HomeMy WebLinkAboutPACKET Town Board Study Session 2020-05-12
May 12, 2020
5:15 p.m. – 6:30 p.m.
Board Room
5:15 p.m. Board Orientation.
• CIRSA Briefing
6:20 p.m. Trustee & Administrator Comments & Questions.
6:25 p.m. Future Study Session Agenda Items.
(Board Discussion)
6:30 p.m. Adjourn for Town Board Meeting
Informal discussion among Trustees concerning agenda items or other Town matters may occur before this
meeting at approximately 5:00 p.m.
AGENDA
TOWN BOARD
STUDY SESSION
UPDATED 05-12-2020
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Suggestions for Success (and Avoiding the Risk of Liability)
for Elected Officials
Sam Light, CIRSA General Counsel
Town of Estes Park
CIRSA Training 5‐12‐20
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Introduction
Speaker Bio
Sam Light is General Counsel for the Colorado Intergovernmental
Risk Sharing Agency (CIRSA). Previously Mr. Light was a partner with
the Denver law firm of Light | Kelly, P.C., specializing in municipal and
other public entity law, insurance law and defense of public entities
and elected officials. Sam is a frequent speaker on municipal law
and has practiced in Colorado since 1993.
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Introduction
Colorado Intergovernmental Risk Sharing Agency
•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 IGA of our members. Total
membership today stands at 276 member municipalities & affiliated entities:
•273 are members of the PC pool
•144 are members of WC pool
•CIRSA views proactive approaches to risk management as critical member services
–is a win‐win.
•Elected official resources: https://www.cirsa.org/safety‐training/elected‐officials/.
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Introduction
Presentation Overview
•Suggestions for Good Governance –Best Practices –which in turn will
reduce risk for the Town and you individually.
•Are based on my years as a public entity attorney and observing the ways
in which elected and appointed bodies and their members can get into or
stay out of trouble from a liability standpoint.
•Presentation is a training resource only; is not intended as legal advice on
any specific, pending issues.
•In case of any inconsistency between author’s remarks and views of your
Town Attorney…your Attorney’s views prevail!
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Suggestion One:
Recognize the Change in Roles
•Being a public official means your role has changed:
•Citizen‐official (24/7)
•Outsider‐insider
•Proponent/Critic‐representative
•Single‐issue focus –broader policy focus
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Suggestion One:
Recognize the Change in Roles
•When you took office, you took an oath to uphold constitution, laws, and
Town ordinances. What does that oath embody?
•A commitment to respect the boundaries and allocations of responsibility
set by law.
•A commitment to lawful conduct, including constitutional requirements
such as providing “due process” and following criteria in making decisions.
•A commitment to ethical practices.
•A commitment to professional courtesy and respect for one another’s
divergent viewpoints and styles?
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Suggestion One:
Recognize the Change in Roles
•Whatever your role may have been to the Town previously, you are
now all elected leaders – guardians –stewards –of the Town.
•The protection of the Town’s interests and assets is perhaps your
most critical function now.
•The guiding principle in decision making should always be, “what is
the right thing for the Town?”
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Suggestion One:
The Role – Good Governance is Part of the Job
•As elected leaders, part of your oath and “job duties” is good
leadership 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 (following applicable laws & ordinances); and
•Mutuality of Respect.
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Suggestion Two:
Avoid “outside the scope” and “willful and wanton” conduct
•You have personal protection from liability under the
Governmental Immunity Act (GIA) only if you are “within the scope
of employment” and not acting “willfully and wantonly.”
•Concept of “scope of employment” applies to everyone ‐elected
& appointed officials, employees, and authorized volunteers.
•Means everyone needs to know and respect their “job
description.”
•Conduct that is “outside the scope” or “willful and wanton” can
create liability and result in a loss of governmental immunity.
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Suggestion Two:
Avoid “outside the scope” and “willful and wanton” conduct
•Can also result in 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 and
appointed officials “in their capacity as such” (or similar) and have
provisions excluding coverage where liability is based on willful & wanton
conduct, fraud, ill‐gotten gain, or criminal or malicious acts.
•Insurers must look to the allegations to assess coverage. If allegations are
of willful and wanton or other bad conduct, the insurer may not cover, or
cover under a reservation of rights.
•POL policies do not insure against punitive damages.
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Suggestion Two:
Tips for Avoiding Personal Liability Risks
•Understand “job description” & stay within it.
•Recognize you are part of a collective decision‐making body. Each
individual has a fraction of the power of the body, but that power can’t be
exercised alone.
•Recognize that elected officials act primarily as a BODY, and exercise
responsibilities mainly by VOTING in a PUBLIC MEETING.
•If you are doing anything other than that, particularly if you are
contemplating action against someone on your own as a Town official ...
ask if you properly authorized (and if not, don’t take action).
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Suggestion Two:
Roles & Liability Risks
•Why is understanding & respecting the role—i.e., “role
discipline”—a liability issue; some real‐life examples:
•An elected or appointed official directs or gets involved in a
personnel decision entrusted to the Administrator or a
department head.
•An elected official interferes with a routine permit or other
item that is staff’s responsibility.
•Warning signs: “He/she/they did what?!”
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Suggestion Three:
Honor Transparency
•Transparency is a basic expectation for public entities.
•Citizens take interest in the goings‐on of the Town, how/when
those goings‐on are discussed, and the opportunities afforded to
them to listen in on/participate in the discussion.
•A lack of transparency can cause massive trust and credibility
issues, and potential claims/disputes over compliance.
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Suggestion Three:
Honor Transparency
•The Colorado Open Meetings Law (OML) applies to all meetings of the
governing body, boards, commissions, committees, etc.
•Applies to 3 or more or a quorum, whichever is less. Requires discussion
of public business take place at meetings open to the public, and if action
will be taken or a quorum will be present there must also be timely notice.
•Does not apply to chance meeting or social gathering at which discussion
of public business is not the central purpose.
•The OML allows executive sessions for limited purposes. Make sure your
executive session procedures and other processes are set up to comply
with the law and protect confidential information.
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Suggestion Three:
Protect the Town’s Confidences ‐Scenario
In executive session the Board develops a strategy for
negotiating the purchase of a piece of park land. The
confidential appraisal states a value of $375,000‐425,000, and
the Board’s instruction is that the Town Administrator and Parks
Director should meet with the landowner and negotiate for a
contract of up to $400,000. Board member Smith sees the
landowner at the coffee shop the next day and, eager to get the
deal moving, tells her the Town is willing to pay $400,000 and
may go higher as the appraiser thinks the property may be worth
up to $425,000. Problem?
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Suggestion Three:
Honor Transparency –Electronic Communications
•Recognize that e‐mails communications can trigger the OML.
•Also, are the e‐mails you send or receive in your capacity as a public
official considered Town records? Generally, yes, if the e‐mail concerns
your job as an elected official and/or discussion of public funds.
•Electronic communications can also raise other liability and transparency
issues.
•The takeaway? Be circumspect in your use of e‐mail as a Town official!
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Suggestion Three: E‐Mail Tips
•Have a one‐on‐one discussion
•Respond to constituent e‐mails
consistent with “role discipline”
and your Board’s “one voice”
•Correspond with Town staff
•Copy other Board members or
staff on “fyi” only e‐mails
•Use reminders to not “Reply All”
•If you have it, use Town ‐
assigned e‐mail address and
device
•But in all situations, do not use
e‐mail to discuss quasi‐judicial
matters such as land use and
licensing decisions
•Don’t use to discuss policy with
more than 2 other members
•Don’t use as substitute for open
public meeting discussion
•Don’t use to discuss or
disseminate information on quasi‐
judicial matters
•Don’t use as a means of taking
action
•Don’t “reply all”, excepting only
purely non‐policy e‐mails
•Don’t send e‐mails with mixed
public/private communications
•Don’t say in an e‐mail what you
wouldn’t say in a public meeting…
Dos Don’ts
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Suggestion Four:
Honor Due Process
•Sometimes you’re “legislators” making general rules that apply
generally.
•But sometimes you decide specific cases where you apply the general
rules to specific persons/property. For these “quasi‐judicial” matters—
for example, Board action on a rezoning—you are essentially acting as
judges and therefore must behave like judges.
•In this role you are required by law to provide “due process” and a
failure to provide due process exposes you and the Town to liability.
The key characteristics of a quasi‐judicial process are notice, a public
hearing, and a record‐based decision made by a fair and impartial
decision‐maker.
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Suggestion Four:
Honor Due Process –Tips to Avoid Trouble as a Quasi‐Judge
•Consider land use and other quasi‐judicial matters only at the duly‐
noticed public hearing.
•Remain fair and unbiased; don't make up your mind before the hearing.
•Don't participate if you have a prohibited conflict of interest in the matter
(code of ethics).
•Don't make your decision on the basis of irrelevant or non‐existent
criteria.
•Don't engage with one side or the other before a hearing (ex parte
contacts).
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Suggestion Four:
Honor Due Process –Tips to Avoid Trouble as a Quasi‐Judge
•A critical duty of the quasi‐judge is to avoid “ex ‐parte” contacts,
meaning any “outside the hearing” discussion with an interested party
about the subject matter of the hearing.
•A proceeding loaded with “ex ‐parte” contacts is a path to having your
decision overturned and, as important, having the integrity of your
process eroded.
•When we advise against ex‐parte contacts, we are protecting your
ability to participate, and your ultimate decision.
•An ex‐parte contact can be problematic whether with the applicant,
citizens, or in some instances, staff.
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Suggestion Four:
Honor Due Process –Tips to Avoid Trouble as a Quasi‐Judge
•Contrast –For your general legislative and policy making
discussions and matters, it is okay: to lobby (and be lobbied) outside
the meeting; to base your decision on your own personal policy
perspectives, and to base your decision on information obtained
from most any source.
•But, for a quasi‐judicial matter, it is not. Rather, just like a judge
presiding over a trial, because of constitutional due process
requirements, you must make your decision based on the evidence
presented to you at the hearing, and you must base your decision
upon legal standards, and you may not engage with interested
parties about the case outside the hearing.
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Suggestion Five:
Put Ethics First
•In Colorado, ethics scandals are rare – but happen from time to
time.
•Ethical misjudgments greatly undermine public confidence in
public bodies, and appearances of conflicts can be just as damaging
as actual conflicts.
•Can result in criminal and civil liability.
•There is often a “personal benefit” exclusion from public officials
liability coverage.
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Suggestion Five:
Put Ethics First
•The theme that runs through codes of ethics is: It is not
permissible to gain a personal benefit by virtue of holding public
office –“shall not use public office for private gain.”
•Main rule – Conflicts of Interest: Disclose, recuse, don’t vote, and
don’t influence other members.
•Don’t disclose or use any confidential information for personal
benefit.
•Decline any gifts that seem to be connected to your service (and
abide by gift rules).
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Suggestion Six:
Be Cautious in Administrative Matters
•Inappropriate involvement in administrative matters by members
of the governing body, collectively or individually, can:
•Undermine the structure of the body or organization.
•Waste resources.
•Be a backwards step in Town evolution.
•Increase the risk of liability for yourself.
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Suggestion Six:
Be Cautious in Administrative Matters
•Understand and observe “role discipline” between policy and
administrative matters.
•The Board Role ‐establish policy and vision for the Town as a
whole; set overall goals and priorities; determine the “ends” and
make specific decisions that are Board’s prerogative.
•BUT, leave details and execution to Town Administrator and staff.
•The Town Staff’s Role –determine the “means”—manage and
accomplish the work as defined by the policy making bodies, within
the Town’s established parameters.
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Suggestion Six:
Be Cautious in Administrative Matters
•The legislative‐administrative distinction is particularly important in
personnel matters.
•The Board has an appropriate role – but should focus on “big
picture” issues:
•Approval of generally‐applicable personnel rules.
•Overall personnel budget.
•Selection and supervision of the Board’s direct reports.
•Overall Town goals and priorities.
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Suggestion Six:
Be Cautious in Administrative Matters
•But, your involvement in these “big picture” issues must not
devolve into:
•Selection, evaluation, or disciplinary matters involving a
specific individual who is not a direct report.
•Becoming an individual “HR Manager” –if folks are
inappropriately inserting themselves into, or are bypassing, the
chain of command, how can the Town return to the proper
chain of command?
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Suggestion Six:
When dealing with staff –speak with one voice
•Each governing body is made up of individuals, each with different goals
and priorities; however; it is not a group of seven bosses. Therefore,
resolve to speak with one voice to your direct reports.
•There is but one Board and it should commit to act as one. It alone can—
and should—carry the burden of sorting out and reconciling the goals and
priorities of its members with the goal of establishing a singular set of
goals, priorities and directions to staff.
•This can be done even if there are strong differences of opinion or a split
vote…And doing so provides for clarity, credibility and accountability in the
direction you provide to the Town Administrator and other direct reports.
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Suggestion Seven:
Use Your Power Wisely and Humanely
•As a Board, commit to a “no surprises” approach with one another and staff.
•Deal effectively with discord. Every governing body has disagreements! But
discord should not drive meetings, your agenda, or how you interact with the
community, each other, or staff. Therefore, take time to identify, discuss and
resolve issues of discord among you.
•Recognize you set the tone for the whole organization in terms of treatment
of citizens, the business community and staff, and 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.
•And, always keep in mind that you are the stewards of the Town’s best
interests and assets.
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Conclusion
Thank you for your public service!
And for the opportunity to present.
May 26, 2020
No items scheduled
Items for Re-Scheduling (disrupted
by COVID19)
Fish Hatchery Discussion
Items Approved – Unscheduled:
Vacation Home Regulation in
Planned Unit Developments
Discussion with County Assessor
regarding Assessment of Vacation
Rentals
Future of Human Resources
Management – HR Strategic Plan
Distributed Energy Discussion
ADUs and Sue Ballou, Partnership
for Age Friendly Communities
Reverse Decriminalization of
Municipal Code
Vacation Home Cap and
Transferability of Licenses
Items for Town Board Consideration:
Changes to 2020 Transit Operations
– May 26, 2020
Future Town Board Study Session Agenda Items
May 12, 2020