Krista Miller, Director of Human Resources and
Sam Light, CIRSA General Counsel
Background: Training for elected officials occurs after every
election as presented by General Counsel for the Colorado
Intergovernmental Risk Agency (CIRSA). Topics addressed
include: Role of Public Officials, Town Structure,
Transparency, Ethical Conduct, Due Process, Quasi-Judicial
Process and Leadership.
2.2 Go Vail 2045 - Vail Mobility & Transportation Master Plan
Traffic, Transit Center Expansion & Emerging Technology
45 min.
Review Presentation and provide feedback.
Presenter(s): Tom Kassmel, Town Engineer
Background: The GO Vail 2045 team continues to work on
tasks to improve mobility and transportation within Vail over
the next 20 years. This Council session will focus on Traffic,
Transit Center Expansion, and Emerging Technology.
Staff Recommendation: Review Presentation and provide
feedback.
3.DRB/PEC (5 min.)
3.1 DRB/PEC Update
4.Information Update
VAIL TOWN COUNCIL MEETING
Afternoon Session Agenda
Town Council Chambers and virtually by Zoom:
https://vail.zoom.us/webinar/register/WN_iN4L7wfRQwinjpSH-GKorg
1:30 PM, January 2, 2024
Notes:
Times of items are approximate, subject to change, and cannot be relied upon to determine what time
Council will consider an item.
Vail 1-2-24.pptx
Email-Suggestions-for-Elected-Appointed-Officials_5-17-2021.pdf
EthicsLiability&BestPracticesHandbookForElectedOfficials.pdf
Go Vail 2045 - Town Council - Traffic, Transit Center, Technology.pdf
DRB Results 12-20-23.pdf
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4.1 December 2023 Revenue Update
5.Matters from Mayor, Council, Town Manager and Committee Reports (30 min.)
5.1 Town Manager Update
5.2 Vail Trailblazer Award Committee Selection
Action requested of Council: Confirm two elected officials to
serve on selection committee for naming the next Trailblazer
Award Recipient/s.
5.3 Finalize Council Committee Appointments
Make appointments for the 2023 - 2025 term.
6.Executive Session (30 min.)
Executive Session pursuant to:
1. C.R.S. §24-6-402(4)(a) to consider the purchase, acquisition, lease, transfer or sale of any
real, personal or other property interest, C.R.S. §24-6-402(4)(b) to hold a conference with the
Town Attorney, to receive legal advice on specific legal questions and C.R.S. §24-6-402(4)(e)
to determine positions relative to matters that may be subject to negotiations, develop a
strategy for negotiations and instruct negotiators and on the topics of potential real property;
and
2. C.R.S. §24-6-402(4)(b)-to hold a conference with the Town Attorney, to receive legal advice
on specific legal questions and C.R.S. §24-6-402(4)(e) to determine positions relative to
matters that may be subject to negotiations, develop a strategy for negotiations and instruct
negotiators and on the topics of Town of: 1. Town of Vail v. TIGA Advertising, INC and
Gregory Moffet, Case number 21CV30034 and TIGA Advertising, INC, Chapter 11
Bankruptcy, Case Number 23-10553MER
7.Recess 4:20pm (estimate)
240102 Revenue Update.pdf
TM Update final
Town Council - Committee Appointments - 2024 - TO CONFIRM.pdf
Meeting agendas and materials can be accessed prior to meeting day on the Town of Vail website
www.vailgov.com. All town council meetings will be streamed live by High Five Access Media and
available for public viewing as the meeting is happening. The meeting videos are also posted to High
Five Access Media website the week following meeting day, www.highfivemedia.org.
Please call 970-479-2136 for additional information. Sign language interpretation is available upon
request with 48 hour notification dial 711.
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AGENDA ITEM NO. 2.1
Item Cover Page
DATE:January 2, 2024
TIME:60 min.
SUBMITTED BY:Stephanie Bibbens, Town Manager
ITEM TYPE:Presentation/Discussion
AGENDA SECTION:Presentation/Discussion
SUBJECT:Suggestions for Success (and Reducing the Risk of Liability) in
Public Office Presentation
SUGGESTED ACTION:Information only. No action Required.
PRESENTER(S):Krista Miller, Director of Human Resources and Sam Light, CIRSA
General Counsel
VAIL TOWN COUNCIL AGENDA ITEM REPORT
ATTACHMENTS:
Vail 1-2-24.pptx
Email-Suggestions-for-Elected-Appointed-Officials_5-17-2021.pdf
EthicsLiability&BestPracticesHandbookForElectedOfficials.pdf
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Presented by: Sam Light, CIRSA Deputy Executive Director/General Counsel
Elected Official Presentation
Town of Vail January 2, 2024
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Introduction – Presentation Overview
•Suggestions for best practices that will enhance your effectiveness and success as municipal officials –which in turn will
reduce risk for the Town and you individually. Topics we will touch on include:
•The role of public official
•Organizational structure & liability
•Transparency –open meetings
•Code of Ethics
•Due process requirements
•Presentation is a training resource only; is not intended to address or provide legal advice on any specific, pending issues.
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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-ambassador-fiduciary of the Town as an entity and of the Council as
an institution.
•In the eyes of the community, you are always a public official!
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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
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Two: Commit to Supporting the Town Structure
•Another important risk management principle for everyone within the organization is to recognize and honor their role—it is
important that everyone “swim in their lane” to avoid risks of liability, including the risk of personal liability!
•You have protection from personal liability under Colorado Governmental Immunity Act (CGIA) 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.
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Supporting the Town Structure
•Can also result in potential loss of insurance coverage. Public official liability (POL) policies follow “course and scope” and
“willful and wanton” concepts. That is, they extend coverage to elected officials “in their capacity as such” (or similar) and
have provisions excluding coverage where liability is based on willful & wanton conduct, etc.
•The CGIA provides a form of qualified immunity, but it is not an absolute shield. Similarly, a federal form of qualified
immunity protects government officials from liability for civil damages “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
•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.
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Supporting the Town Structure
Where Does the Town Council Focus its
Efforts?
Ownership
|
Governance
|
Management
|
Supervision
|
Front Line Employment
Legislative and Corporate Governance is:
•Policy-setting, big picture, and forward-looking, rather
than dealing with day-to-day, and rather than making
reactive, case-by-case decisions as issues arise, or after-
the-fact.
•Examples: General ordinances, annual budget,
decisions regarding corporate assets, appointment of
Council reports, corporate matters reserved to the
Council.
•The governing body should:
•Have longest time horizon—looks down the road.
•Have broad interests in mind.
•Work together in their fiduciary role to protect the
Town as an entity and the Council as an institution.
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Supporting the Town Structure
•From a risk management perspective, role discipline is particularly important in the areas of employee relations and
administrative matters assigned to staff.
•Except for the Council’s direct reports, elected and appointed officials are not employee supervisors. Similarly, neither the
Council nor its individual members have authority or responsibility for administrative matters that are assigned to staff. Thus,
•Don’t get individually and improperly involved in personnel issues, or in administrative matters, that have been assigned
to staff. (Remember your Charter: Section 6.4 - Relationship of Council to Administrative Service.)
•Such activities undermine your organizational structure, weaken the Council as an institution, impact morale, and can
create risks for the Town and for you individually.
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Supporting the Town Structure
•Tips to support the structure and avoid concerns around “role discipline” and “scope”:
•Respect the delegations of authority already made via your charter, ordinances and organizational structure. Those
allocations work to serve and protect the Town and the Council and its members, if honored.
•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 elected officials—”the legislative and governing body”—act primarily as a group 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.
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Supporting the Town Structure
•Commit to personnel conduct that strengths the WE -the governing body as an institution. This sometimes requires personal
sacrifices, such as:
•Setting aside a personal interest or agenda when there is lack of support.
•Accepting “the Council has spoken” though one preferred a different outcome.
•Accepting when “Our work is done”; i.e., the hand-off from Council →staff.
•Recognizing that individual efforts—e.g., liaison and representative roles—are in service of the entity and governing
body (the WE).
•Avoiding perceptions (internal or external) of “getting ahead” of or “speaking for” the voice of Council where Council
has not yet spoken.
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Three: Commit to Transparency
•Honor the “openness” requirement of the Open Meetings Law (OML). Applies when 3 or more members of governing body
“meet” to discuss “public business”.
•The OML requires that such discussions occur at a meeting that is 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. See CIRSA Handout and
article: https://www.cirsa.org/news/how-the-colorado-open-meetings-law-applies-to-elected-officials-email/).
•In addition, in using executive sessions, make sure your systems are set up to comply with the OML and to protect Town
confidential information.
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Four: Commit to Ethical Conduct
•Become familiar with the ethics rules governing your conduct.Make them your “best friend” in addressing ethics issues.
Some key areas:
•Conflicts of Interest: Disclose, recuse and don’t vote (Charter Secs. 3.7 & 4.7).
•Don’t disclose or use any confidential information for personal benefit.
•Decline gifts that seem connected to your service (and abide by gift rules).
•Avoid situations that may create an appearance of impropriety. Recognize that in matters of ethics, fair or not,
sometimes perception = reality and reality = perception.
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Five: Commit to Providing Due Process
•Much of the time you’re acting as “legislators”—making general policies that apply
generally—or handling routine business matters.
•But sometimes you make decisions affecting a specific applicant’s property rights. For
these “quasi-judicial” matters—e.g., Council-level land use and development public
hearings—the members 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.
•These rules have a familiar source: “No person shall be…deprived of life, liberty, or
property, without due process of law.”
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Due Process - Tips for Quasi-Judges
•Limit your involvement to just your participation at the public hearing. That is, irrespective of the level of citizen interest or staff activity, wait
until the QJ matter is “ripe” for the governing body.
•Remain neutral; don't make up your mind before the hearing and don’t make prejudicial pre-hearing statements.
•Don't engage with one side or the other, or with your fellow quasi-judges, before or outside the hearing (ex parte contacts).
•Deliberations Matter. Make sure your deliberations and decision are focused and based on the relevant, existing criteria and not other
relevant, existing criteria and not other factors. Use Sam’s “Rule of Why.”
•For more on quasi-judicial “rules of engagement”, see these presentations: https://www.cirsa.org/wp-content/uploads/2020/05/Quasi-
Judicial-Proceedings.mp4 and https://www.cml.org/docs/default-source/uploadedfiles/events/annual-conference/cml-2022-conference---
qj-decision-making.pdf?sfvrsn=b0a4e3a3_0.
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Concluding Thoughts
•While there are many aspects of risk management that municipalities and their elected officials cannot fully control—e.g., public
perceptions, the actions of claimants, the inclinations of judges, the enactments of federal and state legislatures, etc.—embracing wise
leadership in the areas we can control will support your success and reduce your risks. Some examples:
•Committing to a “no surprises” approach.
•Dealing effectively with discord.
•Committing always to civility & mutuality of respect and to avoiding and/or effectively addressing “high conflict.”
•Touting your governing body’s, your organization’s, and your staff’s successes—builds faith and trust that your government is
getting good things done!
•Committing to service of the Town as an entity and the governing body as an institution, and embracing the fiduciary, stewardship,
and “We” responsibilities of Council membership.
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Resources
CIRSA Elected Officials Handbook:
https://www.cirsa.org/wp-
content/uploads/2019/06/EthicsLiabilityBestPract
icesHandbookForElectedOfficials.pdf
CIRSA elected and appointed officials’
resources: https://www.cirsa.org/safety-
training/elected-officials/.
CIRSA news & events page:
https://www.cirsa.org/news-and-events/news/
CIRSA Training & Events Calendar:
https://www.cirsa.org/news-and-events/events-
calendar/
CIRSASafety YouTube Channel:
https://www.youtube.com/@CIRSASafety/videos
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About the Colorado Intergovernmental Risk Sharing Agency (CIRSA)
•Public entity self-insurance pool for property, liability, and workers’ compensation coverages.
•Formed by in 1982 by 18 municipalities pursuant to CML study committee recommendations.
•Not an insurance company, but an entity created by intergovernmental agreement of our members.
•Total membership today stands at over 285 member municipalities and affiliated legal entities
•Member-owned, member-governed organization.
•No profit motive –sole motive is to serve our members effectively and responsibly.
•CIRSA Board made up entirely of municipal officials.
•Seek to be continually responsive to the liability-related needs of our membership –coverages and associated risk management
services, sample publications, training, and consultation services, as well as specialty services such as home rule charter review.
•We have the largest concentration of liability-related experience and knowledge directly applicable to Colorado municipalities.
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Speaker Bio
Sam Light is Deputy Executive Director / 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 public entity risk issues and municipal law and has practiced in Colorado since 1993.
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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 22
HANDBOOK
SECOND EDITION 2019
SAFERTOGETHER
ETHICS, LIABILITY
& BEST PRACTICES
FOR ELECTED
OFFICIALS
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Tami A. Tanoue
CIRSA Executive Director
Sam Light
CIRSA General Counsel
Robert Widner
Widner Juran LLP
Linda Michow
Michow Cox & McAskin LLP
Christiana McCormick
Michow Cox & McAskin LLP
ETHICS, LIABILITY &
BEST PRACTICES
HANDBOOK
FOR ELECTED OFFICIALS
CIRSA
3665 Cherry Creek North Drive
Denver, Colorado 80209
800.228.7136
www.cirsa.org
CML
1144 Sherman Street
Denver, Colorado 80203
303.831.6411
www.cml.org
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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
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ABOUT THE
AUTHORS
Tami A. Tanoue
Tami Tanoue has been CIRSA’s Executive
Director since August, 2018. Her previous
positions with CIRSA include General Counsel/
Deputy Executive Director and General
Counsel/Claims Manager. She was previously
in private practice with the fi rm of Griffi ths,
Tanoue, Light, Harrington & Dawes, where she
served CIRSA as its contract General Counsel
for 12 years, and was City or Town Attorney
for several Colorado municipalities. Prior to
that, she was Staff Attorney for the Colorado
Municipal League, where she represented the
collective interests of Colorado municipalities.
Tami is a regular speaker on local government
liability topics and has written several
publications on liability issues.
Sam Light
Sam Light joined CIRSA as General Counsel
in 2018 and was previously in private practice
with the Denver fi rm of Light Kelly PC, where
he practiced for over twenty years in the
areas of municipal and public entity law, and
government liability and insurance issues. Sam
has served as general and special counsel to
home rule and statutory municipalities and
other public entities throughout Colorado,
and frequently provides training for municipal
elected and appointed offi cials and staff .
Robert Widner
Robert (Bob) Widner is a founding partner
with the law fi rm of Widner Juran LLP. Bob’s
practice focuses on the general representation
of local governments with a special emphasis in
advising and training governmental bodies on
best practices to foster ethics, transparency, and
meeting effi ciency. Bob currently serves as the
City Attorney for the City of Centennial. Prior
to founding his law fi rm, Bob was a partner
with the Denver law fi rm of Gorsuch Kirgis LLP
where Bob served as the city, town, or county
attorney for a wide variety of communities
throughout Colorado.
Linda Michow
Linda Michow is a founding partner of the
law fi rm of Michow Cox & McAskin LLP
in Greenwood Village, Colorado where she
maintains a robust local government practice.
Ms. Michow is an experienced local government
attorney well-versed in annexation, land use,
urban renewal and zoning matters as well as
in the day-to-day issues facing Colorado local
governments including TABOR, elections,
open records, and liquor licensing. Ms.
Michow enjoys participating in educational
seminars and training of the fi rm’s elected
and appointed offi cials and municipal staff
and is also a frequent presenter to the broader
local government community on current and
recurring local government issues.
Christiana McCormick
Christiana McCormick is an associate attorney
at the law fi rm of Michow Cox & McAskin
LLP. Her practice involves representation of
local governments and covers a variety of areas,
including taxation, land use, urban renewal,
and law enforcement matters. Before joining
Michow Cox & McAskin, Christiana served as
a judicial law clerk to the Honorable Norma A.
Sierra in Boulder District Court and completed
a legal fellowship at the Denver City Attorney’s
Offi ce, where she assisted with state and federal
civil litigation matters primarily involving the
Colorado Governmental Immunity Act and
constitutional claims arising under 42 U.S.C.
Section 1983.
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If you’ve stepped up to the challenges of serving as an elected offi cial
in your community, congratulations! You’re dedicating your energy,
wisdom, and experience towards making your city or town the best it
can be. But the job of an elected offi cial is not an easy one. Missteps
can make you less eff ective, undermine your credibility, and even
lead to liability.
In this newly revised and expanded edition of the popular Ethics,
Liability & Best Practices Handbook for Elected Offi cials, we discuss
many of the issues of greatest concern to elected offi cials from
the standpoint of maximizing excellence and eff ectiveness, while
minimizing the risk of liability. Th e contributors have provided
decades of service to municipalities, individually and collectively.
We’ve tried to keep the content engaging, on-point, and light on the
legalese.
At CIRSA and CML, we pride ourselves on partnering with our
member local governments. CIRSA off ers a wide range of risk
management services, from providing property, liability, and workers’
compensation coverage, to managing claims, assisting in managing
your risks, providing training to elected offi cials and staff , and
consulting on virtually every liability-related topic. Founded in 1923,
CML is a nonprofi t, nonpartisan organization providing services
and resources to assist municipal offi cials in managing and serving
Colorado cities and towns. CML works to empower Colorado cities
and towns through legislative and legal advocacy, training, research
and information, and leadership on matters of municipal interest.
We hope you will fi nd this publication to be of value to you as you
undertake the challenging and rewarding work of governing your
community.
Tami A. Tanoue Kevin Bommer
CIRSA Executive Director CML Executive Director
PREFACE
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By: William E. Bell, MPA, ICMA-CM
City Manager for the City of Montrose &
former Executive Board President of the
Colorado Municipal League (CML) and
the Colorado City & County Management
Association (CCCMA).
We have all heard the old saying: “Ethics is
doing the right thing when no one is watching.”
Well, what about doing the right thing while
everyone is watching? How refreshing it might
be to sit in a nice quiet offi ce or out on a park
bench with the birds chirping in the distance,
while pondering our options prior to making
a decision that aff ects hundreds, or even
thousands of people for years to come. How
reassuring it might be to run all of our ideas
by a panel of experts to vet the pros and cons
over an extended period prior to making our
next decision. Sound good? Of course it does!
However, that is simply not reality for a local
government offi cial in today’s fast-paced world.
But no matter the pace or pressures, this
overarching point of municipal leadership
remains the same: MAINTAINING
ETHICAL INTEGRITY—AND DOING
THE RIGHT THING—AT ALL TIMES IS A
REQUIREMENT for elected and appointed
offi cials alike. Our communities are microcosms
of our society, and with an ever-changing
demographic we are facing ever-changing
expectations as to what role we should play as
local government leaders. We are all facing the
unique pressures of being public servants and
although it is most defi nitely a worthwhile and
rewarding calling for most of us, it can also be
frustrating, unpredictable and complicated at
times.
More oft en than not, elected and appointed
offi cials reach at least one point in their
tenure where doubt creeps in, making them
wonder about the true value of being in local
government. Is it worth it? Can I handle this?
Questioning oneself and our actions during
times of uncertainty and chaos is normal and
does not mean that we are doing anything
wrong. In fact, I would argue the opposite.
In working with thousands of constituents,
hundreds of employees, and dozens of elected
offi cials during my 16 years of managing
communities, it is those individuals who were
interested in self-refl ection and continuous
improvement that I have truly admired for
answering the call to public service. Th eirs is
an example worthy of emulation and one that
safeguards public offi cials from ethical missteps.
We all struggle to fi nd our place when we are
new to an organization, and it is a time when
we are most susceptible to outside persuasion
and manipulation. During times of transition,
it is especially important to rely on each other’s
experience and expertise and to reach out
for support and guidance whenever there is
uncertainty. Here in Colorado we are lucky to
have several well-versed organizations such as
CIRSA and CML at our disposal to off er advice
on how to handle ethical dilemmas and complex
situations. However, we must be willing to
tap these valuable resources prior to getting
ourselves into trouble. Asking for help is not a
sign of weakness, but is rather an indication of
care, thoughtfulness and wisdom.
While there is no single blueprint to success for
local government leaders, no recipe to follow
to create the perfect outcomes, building strong
and healthy relationships is the foundation
of both achievement and sound ethical
practice. Whether it is the idealistic vision
shared between two newly elected offi cials, or
the mutual respect and deference exhibited
between a seasoned manager and his or her
councilmembers; one thing is certain: the
relationships connecting our local government
leaders are what lay the foundation for
sustainable and productive local governance in
today’s society.
I hope you are able to spend some time
reviewing the information in this second edition
of Ethics, Liability & Best Practices Handbook for
Elected Offi cials and taking to heart its content.
Th is material off ers a common ground from
which all Colorado offi cials can work to make
the communities of this great State even better.
FOREWORD
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CHAPTER 1
By: Tami A. Tanoue, CIRSA Executive Director &
Sam Light, CIRSA General Counsel
THE OATH OF OFFICE:
ETHICS, LIABILITY AND BEST PRACTICES
A typical oath of offi ce might go as follows:
“I solemnly swear or affi rm that I will support the Constitution and laws of the
United States of America and the State of Colorado, [the Charter,] the ordinances
and other laws of the City/Town, and that I will faithfully perform the duties of the
offi ce upon which I am about to enter.”
With the passage of time since you took offi ce, does your oath have continuing meaning
as an ethical commitment? Th is chapter examines the oath as a commitment to best
practices in carrying out your responsibilities, and as a path to avoiding liability. We’ll
focus on four key areas: allocation of responsibilities, transparency in meetings, quasi-
judicial rules of engagement, and personal conduct.
Honoring the Allocation of Responsibilities
As in other levels of government, municipal powers and responsibilities are typically
allocated among the governing body, judge, staff , and possibly others, according to charter
or statutory requirements. Th us, for instance, the governing body is responsible for all
legislation, the municipal judge is responsible for determining ordinance violations, and
the manager/administrator and staff are responsible for administrative matters.
To the extent the charter or statutory provisions set forth a clear allocation of
responsibilities, respecting that allocation is part of an elected offi cial’s oath. Inappropriate
involvement in administrative matters, then, could be a violation of your oath.
Personnel matters are among those in which inappropriate involvement tends to occur.
Th e governing body typically supervises a limited number of its own direct reports—
for example, the chief administrator, judge, attorney, and perhaps a few others. As an
individual elected offi cial, if you are asked by an employee who’s not one of the governing
body’s direct reports to become involved in an employment issue, or if you take the
initiative to become involved, that could be a red fl ag in terms of your oath to respect the
allocation of responsibilities.
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From a best practices standpoint, inappropriate involvement in personnel matters can
eff ectively destroy the chain of command. While most municipal offi ces are not operated
according to a military-style chain of command, some version of a chain of command
is critical for eff ective functioning no matter how large, small, formal, or informal your
operations are. Once you allow inappropriate involvement to occur, you have eff ectively
disempowered managers and supervisors throughout the organization, and sent the
message that employees are free to disregard the chain of command.
Personnel matters are also a high-risk liability area. Th e more you’re personally involved,
the more likely it is that your name may some day appear on the wrong end of a lawsuit,
or come up in an executive session where your fellow members are assessing the risks
your conduct has created. So, you can see that honoring the allocation of responsibilities
by staying out of most personnel matters is a means of avoiding or reducing liability.
Honoring Transparency in Meetings
In local government, transparency of the governing body in its discussions and decisions
is a basic expectation of the citizenry. Citizens take great interest in the goings-on of the
governing body, and are quick to notice when their transparency expectations are not
met. A perception that governing body members are conducting discussions secretly, that
executive sessions are being held for improper purposes, or that decisions are being made
in “smoke-fi lled back rooms,” can quickly erode trust and confi dence in government.
Transparency in meetings means that governing body meetings are open to the public
and held only aft er proper public notice, that executive sessions are strictly limited to the
purposes authorized by law, and that discussions of public issues take place in a meeting
setting rather than by email or in hidden locations. Is this part of your oath? Most
certainly! Th e statewide open meetings law applies to all local public bodies, including city
councils and boards of trustees. If you’re a home rule municipality, there may be charter
provisions concerning transparency as well.
Is honoring transparency in governing body meetings a best practice? It is, if you want
to maintain the public’s confi dence and trust! Citizens expect and appreciate your body’s
commitment to discussing and deciding diffi cult issues with full transparency. And
making a commitment to transparency can also help ensure that your municipality doesn’t
become Exhibit A in an eff ort to make draconian changes to the open meetings law. You
surely don’t want to be held up as a bad example in the legislature. It’s happened.
Is honoring transparency a liability-reducing suggestion? At CIRSA, we’ve seen our
members become involved in litigation over their meeting practices. Based on our
experience, the answer to that question is yes. Th ere are watchdogs out there scrutinizing
you, and they will pounce on you with allegations of violations and a lawsuit if your
meetings practices don’t pass muster under the law. CIRSA has open meetings/executive
session defense cost coverage for member governing bodies, but by honoring the letter
and spirit of the open meetings laws, you can avoid costly and potentially embarrassing
litigation.
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Honoring the Quasi-Judicial Rules of Engagement
Governing body activities can be pigeonholed broadly into two areas: legislation and
quasi-judicial decision-making. Th e rules of engagement diff er depending on which
pigeonhole fi ts. For legislative matters, the rules of engagement are free-wheeling. Th ink
of the state legislature when it’s in session, and the lobbying that goes on there. But for
quasi-judicial matters, the rules of engagement have a basis in constitutional due process
requirements: when you are making a decision that aff ects individual property rights, the
constitution requires a properly noticed and fair hearing before a neutral decision maker—
you. Th us, in quasi-judicial matters, you must conduct yourself similarly to the way a
judge does in deciding a case.
No doubt your municipal attorney has discussed the quasi-judicial rules of engagement
with you. Th e attorney is trying to protect the integrity of the hearing process, the
defensibility of the outcome, and your prerogative to participate as a decision-maker.
Th ese rules of engagement include:
• You will follow the applicable legal criteria and apply those criteria to the evidence
you hear at the hearing, to arrive at your decision.
• You will refrain from “ex parte” or “outside the hearing” contacts regarding a
pending quasi-judicial matter.
• You will not participate in decision-making in a quasi-judicial matter in which you
have a confl ict of interest.
Th ese rules fl ow from constitutional due process requirements, so they are most certainly
a part of your oath. Following these rules is also a way to avoid or reduce liability. In quasi-
judicial matters, the process by which you arrive at a decision is at least as important as the
substance of the decision itself. If you’ve ensured that the process is letter-perfect, then you
have eliminated a huge portion of the possible quarrels that could turn into a claim. And
it’s a best practice, because following the rules of engagement will enhance the reality and
the perception that all who come before you with quasi-judicial matters will be heard and
treated fairly.
Honoring Standards of Personal Conduct
Th e way you conduct yourself in relation to other members of the body, staff , and the
community greatly impacts your eff ectiveness as an elected offi cial. No matter where you
are on the political spectrum, you can probably agree that politics today are infected with
divisiveness and incivility. Municipal government being non-partisan, its elected offi cials
should, at least in theory, be able to rise above the nastiness of partisan politics!
With respect to the governing body, do all members understand that governance is
a team activity? An individual elected offi cial does not have the power to accomplish
anything on his or her own. Rather, the allocation of responsibilities to the governing
body is to the body as a whole. Only through collaboration and consensus-building can
an individual’s priority become the priority of the governing body. While the governing
body is comprised of individuals and will “deliberate with many voices,” all members must
recognize the governing body “acts with one voice.”
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Has the governing body been able to “gel” as a team, or are members viewing one another
with a sense of distrust? Are you lining up along the same divisions on every issue? Are
you unable to disagree without being disagreeable? Perhaps some team building is in
order if these things are happening.
With respect to staff , is an incoming council or board viewing staff as the “enemy”? A
staff exists to carry out the goals set by the governing body. Sometimes, with the changing
of the guard at the governing body level, there’s an assumption that there needs to be a
changing of the guard at the staff level, too. But if this staff faithfully carried out the goals
of the prior governing body, why wouldn’t you expect that they will be equally able and
willing to carry out the goals of the new body?
With respect to the community, are public comment periods turning into “public
inquisition” or “public argument” periods? Is “staff bashing” or “elected offi cial bashing”
happening at meetings? Perhaps another look at your rules of order, and your approach to
meetings, would be appropriate. Certainly the public has every right to appear at meetings
and make complaints. It’s a sign of faith in local government that people care enough to
complain! But the manner in which those complaints are made, and the manner in which
you respond, can mean the diff erence between a constructive, productive exchange or a
nasty, embarrassing, unproductive, or morale-crushing attack.
Is the observance of personal conduct standards part of your oath? At least arguably, yes.
Aft er all, the oath implies faithfully performing a role where you must work with others.
And you have a fi duciary duty to act in the best interests of your municipality. It doesn’t
seem a far stretch to impute to your oath a commitment to respectful conduct towards
one another and the best interests of the municipality.
Is it a best practice to observe personal conduct standards? It certainly seems so.
Maintaining harmonious and productive working relationships with your fellow elected
offi cials, staff , and the public can only increase your eff ectiveness. And keep in mind
that harmony doesn’t mean you all have to agree all the time. Indeed, healthy discussion,
debate, and disagreement are the engine for understanding issues and solving problems.
But the idea of disagreeing without being disagreeable is important to keep in mind.
Does the observance of personal conduct standards help with liability reduction? We
think so. In CIRSA’s experience, turmoil at the top levels of the municipality means
turmoil throughout the organization. Aft er all, you know what rolls downhill. Over and
over, we’ve seen that disharmony and dysfunction at the top means claims throughout the
organization. Th ese types of claims not only cost dollars to defend, but also can sap the
governing body’s energy, destroy staff morale and cause reputational harm, all with long-
lasting impacts.
Conclusion
Honoring your oath of offi ce isn’t just something you do when your raise your right hand
at the beginning of your term. You can look at just about any arena in which you operate
as an elected offi cial, and ask yourself, “What did I commit to do when I took my oath?”
By asking and answering this question, you can stay on the path of best practices, and
avoid or reduce personal liability.
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CHAPTER 2
HEALING DIVISIONS ON THE
GOVERNING BODY:
CAN’T WE ALL JUST GET ALONG
By: Tami A. Tanoue, CIRSA Executive Director
At CIRSA, we’re seeing more and more instances of governing bodies with intractable
divisions that cut across virtually all of the body’s decision-making. Th is division is
aff ecting productivity, driving away opportunity, and undermining citizen confi dence.
It also lends itself to disputes and claims, with corresponding risks of liability. In this
chapter, we’ll explore the causes and impacts of such divisions, and explore some possible
ways to break out of the patterns that cause them.
Introduction
First, though, let’s be clear about the situation we’re discussing: Every governing body
has disagreements, and there’s nothing wrong with that. It would be strange, indeed, if all
members agreed on all issues all the time. If that were the case, why would we even need
fi ve, seven, or nine members?
Sometimes, disagreements create a residue of misunderstanding or hurt feelings, but that’s
to be expected, too. Most governing body members are able to leave that residue behind
and move on to the next matter at hand.
We’re also not talking about the “outlier” issue, where one or some members of the
governing body have made it their mission to separate themselves from the rest of the
group, with the sole goal of embarrassing the rest and proving that they are the only
“ethical,” “transparent,” or “responsive” (or insert description of your choice) member of the
body, at least in their opinion. Th ere are ways to address the “outlier” issue (see Chapter 3).
What we’re talking about here is a governing body in a state that we can all agree is
severely dysfunctional. We’re talking about a body that’s intractably divided, and whose
every debate, discussion, and decision are characterized by lingering unresolved matters,
mutual contempt, and hard feelings that calcify into hardline positions. We’re talking
about meetings that staff and citizens refer to as the “Th ursday night fi ghts” (or insert
evening of your choice). We’re talking about meetings where members regularly yell or
snipe at each other, name-call, storm out, or maybe even resort to threats or fi sticuff s.
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And even if it’s not that dramatic, meetings may still be characterized by tension, frustration,
passive-aggressive behavior, an inability to see beyond the players and focus on the merits
of any issue, and maybe an angry social media post or two aft er the meeting.
Whatever the level of dysfunction, destructive consequences can result. Once you “write
off ” or “demonize” your colleagues (“she’s just clueless,” “he’s completely hopeless,” “I can’t
even look at the guy,” “there’s no reasoning with her, so why even bother”), there may be
no coming back.
Why Can’t We All Get Along? A Look at Some Possible Causes
“ Happy families are all alike; every unhappy family is unhappy in its own way.”
~Tolstoy
“ Happy councils are all alike; every unhappy council is unhappy in its own way.”
~Tanoue
Th ere are any number of reasons why the “marriage” of governing body members can go
bad. Here are a few:
Underlying divisions. Underlying divisions within the community may be refl ected on
the governing body. Communities can have fracture lines. Th ere may be friction between
the “old timer” part of the community and more newly developed areas that are full of
“newcomers.” Th e interests of “old timers” and “newcomers” may not always be the same.
“Newcomers” may not recognize the history and traditions of the community in the same
way that “old timers” do. “Old timers” may discount the concerns raised by “newcomers,”
or vice versa. Th ese diff erences may be refl ected in the makeup of the governing body.
Members may have been swept into offi ce as a result of a controversial issue that divided
the community. Perhaps there was a recall election. Unless the slate was wiped clean, the
governing body makeup may refl ect the divisions that grew from the underlying issue. It
may be diffi cult to get past that issue.
New or younger members may clash with veteran members. Sentiments that “you young
‘uns haven’t been around long enough to understand this town” or “you old timers are
stuck in your ways” may cause unwarranted rift s. And expressing or acting on such
sentiments can contribute to a feeling that each member isn’t being accorded an equal
voice in discussion and decision-making.
Th at sense of inequality can also be the result of partisanship, and partisanship doesn’t
necessarily have to spring from the type of political partisanship that exists at other levels
of government. Of course, municipal government is avowedly and proudly non-partisan
in the political sense (and by law its elections are non-partisan). But an “in crowd” and
an “out crowd” based on other considerations can be a type of partisanship that’s just as
problematic.
Personalities. Voters aren’t judging whether the individuals they elect will be compatible
with each other, so it’s possible that fundamentally incompatible personalities will end up
on the body. If you have some “alpha dogs” on the body who are in constant competition,
friction might be a predictable result. If others then line up behind their favorite “alpha,”
division can ensue. If several “alphas” dominate the meetings, resentments may arise.
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Sometimes, an elected offi cial’s personality and proclivities seem to be just plain
incompatible with holding elected offi ce! Politics, at the governing body level, has to
be a team sport: decision-making requires collaboration and consensus. One member’s
“agenda” can become the “agenda” of the body only by successful team play. A “lone wolf”
who lacks the capacity or desire to be a team member is not going to be successful on the
body. Add a few more “lone wolfs,” and frustration and paralysis may result.
Governance is also about leadership. If the voters put someone in offi ce who is afraid
to take a stand, is perennially “on the fence,” or is strictly a follower, leadership qualities
may be lacking. A majority of non-leaders can create a perception of a “rubber stamp”
governing body, resulting in extreme frustration for those members who are willing to
stick their necks out.
Preconceived personal agenda. Th ere are many good reasons why citizens run for public
offi ce. However, the workings of municipal government are not always clear until well
aft er you’re seated. So the agenda that a candidate ran on may collide with reality, and
turn out not to be a workable agenda aft er all. Under those circumstances, clinging to
the preconceived agenda is only going to sow the seeds of discord. If you have several
members, each bent on pursuing only his or her own particular agenda, a fractured body
can result.
I once spoke with a newly elected councilmember who said his one campaign promise was
to ensure that water and sewer rates were lowered. But when he took offi ce, he began to
understand the economic realities of operating the town’s water and sewer system, and he
saw that demanding the lowering of rates was unrealistic and fi scally irresponsible. He said
he had some explaining to do to the citizens, but he wasn’t going to cling to his agenda
given the realities he now understood. Th at’s a smart elected offi cial.
Impacts
Th e impacts of severe dysfunction and discord are manifold. Th ey include:
• Lack of productivity. Th e body’s agenda may hit a standstill. Or getting through it
might be slow and painful. Even if decisions are made, they may not necessarily be
the best decisions.
• Power transfer to tie-breaker. If you’re constantly split down the middle, then
you may be transferring all decision-making power to the tie-breaker (oft en the
Mayor). Is that desirable?
• Financial consequences. If you’ve developed a public reputation as a
dysfunctional body, then your community may be missing out on economic
opportunities. Businesses want a predictable environment. Volatility may be
driving them away.
• Public embarrassment and loss of public confi dence. If you’re airing your
discord for the camera, your viewership may be up, but public confi dence will be
down! Residents want to be confi dent that their elected leaders function at a high
level and in their best interests.
• Driving away the best and brightest. I’ve heard people say they were reluctant
to run for offi ce because they witnessed the discord and didn’t want to be a part
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of it. So you may end up repelling, not attracting, potential leaders who could
make great contributions to the community. Or you may lose great members to
“burnout.” Likewise, if your community’s developed a reputation for governing
body dysfunction, you may not be able to attract and keep the “best and brightest”
for key staff positions.
So You Think You May be Part of a Dysfunctional Governing Body?
You may have experienced some jolts of recognition in reviewing the foregoing. If so,
condolences and congratulations! Th e condolences are self-evident, but congratulations
are also due, because recognition of a problem is the fi rst step to dealing with it! So now,
what do you do? Here are some steps to consider:
• See if you can gain a consensus that there’s a problem. Even if you recognize it,
if no one else does, you’re not going to get anywhere. If there’s a consensus, then
you’re halfway to solving the problem!
• Start by talking about “values.” In working with CIRSA members experiencing
severe governing body dysfunction, I’ve begun to realize that the “values”
discussion is a critical fi rst step. By “values,” I’m talking about the philosophical
underpinnings that you want as guides for behavior in your interactions with one
another. If you can agree on these values, then additional steps are possible. If you
can’t, you’re going to stall out. Such values might include:
• Courtesy and civility towards one another, staff , and citizens?
• Non-partisanship?
• Equality of participation? Th is would include equal opportunities to
be part of the discussion and decision, and equal opportunities to gain,
insofar as possible, the same information at the same time as needed for
good decision-making.
• Acknowledgement of the role of the Mayor or presiding offi cer in
presiding over meetings? Every meeting needs a presiding offi cer, and in
most communities, that’s the Mayor. Th e role of the presiding offi cer must
be honored if you want to have orderly, productive, and effi cient meetings.
And, the presiding offi cer must embrace that responsibility. If there’s no
acknowledgement of this fundamental need, then you won’t get anywhere.
• Engagement? Th is includes a commitment to be prepared for meetings,
to arrive on time, to stay for the whole meeting, to give your undivided
attention during the meeting, to participate in decision-making, and to be
absent no more than necessary.
• Others?
• Norms or rules of conduct. If you can form a consensus around values, you’re
close to the point where you can discuss (and, it’s hoped, agree upon) the norms
or rules of conduct that you want for the body. Th e content of your norms or
rules won’t be discussed here, because they’ll be specifi c to your community and
the values that serve as the jumping-off point for them. It’s worthwhile to look at
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examples from other communities around the state and nation, but it’s important
to develop your own norms or rules from the ground up with your values as
the foundation, so there’s buy-in. Why rules OR norms? It’s because the level
of formality to be accorded really depends on your governing body’s needs and
desires. If you have members whose attitude is “Rules? We don’t need no stinkin’
rules,” then perhaps a soft er approach of agreeing on “norms” of conduct may be
a good starting point. On the other hand, you might see reasons to elevate the
adoption process by using a resolution or even an ordinance.
In Despair? You Can Still Help
You may feel your governing body will never come together to recognize the problem,
much less move on towards seeking solutions. Should you give up? No! Th ere are still
things you can do as an individual. If enough individuals on the body do these things,
then perhaps there will be an opening to go further! Suggestions for individuals include:
• Assume good faith and best intentions on the part of everyone on the body.
Some smart person once said that we judge ourselves by our intentions, and
others solely by their actions. Th is perceptual gap can lead to misunderstandings
and unfounded assumptions. Let’s give everyone the same benefi t of the doubt
we give ourselves, by assuming that they, too, are acting on the basis of honorable
intentions.
• Listen more than you talk. Do your best to see and understand things from the
perspective of others. Ask questions before reaching your own conclusions, and
repeat back what you think you’re hearing from others, so that you know you’re
on the same page. Listen for points of agreement, and emphasize and build on
them.
• Try to meet others more than halfway. If everyone only goes so far to try
to bridge the gaps, then you may never meet in the middle. Sometimes one
person’s generosity in going more than halfway is the catalyst for breaking down
misunderstandings.
• Use the postures, tone, and body language of respect and engagement. Do this
even if you’re not “feeling it”; “acting as if” can be helpful in bringing a hoped-
for harmony closer to reality. Make sure your body language and tone of voice
aren’t inadvertently communicating something you didn’t intend. Keep your voice
DOWN, even if others are starting to yell. Avoid the hair-trigger, knee-jerk, angry
response.
• Try some things to break down barriers. Maybe switch up positions where you
sit on the dais. Suggest a pre-meeting dinner; breaking bread together can be a
way to get people talking (make sure you have a “no-business” rule in eff ect).
Team-building, especially in a retreat setting, can be productive. An outside
facilitator or mediator might be helpful in identifying issues that are hard to see
from the “inside.”
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• If you’re an experienced member, mentor the newbies! You have valuable
experience from which newer members can benefi t. Show them the ropes, teach
them your own hard-earned lessons, and model the behaviors you want them to
emulate. And if you’re a new member, seek out mentors!
• Acknowledge and appreciate when you see others making the same eff ort.
Conclusion: “Until Next Election Do You Part.”
A governing body might be characterized as a kind of arranged marriage—a marriage
arranged by the citizens. If the conditions for civil and productive discourse are lacking
from the start, it’s no wonder that such a “marriage” can go bad quickly. But divorce isn’t
an option! So start looking at ways to improve your relationships, as individuals and as
a body. And take to heart the idea that, by “acting as if,” your deepest hope for a strong,
high-functioning team can come closer to becoming a reality.
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CHAPTER 3
GOVERNING BODIES AND THE
OUTLIER SYNDROME
By: Tami A. Tanoue, CIRSA Executive Director
Th ose who have been working with municipalities for an extended period have observed
a phenomenon that occurs at the governing body level. Let’s call this phenomenon the
Outlier Syndrome.
Th e Outlier is the “lone wolf” who sits on a city council or board of trustees and
steadfastly refuses to act like a member of the team. Even while isolating himself or herself
as the only person on the losing side of just about every vote, the Outlier manages to create
havoc with the rest of the body. Th e Outlier may be obstreperous and obstructionist. Th e
Outlier may refuse to recognize and respect the norms that guide the rest of the body’s
conduct. Th e Outlier may position himself or herself as the only “ethical” or “transparent”
member of the body. Th e Outlier’s every statement and action seems to be aimed at
preserving that self-assumed distinction rather than making any concrete achievements.
Sometimes, a governing body is unfortunate enough to have more than one Outlier.
Have you ever experienced the Outlier Syndrome in action? We call it a syndrome because
of the recognizable features or symptoms that seem to fester whenever an Outlier sits on a
governing body. Do you have an Outlier on your governing body? Could you possibly be
an Outlier? Should the Outlier Syndrome be viewed as an affl iction or malady? And if so,
what can be done? We’ll explore these questions in more detail below.
Power, Goals, and the Outlier
To understand the Outlier’s impact on a governing body, let’s start with the idea that
elected offi cials can only act as part of a body – a collaborative decision-making body. You
can search throughout the laws governing statutory municipalities, or just about any home
rule charter, and you’ll likely fi nd no powers or duties that are to be exercised by a singular
elected offi cial (other than the mayor, who may have certain defi ned responsibilities). Th is
means that, as elected offi cials, the only way you can get anything accomplished is to have
a majority of the governing body on your side.
It’s likely that each elected offi cial has an individual list of goals, goals that those who voted
for you want you to accomplish. But your goals can be accomplished only if they’re part of
the goals of the body as a whole. Th at means your success depends on creating a consensus
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of the majority! And where does the Outlier fi t in on a collaborative decision-making
body? Why, nowhere! Perpetually being on the losing side of a vote means that the Outlier
gets nowhere on his or her goals…unless, of course, he or she feels that being an Outlier is
its own reward.
Are You an Outlier?
Perhaps you’ve met your share of Outliers, who tend to share one or more of these
characteristics:
• Th ere is an element of the lone crusader in them. Th ey feel they were elected to
shake up the status quo in some way. Maybe they think their predecessors were
too cozy with developers, not friendly enough with the business community, too
close to the municipality’s staff , not close enough to the municipality’s staff , etc.
• Th ey view themselves as independent thinkers. Th ey are oft en highly intelligent,
but not “people persons.” In kindergarten, their report cards might have refl ected
a poor score on “plays well with others.”
• Th ey take a perverse glee in being the “outsider,” relish arguments for argument’s
sake, and place little value on matters like courtesy and regard for the feelings of
others.
• Th ey hate having to endure “soft ” discussions such as a council or board retreat,
the establishment of a mission or vision statement, the development of consensus
around rules of procedure or rules of conduct, a session to discuss goals and
priorities, or a CIRSA liability training session.
• Th ey feel they are always right, and everyone else is always wrong. Th ey feel they
are always ethical, and everyone else is not. Th ey feel they are looking out for the
citizens, and everyone else is not.
• Initially, they may just have been unfamiliar with the ways of local government,
and needed to build the skills to work eff ectively in a new environment. One
or more gaff es may have caused them to be pegged as Outliers and treated
accordingly, initiating an unhealthy Outlier dynamic.
• Th ere may have been some explosive moments in private or public with the
Outlier’s colleagues, or indeed, the colleagues may have made some attempt at an
“intervention.”
Th ese observations may or may not be totally on the mark. But one characteristic of the
Outlier cannot be denied: he or she is seldom on the prevailing side of a vote, and is oft en
at loggerheads with the rest of the body.
Do you think you may be an Outlier? If so, you might examine what your goals as an
elected offi cial really are. Do you want to have a list of concrete accomplishments at
the end of your term? Or will it be accomplishment enough to have been the “loyal
opposition”? If the former, then your behavior may be working at cross-purposes with
your goals. If the latter, really? Will the people who voted for you be satisfi ed with that
accomplishment? Will you?
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Is the Outlier a Problem for the Rest of the Body? For the
Municipality?
Most people who’ve had to deal with an Outlier would say that yes, the Outlier is a
problem! How? Well, here are some ways:
• Anger and frustration build when a council or board has to deal with an Outlier,
siphoning away energy that could be spent on more positive endeavors. Th is
is a particular problem if tensions have built to the point that confrontations
have begun to occur. No reasonable person wants to attend or view a council
meeting and have a hockey game break out! It may be entertaining, but mostly, it’s
embarrassing to the governing body and to the community.
• Healthy teams seek to build a sense of camaraderie and cohesiveness. Th at’s not
entirely possible when there’s an Outlier. It’s not healthy to build a team around
a shared hatred of one of its own members, and most reasonable people would
prefer not to have that happen.
• Th e Outlier’s perspective tends to be oppositional. From a liability standpoint,
such a perspective is risky. If you’re taking positions on an oppositional basis,
are you really meeting your fi duciary duty to look out for the best interests of the
entity?
• A disharmonious governing body is a dysfunctional governing body. It’s been
CIRSA’s experience that liability claims thrive in an environment of disharmony
and dysfunction.
• Your staff members are aff ected by the Outlier Syndrome, too. From the staff ’s
perspective, seeing dysfunction on the governing body is a little like watching
discord between one’s own parents. It’s unsettling, distressing, and morale-
crushing.
• Most importantly, it’s a shame for the governing body to lose a potentially valuable
contributing member. In a worst case scenario, the Outlier becomes completely
disempowered as he or she is ignored and marginalized. But this means that the
body isn’t running on all cylinders, and is deprived of the valuable perspectives
that the Outlier might otherwise bring. Ultimately, the voters, and the community,
are the losers.
Dealing with the Outlier Syndrome
You can’t cure an affl iction until you recognize it. And you can’t recognize what you
haven’t named and defi ned. If your municipality is affl icted with Outlier Syndrome, you’ve
taken the fi rst steps towards a cure by naming, defi ning, and recognizing it! Here are some
other steps you might consider.
• Confront the issue forthrightly and compassionately in a neutral environment. A
council or board meeting is likely not a neutral environment! Perhaps the matter
could be discussed as one item on a retreat agenda. Be prepared with specifi c
examples of how the Outlier has negatively impacted the body.
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• Consider addressing the issue in the context of a larger discussion about
governing body rules of procedure or rules of conduct. Th e “norms” that guide
members’ interactions with one another may be obvious to some but not all,
especially to newer members. Th ose norms could be part of the discussion, and
the process of articulating them can facilitate a consensus to honor them.
• Consider bringing in an outside facilitator to assist you. A governing body is a bit
like a marriage that’s been arranged for you by the citizens! Th ere’s nothing wrong
with getting some outside help for perspective and to fi nd solutions.
If you think you might have the Outlier label pinned on you, consider these suggestions:
• First, get a reality check. Find out how you’re being perceived by your peers. It
may be very diff erent from your own perception of yourself. Ask each of your
colleagues to give you a frank assessment.
• Check your motivations. If you have concrete goals you want to accomplish as an
elected offi cial, you must accept that success in your position can’t happen without
collaboration and consensus building. Th ere is nothing that you can accomplish
alone. So set a goal to be on the “prevailing” side…indeed to bring others over to
establish a “prevailing” side.
• If you’ve already burned some bridges, understand consensus-building can’t
happen without mutual trust, respect, and a sense of cohesion. Th ese will take time
to build. Look for a retreat or other opportunities to clear the air and start fresh.
• Use staff as a resource! Your manager or administrator wants nothing more than
to assist newly elected offi cials in learning the ropes, and understanding the best
time, place, and approach to raising issues. Don’t get off on the wrong foot with
blunders that might peg you as an Outlier.
What if all eff orts to deal with the Outlier Syndrome fail? Well, it might be time for the
rest of the governing body to cut its losses and move on. Don’t continue to agonize over
the Outlier and his or her impact on the body’s functioning. Continue to accord the
Outlier the same opportunities to participate in discussion and decision-making as any
other member, but don’t allow the Outlier to keep pushing your buttons. Remember,
arguments and confrontations require more than one participant. You may need to simply
say “thank you” or move on to the next point of discussion. Ultimately, the responsibility
for putting an Outlier into offi ce rests with the citizens, so there’s only so much you can
do. Try to go about your business without having the Outlier become the dysfunctional
center around which the rest of you swirl.
Conclusion
Governing body members don’t all have to be in lockstep, or think and behave in the
same way. On the contrary, diversity of thinking, styles, opinions, experiences, and
approaches are healthy and necessary for a collaborative decision-making body. Th ere is
truly a collective wisdom that comes forth when many diverse minds work together on
common goals. But the Outlier Syndrome is detrimental to a high-functioning governing
body, and therefore, to the community. If your governing body is affl icted with the Outlier
Syndrome, it’s time to do something about it!
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CHAPTER 4
LIABILITY PROTECTIONS AND YOU
By: Tami A. Tanoue, CIRSA Executive Director &
Sam Light, CIRSA General Counsel
Are you acquainted with the protections you have through your entity’s membership
in the CIRSA property/casualty pool? In this chapter, we provide you with a brief
introduction to the two key coverage parts of the liability policy that apply to you as
elected offi cials of CIRSA member entities.1
What Liability Coverages do We Have?
General Liability and Auto Liability Coverage applies to claims for bodily injury,
property damage, and auto liability, among others. Th is is the coverage part that pertains
to most allegations of “hard” injuries, such as an allegation of physical injury to a person
or to tangible property. Th us, for instance, this coverage part would respond for an auto
accident while you’re driving your entity’s vehicle on public entity business. Th is coverage
part also includes law enforcement liability coverage.
Public Offi cials Liability Coverage applies to “wrongful acts” you are alleged to have
committed. Th is coverage part applies to allegations of civil rights violations, improper
activities concerning employment practices, and violations of federal and state law. Th us,
for instance, this coverage part would respond when someone claims that he or she has
suff ered employment-related discrimination, harassment, or a violation of constitutional
rights.
Who’s Covered?
“Covered Parties” under the policy include, of course, your entity as a member of CIRSA.
Any elected or appointed offi cial, trustee, director, offi cer, employee, volunteer, or judge
of a CIRSA member is also considered a covered party. So is each governing body,
board, commission, authority, or similar unit operated “by or under the jurisdiction of”
a member entity. Th us, elected offi cials, board and commission members, appointed
offi cials, employees, and even authorized volunteers of your entity are all considered
covered parties.
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What Limits of Coverage do We Have?2
• For general liability and law enforcement liability, the coverage limit is
$10,000,000 per claim/occurrence.
• For auto liability, the coverage limit is $5,000,000 million per claim/occurrence.
• For public offi cials’ liability, the coverage limit is $10,000,000 per claim/
occurrence, subject to an annual per-member aggregate of $10,000,000.
Defense costs are included in these limits. Th ere is also a member-selected deductible that
applies to each claim/occurrence. Members have chosen deductibles that vary from $500
to as much as $250,000 per claim/occurrence, so you should check with your own CIRSA
contact to fi nd out what your entity’s deductibles are.
What Key Exclusions do We Need to be Concerned About?
Th ere are several exclusions of concern, and a few are highlighted here. Th ese exclusions
are universal in most liability policies.
Th e “willful and wanton” exclusion is probably the exclusion of greatest concern to
elected and other public offi cials. Th is exclusion applies to both coverage parts of the
liability policy, and states that coverage does not apply to any loss arising out of the
actions of any elected or appointed offi cial, trustee, director, offi cer, employee, volunteer
or judge of a member entity when such acts or omissions are deemed to be willful and
wanton. And remember, you are a “Covered Party” only while in the performance of your
duties for the member entity, and acting within the scope of your authorized duties for the
member entity.
As you probably know, the Colorado Governmental Immunity Act’s protections are lost
when you are determined to have been acting outside the “scope of employment,” that
is, outside the course and scope of your authorized duties as an elected offi cial. But such
conduct has a double consequence: the loss of your liability coverages through CIRSA.
Th is is the reason that our public offi cials’ liability training places a heavy emphasis on
the need to understand your “job description” as an elected offi cial, and the need to stay
within the parameters of that “job description.”
Staying within the “scope of employment” is also important to lessening your risks of
liability where federal civil rights claims are concerned. You probably know that, under
42 U.S.C. Section 1983, you can be sued for a civil rights violation in your individual or
offi cial capacity. An individual capacity suit is one that alleges that you violated someone’s
constitutional or other federally protected right while acting under the auspices of your
public offi ce. (An offi cial capacity suit, on the other hand, is a suit against the entity,
rather than you individually.) A fi nding of individual liability in a Section 1983 suit
essentially means that you’ve violated a clearly established constitutional or statutory
right of which a reasonable person should have been aware, and that your conduct was
unreasonable. Such conduct can fall within the “outside the scope” exclusion; violating
someone’s civil rights is likely not within the “job description.” Th us, elected offi cials need
to be especially cautious about conduct that could be actionable as an intentional civil
rights violation.
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Th e sexual harassment exclusion is another exclusion that has impacts on claims based
on an individual offi cial’s conduct. Th is exclusion to the Public Offi cials Liability coverage
part applies to sexual harassment claims. Let’s say that a sexual harassment claim is
made both against the entity, for failure to deal eff ectively with sexual harassment in the
workplace, and against the harassing employee or volunteer. Under this exclusion, the
entity will probably be covered. However, with respect to the individual offi cial, employee,
or volunteer, the entity will have the option to direct CIRSA to defend or not defend the
individual. Th us, if the entity so directs, the individual will be left out in the cold as to any
defense of a sexual harassment claim against him or her! And in any event, even if the
entity directs CIRSA to provide a defense, any liability imposed on the individual based
upon a fi nding that harassment occurred would not be covered through CIRSA. Th e
sexual abuse exclusion operates in a similar fashion.
Th e punitive or exemplary damages exclusion is also pertinent in the context of
an individual offi cial’s conduct. Punitive or exemplary damages can be awarded in
circumstances where an individual’s conduct is willful and wanton in the disregard of
someone’s rights, or callously indiff erent or motivated by evil intent. Th e purpose of
punitive damages is, as the term suggests, to punish a wrongdoer for such egregious
conduct. Because the punitive eff ect would be considerably blunted if an insurer were
available to cover a punitive damages award, punitive damages are deemed uninsurable
by the appellate courts of many jurisdictions, including Colorado. Consistently with this
judicial position, the CIRSA liability policy contains an express exclusion for punitive or
exemplary damages.
Th e breach of contract exclusion can be pertinent to the activities of governing bodies.
Governing bodies approve a wide variety of contracts, and sometimes are alleged to have
dishonored them. It is not the intent of a liability policy to cover the kinds of liability
that can arise when someone alleges a breach of contract, so there is an exclusion for
the breach of an express or implied contract. Th is exclusion does not apply when a
claim is based upon an allegation by an offi cial or employee of wrongful termination of
employment.
Th e condemnation/inverse condemnation exclusion can be relevant to a land use action
taken by a governing body. A landowner may claim that all or a portion of his or her
property was “taken” by governmental action, or that vested property rights were impaired
by governmental action. Th ese types of claims, involving the value of private property,
are not covered. As you can imagine, liability policies aren’t suited to cover these types of
claims, because they would require insurers to try to underwrite the risk of having to pay
for the property values of privately owned real estate throughout the state!
Th e bonds or taxes exclusion applies to any liability based upon or arising out of the
issuance of bonds, securities, or other fi nancial obligations, or taxes, fees, or assessments,
or the collection, retention, or expenditure of funds. Th us, when a claim is made of an
improperly levied tax, or retention of funds in violation of the Taxpayer’s Bill of Rights, or
impropriety in the issuance of bonds or other fi nancial obligations, this exclusion would
apply.
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What Else Should You Know About Coverage Issues?
A lawsuit against you may involve one of several responses from CIRSA. We may
determine, based on the allegations, that we owe you an unconditional duty of defense
(i.e., the assignment of a defense attorney) and indemnity (i.e., covering any judgment
or settlement). Or we may determine that none of the allegations invoke any duty of
defense or indemnity, and send you a denial letter. Sometimes, though, a suit will contain
a mixture of covered claims and uncovered/potentially uncovered claims and, in this
case, we will defend you under a “reservation of rights.” A “reservation of rights” letter
will be sent telling you of the areas where there may be no coverage, and reserving our
right not to indemnify you, and our right to terminate your defense (and potentially seek
reimbursement of legal fees paid on your behalf) should circumstances warrant.
One or more CIRSA defense counsel will be assigned in circumstances where we fi nd
that there is a duty to defend. In some cases, a single attorney can represent multiple
defendants; however, in cases where defenses may be inconsistent between or among
the covered parties, or other circumstances for a confl ict of interest may exist in
representation, we will assign multiple counsel. CIRSA-assigned defense attorneys,
although paid by CIRSA, owe their duty of loyalty to you, their client.
We hope that you never have to delve into the details of these coverages in the context of
an actual claim against you, but it’s a good idea to be familiar with the broad outlines of
those coverages. As always, if you have questions, please contact CIRSA.
Footnotes:
1. Th is is only a summary of certain provisions of the CIRSA liability coverage documents. Th e
language of the applicable coverage document must be reviewed for a complete and accurate
understanding of the applicable coverages, and the application of the coverage document to any
specifi c situation will require the advice of your entity’s attorney.
2. Please refer to the Declarations pages of the Liability Coverage form for more specifi c information
on the limits and sublimits for all coverages.
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CHAPTER 5
OPEN MEETINGS AND EXECUTIVE SESSIONS
By: Tami A. Tanoue, CIRSA Executive Director &
Sam Light, CIRSA General Counsel
At CIRSA, we’ve seen a steady stream of claims against our members for alleged
violations of the open meetings law in the conduct of meetings and executive sessions.
Th ese types of claims are usually excluded from most commercial insurance coverages.
However, CIRSA provides some defense cost coverage for claims alleging executive
session violations by governing bodies. In this chapter, we’ll go over the basics of the
open meetings law and summarize CIRSA’s coverage for allegations of open meetings
violations.
The Open Meetings Law
Under the Colorado open meetings law, C.R.S. Section 24-6-401 et seq. (COML), it is
“the policy of this state that the formation of public policy is public business and may not
be conducted in secret.” Note this statement’s focus on the formation of public policy.
Th us, the law intends openness in the policymaking process, and councils and boards are
well-served by honoring not only the letter of the COML but the spirit of this purpose
statement.
Th e core requirement of this law is that all meetings of a local public body (a term which
includes the governing body and other formally constituted bodies of a public entity),
at which public business is discussed or at which any formal action may be taken are
declared to be public meetings open to the public at all times. “Full and timely notice”
must be given of all meetings. Th e COML deems this requirement to have been met
if notice of the meeting is posted at least 24 hours prior to the holding of the meeting;
however, your charter or local ordinances may require posting further in advance. Th e
notice shall include specifi c agenda information where possible. No action taken at a
meeting is valid unless it meets the requirements of the open meetings law. A “meeting”
under the open meetings law includes “any kind of gathering, convened to discuss public
business, in person, by telephone, electronically, or by other means of communication.”
Th ere are a few exceptions to this core requirement of public openness, and a properly
convened executive session may be held to discuss matters that fall into those exceptions.
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Some of the more commonly arising subjects that are proper matters for an executive
session include:
• Th e purchase, acquisition, lease, transfer, or sale of any real, personal, or other
property interest;
• Conferences with an attorney for the local public body for the purposes of
receiving legal advice on specifi c legal questions;
• Certain personnel matters; and
• Determining positions on matters that may be subject to negotiations, developing
strategy for negotiations, and instructing negotiators.
Th e open meetings law should be reviewed in its entirety for all of the applicable
legal requirements, and legal advice should be obtained on its meaning. Home rule
municipalities may have their own meeting and executive session procedures established
pursuant to their home rule powers; this discussion is not intended to cover the variances
in local practice in home rule municipalities.
Th e “courts of record” of the state have jurisdiction to issue injunctions to enforce
the purposes of the open meetings law. Any citizen of the state may apply for such an
injunction. Th e open meetings law states that, in any case in which the court fi nds a
violation of the law, the court shall award the citizen prevailing in such action his or her
costs and reasonable attorney fees. In addition, a citizen may apply to the court for access
to the record of an executive session; if the court determines, aft er listening to the record,
that the local public body engaged in substantial discussion of any matters that were not
proper subjects for an executive session, or took formal action while in executive session,
then the record may be made accessible to the public.
Executive Session Coverage Through CIRSA
Defense costs coverage for executive session claims is provided to CIRSA property/
casualty members by way of an amendment to the “non-monetary damages, fi nes or
penalties” exclusion in the public offi cials liability section of the coverage document. Th is
coverage is subject to the following terms:
• It applies only to reasonable attorney’s fees and reasonable and necessary costs
included in the defense of an action brought solely under C.R.S. Section 24-6-
402(9) of the open meetings law.
• It applies only to such an action brought against the member’s governing body;
subordinate boards and commissions holding executive sessions do not have this
coverage.
• It does not apply to any plaintiff ’s attorney fees or costs that are assessed against
the member as a result of losing such an action. Such fees and costs must be borne
by the member.
• Th ere is a sublimit for this coverage that is shared with certain other non-
monetary defense coverages. Th e sublimit is $10,000 any one action, subject to a
$30,000 annual aggregate per member. Th e member deductible does not apply to
this coverage.
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• Submitting an executive session claim to CIRSA is optional with the member; the
member may choose to defend such a claim itself. If a member wants to avail itself
of this coverage, the claim must be submitted to CIRSA, for handling by CIRSA-
assigned defense counsel, at the time of commencement of the action.
A Few Suggestions
Th e risks of open meetings violations can be greatly reduced by favoring transparency
and using caution in cases of uncertainty. Aft er all, the courts interpret the rules and
will resolve doubts in favor of openness. Toward that end, elected and appointed offi cials
should be cognizant of when their discussions will trigger open meetings requirements, so
that violations can be avoided. To avoid claims of improper notice, a full meeting agenda
should be timely posted, and the body and staff alike should avoid adding substantive
items to the agenda at the meeting (as claims and distrust can result from such surprises).
Of course, claims of executive session violations could be avoided entirely by never having
an executive session! However, this may be an unrealistic goal because, as discussed above,
there is a legitimate need for confi dentiality in some matters. But consider the following:
• Hold executive sessions to the absolute minimum necessary to protect legitimately
confi dential matters.
• Confi rm with your city or town attorney that the proposed subject of the executive
session is authorized under the law. Th e statutory bases for having an executive
session are specifi c and narrowly construed, and bodies should resist eff orts to
pound a square peg in a round hole in searching for authority where it does not
exist.
• Utilize an executive session “script” to help guide you in the proper procedures for
convening an executive session. CIRSA members may obtain a CIRSA sample by
contacting saml@cirsa.org.
• When participating in an executive session, be vigilant of yourself and others
to make sure that the discussion doesn’t stray from the specifi c subject that
was announced in the motion to go into executive session. Participants in the
executive session must commit to “stay on topic” and not stray from the specifi c
subject.
• Make sure you keep an electronic record of each executive session as required by
the open meetings law. Th e only exception to the recording rule is an executive
session for an attorney-client conference; these sessions should not be recorded.
• Stay out of the loop on personnel matters when feasible. One of the more
common reasons for holding an executive session is the discussion of a personnel
matter. However, if the employee who is the subject of the executive session so
demands, the discussion must be done in public. Moreover, personnel matters
that are not personal to a particular employee are not proper subjects for an
executive session (unless some other lawful basis for holding an executive session
applies). Th ese and other complexities of the “personnel matters” basis for holding
an executive session can be avoided if your personnel policies have been set up in
a manner that delegates most personnel matters to your staff .
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• If you have to take one of your own governing body members to the “woodshed,”
don’t do it in an executive session. Some years ago, the “personnel matters” basis
for holding an executive session was amended to state that executive sessions are
not permitted for discussions concerning any member of the local public body or
appointment of a person to fi ll a vacancy on the local public body. Th us, the idea
that the governing body can convene in executive session to discuss one of its own
members as a governing body “personnel matter,” is no longer viable.
• If the confi dentiality of a matter is such that it warrants an executive session,
then be sure to honor that confi dentiality once the executive session is over, until
and unless public discussion of the matter becomes legally permissible. Don’t
act outside the scope of your legal authority as an individual member of the
governing body to waive confi dentiality on your own. If the executive session
concerns negotiations or other matters where some information will be shared
with third parties in follow up to the session, ask “Who are our spokespersons?”
and “What information will we share at this time?” and honor the answers arrived
at in the session.
Conclusion
Open meetings missteps are hard to overcome in terms of maintaining your constituents’
trust in you. Further, each and every executive session your entity holds exacts a price
in terms of expectations of open government and, if done improperly, can subject your
entity to claims. By complying with the strict requirements of the open meetings law,
keeping executive sessions to the minimum necessary, and observing all of the formalities
for holding meetings and executive sessions, you can keep that price low and public
confi dence high.
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CHAPTER 6
ETHICAL CONDUCT IN LOCAL GOVERNMENT
By: Robert Widner, Widner Juran LLP
Introduction
Citizens have a right to expect ethical behavior from local government offi cials. In the
municipal context, “ethical behavior” generally means the conduct of public business in a
manner that will preserve or restore the public’s trust in government. In many instances,
local government offi cials are unaware of the rules and guidelines governing their offi cial
behavior. Th is chapter outlines a basic regulatory framework for ethical behavior for local
government offi cials and advocates on the premise that limited but enforceable local
regulation is necessary to protect the public trust. Th e fi rst part of this chapter focuses
upon “what” ethical activity should be regulated at the local level. Th e second part focuses
upon “how” local ethical standards should be enforced.
Why Regulate Local Ethics?
Both media stories and national studies of local government decision-making highlight
the need for regulation of ethical behavior by local government offi cials. Unfortunately,
ethical violations do occur at all levels of government and may range from the use of a
public offi ce to help a friend secure special treatment from the government to corruption,
self-dealing, or just plain poor decision-making. Although the vast majority of public
offi cials ably conduct offi cial business without ethical missteps, a single publicized
violation can cast a cloud upon the entire government organization and raise suspicion
that other public offi cials are engaged in similar misconduct. Simply put, ethical violations
erode public trust.
Colorado state law attempts to describe appropriate standards of conduct for local
government offi cials in Title 18, Article 24 of the Colorado Revised Statutes. Th e state
law fails in many respects to articulate clearly the standards for ethical behavior or to
defi ne key statutory phrases, such as what constitutes “personal or private interest.” State
law further fails to serve the needs of local government by delegating the enforcement
of alleged local ethical violations to the local district attorney’s offi ce. Th is delegation
oft en proves ineff ective as it requires district attorneys to divert their limited resources
from the enforcement of criminal conduct to the investigation and enforcement of
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state misdemeanor ethical misconduct. Moreover, enforcement of statutory standards
of conduct against elected public offi cials by elected district attorneys can—fairly or
unfairly—lead observers to assume that politics, rather than justice, will dictate the
outcome.
In addition to state statutory law, in 2006 the Colorado voters enacted Amendment 41,
a constitutional citizen initiative. Amendment 41 was codifi ed into Article XXIX of the
Colorado Constitution. Th e purpose of Article XXIX was to establish new statewide rules
governing the receipt of gift s and other considerations by government offi cials. It also
allows a state independent ethics commission to hear complaints, issue fi ndings, and
assess penalties in connection with ethics issues arising under Article XXIX and under
any other state standards of conduct and reporting requirements. Th e state’s independent
ethics commission has proven a less than eff ective means of addressing ethics at the local
level due to lengthy hearing timelines and the need for local offi cials to defend conduct
in a state tribunal located in Denver using state, and not locally, created and imposed
ethics regulations. Of signifi cant importance to the creation of local ethics regulation,
Article XXIX includes an explicit exemption which limits the state’s independent ethics
commission’s jurisdiction: Home rule municipalities that have enacted local ethics
codes which address the topics of Article XXIX are not subject to the jurisdiction of the
independent ethics commission.
Municipalities may overcome these state statutory and constitutional shortcomings
through local regulation and local enforcement of ethical behavior. Eff ective local
regulation of public offi cials’ ethics necessarily involves two distinct elements. Th e fi rst is
a set of clearly written directives identifying what constitutes unacceptable or unethical
behavior. Th e second is a process for enforcing the written directives in a reasonable, fair,
and effi cient manner.1
What Should be Regulated?
Th e most common problems with local rules of ethical conduct are vagueness and
overbreadth. Sweeping general statements such as “city offi cials should comport
themselves at all times in a professional manner” are too vague to help either the offi cials
or their constituents understand what is and is not acceptable. Likewise, regulations that
attempt to set standards for the offi cials’ personal life may seem admirable, but are really
beyond the scope of good ethical regulation. Consequently, any set of ethical regulations
should focus on the conduct of public offi cials while performing their public duties and
should be specifi c enough to clearly defi ne what constitutes an ethical violation.
Engaging in criminal conduct while in the course of one’s public responsibilities should
always be an ethical violation. However, criminal acts committed by public offi cials
outside of their offi cial role and in their private capacity are best left to local law
enforcement or, as discussed below, the public’s right of recall. It may be true that a public
offi cial’s criminal activity unrelated to public offi ce can still undermine public trust, but if
your ethical code provides that “any felony or misdemeanor criminal activity” committed
by a public offi cial constitutes an ethical violation, are you prepared to sanction a board or
council member who receives a jaywalking ticket?
A criminal act committed by a public offi cial in his private life will typically only call into
question the qualifi cations of that particular public offi cial to serve the public. To that end,
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state law provides a remedy in the right of recall, a process by which the voters can decide
whether that individual should continue to serve. Local ethical regulations, however,
should avoid putting members of the municipal governing body in the role of overseeing
and enforcing the private activities of one of their own.
It is also customary, and a good idea, for local ethics regulations to incorporate as an
ethical violation any failure of the public offi cial to adhere to important provisions of
the municipal charter or ordinances, such as provisions that prohibit elected offi cials’
interference with the city manager’s supervisory role over city employees. In addition,
ethics regulations should prohibit:
• the intentional disclosure of confi dential governmental information;
• the acceptance of gift s of substantial value;
• the misuse of public resources or public equipment; and
• engaging in contractual relationships for the personal benefi t of the public offi cial
and/or the offi cial’s relatives or any business in which the offi cial has an interest.
In summary, local ethical regulations should prohibit the conduct that will most directly
impair the public’s trust in the local government organization as a whole. If draft ed with
appropriate attention to specifi city, eff ective local regulation will put public offi cials on
notice of precisely what constitutes inappropriate behavior related to their public service,
and will clearly inform constituents of what is expected of their local representatives.
Accompanying the regulations should be well-defi ned steps for disclosure and recusal in
circumstances giving rise to confl icts of interest. Finally, local codes should include terms
and phrases designed to avoid vagueness and ambiguity.
How Should Ethics Codes be Enforced?
Ethics regulations eff ectively inform offi cials what conduct is permitted and prohibited
in public service. However, without a means to enforce the ethical requirements, the
regulations become largely meaningless.
Creating a process to enforce ethical regulations requires careful thought. Ensuring that
the regulations are enforced fairly is a paramount concern. Fair enforcement is fostered
when regulations clearly articulate the requirements and expectations of every step of
the enforcement action. Where a step is optional, such as whether an investigation of the
ethics complaint will be performed, the criteria and procedures for determining whether
the step will be employed should be clearly identifi ed and followed. Th e regulations
should contemplate the need for issuing subpoenas for documents and compelling witness
testimony and attendance.
Th e typical process will include a complaint, the identifi cation of the hearing body or
hearing offi cer, an initial review, investigation, a hearing, a decision and, if appropriate, a
penalty.
Complaint
Th e initiation of the process to enforce an ethical standard should require a written
complaint or allegation of unethical conduct. Th e form of the written complaint is
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important. Th e person charged with unethical conduct has a right to know what conduct
is alleged to have violated the ethical rules.
At a minimum, the complaint should include a detailed description of the action alleged
to have violated the rules and citation to the ethical rules alleged to be violated by such
conduct. Requiring the complaining party to verify or certify under penalty of perjury
or other sanction that the allegations are truthful may aid in preventing complaints that
are merely intended to harass or which might be politically motivated. Once received,
the complaint must be must formally delivered or served upon the person alleged to have
violated the rules.
Hearing Body or Officer
A critical decision for any ethical enforcement action is the selection of the appropriate
hearing body or offi cer to hear the allegations, render a decision, and impose a penalty,
if appropriate. Th e enforcement regulations should identify the process for selection,
composition, and qualifi cations of the hearing body or hearing offi cer. Th e options are
numerous. Th e hearing body might, for example, be composed of the entire governing
body of the local government, a governing body subcommittee, a citizen ethics board, or
an independent hearing offi cer. Moreover, the decision of the hearing body or offi cer can
be considered advisory and made subject to fi nal review and ratifi cation by the governing
body.
Each option presents advantages and disadvantages. Th e elected governing body is a
logical selection when judging the conduct of its fellow members or public servants
due to its role as representing the citizens who demand ethical action by government.
However, selecting the governing body or individual members of the governing body risks
injecting elements of political favoritism into the ethics process, and raises complications
where other members are necessary witnesses to facts alleged in the complaint. Similarly,
while citizen members have a direct interest in ethical governmental action, citizens can
oft entimes be politically aligned with elected offi cials or lack the experience to understand
the allegations in the context of public service. Individual hearing offi cers, while perhaps
free of any political motivations, may lack accountability to the citizens.
Initial Review
A preliminary or initial review of the complaint may be a benefi cial step. A complaint
may fail to assert any actions by the public servant that constitute an ethical misstep
or may assert actions that are unrelated to the servant’s public duties. In addition, a
complaint may, on its face, be submitted for the sole purpose of harassing the public
servant. At a preliminary review, the hearing body or offi cer can elect to dismiss the
complaint, thereby saving the local government time and money in processing spurious
or specious allegations. Any decision to dismiss the complaint should be made in writing
and provided to the complaining party and the person against whom the allegations were
raised.
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Investigation
For some but not all complaints, an investigation might be warranted. If warranted and
approved by the hearing body or offi cer, the investigation should be undertaken by an
independent and neutral party. Th is investigation might involve the interview of witnesses
and review of the evidence, and may culminate in a written summary of disputed and
undisputed facts relevant to the issues to be decided by the hearing body or offi cer.
Hearing
For complaints that warrant prosecution, a hearing should be held to consider the
complaint. In some circumstances, the hearing may include a preliminary stage whereby
the hearing body or offi cer reviews the investigative report and, if appropriate, may
elect to dismiss the allegations if the investigation established that the evidence does not
support a fi nding of wrongdoing. Conducted in a manner similar to a judicial proceeding,
the hearing should permit the presentation of evidence to support the allegations of
unethical conduct and an opportunity to provide a defense against the allegations. Th e
local government may employ a prosecutor to present the allegations and evidence. Any
decision by the hearing body or offi cer should be made in writing to ensure an adequate
record and formally conclude the proceeding.
Decision and Penalty
In the event that the hearing body or offi cer fi nds a violation of the ethical standards, a
penalty may be in order. Obviously, the severity of the penalty can vary depending upon
the seriousness of the violation. Penalties may range from a simple letter of admonition or
censure, to removal of the public servant from certain duties or responsibilities, to more
drastic action including removal from elective offi ce.
It is exceedingly rare for ethical violations to result in a monetary fi ne. A monetary fi ne
or action to void a contract resulting from unethical conduct is most appropriate where
the ethical violation caused probable fi nancial harm to the community. Th ese types of
violations are best prosecuted by the district attorney under the public trust provisions of
state law.
Importantly, removal from offi ce is a power best reserved for the governing body which
holds the power of removal pursuant to the charter (for home rule municipalities) or state
statutes (for statutory cities and towns). Moreover, it is important to acknowledge that
elected offi cials remain accountable to the citizens and are subject to recall from offi ce
should their constituents feel the ethical standards of their offi cial are lacking. For that
reason, removal from offi ce should be considered only in the most egregious cases.
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Footnote:
1 . Many home rule and statutory municipalities in Colorado have adopted local ethics regulations,
ranging from comprehensive charter provisions and ordinances to a few local supplements to state
law. CIRSA members can obtain examples of local ethics ordinances by contacting saml@cirsa.org.
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CHAPTER 7
HARASSMENT ISSUES: WHAT ELECTED
OFFICIALS NEED TO KNOW
By: Tami A. Tanoue, CIRSA Executive Director
Introduction
Harassment allegations have been a media fi xture for the past few years, as the “me too”
movement spreads across the world of entertainment, media, the corporate sector, and
even into federal, state, and local government.
In municipal government, many of us feel like seasoned veterans in dealing with
harassment issues. At least in the employment arena, we know how to deal with
harassment. We have the policies in place, and we take them seriously. We do regular
training on the issues. We know how to undertake a fair and credible investigation when
allegations surface, and we understand the need to impose appropriate consequences for
well-founded allegations.
But now, harassment issues are surfacing at the level of governing bodies and elected
offi cials. Like an unexpected virus variant, this permutation has left some municipalities
unprepared to deal with the consequences. Th e results have included ineff ective responses,
public embarrassment, and loss of public confi dence.
Why Should You Care About Harassment Issues at Your Level?
You might be thinking that the governing body working environment is not the same
as the employee workplace. You’re all co-equals, elected by and accountable only to the
voters. Th e people “hired” you, and the people are the only ones who should be able to
“fi re” you. You each got into this voluntarily for the love of your municipality, and not as
your livelihood, and those who can’t stand the heat should get out of the kitchen. Right?
Well, wrong! Let’s start by looking at your place in the municipal organization. You’re at
the very top of the organizational chart and the chain of command. As such, you are a key
infl uencer of the organizational climate. A recent study concludes that the organizational
climate is the most potent predictor of harassment in the workplace!1 You’re setting the
tone for how people throughout the organization interact with one another. If the tone
you set is disrespectful, inhumane, or dysfunctional, then that behavior will be modeled
and replicated throughout the organization! Do you want that?
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Another reason you should care: the higher up in the organization a harassment issue
surfaces, the more diffi cult it is to deal with. Because of legal requirements and public
expectations for transparency, you must necessarily conduct most of your work in public.
If you think that a harassment allegation at your level can be dealt with behind closed
doors, you may be disappointed.
Also, the consequence for a well-founded allegation of harassment isn’t straightforward
when it comes to an elected offi cial. How is an elected offi cial to be “disciplined” by his
or her peers? Concepts such as “corrective action up to and including termination” don’t
necessarily translate well when applied to elected offi cials.
And assuming you’ve laid out a process for dealing such allegations, who gets involved in
that process? Th ose in the administrative team who normally provide you with support,
advice, and assistance may well say, “sorry, this is above my pay grade,” requiring you to go
outside your organization, at great expense, for help.
Policies, Legal Definitions, Civil Liability Laws, and Their Limitations
Th e defi nition of “harassment” diff ers from policy to policy. One common factor, though,
is that harassment generally must be “severe or pervasive” in order to constitute a policy
violation. Th e “severe or pervasive” standard is consistent with the U.S. Equal Employment
Opportunity Commission’s (EEOC) view of off ensive conduct that violates Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, or
the Americans with Disabilities Act of 1990: the conduct must be severe enough that
enduring the off ensive conduct “becomes a condition of continued employment”; or must
be “severe or pervasive” enough to create a work environment that a reasonable person
would consider intimidating, hostile, or abusive.2
Th us, policies, as well as civil rights laws aff ording protection from harassment, set a
high bar for liability. A common question, then, becomes: “well, if my conduct is short of
‘severe or pervasive,’ there’s no problem, right?” Stated diff erently, if someone’s behaving
badly, but the behavior doesn’t quite hit the high bar for a policy violation or for civil
liability, does that make the conduct acceptable?
Another form of liability is criminal culpability. How oft en have you heard someone
justifying their bad behavior in this way: “Well, I haven’t committed any conduct that
could be described as criminal.” Does that make the conduct OK?
Let’s think about this! In any other aspect of your work as a public offi cial, is the standard
for acceptable conduct this low? When it comes to ethical or confl ict of interest issues, for
example, would we be able to get by with a low bar like “well, just don’t commit a crime,”
or “just don’t expose yourself or our municipality to civil liability”? No! Municipal offi cials
pride themselves in meeting the highest standards of conduct when it comes to ethical
issues or confl icts of interest. So why should we set such a low bar for the way we behave
towards one another?
And here’s another critical issue. Harassment laws are generally aimed at employment
matters: employee-employee issues, supervisor-employee relationships, employer-
employee responsibilities, and the like. Th ese laws aren’t designed for issues between
elected offi cials, who aren’t employees, aren’t accountable to an employer, and are beyond
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the reach of common workplace remedies like termination, suspension, demotion, etc.
Th us, you’ll run across investigations of elected offi cials’ conduct that might reach a
conclusion along these lines: “Th e allegation of a hostile work environment based on
sexual harassment was unfounded. Th is conclusion is reached because the Civil Rights Act
of 1964 does not apply to elected offi cials.” But, does that make the conduct acceptable?
Should exposure to civil liability be the standard by which conduct is gauged?
Most reasonable people would not live their lives by the guideline, “I’m OK as long as
I avoid civil or criminal liability.” We would want to hold ourselves to a much higher
standard! And, as leaders, we certainly wouldn’t want to model such a low bar for the rest
of the organization. So let’s ditch the legal parsing. Let’s focus away from the “h” word,
harassment. Let’s not spend too much time arguing over defi nitions. What we need to do
is to confront and articulate the expectations we should have for ourselves, and for our
colleagues, in the environment in which we operate.
Risk Factors for Harassment
Th e EEOC has been doing some interesting work around harassment issues in recent
years. Risk factors have been identifi ed that, if present, increase the likelihood that there
will be harassment issues in the workplace. You can view the complete list on the EEOC’s
website,3 but some of the risk factors include:
• Homogeneity – lack of diversity, “currently only one minority among us.”
• Workplaces where some employees don’t conform to workplace norms – “rough
and tumble” or single-sex dominated workplace culture.
• Cultural and language diff erences – arrival of new personnel with diff erent
cultures or nationalities; segregation of personnel with diff erent cultures or
nationalities.
• Workplaces with “high value” personnel.
• Workplaces that rely on customer service or client satisfaction.
Could any of these factors apply to your governing body? For example, if diversity in
terms of gender, race, ethnicity, age, and other factors is a new phenomenon on your
governing body, then one might expect misunderstandings and gaff es to occur. Certainly,
elected offi cials are “high value” personnel within the organization; there’s no one higher
in the org chart than you! And most municipalities pride themselves on a high degree of
customer service and customer satisfaction. Th ese are all things to be proud of—but they
are also factors for the presence of harassment issues.
So, What Can We Do?
If you’ve read this far, congratulations! You’re more than halfway towards dealing with
these complex issues in a positive and successful way. Th e recent work of the EEOC
includes a recognition that a “committed and engaged leadership” is one of the most
important factors in preventing and addressing harassment.4 So the fact that you, as an
organizational leader, care about this issue is a great thing in itself.
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First, take a look at the prevailing culture on the governing body. Are old ways of
interacting with one another no longer working well? Or making some members feel like
less than equal participants on the governing body? Have you had complaints or concerns
raised about the behavior of one or some members? If so, it may be time to discuss the
prevailing dynamics openly and honestly to start identifying the concerns.
Once you know what the concerns are, then you can begin discussing how to deal with
them. You can identify what types of conduct are not acceptable. You can identify the
values that are important to the group. You can work towards commitments about how
you will communicate and interact with one another. Th ose commitments can form the
basis for norms or standards of conduct. Not everyone may end up on the same page, but
the “peer pressure” brought about by the consensus of a majority is powerful!
If you can get on the same page on norms or standards of conduct, it may be desirable
to put them into a written document, perhaps a set of governing body rules of conduct.
Th e rules can articulate the standards explicitly, so that everyone understands what is
expected. A process for bringing forward concerns or complaints can be identifi ed, as well
as the manner in which such concerns or complaints will be investigated. CIRSA members
can obtain an example of such rules by contacting tami@cirsa.org.
And very importantly, the rules can provide consequences for violations of the
standards. Th ose consequences may be limited by your home rule charter (for home
rule municipalities) or the state statutes (for statutory cities and towns). But even if
the consequences don’t necessarily include a severe consequence like expulsion from
the governing body, they are still powerful! Even a “public censure” is a powerful
consequence; your wayward colleague, as well as the citizens, will understand that you
take your conduct standards seriously and that violations are unacceptable.
Bystanders and Peers
It’s important to stress that we are all leaders, and we all have a role to play. Each of us
is likely a supervisor, role model, or mentor to someone else. We may be part of a peer’s
support system, sounding board, or confi dant. We may even just be a witness. And that’s
where the concept of “bystander” empowerment or intervention—another concept
recently embraced by the EEOC5 — comes in. Perhaps “peer” would be a better term than
“bystander,” but the idea is this: that someone who doesn’t directly experience concerning
behavior, but who observes it happening, can step in and make a diff erence.
Th is doesn’t necessarily mean that you, as a bystander or peer, should intervene
superhero-style, to swoop in and “rescue” someone that you think may be in a problematic
situation. Indeed, you don’t need to expose yourself to a situation that could escalate. But
what you can do is to talk to that person away from the situation: let him or her know
that you saw what was happening. Say something like, “Hey, I happened to hear what Kyle
said (or did) to you, and I didn’t think it was OK. Were you OK with that?” If the person
responds in the affi rmative, fi ne; you can all move on.
But if the person indicates that the behavior to which he or she was subjected was a
problem, then think of the impacts of your intervention! First, that person knows that he
or she is not alone: you are a witness. Second, you are affi rming that the behavior is not
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acceptable. And third, you can be of help in identifying resources for further follow-up.
Bystander intervention is about empowering yourself to be part of the solution.
If you’re comfortable doing so, you can talk to the person engaging in the problem
behavior: “Th at joke wasn’t funny.” Or, maybe the situation calls for some kind of
interruption…maybe standing in proximity will extinguish the behavior. Or, perhaps,
drop something on the fl oor and create a small diversion!
Th ere are other ways in which a bystander or peer can positively aff ect a problem
situation. Training on this topic is available and can provide a powerful peer-to-peer tool
for communicating and reinforcing workplace values.6 Although a formal complaint/
follow-up process should always be available, an eff ective bystander or peer intervention
may help resolve issues without the need to escalate them into a formal process.
Conclusion: It’s All About Respect
In the fi nal analysis, this discussion shouldn’t be about the “h” word, harassment. It should
be about the “r” word, respect. A working environment where everyone’s scrutinizing
whether the harassment line has or hasn’t been crossed in any given interaction is not a
good working environment. A working environment where everyone’s striving for a sense
of mutual respect, trust, collegiality, and inclusion, is an environment where things are
going to get done, and done well.
Footnotes:
1. National Academies of Sciences, Engineering, and Medicine, 2018: Sexual Harassment of Women:
Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine. Washington,
DC: Th e National Academies Press. https://doi.org/10.17226/24994.
2. https://www1.eeoc.gov/laws/types/harassment.cfm?renderforprint=1.
3. https://www.eeoc.gov/eeoc/task_force/harassment/risk-factors.cfm.
4. https://www.eeoc.gov/eeoc/publications/promising-practices.cfm.
5. https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm.
6. https://hbr.org/2018/10/to-combat-harassment-more-companies-should-try-bystander-training;
https://www.ocwr.gov/sites/default/fi les/compliance-bystanders.pdf.
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CHAPTER 8
ELECTED OFFICIALS’ INVOLVEMENT IN
PERSONNEL MATTERS
By Tami A. Tanoue, CIRSA Executive Director and
Sam Light, CIRSA General Counsel
Introduction
CIRSA doesn’t take many member cases all the way through trial. When we do, it’s
usually because we expect a jury verdict in our member’s favor. But one area where we’ve
sometimes been disappointed by a jury has been in the area of employment liability.
CIRSA members’ experience with employment claims in the judicial system refl ects
certain realities. Every juror has probably had to deal with a “bad boss” at some time in his
or her working life. It’s much harder to fi nd a juror who’s had to deal with “bad employees”
as a manager or supervisor. So juries are naturally tilted in the employee’s favor rather
than the employer’s.
Another reality is that employment litigation is extremely stressful. Careers and
reputations are at stake. Th e supervisor’s and manager’s (and sometimes elected offi cial’s)
every move is subjected to scrutiny, and the documents they’ve generated are nit-picked
by attorneys and blown up into super-sized exhibits. One’s fate is entrusted to the decision
of a group of complete strangers. Sometimes, that fate is a dire one, indeed. One mayor in
New Mexico (which is in the same federal circuit that encompasses Colorado) was handed
a verdict in which a jury determined that his retaliatory and discriminatory conduct in an
employment matter warranted a punitive damages award of $2,250,000 against him.1
Even when the stakes aren’t that high, no one who’s ever been through employment
litigation relishes the thought of ever going through it again. Th e suggestions in this
chapter are intended to help you, as an elected offi cial, to minimize the chances that you’ll
be caught up in employment-related litigation and, if you are, to maximize the chances of
a better outcome than that faced by the New Mexico mayor.
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Establish a Structure That Allows Delegation of Personnel Functions
In a word, the single most important suggestion is: delegate! Th e chances that you’ll be
pulled into an employment claim, much less sued successfully, go way down if you’ve
appropriately delegated the responsibility to hire, train, evaluate, supervise, manage,
and discipline all but your key employee or employees. To do this, you need to have
an administrative structure in place that will permit delegation, such as a manager or
administrator form of government.
If your entity is fortunate enough to have a manager/administrator, the governing
body should take full advantage of the organizational structure this position allows.
Th e manager/administrator should be the only position (except for city/town attorney,
municipal judge, and similar positions) that reports directly to the governing body. All
other personnel should be accountable to the organization solely through the manager/
administrator. Every organization that has more than a few employees should strive to put
such a structure into place.
Honor the Structure
Once you’ve achieved a manager/administrator form of government, you must honor it.
Th ese types of actions, if allowed, would violate your commitment to that form and waste
the resources that you’ve allocated to it, and encourage dysfunction and disorder:
• Elected offi cials reaching down below the level of the manager/administrator to
infl uence what goes on with personnel administration below that level.
• Elected offi cials reaching down below the level of manager/administrator to
give orders to employees below that level on how to do their job, particularly if
the orders are contrary to the established policies and/or the direction of their
supervisors.
• Elected offi cials permitting an employee below the level of manager/administrator
to bypass his/her own supervisor and take personnel issues directly to them.
Th us, for instance, if your entity has committed to a manager/administrator form, there’s
no call for elected offi cials, individually or collectively, to demand the hiring or fi ring
of a specifi c employee below the level of manager/administrator. Such an action raises
questions of propriety from several perspectives:
• Do your personnel enactments reserve any such authority to the elected
offi cials? If you have a manager/administrator, your charter, ordinances and/or
personnel handbook probably don’t (and shouldn’t) call for you to be involved in
decisions involving subordinate employees. If you get involved in such decisions,
you may be outside the scope of your authority and could get in trouble (see “Be
aware of the scope of your authority” below).
• What’s the reason for doing an “end run” around the manager/administrator?
Do you have a “favorite” candidate for employment, or an employee who’s on your
“hit list”? Why are you championing or condemning someone rather than trusting
your manager/administrator to make the right decision? Do you question his or
her judgment or ability to make the right choice? If so, confront that concern;
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don’t skirt it with an “end run.” And, if the governing body does not share your
concern about the manager/administrator, don’t “end run” your governing body’s
collective decisions on oversight of its direct reports.
• Could what you’re doing be perceived as retaliatory? Along with all the other
reasons why involvement in personnel matters can be very risky, consider the
retaliation claim. Everyone is potentially in the category of persons who are
legally protected from acts of retaliation. Retaliation claims are among the most
diffi cult to defend. And, these kinds of claims can lead to massive liability.
But oft en, it’s not the elected offi cial who seeks, in the fi rst instance, to become
inappropriately involved in a personnel matter. Rather, there’s pressure put on the offi cial
from outside. For instance, a department head may have curried disfavor with a segment
of the citizenry because of the perceived manner in which a service or program is being
carried out. Either way, though, such involvement is the wrong thing to do. Don’t be
pressured by a member of the public, for instance, to interfere in a personnel issue that’s
been delegated to the manager/administrator. Th at citizen’s not going to be around to help
you if you get into trouble at his or her urging!
Similarly, don’t give in when a subordinate employee is trying to use you to get around his
or her supervisor, or when an applicant is trying to get a leg up on employment through
you. Let the process unfold the way it’s meant to unfold. If you have a concern about
the way the manager/administrator is handling things, address that concern directly. If
you cave in to pressure to involve yourself inappropriately, though, you may be enabling
someone who wants to “game the system,” or unfairly disempowering a manager or
supervisor.
Be Aware of the Scope of Your Authority, and Stay Within
That Scope
From a liability standpoint, one of the worst things you can do is to act outside the scope
of your legal authority. An area where authority issues oft en arise, particularly in smaller
communities, is in the “committee,” “commissioner” or “liaison” format for personnel
administration. In this format, an individual councilmember or trustee is in a supervisory
or oversight relationship with respect to a department, department head, or employee.
Th us, a town might designate a trustee as “water commissioner,” “police commissioner,”
etc.
What’s troubling about this format is that it’s oft en not described anywhere in the
community’s enactments, nor is the authority of each commissioner set forth in writing.
Rather, this format seems to be a relic of oral history and tradition. But the lack of written
guidelines means that there are signifi cant personal risks to the commissioner. What if
the commissioner takes an adverse job action, such as seeking to terminate an employee?
Under what authority is the commissioner acting?
If the commissioner can’t prove that the action was within the scope of his or her
authority, there may be consequences from a liability and insurance coverage standpoint.
Th e Governmental Immunity Act, for instance, provides protections for public offi cials
only when in the performance of their authorized duties. Likewise, liability coverage
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protections through CIRSA only apply when a public offi cial is acting within the scope and
performance of offi cial duties. Finally, even if there is authority on the books, this format
in particular can lend itself to uncertainty over who does what—“Is this a decision for the
board, commissioner or department head?”
Similar questions arise when an individual elected offi cial chooses to become involved
in a personnel matter in a way that isn’t authorized by the entity’s personnel enactments.
Where is the authority for such involvement? If you can’t fi nd a fi rm source of authority,
you may be heading for trouble. An individual elected offi cial’s inappropriate action can
not only create liability exposure for the offi cial, but put him or her crosswise with the
other members of the governing body.
Respect the Principle That Each Employee Should Have Only
One Boss
Th is seems like an obvious principle that every organization should follow. You don’t
want an employee confused by multiple directions from multiple supervisors. You also
don’t want an employee playing one supervisor off against another. When elected offi cials
become inappropriately involved in personnel matters, this basic principle is violated, and
the result is chaos.
If you allow yourself to become embroiled in a personnel matter involving a subordinate
employee, the employee may then feel that the word of his or her supervisor can be
disregarded. You may have forever undermined that supervisor’s authority, or allowed the
subordinate to do so. Likewise, if you were involved in lobbying for the hiring of a favorite
applicant (even if it was for good reasons), that person may always feel that you, not his or
her supervisor, are the go-to person on personnel issues.
Similar principles apply with respect to your governing body’s oversight of its manager/
administrator and other direct reports. Elected offi cials should recognize the council/
board is not a group of seven or other multiple number of bosses, but one boss. Th erefore,
members of the body should commit themselves to speaking with one voice to their direct
reports and to exercising their oversight role—e.g. performance reviews, goal setting,
etc.—as a group. Even when there are diff erences of opinion as to how to address an issue
with the manager/administrator, the body should arrive at its position. If the governing
body does not work to speak with one voice to its direct reports, it’s undermining its
credibility as a board and its ability to gain accountability at the highest levels in the
organization.
Th is is not to suggest that a militaristic chain of command is required in every workplace.
In fact, fl exibility in reporting relationships is desirable in some situations. For instance,
you wouldn’t want to lock your employee into reporting a harassment claim only to an
immediate supervisor, if the immediate supervisor is the one alleged to be engaging in the
harassment. But you can maintain the needed fl exibility without collapsing into the chaos
that your inappropriate involvement in personnel matters will beget.
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Conclusion
Th ere’s certainly a place for elected offi cial-level decision-making in personnel matters,
but those decisions should be reserved for the high-level issues that involve the entire
organization. Examples of such high-level issues could include establishing overall policies
for the entity; selection, evaluation, and discipline for the council/board’s few “direct
reports”; salary and benefi ts plan for the workforce; and overall goals and priorities for
departments. But when these issues begin devolving into the details of hiring, training,
evaluating, supervising, managing, or disciplining particular employees below the level of
your direct reports, it’s time to delegate them to your manager/administrator.
Footnote:
1. Th e award was later reduced to $1,500,000 but affi rmed by the 10th Circuit Court of Appeals.
Hardeman v. City of Albuquerque, 377 F.3d 1106 (10th Cir. 2004).
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CHAPTER 9
SOCIAL MEDIA USE BY ELECTED OFFICIALS
By: Tami A. Tanoue, CIRSA Executive Director &
Sam Light, CIRSA General Counsel
Social media engagement has become a regular part of life. Daily, we check our emails and
texts, and then probably go on to check our favorite social media sites, such as Facebook,
Instagram, Twitter, and others. Local governments and their constituents are also mutually
interested in connecting via social media, whether to conveniently transact business or
provide timely information about everything from street closures to street festivals. So
it’s no wonder that elected offi cials, too, have integrated social media into their public
lives. But if you’re an elected offi cial, you should know that, because of the powers and
responsibilities conferred on you by virtue of your position, your social media use has
some legal dimensions that may not apply to the rest of us. Th is chapter explores a few of
them.
Open Meetings Law
While Chapter 5 outlines the basics of the Colorado open meetings law (COML), it’s
worth examining more specifi cally how its requirements can extend to your social media
use. Consider this scenario: You have a Facebook page for yourself under the category
of “Politician.” You post information about city happenings and resources, and welcome
others to post there as well. One day, you post on a controversial topic that the council will
be tackling at its next meeting, and two of your fellow councilmembers get wind. All three
of you go back and forth posting about your respective views and how you intend to vote
on the topic.
Is this a “meeting” within the meaning of the open meetings law? Well, it seems at least
arguable that it is! Remember, a “meeting” under the law includes a gathering convened
electronically to discuss public business. When there are three or more members of the
local public body (or a quorum, whichever is less) participating in such a gathering, that
can trigger the notice and “open to the public” requirements of the law. If triggered in this
type of social media discussion, how do you comply with the 24-hour “timely” posting
requirement in the COML when you’re posting on Facebook? How do you meet the “open
to the public” requirement? Th ese are questions for which there are not clear answers, but
you see the point…discussions of public business by the requisite number of governing
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body members can certainly take place in an electronic forum, and then these questions
(and others) may come into play.
Constitutional Concerns
A scenario: You post about the upcoming agenda item on your Facebook page featured in
the previous scenario. For some reason, the discussion on the post starts to go completely
sideways, with lots of negative comments, including some hateful attacks from the citizen
you defeated in the last election, and some uncalled-for memes and photos. You decide
the hateful attacks aren’t helpful to the discussion—keep it positive, people!—and so
you “block” your prior campaign rival from posting and you start deleting some of the
particularly disagreeable comments. A few days later you ultimately decide that the better
part of valor is to just delete the whole darn post.
Did your act of “blocking” your rival raise free speech concerns? It may well have!
Remember, the constitution provides strong protections for free speech and generally
prohibits the government from censoring speech that occurs within those venues
established for the open exchange of ideas on matters of public concern. Th ese principles
have raised the question of whether a public offi cial’s Facebook page or Twitter account
is a public forum such that commenters cannot be blocked, or their comments removed,
based on their content.
While the law in this area is still developing, a few courts have concluded that if a
public offi cial has a social media page or feed that essentially “walks and talks” like
a governmental forum, then the medium is a public forum subject to the principles
regulating free speech. So, for example, where an elected offi cial designates the page as
their offi cial page as a member of an elected body, uses the page to communicate with
constituents as an elected offi cial about government events, and invites followers to use
that page for discussion of any topics relating to the government, the offi cial cannot block
persons who post critical content. Th e takeway? A social media site can be a great way to
communicate with constituents but if that’s how you use your accounts, don’t block people
from posting.
Also in the above scenario, if you’ve decided to delete the whole darn post: Are the post,
and the comments, considered “public records” within the meaning of the Colorado
Open Records Act (CORA)? Again, it seems at least arguable that they are! Th e term
“public records” is defi ned to include “the correspondence of elected offi cials,” subject
to certain exceptions. And public records are open for public inspection and copying.
Your municipality has most likely adopted a records retention and destruction schedule
that governs how long various documents, including electronic documents, must be
maintained prior to destruction.
So, could someone request a copy of a post that was on your Facebook page under CORA?
What if you deleted the post? Is there a record retention schedule that applied? Was
that schedule violated when you deleted the post? More of those infernal questions for
which there isn’t a clear answer…but you see the point! If there’s a chance that the posts
are subject to CORA, then it might be smart to tolerate the replies you get on your post.
Alternatively, make sure you have some reasonable and defensible posting rules in place so
that everyone knows up front your expectations for your page.
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Quasi-Judicial Rules of Engagement
A further word of caution on social media concerns your duties as a decision-maker
in quasi-judicial matters. Consider this scenario: A site-specifi c land use application is
scheduled to be considered by the planning commission on an upcoming agenda, with the
commission’s recommendation to be referred to the council for fi nal action at a later date.
You consider the proposed use to be an extremely controversial one. But you’re worried
that it’s a bit “under the radar,” what with summer vacations, holidays, and all. Of course,
proper notice has been given by the planning department, but you’re still concerned that
the proposal may get a favorable recommendation from the commission without any
citizen testimony. You decide to post this on your Facebook page: “Citizens, please read
this IMPORTANT NOTICE! You need to know that the planning commission is going to
be considering a proposal for _____ at its upcoming meeting on _____ at 7:00 p.m. As a
councilmember, I am taking no position on the proposal at this time. But if you care about
our community’s future, then you will want to attend this very important hearing before
the planning commission.”
See any problems here? You’ve certainly stated that you’re “taking no position” at this time,
right? But it may appear to others, particularly the applicant, that you are opposed to the
proposal and are trying to “gin up” opposition to it! Is that congruent with the “neutral
decision-maker” role that you will need to take on once this quasi-judicial proposal goes
up to the council? Could the applicant take the position that it looks like you made up
your mind, without evidence, long before the council hearing, and therefore, you should
be recused from participation?
“But, but, all I’m doing is making sure the public knows about this proposal,” you protest.
Well, do you do that with EVERY proposal that comes before the planning commission,
or did you just happen to pick out this one for the Facebook spotlight? Th e essence of
procedural “due process” rights that attach to a quasi-judicial matter is notice and a fair
hearing before neutral, impartial decision-makers. With a post like this you can see how,
even if your intentions may have been honorable, doubts can be cast on your impartiality
and neutrality. Th ose doubts increase if your involvement goes beyond this scenario—say,
for example, that you are also posting or responding to comments about the merits of the
application.
When it comes to social media buzz around quasi-judicial matters, remember that due
process requires you to be impartial and base your decision upon evidence presented at
your public hearing. Remember also that defensible quasi-judicial decisions are about
good process. As part of that process you will ultimately hear the case and have the
power to make the decision—at the time that it’s ripe for your body’s decision! Avoid the
temptation to leap into the social media fray, as that will protect your ability to serve as a
quasi-judge, and protect your governing body’s decision.
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Some Suggestions
Social media use by elected offi cials implicates new and evolving legal issues, and this
chapter only touches upon a few of them. Th e uncertainty is real! But you can avoid
uncertainty and stay on solid ground if you follow these suggestions:
• Consider whether you really need to be on social media in your elected offi cial
capacity. If only 23 people “like” your page, it may not be worth the hassle. And
keep in mind that only a fraction of those 23 people may even be seeing your
posts.
• If you feel that the use of social media is a net plus and/or a service to your
constituents, be extremely careful about what is posted! Stay away from
discussions of items that will be or could be on your governing body’s agenda.
Th ere’s a time and place for discussion of those items, and it’s most likely not
social media. Stick to public service announcements, photos and posts about
things you did (“It was great to meet so many of you when I volunteered at City
Cleanup Day last week”), upcoming events like “Town Halls,” re-posts of City
newsletters, links to articles that tout your great city, and the like. If you’re careful
about what you post, you’re not going to have to confront the uncertainties of
COML, CORA, and other laws. If you stick with helpful but non-controversial
posts, then there won’t be much of a need to delete posts.
• Be particularly careful to stay away from commenting on a pending quasi-judicial
matter. Th is is where the stakes are highest! In a worst case scenario, an imprudent
post could require your recusal from participating in the matter on the basis that
you’ve revealed your non-neutrality, buttress someone’s constitutional claim, serve
as a basis to attack the body’s decision, or all of the above.
• Check to make sure you created your page under the right category. “Politician” is
more accurate than “Governmental Organization.” And don’t use the offi cial city/
town logo, to avoid any implication that yours is an “offi cial” city/town page.
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CHAPTER 10
APPOINTMENT AND REMOVAL OF OFFICIALS
IN STATUTORY TOWNS
By: Linda Michow, Partner, and Christiana McCormick, Associate, Michow
Cox & McAskin LLP, and Tami A. Tanoue, CIRSA Executive Director
Introduction
Colorado law grants elected offi cials in statutory towns the power to appoint and remove
certain municipal offi cials, including members of the governing body and offi cers such
as the clerk or treasurer. If you’re an elected offi cial in a statutory town, it’s important
for you to have a working understanding of the rules and potential pitfalls in this area.
An improper appointment or removal can not only result in disputes or claims, but
also create uncertainty within the organization and a cloud over the governing body.
Th is chapter provides information on appointment and removal of offi cials in statutory
towns, including the fi lling of vacancies and guidance regarding best practices. In general,
statutory cities operate under diff erent statutes, and home rule municipalities operate
under charter provisions that are likely diff erent than the statutory requirements outlined
in this chapter, and so neither are addressed here.1
Filling Vacancies on the Town Board
A vacancy on the town board can occur under a variety of circumstances, including:
resignation; inability to fulfi ll the duties of offi ce; failure or refusal to take the oath of
offi ce; failure to meet residency requirements (including moving out of the ward or
municipality); removal from offi ce; a seat left unfi lled aft er an election, or an offi cial
passing away during the term of offi ce. Once a vacancy arises, the town board is faced
with several considerations.
• Sixty-day time frame. First, state law provides that a vacancy on the town board
may be fi lled either by appointment or by election. However, this option only lasts
for 60 days. If the town board does not fi ll the vacancy by appointment or order
an election within 60 days, then the board is required to order an election to fi ll
the vacancy.
• Resolution declaring vacancy. Th e board should consider adopting a resolution
that declares the vacancy, sets forth the vacancy eff ective date, and states whether
the board chooses to fi ll the vacancy by appointment or by election. While such
a resolution is not required for a statutory town, the board should consider this
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approach, as passing a resolution declaring a vacancy provides a written record of
when the statutory 60-day clock begins and makes known the intent of the town
board regarding its choice on how to fi ll the position.
• Special considerations for vacancy in mayor’s offi ce. Generally, a vacancy in
the offi ce of mayor is fi lled in the same manner as vacancies of other members of
the town board. However, if the town board will appoint someone, it may wish
to consider qualifi cations or circumstances unique to the position, including the
mayor’s voting rights and role as presiding offi cer.
Term of Office for an Appointee Filling a Vacancy
Th e term of offi ce of a vacated seat fi lled by appointment or election only runs until the
next regular election. Th is is true even if the original term would not be expiring at such
election. Th ere is no authority in state law for a statutory town to extend the term of offi ce
of an appointee fi lling a vacancy. If terms of offi ce are four years, this rule can sometimes
create confusion at the next regular election, where some seats are up for a full four-year
term while another seat is on the ballot solely for purpose of electing a person to fi ll a
vacant seat for the remainder of the term. Proper parlance can reduce the confusion—
candidates running for that vacant seat aren’t running for an offi ce having a new two- or
four-year term but for a shortened, two-year term to fi ll the vacancy.
Qualifications of an Appointee Filling a Vacancy
Colorado statutes do not separately mandate qualifi cations for an appointee who is to serve
in the event of a vacancy. However, the Colorado Constitution and related statutes require
that persons holding any elective offi ce shall be qualifi ed. To be qualifi ed, an appointee
must be: at least 18 years old as of the date of the election [or appointment]; a U.S. citizen;
a resident of Colorado for at least 22 days prior to the election [or appointment]; a resident
of the municipality (and ward, if applicable) for at least 12 consecutive months prior to
the date of the election [or appointment]; not serving a sentence in any public prison; and
registered to vote.
An appointment is void if the person appointed is not qualifi ed. Th erefore, it is important
to ensure that a person appointed to fi ll a vacancy in an elective offi ce has the qualifi cations
set forth in state law, as summarized above.
Although state law does not dictate the process for selecting a qualifi ed person to fi ll a
vacancy, governing bodies should be mindful that appointments to elective positions,
to some extent, remove the people’s opportunity to choose their own representative.
Th erefore, it is prudent to implement a formal process with suffi cient advertisement of
the vacancy to provide transparency and ample opportunity for participation. Other
considerations and pitfalls to avoid include:
• Making an appointment that benefi ts or appears to benefi t any member of the
governing body personally (see chapter 6);
• Appointing someone who will create turmoil or dysfunction within the governing
body or other areas of municipal government (see chapters 1 - 3); or
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• Failing to provide the appointee with proper training once appointed. Like any
other person serving in an elective position, an appointee should receive proper
training.
Appointment of Officers in Statutory Towns
State law requires the town board appoint or provide for the election of certain offi cers,
including a clerk, treasurer and town attorney. Th e applicable statute, C.R.S. Section 31-4-
304, states in pertinent part:
Th e board of trustees shall appoint a clerk, treasurer, and town attorney, or shall
provide by ordinance for the election of such offi cers, and may appoint such
other offi cers, including a town administrator, as it deems necessary for the good
government of the corporation…. [N]o appointment of any offi cer shall continue
beyond thirty days aft er compliance with section 31-4-401 by the members of
the succeeding board of trustees.
In some cases, the town board fails to act within 30 days to appoint or re-appoint offi cers
of the town. Further, in many cases, these positions are staff ed with municipal employees,
which can lead to uncertainty in employment when the town board fails to re-appoint an
employee to one of these appointed positions. Th ese and other circumstances raise the
question: What is the impact of not making appointments within the 30-day period aft er
the new board members are seated? In short, if the 30-day period set forth in this section
passes, the term of the offi cer expires.
However, it is important to note that the expiration of the term does not necessarily
or automatically oust the individual holding the offi ce from that position and create a
vacancy. Rather, absent provisions to the contrary in state law or local ordinance, the
public interest requires that public offi ces should be fi lled at all times without interruption.
Th e Colorado Constitution adheres to this principle, stating in Article XII, Section 1 that
“[e]very person holding any civil offi ce under the state or any municipality therein, shall,
unless removed according to law, exercise the duties of such offi ce until his successor is
duly qualifi ed….”
Th erefore, an individual holding an appointive offi ce in a statutory town remains in that
position aft er his or her term has expired (i.e. holds over) until a successor properly
appointed by the town board takes offi ce. Moreover, if the incumbent is an employee, he
or she would remain in their appointive position and on the town’s payroll as a holdover.
To avoid confusion and confl ict regarding holdovers, when the term of an appointive
offi ce expires, the town board should timely act to either re-appoint the incumbent or
appoint a new person to the offi ce. Th e board should also seek advice of legal counsel
before deciding to not re-appoint an incumbent appointive offi cer who is also an
employee of the town.
Removal from Office in Statutory Towns
Th e following identifi es some of the key requirements pertaining to the removal of an
elected offi cial in a statutory town pursuant to a proceeding under C.R.S. Section 31-4-
307. Many of these requirements are not present in the statute itself; rather, they are found
in some old judicial decisions concerning the statute. Removal of an elected offi cial by
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the governing body essentially overrides the will of the people who elected the offi cial.
For this reason, it is critical that any removal proceedings take place in accordance with
the guidance provided by these decisions. Th e advice of counsel is also critical given the
potential for missteps.
While these decisions are more than a century old, they came into play more recently
in the recommendation of a United States Magistrate Judge in a case involving a CIRSA
member municipality.2 While the Magistrate Judge’s recommendation is unpublished and
does not serve as precedent, it was cited with approval by the Colorado Supreme Court.3
Th us, the Magistrate Judge’s recommendation highlights the importance of these older
decisions and may off er some good guidance to a statutory town contemplating a removal
proceeding.
Given this recent resurrection of old case law, the way in which a town may have applied
Section 31-4-307 in past proceedings may not serve as a sound guide to the conduct
of such proceedings today. Th us, past practice should not be used as a basis to avoid
compliance with the following requirements gleaned from the old but resurrected case
law:
• Th e basis for removal (unless the elected offi cial has moved out of town)
must be “misconduct or malfeasance in offi ce,” as those terms are used in
Article XIII, Section 3 of the Colorado Constitution. Th ese constitutional
provisions contemplate offi cial misconduct of such a magnitude that it aff ects the
performance of the offi cer’s duties, and off enses against the town “of a character
directly aff ecting its rights and interests.”4 Political or personal disagreements, or
a stalemate resulting from failure to obtain a requisite number of votes on matters
coming before the town board, may not be suffi cient grounds to eff ect a removal.
• Th e removal proceeding is quasi-judicial in nature, subject to the safeguards
commonly found in judicial proceedings. Th is means:
• Th ere must be a charge or charges against the offi cial sought to be
removed. Th e charges must be specifi c and stated with substantial
certainty.5 Vague or general charges likely will not meet this requirement.
• Th ere must be a hearing in support of the charges, and an opportunity
to make a defense.6 Th e charges must in the fi rst instance be proven by
testimony and evidence, with the opportunity given to the offi cer sought
to be removed to rebut such testimony and evidence, and off er his or her
own.
• Th e hearing must be held under the same limitations, precautions, and
sanctions as in other judicial proceedings.7
A basic requirement of judicial proceedings is that decision-makers
must be neutral and impartial. Th is is why in most judicial proceedings,
investigative, prosecutorial, and adjudicatory functions are separated.
However, in removal proceedings, the adjudicatory body (the town board)
may also have carried out an investigative function by establishing the
charges that are the basis for the proceeding. Involvement in presenting
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77
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
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78
Likewise, a town board’s power of removal is undoubtedly an important one; but, an
imprudent or improper removal proceeding can be the source of signifi cant liability. As
noted, recently resurrected case law suggests the bar for exercising the removal power
is high, for situations where serious misconduct or malfeasance in offi ce can be proven.
Further, the removal power should be exercised only with the procedural safeguards
summarized above in place, and only with the assistance of legal counsel. Otherwise, the
governing body may be taking on an unacceptable risk of liability.
Footnotes:
1. Offi cials in statutory cities and home rule municipalities should obtain from their counsel and
staff information on the appointment and removal requirements specifi c to their organization.
2. Russell v. Buena Vista, 2011 WL 288453 (D. Colo. 2011).
3. Churchill v. University of Colorado, 2012 WL 3900750 (Colo. 2012).
4. Board of Trustees v. People ex rel. Keith, 59 P. 72, 74 (Colo.App. 1899).
5. Board of Alderman v. Darrow, 22 P. 784, 787 (Colo. 1889).
6. Darrow, 22 P. at 787.
7. Keith, 59 P. at 75.
8. Id.
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79
SAFERTOGETHER
3665 Cherry Creek North Drive
Denver, Colorado 80209
800.228.7136
www.cirsa.org
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80
AGENDA ITEM NO. 2.2
Item Cover Page
DATE:January 2, 2024
TIME:45 min.
SUBMITTED BY:Tom Kassmel, Public Works
ITEM TYPE:Main Agenda
AGENDA SECTION:Presentation/Discussion
SUBJECT:Go Vail 2045 - Vail Mobility & Transportation Master Plan Traffic,
Transit Center Expansion & Emerging Technology
SUGGESTED ACTION:Review Presentation and provide feedback.
PRESENTER(S):Tom Kassmel, Town Engineer
STAFF RECOMMENDATION:Review Presentation and provide feedback.
VAIL TOWN COUNCIL AGENDA ITEM REPORT
ATTACHMENTS:
Go Vail 2045 - Town Council - Traffic, Transit Center, Technology.pdf
81
GO VAIL 2045
Vail Mobility & Transportation Master Plan
Traffic, Transit Center Expansion, & Technology
January 2024 82
•July-Jan Review & Comment on ideas for each element
o July
o Aug.
o Dec.
o Jan.
•Jan –March 2024 Draft Master Plan
•April –June 2024 Adopt Master Plan
VISION
& GOALS
EXISTING
CONDITIONS
I -70
PROCESS
Master Plan Elements
Transit
Bicycle/Pedestrian
Parking
Traffic Calming
I-70
Noise
Traffic
Emerging Technology
Loading/Delivery
Special Event Logistics
Implementation & Funding
WWW.ENGAGEVAIL.COM PU
B
L
I
C
E
N
G
A
G
E
M
E
N
T
PED &
BICYCLE TRANSIT
PARKING
TRAFFIC
CALMING
•Drafted
EMERGING
TECHNOLOGYTRAFFIC
83
FILL
WITH
PICTURETraffic
84
Existing Traffic Volumes
•Key indicators of Vail Traffic
•Main Vail South Roundabout; 3000+/-VPH
(peak count in 2012 at 3600+/-)
•West Vail North Roundabout; 1900 +/-VPH
(peak count in 2004 at 2500+/-)
•How has Vail Managed Traffic Growth
•Vail Transit; 3 Million passengers
•Parking Fees; encourages transit/shuttles/carpool
•Capital Improvements
•Sandstone Underpass; 400+/-VPH (Existing)
•Lionshead Transit Center/West Vail Express
•Vail Health to LH Improvements
85
2045 Projected Traffic Volumes
•Projected Growth
•Traditional Approach: Apply trending growth rate of 1% to 2%/yr for 20 years
•Vail Development Approach: Apply Project specific growth based on known and
speculated redevelopment projects. This provides known location of growth and
better approximates traffic concerns
•Vail Development:
•2009 VTMP: +2800 new Vehicle trips in the Peak Hour (VPH)
•2024 VTMP: +1400 VPH
•Key Developments (1100+ VPH)
•Ever Vail; 400+ VPH
•West Vail Commercial; 300+ VPH
•Lionshead; 250+ VPH
•Housing; 180+ VPH (Transit reduction of ~40%)
Ever Vail
West Vail Master Plan
Civic Area 86
2045 Projected Level Of Service (LOS)
•Existing
•All Frontage Road Intersection operate at LOS C or Better
•All Roundabouts operate at LOS C or Better except
•Main Vail Center Roundabout (South): LOS E
•VV Parking Entrance & Vail Valley Drive: LOS F
•Projected 2045
•All Frontage Road Intersection operate at LOS C/D or Better except
•East & West LH Circle, Village Center Drive, VTRC: LOS E
•W. Forest Road, VV Parking Entrance, Vail Valley Drive: LOS F
•All Roundabouts operate at LOS C or Better except
•MV Center Roundabout (South) & WV Roundabout (North): LOS F
•Key indicators of Vail Traffic
•Main Vail South Roundabout; 3000 to 3550+/-VPH (March 2012 -Peak 3570)
•West Vail North Roundabout; 1900 to 2250 +/-VPH (Dec 2004 -Peak 2500)
87
2045 Capital Improvements
•Capital Improvements (2009 Master Plan & Go Vail 2045)
•2-Lanes NB @ MV & WV (Trial Increased NB capacity by 22%)
•Left Turn Lanes at Frontage Road intersections as needed
•Potential Roundabouts
•West Vail Master Plan
•Ever Vail
•E. Lionshead Circle
•Vail Transportation Center/Vail Valley Drive
•Ford Park West (If not at VVD)
•Ford Park East (Access to Parking Lot)
•Permanent Traffic Counters at Key Roundabouts
•Volume threshold indicate need for;
•Capital Improvements
•Travel Demand Management strategies
88
2045 Travel Demand Management
•TDM -Manage destination vehicular trips;
•Public Parking rates and availability
•Summer & Winter paid parking
•Vail & EVTA Fare Free Zone
•60% of vehicles are from future
Fare Free Zone(s)
•Easy, Free, & Frequent to/from
developments
•Regional Transit; Bustang/Pegasus,
AGS(Rail) (25%)
•Encourage Front Range travelers to use
East Vail exit
•Smart City technology coordination
•Parking App, Ride Vail, COtrip.org
•Increases driver expectancy
•Reduce MV South traffic from VV by 15% for LOS D
•Reduce WV North traffic by 10% for LOS D
89
Vail Transit Center Expansion
•2024 Design w/ $1.5M Matching Grant
•Accommodate 15-20 Taxi/Shuttle/Uber
•Accommodate 18-20 Bus Bays: Vail Transit +3 Bus bays,
EVTA +4-7 Bus Bays, Bustang/Charter +2 Bus Bays
90
FILL
WITH
PICTUREEmerging
Technology
91
Technology Trends
•Autonomous Vehicles
•Decreases Parking Need, Increases VMT (Congestion)
•Pilot Programs (San Francisco, Yellowstone, Val Thorens Ski Resort)
•Alternative Fuel Vehicles
•Vail EV Readiness Plan
•Hydrogen Fuel Alternative
•ITS & Connected Vehicles
•SMART CITY –Info & Com Technologies (ICT’s) woven into infrastructure
•Sensors, Networks, Data Sensors
•LPR, Cameras, Real-Time Information
•Smart & Dynamic Parking
•AI Cameras –2023 Detroit Pilot 40 Bosch Camera
•Alerting Drivers Pedestrian is crossing
•Alerting Drivers if crash is about to occur
•Mitigate Congestion
•Monitor Parking
•Monitor Weather
•Traffic & Pedestrian Counts
•Air Quality
•Noise
•Wrong Way Detection
https://youtu.be/CVG7_ymt_QQ 92
Technology Trends
•Smart Public Transportation
•Mobility as a Service(MaaS)
•Single application multimodal planner app
(RideVail ride.vail.gov)
•Drone Delivery Services
93
Emerging Technology
Emerging Technology Trend
Likelihood of
Deployment in
Vail by 2045
Address Monitor Study
Trend 1: Autonomous Vehicles Medium
Trend 2: Alternative Fuel Vehicles High1
Trend 3: ITS Devices Medium
Trend 4: Connected Vehicles Medium/High
Trend 5: Smart Public Transportation High
Trend 6: Drone Delivery Services Medium
1. Study = This emerging technology is in early development, continue to study how it progresses.
2. Monitor = Other jurisdictions that are piloting this technology, monitor the project’s implementation and follow up with the corresponding city. 3. Address = This technology is beginning to be implemented and jurisdictions can begin to prepare for implementation.
Short-term action items can be initiated to prepare Vail for successful integration.
94
•July-Jan Review & Comment on ideas for each element
o July
o Aug.
o Dec.
o Jan.
•Jan –March 2024 Draft Master Plan
•April –June 2024 Adopt Master Plan
VISION
& GOALS
EXISTING
CONDITIONS
I -70
PROCESS
Master Plan Elements
Transit
Bicycle/Pedestrian
Parking
Traffic Calming
I-70
Noise
Traffic
Emerging Technology
Loading/Delivery
Special Event Logistics
Implementation & Funding
WWW.ENGAGEVAIL.COM PU
B
L
I
C
E
N
G
A
G
E
M
E
N
T
PED &
BICYCLE TRANSIT
PARKING
TRAFFIC
CALMING
•Drafted
EMERGING
TECHNOLOGYTRAFFIC
95
AGENDA ITEM NO. 3.1
Item Cover Page
DATE:January 2, 2024
SUBMITTED BY:Jamie Leaman-Miller, Community Development
ITEM TYPE:DRB/PEC Update
AGENDA SECTION:DRB/PEC (5 min.)
SUBJECT:DRB/PEC Update
SUGGESTED ACTION:
VAIL TOWN COUNCIL AGENDA ITEM REPORT
ATTACHMENTS:
DRB Results 12-20-23.pdf
96
Present:Kathryn Middleton
Rys Olsen
Herbert Roth
Kit Austin
Erin Iba
1.Virtual Meeting Link
Register to attend Design Review Board Meetings. Once registered, you will receive a
confirmation email containing information about joining this webinar.
2.Call to Order
3.Main Agenda
Final review of an exterior alteration (landscaping)
Address/ Legal Description: Tract E, Vail Village Filing 5
Planner: Jonathan Spence
Applicant Name: Vail Corp, represented by Sones Landscape Architecture
3.1 DRB23-0260 - Vail Corp - Tract E
Final review of an addition (basement/driveway/landscape/entry)
Address/ Legal Description: 2820 Aspen Court A/Lot 14, Vail Village Filing 11
Planner: Jonathan Spence
Applicant Name: Mabel T. Erickson, represented by J+A Archictects
3.2 DRB23-0425 - Erickson Residence
Final review of a change to approved plans (color/materials/roof overhang)
Address/ Legal Description: 1281 North Frontage Road West/Lot 1, Timber Ridge Subdivision
Planner: Greg Roy
Applicant Name: Town of Vail, represented by Triumph Development
3.3 DRB23-0281.001 - Timber Ridge
Design Review Board Minutes
Wednesday, December 20, 2023
2:00 PM
Vail Town Council Chambers
DRB23-0260 plans for 12-20-2023.pdf
DRB23-0260 Docs.pdf
DRB23-0260 Memo 9-20-23.pdf
Erin Iba made a motion to Table to a date uncertain; Kathryn Middleton seconded the motion Passed (5
- 0).
DRB23-0425 Plan Set.pdf
DRB23-0425 Photos, paint colors, garage doors and light fixtures.pdf
Erin Iba made a motion to Approve with the findings the application meets 14-10-5, and the following
condition: The applicant shall return to the DRB with final project details and renderings prior to May 15,
2023.; Kathryn Middleton seconded the motion Passed (5 - 0).
DRB23-0281.001 Plans.pdf
Erin Iba made a motion to Approve with the color palette option #2, with the findings the application
1
Design Review Board Meeting Minutes of December 20, 2023 97
Conceptual review of an addition (elevator)
Address/ Legal Description: 304 Bridge Street/Lot E - H, Block 5A, Vail Village Filing 1
Planner: Greg Roy
Applicant Name: Red Lion, represented
3.4 DRB23-0415 - Red Lion
Conceptual only. No action taken.
4.Staff Approvals
Final review of a change to approved plans (door)
4.1 DRB23-0174.001 - Alpine Hall
Address/ Legal Description: 1295 Westhaven Drive/Area A, Cascade Village - Cascade Club
Condominiums
Planner: Jonathan Spence
Applicant Name: Alpine Hall, represented by Enlight10 Architecture
Final review of an exterior alteration (heat pump)
Address/ Legal Description: 4223 Spruce Way B/Lot 14, Block 9, Bighorn Subdivision 3rd Addition
4.2 DRB23-0333 - VNR CO LLC
Planner: Jamie Leaman-Miller
Applicant Name: VNR CO, represented by Climate Control Company
Final review of an exterior alteration (HVAC/screening)
Address/ Legal Description: 75 South Frontage Road West/Unplatted - TOV Administration Building
4.3 DRB23-0428 - Town of Vail
Planner: Jonathan Spence
Applicant Name: Town of Vail, represented by Hyder Construction
Final review of an exterior alteration (furnace)
Address/ Legal Description: 1239 Westhaven Circle B/Lot 37, Glen Lyon Subdivision
4.4 DRB23-0434 - 1239 B Westhaven Circle LLC
Planner: Jonathan Spence
Applicant Name: 1239 Westhaven Circle, represented by Climate Control Company
Final review of an exterior alteration (windows/patio door)
Address/ Legal Description: 4284 Columbine Drive B/Parcel A, Bighorn Subdivision
4.5 DRB23-0435 - Thurnauer Residence
Planner: Heather Knight
Applicant Name: Hugh & Eileen Thurnauer, represented by Lifetime Windows and Siding
Final review of an exterior alteration (windows)
Address/ Legal Description: 4167 Columbine Drive A6/Lot 19, Bighorn Subdivision
4.6 DRB23-0436 - Skaer Residence
Planner: Heather Knight
meets 14-10-4 & 14-10-5; Kathryn Middleton seconded the motion Passed (5 - 0).
DRB23-0415 - Conceptual Plans.pdf
2
Design Review Board Meeting Minutes of December 20, 2023 98
Applicant Name: Stephen Skaer, represented by Renewal By Andersen
Final review of an exterior alteration (windows)
Address/ Legal Description: 891 Red Sandstone Circle/Lot 4, Vail Village Filing 9
4.7 DRB23-0440 - Corcoran Residence
Planner: Heather Knight
Applicant Name: Paul Corcoran, represented by Renewal by Andersen
Final review of an exterior alteration (windows/mechanical platform)
This is a re-approval of DRB21-0120 and DRB21-0307.
4.8 DRB23-0441 - 286 Bridge Street Inc
Address/ Legal Description: 286 Bridge Street/Lot A & B, Block 5A, Vail Village Filing 1
Planner: Jonathan Spence
Applicant Name: 286 Bridge Street , represented by S3 Architectural Group
Final review of a tree removal
Address/ Legal Description: 1865 West Gore Creek Drive/Lot 23, Vail Village West Filing 2
4.9 DRB23-0445 - Middleton Residence
Planner: Jonathan Spence
Applicant Name: Kathryn Middleton, represented by Old Growth Tree Service
5.Staff Denials
6.Adjournment
Erin Iba made a motion to Adjourn ; Kathryn Middleton seconded the motion Passed (5 - 0).
3
Design Review Board Meeting Minutes of December 20, 2023 99
AGENDA ITEM NO. 4.1
Item Cover Page
DATE:January 2, 2024
SUBMITTED BY:Jake Shipe, Finance
ITEM TYPE:Information Update
AGENDA SECTION:Information Update
SUBJECT:December 2023 Revenue Update
SUGGESTED ACTION:
VAIL TOWN COUNCIL AGENDA ITEM REPORT
ATTACHMENTS:
240102 Revenue Update.pdf
100
1
TOWN OF VAIL
REVENUE UPDATE
January 2, 2024
4.0% General Sales Tax
Upon receipt of all sales tax returns, November collections are estimated to be
$1,799,067, down (6.5)% from last year and up 1.6% from the amended budget.
YTD collections of $35,872,392 are up 2.0% from this time last year and up 2.7%
from the amended budget. Inflation as measured by the consumer price index was
up 3.1% for the 12-months ending November 2023. The annual amended budget
totals $40.1 million.
0.5% Housing Fund Sales Tax
Upon receipt of all sales tax returns, November collections of the 0.5% housing
sales tax are estimated to be $213,846, down (7.2%) from last year and up 0.9%
from the amended budget. YTD collections of $4,348,047 are up 1.5% from this
time last year and up 2.5% from the amended budget. The 2023 amended budget
for the housing fund sales tax totals $4.9 million.
Real Estate Transfer Tax (RETT)
RETT collections through December 27 total $7,915,317, down (17.6)% from this
time last year. The 2023 RETT amended budget totals $7,600,000.
Construction Use Tax
Use Tax collections through December 27 total $2,542,700 compared to
$2,189,830 from this time last year. The 2023 amended budget totals $2,200,000.
Lift Tax
2023 YTD lift tax collections through November total $5,295,602, down (2.4)% or
$(128,817) from the same time last year. The 2023 amended budget totals
$6,234,550.
Parking Passes
Early season parking pass sale revenue through December 27 totals $1,108,340,
down (21.9)% or $(311,144) from this time last year. A total of 1,466 passes have
been sold this year. A detailed breakout of 2023/24 passes sold by type is provided
in the chart below:
Pass Type
2023/24
Oct/Nov Sales
2022/23 Oct/Nov
Sales
Change
Premier 24 21 3
Vail Village Business Premier 61 65 (4)
Lionshead Business Premier 3 11 (8)
Employee 412 481 (69)
Employee Plus 343 347 (4)
Eagle County Local* 325 1,582 (1,257)
Vail Local* 298 1,539 (1,241)
Total 1,466 4,046 (2,580)
101
2
*In order to provide a better customer service experience while staff explores an
alternative pass sales system, the annual fees for the Eagle County Local and Vail Local
passes was waived for the 2023/2024 season for prior year pass holders.
Summary
Across all funds, year-to-date total revenue of $83.0 million is up 0.9% from the
amended budget and up 3.9% from prior year. The majority of the positive variance
compared to the amended budget is due to higher-than-expected sales tax,
construction use tax, and real estate transfer tax.
102
2023 Amended Budget % change % change
2018 2019 2020 Budget Variance from 2022 from Budget
January 3,597,610$ 4,079,994$ 4,076,145$ 3,422,209$ 5,217,125$ 5,904,670$ 5,905,480$ 810$ 13.19%0.01%
February 3,818,356 4,137,087 4,285,633 3,691,850 5,686,585 6,030,915 6,035,015 4,100 6.13%0.07%
March 4,167,880 4,237,933 2,243,518 4,364,797 5,912,059 6,034,154 6,049,774 15,620 2.33%0.26%
April 1,233,474 1,445,071 427,518 1,751,528 2,234,296 2,213,286 2,258,798 45,512 1.10%2.06%
May 830,193 763,756 503,828 1,061,516 1,227,974 1,043,778 1,111,919 68,141 -9.45%6.53%
June 1,648,443 1,606,748 1,023,517 2,149,312 2,317,931 2,132,497 2,265,104 132,607 -2.28%6.22%
July 2,412,425 2,480,292 2,084,644 3,491,668 3,507,973 3,227,335 3,399,024 171,689 -3.11%5.32%
August 2,195,175 2,237,050 2,138,838 2,877,550 2,997,389 2,757,598 2,920,600 163,002 -2.56%5.91%
September 1,540,490 1,600,100 1,767,393 2,359,528 2,441,331 2,246,025 2,495,143 249,118 2.20%11.09%
October 1,106,596 1,165,176 1,371,727 1,734,964 1,729,558 1,591,193 1,652,467 61,274 -4.46%3.85%
November 1,264,600 1,260,314 1,425,461 1,880,397 1,902,643 1,750,432 1,779,067 28,635 -6.49%1.64%
Total 23,815,242$ 25,013,520$ 21,348,222$ 28,785,318$ 35,174,864$ 34,931,883$ 35,872,392$ 940,509$ 1.98%2.69%
December 4,070,870 4,237,178 3,625,189 5,749,365 5,602,018 5,153,119
Total 27,886,112$ 29,250,698$ 24,973,411$ 34,534,683$ 40,776,882$ 40,085,000$ 35,872,392$ 940,509$ 1.98%2.69%
2022 2023 Amended Budget % change % change
Collections Budget Variance from 2022 from Budget
January 645,487$ 720,043$ 720,144$ 101$ 11.57%0.01%
February 702,730 735,514 736,027 513 4.74%0.07%
March 719,717 735,514 737,467 1,953 2.47%0.27%
April 269,018 259,234 271,168 11,934 0.80%4.60%
May 146,657 134,924 131,571 (3,353) -10.29%-2.48%
June 280,460 258,023 274,193 16,170 -2.23%6.27%
July 424,602 390,634 411,193 20,559 -3.16%5.26%
August 361,165 332,272 351,449 19,177 -2.69%5.77%
September 294,861 271,272 302,453 31,181 2.57%11.49%
October 207,397 190,805 198,536 7,731 -4.27%4.05%
November 230,383 211,952 213,846 1,894 -7.18%0.89%
Total 4,282,477$ 4,240,187$ 4,348,047$ 107,860$ 1.53%2.54%
December 671,982 618,223
Total 4,954,459$ 4,858,410$ 4,348,047$ 107,860$ 1.53%2.54%
0.5% Collected
Sales Tax
0.5% HOUSING SALES TAX
2023 Budget Comparison
Actual 4.0% Collections 4.0% Collected
Sales Tax20212022
Town of Vail Revenue Update
January 2, 2024
4.0% GENERAL SALES TAX2023 Budget Comparison
103
Town of Vail Revenue Update
January 2, 2024
YTD 4% General Sales Tax Collections By Year
Through November 30
November 4% General Sales Tax Collections By Year
Through November 30
•November collections of $1,779,067 are down (6.5)% from prior year and are up 1.6% from the
amended budget.
$1,260,314
$1,425,461
$1,880,397
$1,902,643
$1,779,067
$0 $400,000 $800,000 $1,200,000 $1,600,000 $2,000,000
2019
2020
2021
2022
2023
$25,013,520
$21,348,222
$28,785,318
$35,174,864
$35,872,392
$0 $5,000,000 $10,000,000 $15,000,000 $20,000,000 $25,000,000 $30,000,000 $35,000,000 $40,000,000
2019
2020
2021
2022
2023
•YTD collections of $35,872,392 are up 2.0% from prior year and are up 2.7%from the amended
budget.
•Inflation as measured by the consumer price index was up 3.1% in November.
104
Town of Vail Revenue Update
January 2, 2024
November 0.5% Housing Fund Sales Tax Collections By Year
Real Estate Transfer Tax by Year
YTD Through December 2023
November Collections YTD Collections
•This chart shows YTD collections of 1% RETT, segmented by real property values. 2023
collections are down (17.6)% from the prior year.
$0
$2,000,000
$4,000,000
$6,000,000
$8,000,000
$10,000,000
$12,000,000
$14,000,000
2019 2020 2021 2022 2023
Sales Less Than $2.5 Million Sales $2.5 to $5 Million Sales $5 to $10 Million Sales Over $10 Million
$7,224,668
$10,448,525
$13,371,555
$9,603,456
$7,915,317
•November collections of $213,846 are down (7.2)% from prior year and are up 0.9% from the
amended budget.YTD collections of $4.3M are up 1.5% from this time last year and are up
2.5% from the amended budget.
$230,383
$213,846
$0
$50,000
$100,000
$150,000
$200,000
$250,000
2022 2023
$4,282,477 $4,348,047
$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
$5,000,000
2022 2023
105
Town of Vail Revenue Update
January 2, 2024
Construction Use Tax by Year
YTD Through December 2023
YTD Lift Tax Collections
YTD Through November 2023
•Use Tax collections through December 27 total $2,542,700, compared to $2,189,830 from this
time last year. This is an increase of 16.1%.
$2,467,928
$2,078,577
$3,682,745
$2,189,830
$2,542,700
$0
$500,000
$1,000,000
$1,500,000
$2,000,000
$2,500,000
$3,000,000
$3,500,000
$4,000,000
2019 2020 2021 2022 2023
•2023 YTD lift tax collections of $5,295,602 are down (2.4)% or $(128,817) from the same time
last year.
$4,445,969
$3,162,233
$4,587,835
$5,424,419
$5,295,602
$0 $1,000,000 $2,000,000 $3,000,000 $4,000,000 $5,000,000
2019
2020
2021
2022
2023
106
Vail Business Review
October 2023
January 2, 2024
The Vail Business Review breaks down the 4.5% sales tax collected for the month of
October and the Summer Season, May – October, 2023. The 4.5% sales tax includes
the town’s general 4% sales tax and the 0.5% housing sales tax supported by Town of
Vail voters during the November 2021 election, effective January 1, 2022. The housing
sales tax sunsets on December 31, 2051.
October 4.5% sales tax was down from the prior year (4.8%). Retail decreased (4.7%),
lodging decreased (13.3%), food and beverage decreased (9.6%), and utilities/other
increased 34.1%. Excluding the out-of-town category, sales tax for the month of
October was down (4.4%) compared to prior year.
Summer Season May - October 4.5% sales tax was down from the prior year (2.4%).
Retail decreased (3.3%), lodging decreased (4.4%), food and beverage decreased
(1.6%), and utilities/other increased 8.9%. Excluding the out-of-town category, sales tax
for the Summer Season was down (2.7%) compared to prior year.
Town of Vail sales tax forms, the Vail Business Review, and sales tax worksheets are
available on the internet at vail.gov. You may email me to request to have the Vail
Business Review and the sales tax worksheet emailed to you automatically.
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, Finance Director, at (970) 479-2119.
Sincerely,
Lauren Noll
Sales Tax Administrator
107
October 2022
Sales Tax Collections by Business Type
October 2023
Town of Vail Business Review
October Sales Tax Collections by Year
October 2023 Sales Tax
752,682
Lodging
453,697 Food &
Beverage
415,787
Utilities &
Other
228,771
$0
$200,000
$400,000
$600,000
$800,000
(4.7%)(9.6%)34.1%
Retail
1,180,249
1,387,174
1,736,426
$0 $500,000 $1,000,000 $1,500,000 $2,000,000
2019
2020
2021
2022
2023
General Sales Tax
Housing Sales Tax
1,943,801
1,850,937
• October 2023 retail sales decreased (4.7%), lodging decreased (13.3%), food and beverage
decreased (9.6%), and utilities and other increased 34.1%.
• The figures above reflect 4.5% sales tax.
Retail
789,916
Lodging
523,304 Food &
Beverage
459,954 Utilities &
Other
170,628
$0
$200,000
$400,000
$600,000
$800,000
(13.3%)
• This report represents collections of Town of Vail sales tax, as opposed to actual gross sales.
• On January 1st, 2022, Town of Vail sales tax increased from 4.0% to 4.5% on all items except food for
home consumption. 2022 and 2023 above include the 0.5% increase to sales tax, depicted in light
blue. Prior years show 4.0% sales tax collections.
• Total October 2022 collections were $1,943,801; October 2023 collections were $1,850,937.
• October 2023 4.5% sales tax collections were down from the prior year (4.8%).
108
October 2023 Sales Tax
Town of Vail Business Review
October 2022October 2023
Geographic Area Trends by Year
October Sales Tax
Sales Tax by Location
Other Areas
17%
Lionshead
10%
Out of
Town
38%
Vail Village
35%
• Vail Village sales tax decreased (4.4%), Lionshead increased 15.1%, Other Areas decreased (16.4%), and
Out of Town decreased (5.4%). Excluding Out of Town collections, all areas were down (4.4%).
• The figures above reflect 4.5% sales tax.
241,832
227,671
252,855
150,010
124,279
166,198
401,391
497,581
705,024
387,017
537,643
612,349
$0 $100,000 $200,000 $300,000 $400,000 $500,000 $600,000 $700,000 $800,000
2019
2020
2021
2022
2023
Vail Village
Out of Town
Lionshead
Other Areas
• This chart shows October sales tax collections by geographic area over time.
• 2022 and 2023 include the 0.5% increase for housing sales tax, depicted in lighter shades.
General 4.0% sales tax collections are shown in darker shades.
326,260
199,564 738,085679,893
650,018
229,675 698,448
272,796
Other Areas
15%
Lionshead
12%
Out of
Town
38%
Vail Village
35%
109
Accommodation Services Sales Tax by Year
Retail Business 4.5% Sales Tax Detail
October 2023 Sales Tax
Town of Vail Business Review
$0 $50,000 $100,000 $150,000 $200,000 $250,000 $300,000 $350,000
Apparel
$120,724
Grocery
$117,909
Gallery
$6,364
Gifts
$4,626
Jewelry
$30,681
Retail Liquor
$29,649
Retail Other
$307,187
Sporting Goods
$60,992
Online Retailers
$74,413
Retail Home
Occupation
$138
• Overall, October 2023 accommodations services decreased (13.3%) from prior year. Short-term rentals
decreased (16.6%) compared to prior year and hotels and lodges decreased (11.0%).
• 2022 and 2023 include the 0.5% increase for housing sales tax, depicted in lighter shades. General 4.0% sales
tax collections are shown in darker shades.
• 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.
276,651
216,950
Hotel and Lodges
Short-Term Rentals
2023 2022 2021
213,596
275,605
309,709
178,091
110
Retail 137,421.51 139,319.27 ‐1.36%
Lodging 60,132.96 79,381.18 ‐24.25%
F & B 68,703.67 98,129.93 ‐29.99%
Other 6,537.64 9,429.56 ‐30.67%
Total 272,795.78 326,259.94 ‐16.39%
Retail 29,823.27 38,989.36 ‐23.51%
Lodging 52,836.71 82,822.45 ‐36.20%
F & B 67,808.78 75,781.82 ‐10.52%
Other 79,206.58 1,970.48 3919.66%
Total 229,675.34 199,564.11 15.09%
Retail 352,515.38 371,361.45 ‐5.07%
Lodging 208,574.14 211,757.18 ‐1.50%
F & B 154.41 2,050.24 ‐92.47%
Other 137,203.84 152,916.02 ‐10.28%
Total 698,447.77 738,084.89 ‐5.37%
Retail 232,921.87 240,245.46 ‐3.05%
Lodging 132,153.04 149,343.33 ‐11.51%
F & B 279,120.28 283,991.60 ‐1.72%
Other 5,822.86 6,312.14 ‐7.75%
Total 650,018.05 679,892.53 ‐4.39%
Retail 752,682.03 789,915.53 ‐4.71%
Lodging 453,696.85 523,304.14 ‐13.30%
F & B 415,787.14 459,953.59 ‐9.60%
Other 228,770.92 170,628.20 34.08%
Total 1,850,936.94 1,943,801.47 ‐4.78%
Retail Apparel 120,723.76 131,669.89 ‐8.31%
Retail Food 117,908.89 118,296.51 ‐0.33%
Retail Gallery 6,363.80 12,778.91 ‐50.20%
Retail Gift 4,625.80 3,450.48 34.06%
Retail Home Occupation 138.28 161.04 ‐14.13%
Retail Jewelry 30,681.07 27,610.13 11.12%
Retail Liquor 29,649.05 33,327.77 ‐11.04%
Retail Other 307,187.17 328,808.62 ‐6.58%
Retail Sport 60,991.70 70,622.84 ‐13.64%
Retail Online Retailer 74,412.51 63,189.35 17.76%
Total 752,682.03 789,915.54 ‐4.71%
Cascade Village / East Vail / Sandstone / West Vail
Town of Vail Business Review
October 4.5% Sales Tax
2023 Collections 2022 Collections YoY % Change
Total ‐ All Areas
Lionshead
Out of Town
Vail Village
Retail Summary
111
Summer Season 2022
Sales Tax Collections by Business Type
Summer Season 2023
Town of Vail Business Review
Summer Season Sales Tax Collections by Year
May - October 2023 Sales Tax
5,934,800
Lodging
4,514,054
Food &
Beverage
3,945,252
Utilities &
Other
1,117,516
$0
$1,000,000
$2,000,000
$3,000,000
$4,000,000
$5,000,000
$6,000,000
(3.3%)(1.6%)8.9%
Retail
9,905,767
8,909,449
13,656,988
$0 $2,000,000 $4,000,000 $6,000,000 $8,000,000 $10,000,000 $12,000,000 $14,000,000 $16,000,000
2019
2020
2021
2022
2023
General Sales Tax
Housing Sales Tax
15,895,350
15,511,621
• May through October 2023 retail sales decreased (3.3%), lodging decreased (4.4%), food and
beverage decreased (1.6%), and utilities and other increased 8.9%.
• The figures above reflect 4.5% sales tax.
Retail
6,134,765
Lodging
4,723,507
Food &
Beverage
4,010,657
Utilities &
Other
1,026,420
$0
$1,000,000
$2,000,000
$3,000,000
$4,000,000
$5,000,000
$6,000,000
(4.4%)
• This report represents collections of Town of Vail sales tax, as opposed to actual gross sales.
• On January 1st, 2022, Town of Vail sales tax increased from 4.0% to 4.5% on all items except food for
home consumption. 2022 and 2023 above include the 0.5% increase to sales tax, depicted in light
blue. Prior years show 4.0% sales tax collections.
• Total May through October 2023 4.5% sales tax collections were down from the prior year (2.4%).
112
May - October 2023 Sales Tax
Town of Vail Business Review
Summer Season 2022Summer Season 2023
Geographic Area Trends by Year
Summer Season Sales Tax
Sales Tax by Location
Other Areas
16%
Lionshead
12%
Out of
Town
30%
Vail Village
42%
• Vail Village sales tax decreased (3.5%), Lionshead remained flat, Other Areas decreased (3.1%), and Out
of Town decreased (1.7%). Excluding Out of Town collections, all areas were down (2.7%).
• The figures above reflect 4.5% sales tax.
1,846,136
1,569,768
2,115,735
1,661,994
1,162,031
1,606,449
1,911,651
2,116,577
4,075,536
4,485,986
4,061,073
5,859,268
$0 $1,000,000 $2,000,000 $3,000,000 $4,000,000 $5,000,000 $6,000,000 $7,000,000
2019
2020
2021
2022
2023
Vail Village
Out of Town
Lionshead
Other Areas
• This chart shows May through October sales tax collections by area over time.
• 2022 and 2023 include the 0.5% increase for housing sales tax, depicted in lighter shades.
General 4.0% sales tax collections are shown in darker shades.
2,487,4561,992,092 4,711,132 6,704,670
6,471,610
1,998,948 4,630,609
2,410,454
Other Areas
15%
Lionshead
13%
Out of
Town
30%
Vail Village
42%
113
Accommodation Services Sales Tax by Year
Retail Business 4.5% Sales Tax Detail
May - October 2023 Sales Tax
Town of Vail Business Review
$0 $500,000 $1,000,000 $1,500,000 $2,000,000 $2,500,000 $3,000,000 $3,500,000
Apparel
$1,188,176
Grocery
$971,774
Gallery
$105,025
Gifts
$33,549
Jewelry
$299,564Retail Liquor
$257,374
Retail Other
$2,058,953
Sporting Goods
$543,978
Online Retailers
$474,709
Retail Home
Occupation
$1,699
• May through October 2023 accommodations services decreased (4.4%) from prior year. Short-term rentals
decreased (0.4%) compared to prior year and hotels and lodges decreased (6.1%).
• 2022 and 2023 include the 0.5% increase for housing sales tax, depicted in lighter shades. General 4.0% sales
tax collections are shown in darker shades.
• 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.
2,819,564
1,351,136
Hotel and Lodges
Short-Term Rentals
2023 2022 2021
1,396,145
3,123,007
3,327,362
1,391,047
114
Retail 1,085,604.37 1,073,039.45 1.17%
Lodging 715,238.69 772,541.87 ‐7.42%
F & B 550,333.82 585,394.20 ‐5.99%
Other 59,277.13 56,480.23 4.95%
Total 2,410,454.01 2,487,455.75 ‐3.10%
Retail 342,811.29 368,688.34 ‐7.02%
Lodging 811,971.96 863,196.89 ‐5.93%
F & B 733,508.95 739,886.64 ‐0.86%
Other 110,656.09 20,320.14 444.56%
Total 1,998,948.28 1,992,092.02 0.34%
Retail 2,301,460.23 2,426,388.92 ‐5.15%
Lodging 1,412,610.31 1,393,779.65 1.35%
F & B 12,493.63 9,350.38 33.62%
Other 904,044.79 881,613.32 2.54%
Total 4,630,608.96 4,711,132.27 ‐1.71%
Retail 2,204,923.94 2,266,648.53 ‐2.72%
Lodging 1,574,233.24 1,693,989.03 ‐7.07%
F & B 2,648,915.16 2,676,025.94 ‐1.01%
Other 43,537.72 68,006.22 ‐35.98%
Total 6,471,610.06 6,704,669.72 ‐3.48%
Retail 5,934,799.83 6,134,765.24 ‐3.26%
Lodging 4,514,054.20 4,723,507.44 ‐4.43%
F & B 3,945,251.56 4,010,657.16 ‐1.63%
Other 1,117,515.72 1,026,419.91 8.88%
Total 15,511,621.30 15,895,349.76 ‐2.41%
Retail Apparel 1,188,175.72 1,206,166.06 ‐1.49%
Retail Food 971,774.33 933,813.35 4.07%
Retail Gallery 105,024.66 74,366.96 41.22%
Retail Gift 33,549.44 30,150.96 11.27%
Retail Home Occupation 1,698.56 1,979.28 ‐14.18%
Retail Jewelry 299,563.64 332,867.49 ‐10.01%
Retail Liquor 257,374.34 285,839.38 ‐9.96%
Retail Other 2,058,952.50 2,281,524.54 ‐9.76%
Retail Sport 543,977.85 567,508.18 ‐4.15%
Retail Online Retailer 474,708.79 420,549.03 12.88%
Total 5,934,799.83 6,134,765.24 ‐3.26%
Cascade Village / East Vail / Sandstone / West Vail
Town of Vail Business Review
May ‐ October 4.5% Sales Tax
2023 Collections 2022 Collections YoY % Change
Total ‐ All Areas
Lionshead
Out of Town
Vail Village
Retail Summary
115
AGENDA ITEM NO. 5.1
Item Cover Page
DATE:January 2, 2024
SUBMITTED BY:Steph Johnson, Town Manager
ITEM TYPE:Town Manager Report
AGENDA SECTION:Matters from Mayor, Council, Town Manager and Committee Reports
(30 min.)
SUBJECT:Town Manager Update
SUGGESTED ACTION:
VAIL TOWN COUNCIL AGENDA ITEM REPORT
ATTACHMENTS:
TM Update final
116
Town Managers Update
January 2, 2024
1. Responding to Labor Market
The Town Manager wanted to acknowledge that the labor market continues to be very
competitive. In the last quarter of 2023 staff acknowledged to Council the need to respond
to significant increases in pay for bus drivers, plow/heavy equipment operators and
mechanics. In the last month, there has been significant increases in compensation for Fire
Fighters in surrounding Fire District. The Town can respond to these changes within our
current budget for compensation, but we wanted to acknowledge this need to the Town
Council. Council’s support in ensuring the Town’s compensation and benefit programs are
competitive and able to adapt to market conditions is allowing the town to be flexible in
quickly responding when necessary.
2. Strategic Goals & Actions
In January of 2023 the Town Council set four goal areas. The following is an update on
progress with those goals. On July 18 Council modified the time frame for relocation of
Town offices and implementation of the Civic area plan. On December 12, 2023 the Town
Council held an initial meeting to discuss strategic issues that should be considered for
creating a Council strategic plan in the first quarter of 2024.
3. Community Meeting and Vail Social Dates
The Town of Vail Communications Department is asking for input on dates for two upcoming
community engagement events: the Town of Vail Annual Community Meeting and the Vail
Social.
Town of Vail Annual Community Meeting
The community meeting typically takes place from 5 to 7 p.m. at Donovan Pavilion on a non-
council meeting Tuesday in March. The event includes a report out on town
accomplishments for the previous year, a look ahead at goals for the rest of the year,
recognition of the Trailblazer Award recipient, informational displays hosted by town
departments, and an opportunity for socializing. Link to last year’s presentation:
https://www.vail.gov/community/community-engagement/year-in-review/2022-year-in-review.
Potential Dates:
March 12
March 26
Vail Social
The Vail Social is community potluck typically held from 5 to 7 p.m. in Vail Village on a non-
council meeting Tuesday at the end of the summer. The town provides tables, chairs, beer
and wine. Community members sign up as table hosts and bring their own food, decorations
and costumes. Last year’s video and photos: www.vailsocial.com.
117
Town of Vail Page 2
Potential Dates:
Aug. 27
This date is similar to last year’s. A post-event survey showed people evenly split on whether
it was too hot on this date vs. too cold in September. This date is also a bit more difficult for
Public Works as it is right before Labor Day weekend.
Sept. 10
This was historically the date for the event, before we changed it last year due to scheduling
issues. This is the Event Review Committee’s preferred date.
Sept. 24
Getting late in the month and possibly a bit cold.
4. Update on Lionshead and Vail Village Parking Structures
On December 19, Craig Racey, an engineer with Martin and Martin Engineering provided a verbal
report on recommendations on pedestrian and vehicular safety in both the Vail Village and Lionshead
Structure. On the 19th the Town Council directed staff to begin implementation of these
recommendations to both address safety and the customer experience related to the installation of
speed bumps in both parking structures. On Saturday December 23rd Mr. Racey provided written
recommendations which are provided below. Also on Saturday December 23rd, Public Works crews
began implementing the recommendations related to changing double bumps to single bumps.
A. The below is an update on progress on this implementation of Mr. Racey’s recommendations as of
Friday, Dec 29:
Eliminate the double speed bumps in all locations for both garages to just a single bump. We
recommend bumps be removed consistently to one side at the Town’s choosing. This has been
completed with the exception of two locations where removal of bumps is recommended with an
alternative method (i.e rumble strips). The Lionshead parking structure entry way will be
addressed in the next 30 days. Also, in the lowest level of the Village Parking Structure there is a
shop for TOV Facilities that requires additional protection and staff would like to discuss ideas
with Mr. Racey to protect TOV workers in this one location.
Eliminate or shift speed bumps that were installed at an angle or in a location that is mid turn on a
ramp or turning bay. The intent is to allow a vehicle to fully square up to the speed bump before
approach to minimize the rocking effect a driver experiences when approaching from an angle.
Will be completed by 1-11-24.
Eliminate speed bumps near ADA stalls. I’ve attempted to locate these on plans based on where
the ADA stalls are indicated. But if there are others which coincide with a speed bump in the drive
aisle, then we would recommend the staff remove those as well. I didn’t have much information
on ADA stalls in the Village garage. Completed by 12-31-23.
Install additional, or relocate, 5 MPH speed limit signs to be more visible to drivers. I’ve shown
some key areas in the Lionshead garage I would recommend to install if not already there. Will be
completed in the Lionshead structure by 12-31-23 and I the Village structure by January 12,
2024. Cost of the signs is $1,500.
118
Town of Vail Page 3
Shift speed bumps directly adjacent to pedestrian pathways and corridors to minimize trip
hazards or replace with speed tables. Will be completed by mid April 2024.
B. Staff would recommend purchasing flashing radar speed limit signage at this time to both begin to
collect speed data on an ongoing basis and to utilize alternative methods (non-bumps) to improve
safety particularly at significant pedestrian crossings. The cost of three radar speed limit signs would
be $9,900 and could be absorbed in the building maintenance budget for the parking structures.
C. Staff would like to determine the cost of the following actions and bring these costs back to the
Town Council for approval:
Speed tables/raised crosswalks at pedestrian pathways.
Place crosswalk striping at pedestrian walkways.
Additional signage at pedestrian walkways (“State Law - Stop for Pedestrians in Cross Walk)
Rumble strips in drive aisles at entries/exits or in lieu of speed bumps in some areas.
Flexible delineator posts to “pinch” the drive aisles in key areas.
Additional signage to help guide pedestrians to stairs and exits.
Additional signage to prohibit pedestrians walking on “speed” ramps (steeper ramps with no
parking)
Enhanced lighting at entry/exit to help transition from bright exterior to dim interior.
Paint ceiling of Lionshead white to enhance reflectance and increase luminance.
Enforcement (speed camera or officers) for worst offenders
119
Town of Vail Page 6
From: Craig Racey <CRacey@martinmartin.com>
Sent: Saturday, December 23, 2023 10:26 AM
To: Russell Forrest <RForrest@vail.gov>
Subject: Vail Lionshead & Village Garage recommendations
Hello Russ,
Our recommendations below apply for both garages to provide the Town staff a cohesive strategy
regarding the speed bumps and traffic calming measures. Our goal with these recommendations is to
weigh the needs for pedestrian and driver safety while trying to minimize complaints regarding the
current user experience, understand that eliminating speed bumps completely from the Lionshead
Garage is not an option due to the settlement requirements. Though the Village parking garage does not
have the same requirements for speed bumps, we believe a similar traffic calming strategy should be
implemented in Village garage so that your facility staff has continuity in their approach to maintenance
and experience for both garages.
The near-term recommendations below, and as shown in the attachments, should be considered a first
step to achieving the safety and user experience goals. I believe these changes will be a work in
progress for the Town and would encourage you to experiment and continue efforts to collect speed data
and possibly user experience polling to see is working well and what is not. You may also find that what
works well in one garage might not work for the other and ongoing changes may needed until a balanced
solution can be achieved. Please also note that our recommendations are based on only a brief time
spent in each garage, a more comprehensive plan could be developed with more time at your request.
The following are our recommendations to address in the near-term:
Eliminate the double speed bumps in all locations for both garages to just a single bump. We
recommend bumps be removed consistently to one side at the Town’s choosing.
Eliminate or shift speed bumps where installed at an angle or in a location that is mid turn on a
ramp or turning bay. The intent is to allow a vehicle to fully square up to the speed bump before
approach to minimize the rocking effect a driver experiences when approaching from an angle.
Eliminate speed bumps near ADA stalls. I’ve attempted to locate these on plans based on where
the ADA stalls are indicated. But if there are others not located which coincide with a speed bump
in the drive aisle, then we would recommend the staff remove those as well. I didn’t have much
information on ADA stalls in the Village garage.
Shift speed bumps directly adjacent to pedestrian pathways and corridors to minimize trip
hazards or replace with speed tables.
Install additional, or relocate, 5 MPH speed limit signs to be more visible to drivers. I’ve shown
some key areas in the Lionshead garage I would recommend to install if not already there.
The following are additional traffic calming measures that could be implemented on an as needed basis
to supplement the above recommendations:
Speed tables/raised crosswalks at pedestrian pathways
Place crosswalk striping at pedestrian walkways
Additional signage at pedestrian walkways (“State Law - Stop for Pedestrians in Cross Walk)
Rumble strips in drive aisles at entries/exits or in lieu of speed bumps in some areas
Flexible delineator posts to “pinch” the drive aisles in key areas.
Additional signage to help guide pedestrians to stairs and exits
Additional signage to prohibit pedestrians walking on “speed” ramps (steeper ramps with no
parking)
Flashing radar speed limit signage
Enhanced lighting at entry/exit to help transition from bright exterior to dim interior
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Town of Vail Page 7
Paint ceiling of Lionshead white to enhance reflectance and increase luminance
Enforcement (speed camera or officers) for worst offenders
Barco is a great source for most of the components you would need. They have many signage options.
https://www.barcoproducts.com/signs
https://www.barcoproducts.com/parking-lot-safety
Thank you for the opportunity to assist you with this project, let us know if you have any questions or
have other items for discussion.
Craig Racey , PE
Senior Project Engineer, Investigative Engineering
PE (CO)
O 303.431.6100 ext. 352
D 720.544.5452
M 303.264.7195
Craig Racey , PE
Senior Project Engineer, Investigative Engineering
PE (CO)
O 303.431.6100 ext. 352
D 720.544.5452
M 303.264.7195
12499 West Colfax Avenue | Lakewood, CO 80215
martinmartin.com
Martin/Martin Offices Holiday Closure Notice
Please note that all Martin/Martin, Inc. offices, as well
as Martin/Martin Wyoming, will be closed from Monday,
December 25, 2023, through Monday, January 1,
2024. Our offices will reopen Tuesday, January 2,
2024. During this time, certain project teams may be
available to you through arrangements made by the
project manager with whom you are working.
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Town of Vail Page 4
Example of Speed Table:
Example of radar sign:
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Town of Vail Page 5
Example of flexible posts:
Example of flashing speed sign:
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Town of Vail Page 7
PRIORITY VAIL TOWN COUNCIL GOALS FOR 2023
CATEG
ORY
GOALS NEXT STEPS WHO
Housing The Town of Vail will acquire 1,000
additional resident housing deed
restrictions by the year 2027 as
compared to 2017. By October 1,
2023:
1. Complete the Residences at
Main Vail.
2. Initiate the entitlement process
for the Timber Ridge and West
Middle Creek housing
developments.
3. Acquire the East Vail CDOT
parcel and initiate the design
process.
4. Initiate the acquisition process
for one additional parcel of
land to create a significant
regional housing development.
5. Amend the commercial linkage
requirements and adopt
residential linkage
1. Residents moved into RMV on September 1st, 20223.
2. A development agreement has been executed with
Triumph development for 290+ units at Timber Ridge and
this application are working its way through the development
review process and we are on track for a May 1, 2024
construction start.
3. The Town received 10 proposals for creating a housing
project at West Middle Creek and at the Councils direction,
staff is negotiating a contract with Corum Development.
4. The Town is under contract to purchase 3 CDOT parcels
including the east Vail parcel, land adjacent to West Middle
Creek housing site, and the Timber Ridge housing project.
5. TOV and other stakeholders have begun working with the
State Land Board on the Dowd Junction property.
We are on track to exceeding this goal.
Housing Director lead,
supported by Town
Manager & Deputy
Manager, Finance
Dept, Public Works,
Com Dev, Econ Dev
Civic Hub
and
Town
Hall
By November 1, 2023:
Determine a program, budget,
and critical path to renovate
Dobson Ice Arena so that it will
continue to serve Vail for
another 40 to 50 years.
By no later than September 1 of
2024, (Modified by council on July
18, 2003)
the town will Determine
whether to renovate or
relocate Town of Vail offices
and if relocated determine best
location(s), a budget, and a
timeline for relocation or
renovation and determine the
preferred community uses to
be developed at the Civic Hub.
“
Dobson: The Populus design team is on schedule for
completing a schematic design for Dobson. Staff is working
on a RFQ to solicit development companies to partner on
this project.
Town Hall/Civic Center: The Town has picked a consultant
team to complete the scope of work to achieve the second
part of this goal. A steering committee has also been
chosen to provide recommendations on this project to the
Council as this project moves forward. Contract awarded
to 4240/Design Workshop/EPS to conduct spatial,
floor planning, and economic analysis on Civic Hub
site, Municipal Complex, and Public Works Site
Public Works Director -
Dobson/ Town
Manager & Com Dev
Director, Econ Dev
Excellent
Custome
r Service
By November 1, 2023:
Create a clear definition for
providing excellent customer
service to our residents and
guests for town services and a
means of measuring to what
degree we are providing
excellent customer service.
Identify and implement metrics
for objectively measuring
organizational effectiveness
and health so that a baseline is
developed which can be
improved on in future years.
The goal is to create clear standards for customer service
related to our residents, guests, and internal customer
service. This has turned into a more complex project since
goals need to be accompanied with metrics. On November
7th, staff will provide a framework for achieving this goal. Full
implementation of this goal will occur in 2024. On
November 7th Council reviewed high level goals for this
project and a framework for measuring those goals. There
was general acceptance of the proposed next steps.
Town Manager and
Leadership Team
Land Use
Regulatio
ns
Support
By November 1, 2023:
Review and analyze Title 12
Zoning, the Official Zoning Map,
Title 14 Development Standards,
Staff has completed an extensive set of recommendations to
align the zoning code and administrative policy with the goal
of creating affordable housing and these recommendations
have been implemented or adopted by the Town Council.
Community
Development Director,
Public Works Director,
Fire Chief
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Town of Vail Page 8
Town
Goals
and other pertinent land use policy
language including the Town of Vail
Comprehensive Plan. Bring forward
recommendations for amendments
to help foster the creation of
affordable housing and improved
efficiency of the development
review process.
Examples of implementation include creating two affordable
housing zone districts that provide flexibility for future
housing project sand greater predictability by being more
prescriptive with standards (versus a negotiation).
The following is an update on the 26 Council priority actions identified in 2022:
Vail Town Council Action Plan
PROJECT MILESTONE UPDATES POINT of
CONTACT
CO
M
M
U
N
I
T
Y
West Vail
Master Plan
Implementation
Phase 1, Housing: Implementation of recommendations in
Chapter 3, WVMP. Ordinance No. 19 adopted 10/07/23
May 2022 – October 2023.
Phase 2, Commercial (West Vail Center): Implementation of
recommendations in Chapter 2, WVMP. Overview and proposed
next steps, December 2023.
Phase 3, Transportation & Mobility: Implement recommendations
in Chapter 4, WVMP.
Coordinate implementation timeline in context of town-wide
Transportation Master Plan.
Matt Gennett,
Community
Development
Director
Timber Ridge
Apartments
Redevelopment
Contract executed with Triumph Development to build Timber
Ridge II.
Aug. 1, 2023: Updated market study, design development, and
entitlement approval process to redevelop Timber Ridge Village
Apartments.
Final approvals are being obtained from the PEC and DRB.
Spring 2024
Construction begins.
Feb. 1 – Apr. 1, 2025
New units expected to be completed and available for phased
occupancy.
George Ruther,
Director of Housing
Ford Park
Master Plan
Amendments
Ford Park Master Plan Amendments. An update was provided to
Town Council on July 18 and the plan was approved by Council on
Nov.7th. The plan has many elements with potential for
implementation over several years, dependent upon funding and
prioritization. The Ford Park Operating Committee will be formed and
begin meeting in early 2024 with the purpose of recommending items
for implementation to Town Council.
Todd
Oppenheimer,
Capital Projects
Manager
Short Term
Rental Policy
Amendments
Jan. 1, 2023
Effective implementation date of Ordinance No. 11, Series of 2022.
Feb. 28, 2023
STR license renewal deadline.
Carlie Smith,
Finance Director
Early Childhood
Initiatives
Funding in 2023 ($250,000) for Council supported areas including:
Community Tuition Assistance - ongoing grants for incomes
below 450% of federal poverty
Workforce Retention – grants to 2 programs for 2023
Expansion and Sustainability of ECE programs
– infant subsidy and facility/lease support
– pursuing expansion opportunities via in-home and/or new
spaces
Capital support – facility maintenance support ongoing & future
capital support TBD
Krista Miller,
Human Resources
Director
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Town of Vail Page 9
Permanent
Location for
Children’s
Garden of
Learning
Lease at temporary location expires 2026 or earlier pending 180
days’ notice. Staff are working to identify potential sites.
Matt Gennett,
Community
Development
Director
Kathleen Halloran,
Deputy Town
Manager
Wildland Urban
Interface Code
Amendments
May 2023
Town Council update on 2022 Fire Free Five grant program.
May-October 2023
Implement 2023 Fire Free Five grant program.
Spring 2024 Fire Free Five code adoption consideration.
Mark Novak, Fire
Chief
EN
V
I
R
O
N
M
E
N
T
USFS Booth
Creek Fuels
Reduction
Project
July 2023 USFS Record of Decision issued.
Winter 2023/2024
Identify costs and funding sources. Cultural clearance.
2024-2030
Implementation - timeline is variable due to external factors.
Mark Novak, Fire
Chief
Identify
Alternative Fuel
Solutions
2022 - First boiler replacement operational. Collecting data on usage.
Town is under contract with the Grey Edge Group, to study feasibility
of a networked geothermal system for decarbonizing the snowmelt
system. Experts toured Vail infrastructure on May 8th.
Kristen Bertuglia,
Enviro mental
Sustainability
Director
Sustainable
Strategic Plan
Jan. – Dec. 2023 Kristen Bertuglia,
Environmental
Sustainabilty
Director
Wildlife Crossing
at Dowd
Junction
Feasibility and design RFP in 2023 to identify additional crossing
opportunities in addition to Dowd.
Kristen Bertuglia,
Environmental
Sustainability
Director
Global
Friendship |
Peer Resort
Exchange
Programming
Staff to present a Global Friendship and Peer Resort proposed plan
to town council in Q1, including existing relationships and exploring
future visits to share best practices and learn from leading
destinations. 2024
Mia Vlaar,
Economic
Development
Director.
Kristen Bertuglia,
Environmental
Sustainability
Director
Cultural Heritage
Preservation &
Programs
2023 Budget is $25,000.
March 21, 2023 – Resolution No 4 passed for the Naming or
Commemoration of town-owned properties. Town’s website has
been updated to include an online application.
Partner on Trailblazer Award process.
Continued work in 2023 - Summervail Archives (on hold for now,
need to reconnect with their team) ; Vail Valley Voices (ongoing
project with many more oral histories still to be captured) ;
Library’s 40th Anniversary (celebration was first announced in
March ; historic display on Hauserman table through the summer,
Galleria display exhibit opened in August; July 4th Book ‘n Bake
Sales (Theme is “This Library is Your Library – 40 Years Strong”)
; Eagle County celebrates 140 years (Library hosted the traveling
photography exhibit in April) ; CHC website has been further
updated to include cultural initiatives from other departments ;
CHC committee meets bimonthly.
Lori A. Barnes,
Director of Library
Services
Open Lands
Plan
2022-2028 - Biodiversity study to kick off in late summer 2022. Field
work began June 15
Kristen Bertuglia,
Environmental
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Town of Vail Page 10
also includes a presentation by RRC & Associates with the summary
results of post-visit guest surveys from Winter ‘22/’23 and Summer
‘23.
Go Vail 2045 –
Vail Mobility &
Transportation
Master Plan
July 2022 – May 2024.
Completed existing conditions public outreach/analysis and Noise
Study update. Team is in the process of drafting initial
recommendations which will be presented to the public and Council
this summer for initial comment and feedback. Presentations made
to Town Council August 1, August 15; Oct 17, and Dec 19. An
overview summary of these presentations will be coming in early
2024.
Tom Kassmel,
Town Engineer
Public Works
Shops
Expansion and
Access
Improvements
March 2021 – June 2022. - Access Improvements: Engaged design
team to provide a scope to provide additional steps to provide access
to the upper level of the public works shop building.
Greg Hall, Public
Works Director
E-Vail Courier
Implementation
Oct. 1, 2022 - Full implementation began. Council was updated on
May 16th on the success of the program and lessons learned. Town
Council passed an ordinance in October for an expansion of the
program to include large couriers such as FedEx/UPS. The town is
currently fighting a request for a Temporary Restraining Order by
these two carriers.
Ryan Kenney,
Police Commander
Regional
Transportation
Ballot measure passed in Nov. 2022. Town Council member Barry
Davis is serving as the town’s representative on the RTA board. This
first year will be spent establishing the new RTA. The RTA provided
an update to Town Council on August 1st
Public Parking
Initiatives
New parking rates and passes were implemented at the start of the
2022/23 winter season. On April 18, Town Council approved
recommendations by the Parking Task Force to implement changes
to summer parking overnight rates and event parking rates at Ford
Park. Parking Task force met July 21 to continue discussions for the
upcoming winter parking program. Town Council approved the winter
parking plan on August 15th. Parking Task Force set to meet in the
coming month to recap the summer parking program and learnings
from new initiatives (carpool, etc)
Greg Hall, Public
Works Director
Guest
Experience
Initiatives
PrimaVail and PrimaService programming will continue through
winter season
Mia Vlaar,
Economic
Development
Director
131
AGENDA ITEM NO. 5.2
Item Cover Page
DATE:January 2, 2024
SUBMITTED BY:Stephanie Bibbens, Town Manager
ITEM TYPE:Matters from the Chairman and Authority Members
AGENDA SECTION:Matters from Mayor, Council, Town Manager and Committee Reports
(30 min.)
SUBJECT:Vail Trailblazer Award Committee Selection
SUGGESTED ACTION:Action requested of Council: Confirm two elected officials to serve on
selection committee for naming the next Trailblazer Award
Recipient/s.
VAIL TOWN COUNCIL AGENDA ITEM REPORT
ATTACHMENTS:
132
AGENDA ITEM NO. 5.3
Item Cover Page
DATE:January 2, 2024
SUBMITTED BY:Steph Johnson, Town Manager
ITEM TYPE:Matters from Mayor, Council and Committee Reports
AGENDA SECTION:Matters from Mayor, Council, Town Manager and Committee Reports
(30 min.)
SUBJECT:Finalize Council Committee Appointments
SUGGESTED ACTION:Make appointments for the 2023 - 2025 term.
VAIL TOWN COUNCIL AGENDA ITEM REPORT
ATTACHMENTS:
Town Council - Committee Appointments - 2024 - TO CONFIRM.pdf
133
Board/Committee Appointed Member Appointed Member Alternate Member Staff Member(s) Meeting Frequency Description
Vail Recreation District (VRD Pete Seibert Reid Phillips Kathleen Halloran Quarterly
Meet w/ VRD and TOV Elected Officials & Staff to review
topics of mutual interest.
ECO Board / Eagle County Regional
Transportation Authority
(including the Formation Group)
Barry Davis Pete Seibert Russ Forrest Quarterly
ECO Board serves as advisory board for Eagle County
Commissioners.
The 2021 MOU creates a regional group to explore the
formation of a regional transportation authority.
It would be preferable to appoint an elected official who
would serve a four-year term.
Open Space Board of Trustees Jonathan Staufer Kristen Bertuglia As Needed
TOV Charter Section 13.11 Designated Open Space.
Board to make recommendations to council about open space
parcels and related policies.
Vail Local Marketing District
Advisory Council Sam Biszantz Barry Davis Mia Vlaar Monthly
This volunteer board is responsible for making
recommendations to the Vail Town Council, which serves as
the Vail Local Marketing District Board, for summer and
shoulder season marketing programs funded by a 1.4% Vail
lodging tax.
Vail Economic Advisory Council
(VEAC)Pete Seibert Travis Coggin Russ Forrest & Mia Vlaar Monthly
Town Manager Advisory group; appointments made as
deemed necessary by the Town Manager and reviewed
annually.
Vail Parking & Transportation Task
Force Dave Chapin Reid Phillips Russ Forrest & Greg Hall 2x/Year
The Vail Parking & Transportation Task Force serves as an
advisory group giving input and recommendations on parking,
transit and operations topics.
Suggestion to reimagine this as a "mobility advisory group"
Betty Ford Alpine Garden
Foundation Dave Chapin Varies
Board supporting the Betty Ford Alpine Gardens with public
education, programing and alpine gardens (focus on plant
conservation).
Northwest Colorado Council of
Governments (NWCCOG)Russ Forrest Kathleen Halloran Quarterly
Voluntary association of county and municipal governments
that believes in the benefits of working together on a regional
basis. NWCCOG serves 30 member jurisdictions in a 6-county
region of northwest Colorado
I-70 West Vail Pass Authority Lanes
Project / Project Leadership Team Dick Cleveland
CDOT received a $60.7 million Infrastructure for Rebuilding
America (INFRA) grant, matched with additional funding, to
start design and construction of a $140.4 million project, the
first phase of improvements along West Vail Pass
Colorado Association of Ski Towns
(CAST)Travis Coggin Russ Forrest 5x/Year
Representatives from resort ski areas that meet to review and
solve problems of mutual concern.
Works collaboratively with CML to ensure resort needs are
addressed through the legislative process.
Civic Area Plan Sam Biszantz Pete Seibert Russ Forrest & Matt Gennett
Cultural Heritage Committee Travis Coggin
VAIL TOWN COUNCIL
2024 COMMITTEE APPOINTEMENTS
134
Board/Committee Appointed Member Appointed Member Alternate Member Staff Member(s) Meeting Frequency Description
VAIL TOWN COUNCIL
2024 COMMITTEE APPOINTEMENTS
NWCCOG QQ Travis Coggin
EGE Air Alliance Travis Coggin
Sustainable Destination Steering
Committee Barry Davis Sam Biszantz Kristen Bertuglia
Eagle County Community Wildlife
Roundtable Jonathan Staufer Kristen Bertuglia
Stakeholders groups that gather to understand and address
issues facing wildlife populations
Eagle County Community Wildlife
Roundtable: Education and
Outreach Committee
Kris Widlak
Colorado Communities for Climate
Action (CC4CA)Jonathan Staufer Kristen Bertuglia TBD
Municipal and county members; coalition of 40 local govts
across Colorado advocating for stronger state and federal
climate policy
Elected official may serve as member on CC4CA
Colorado Communities for Climate
Action (CC4CA) - Policy Committee Sam Biszantz Kristen Bertuglia TBD
Colorado Communities for Climate
Action (CC4CA) - Legislative
Committee
Jonathan Staufer Kristen Bertuglia TBD
Climate Action Collaborative Board
(CAC)Jonathan Staufer Kristen Bertuglia TBD
Climate Action Collaborative Board
(CAC) - Governance Board Jonathan Staufer TBD
Council Member Board Totals Appointed Member Alternate Member
Travis Coggin 5 0
Barry Davis 2 1
Pete Seibert 3 1
Sam Biszantz 3 1
Reid Phillips 2 0
Jonathan Staufer 6 0
Dave Chapin 2 0
135