The URL can be used to link to this page

Home My WebLink AboutPACKET Town Board Study Session 2018-05-22 Tuesday, May 22, 2018 TOWN BOARD 5:00 p.m. – 6:40 p.m. STUDY SESSION Rooms 202/203 4:45 p.m. - Dinner 5:00 p.m. Board Orientation. • CIRSA Briefing Sam Light 6:00 p.m. Abilene Paradox (Movie Approx. 25 min.) 6:30 p.m. Trustee & Administrator Comments & Questions. 6:35 p.m. Future Study Session Agenda Items. (Board Discussion) 6:40 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 4:30 p.m. AGENDA 5/23/2018 Town of Estes Park CIRSA Training Presented by Sam Light Light | Kelly, P.C. May 22, 2018 Suggestions for Success (and Avoiding the Risk of Liability) for Municipal Officials Sam Light is a partner with the Denver law firm of Light | Kelly, P.C., which specializes in municipal and other public entity law, insurance law and defense of public entities and elected officials. Mr. Light is City Attorney for the City of Louisville and Town Attorney for the Town of Firestone, and the firm serves as general or special counsel to numerous cities and town. He also serves as General Counsel to the Colorado Special Districts Property and Liability Pool and the Denver Regional Council of Governments. Sam is a frequent speaker on municipal law and has practiced in Colorado since 1993. He is a graduate of the University of Colorado at Boulder and Lewis and Clark Law School. Speaker Bio 5/23/2018 About CIRSA 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 intergovernmental agreement of our members Total membership today stands at 273 member municipalities and affiliated legal entities; of that: 270 are members of the PC pool 142 are members of WC pool CIRSA views pre‐claim assistance and proactive approaches as critical member services –is a win‐win Suggestions for Good Governance –Best Practices Are based on my years as a public entity attorney and observing the ways in which boards can get into or stay out of trouble from a liability standpoint. Presentation is a training resource only; for specific issues consult with your attorney and staff, and the advice of your attorney prevails! Presentation Overview 5/23/2018 Suggestion One: Recognize the change in roles Being a public official means your role has changed: Citizen‐official Outsider‐insider Critic‐representative Single‐issue focus –broader policy focus Recognize the change in roles Whatever your role may have been previously, you are now all appointed 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 ?” 5/23/2018 Recognize the change in roles You may have sought your position because you were dissatisfied with status quo. However, hanging on to an “outsider” perspective can be destructive: When you were elected or appointed, you became the ultimate insider…the “outsider” perspective no longer fits. Misunderstanding your role can increase the risk of liability for the Town and you. Recognize the change in roles “Outsider” perspective can also greatly reduce your own effectiveness: You are now part of a collective decision‐making body. Each individual has a fraction of the power of the body, and that power can’t be exercised alone. Success in your position can’t happen without collaboration and consensus‐building: Think and act as “We” not “I”. 5/23/2018 Recognize Change in Roles As an elected leader, 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. Commit to defining & improving the role In view of bettering the group and your role, ask: Have we committed to act with “mutuality of respect?” Have we discussed and do we understand our roles, responsibilities and expectations, and are they supported on an ongoing basis? Is there an “imbalance of information” among us? Why? Is that good, bad (or are we indifferent)? Are we constantly lining up the same split vote? If so, why? As leaders, these discussions are “in your wheelhouse.” 5/23/2018 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 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. •Can also result in loss of coverage. Public official liability policies provide for your defense and pay judgments where required. •But, these 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 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. •PEL policies do not insure against punitive damages. Your “SOE” & public official insurance 5/23/2018 Avoid “outside the scope” and “willful and wanton” conduct Understand “job description” & stay within it. Before acting, ask whether you have authority to act. Recognize that Trustees act primarily as a BODY, and exercise responsibilities mainly by VOTING in a PUBLIC MEETING. If you are doing anything other than that ... make sure you are properly authorized! Avoid “outside the scope” and “willful and wanton” conduct “We” ... not “I”! If you find yourself about to act in terms of “I” rather than “we” ...that’s a red flag. Be particularly cautious once you’ve voted on a matter. If you feel there is a need to change it, use proper channels only. Recognize that some decisions CANNOT be undone without liability. 5/23/2018 Roles & Liability Why is understanding & respecting the role—i.e., “role discipline”—a liability issue; some real life examples: An elected official makes or directs a personnel decision entrusted to a department head or the administrator. An elected official signs contracts or “makes promises” that are not properly approved. An elected official interferes with a routine item that is staff ‘s responsibility…or conversely… The administrator or staff “punt” such an issue to the board. Acting “because it’s our policy” when in fact there’s no policy. Warning signs: “He/she/they did what?!!” &“Can they do that?!” Suggestion Three: Protect the Town’s confidences Government is conducted in the open –but there are legitimately confidential matters, including: Legal advice, litigation issues Personnel matters Issues being negotiated 5/23/2018 Scenario One In executive session the Board develops a strategy for negotiating the purchase of the old ice rink, which the Town intends to develop into a public rink. It will at some future time hire a private firm to manage the facility. The appraiser’s confidential report states a value range of $175,000‐225,000 and the Board consensus is that the Mayor and To wn Administrator should meet with the landowner and negotiate for a contract up to $200,000. Trustee Jones, who also manages a private gym and intends to propose to contract with the Town to manage any Town ‐owned rink, sees the landowner at the coffee shop the next day and, eager to get the deal moving, tells him the To wn is willing to pay $200,000 and may go higher as the appraiser thinks it may be worth up to $225,000. Problem? Transparency is a basic expectation for public entities. Citizens take interest in the goings‐on, how/when those goings‐on are discussed, and opportunities 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. Suggestion Four: Honor Transparency 5/23/2018 Honoring Transparency ‐OML 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/action on public business to take place at a meeting open to the public and, if action will be taken or a quorum will be present, there must also be timely notice given—agenda posted at least 24 hours in advance. The OML permits executive sessions only for limited and specified purposes and following specified procedures. How can you break faith with the OML? Let’s count some of the ways… Three or more of you hold “meetings before the meetings” to sort things out. You hold executive sessions for purposes not listed in the OML, or your executive sessions veer “off topic.” There is a “rogue” member of the Board. You decide to hold an executive session to take that member to task. Three or more of you by phone or e‐mail discuss and make policy decisions, such that everyone else at the Board meeting then feels like they are “walking into the middle of a conversation.” Open Meetings Issues 5/23/2018 Open Meetings Issues Why is this a liability Issue? Take measures to avoid OML risks: Don’t hold the meeting if timely notice hasn’t been given. Avoid the inadvertent “meeting.” Plan ahead for meetings and agendas. Keep appearances in mind. 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. Can result in criminal and civil liability. There is often a “personal benefit” exclusion from public officials liability coverage. 5/23/2018 Ethics Issues The theme that runs through codes of ethics is: It is not permissible to gain a personal benefit by virtue of holding public office. Disclose to the Board any personal or private interest in any pending matter; don’t vote (except in very limited circumstances); and don’t influence other members. Don’t have a financial interest in To wn contracts or purchases, and if you will have such interest follow all rules. Don’t disclose or use any confidential information. Decline any gifts that seem to be connected to your service (and abide by gift rules). See Handout Ethics Scenario Trustee Julie owns a plumbing company. The Board has decided to build an addition to Town Hall and needs to hire a design team and contractors. The Board must approve the contracts and the selections will go through the Town’s normal contracting procedures. Trustee Julie would like to be the plumbing subcontractor on one of the teams that will submit a bid. Is she prohibited from doing so, as a result of her position on Board? If her firm is allowed to participate in the process, what actions, if any must she take? If her company is part of the team selected by Board, what actions should she take? 5/23/2018 Suggestion Six: Be cautious in handling administrative matters Inappropriate involvement in administrative matters by members of the governing body, collectively or individually, can: Undermine structure of the body. Waste resources. Be a backwards step in Town evolution. Increase the risk of liability for yourself. Be cautious in handling administrative matters Understand and observe “role discipline” between policy and administrative matters. The Board’s Role ‐establish “corporate” values and mission, set overall goals and priorities, and give direction, leaving details of execution to staff. The Town Staff’s Role – Manage and accomplish the work as defined by, and within the parameters set by the Board. 5/23/2018 Be cautious in handling administrative matters The legislative‐administrative distinction is particularly important in personnel matters. The Board has an appropriate role –but should act as a Board and focus on “big picture” issues: Personnel rules. Personnel budget and pay plan. Selection and supervision of the Board’s “direct reports”. Overall Town goals and priorities. Be cautious in handling administrative matters Make sure your involvement in these “big picture” issues doesn’t devolve into: Selection, evaluation, or disciplinary matters involving a specific individual who’s not a direct report. Salary and details of job performance of specific individuals who aren’t direct reports. Becoming an individual “HR Manager” –if folks are bypassing the chain of command, how can you ever return to the proper chain of command? 5/23/2018 When dealing with staff –speak with one voice The governing body is made up of individuals, each with different goals and priorities; however; how the Board is not a group of seven bosses. Therefore, resolve to speak with ONE voice to your direct reports (administrator, attorney, etc.) There is but ONE Board and it should act as ONE boss. The Board as a board should carry the burden of sorting out and reconciling the goals and priorities of several different elected officials, with the goal of establishing a singular set of goals, priorities and directions for your direct reports. This can be done even if there are strong differences of opinion or a split vote. Suggestion Seven: Use your power wisely and humanely You set the tone for the Town in terms of the treatment of employees, citizens, and the community. Use courtesy, tact, and diplomacy in interactions. Remember while you may be familiar with one another and your own rules and ways of doing business, each meeting, action, etc. is new and unique. Use your staff as a resource to help you do well, and look good while doing it! Commit to a mutual “no surprises” approach. Give appropriate heads up and commit to raising and addressing issues in appropriate manner and forum. 5/23/2018 Conclusion Maintain role discipline. Stay within your “scope of employment”! Act as “we,” not as “I.” Observe best practices in meetings. Meet high ethical standards. Always keep in mind you are the stewards of the Town's best interests and assets. Thank you for your public service! QUESTIONS? June 8, 2018 •Strategic Planning Session June 12, 2018 •Quarterly Update on Downtown Estes Loop Project •Review of Town Board Email Policy •Discuss Upcoming Sunset date for LMD June 14, 2018 •Joint Study Session with Estes Valley Planning Commission and Larimer County Commissioners June 26, 2018 •Discussion of Business License Fees •Review of Policy 103 – Town Board Code of Conduct and Operating Principles July 10, 2018 •Annexation of Fawn Valley July 24, 2018 •Update on Dry Gulch Workforce Housing Project •Discussion of Stormwater Utility September 11, 2018 •Quarterly Update on Downtown Estes Loop Project October 9, 2018 •Review of VEP Operating Plan December 11, 2018 •Quarterly Update on Downtown Estes Loop Project •Final Review of Strategic Plan Items Approved – Unscheduled: •Building Code Changes to Facilitate Redevelopment •Revisit Policy 402 Regarding Fee Waiver Requests Items for Town Board Consideration: Future Town Board Study Session Agenda Items May 22, 2018