24-18-109. Rules of conduct for local government officials and employees.
Statute text
(1) Proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his fiduciary duty and the public trust.
(2) A local government official or local government employee shall not:
(a) Engage in a substantial financial transaction for his private business purposes with a person whom he inspects or supervises in the course of his official duties;
(b) Perform an official act directly and substantially affecting to its economic benefit a business or other undertaking in which he either has a substantial financial interest or is engaged as counsel, consultant, representative, or agent; or
(c) Accept goods or services for his or her own personal benefit offered by a person who is at the same time providing goods or services to the local government for which the official or employee serves, under a contract or other means by which the person receives payment or other compensation from the local government, unless the totality of the circumstances attendant to the acceptance of the goods or services indicates that the transaction is legitimate, the terms are fair to both parties, the transaction is supported by full and adequate consideration, and the official or employee does not receive any substantial benefit resulting from his or her official or governmental status that is unavailable to members of the public generally.
(3) (a) A member of the governing body of a local government who has a personal or private interest in any matter proposed or pending before the governing body shall disclose such interest to the governing body and shall not vote thereon and shall refrain from attempting to influence the decisions of the other members of the governing body in voting on the matter.
(b) A member of the governing body of a local government may vote notwithstanding paragraph (a) of this subsection (3) if his participation is necessary to obtain a quorum or otherwise enable the body to act and if he complies with the voluntary disclosure procedures under section 24-18-110.
(4) It shall not be a breach of fiduciary duty and the public trust for a local government official or local government employee to:
(a) Use local government facilities or equipment to communicate or correspond with a member's constituents, family members, or business associates; or
(b) Accept or receive a benefit as an indirect consequence of transacting local government business.
(5) (a) Notwithstanding any other provision of this article 18, it is neither a conflict of interest nor a breach of fiduciary duty or the public trust for a local government official who is a member of the governing body of a local government to serve on a board of directors of a nonprofit entity and, when serving on the governing body, to vote on matters that may pertain to or benefit the nonprofit entity.
(b) (I) Except as provided in subsection (5)(b)(II) of this section, a local government official is not required to provide or file a disclosure or otherwise comply with the requirements of subsection (3) of this section unless the local government official has a financial interest in, or the local government official or an immediate family member receives services from, the nonprofit entity independent of the official's membership on the board of directors of the nonprofit entity.
(II) A local government official who serves on the board of directors of a nonprofit entity shall publicly announce his or her relationship with the nonprofit entity before voting on a matter that provides a direct and substantial economic benefit to the nonprofit entity.
History
Source: L. 88: Entire article added, p. 903, 1, effective July 1. L. 2012: (2)(c) added, (SB 12-146), ch. 93, p. 307, 3, effective April 12. L. 2017: (5) added, (HB 17-1293), ch. 291, p. 1610, 1, effective August 9.
Annotations
ANNOTATION
Annotations
A local official should avoid engaging in financial business with the entity he represents, but if he does, he should not participate in the vote on the matter or urge his fellow local officials to vote a particular way. Indep. Ethics Comm'n Advisory Opinion 12-01.
Member of a town's board of trustees must refrain from performing any official act that directly and substantially benefits the member's business economically and must not vote or attempt to influence the decisions of other board members when he or she has a personal or private interest in the outcome. Indep. Ethics Comm'n Advisory Opinion 16-05.
Member of a board of county commissioners who also serves on that county's board of health and local board of equalization would not have a conflict of interest in the county boards' future regulation of short-term rentals in the county since he closed his personal short-term rental business and, therefore, there is no possibility that any official action he would take would directly and substantially affect, to its economic benefit, a business or other undertaking in which he has a substantial financial interest. Indep. Ethics Comm'n Advisory Opinion 21-02.
Individual seeking to hold office as county assessor or treasurer/public trustee while continuing his employment in the banking or mortgage industry must continually evaluate procedures and practices to insure the public is treated fairly, avoiding discretionary practices that would enrich the office holder or his business interests. Indep. Ethics Comm'n Advisory Opinion 17-10.
Town clerk did not violate subsection (2)(b) because she did not have a substantial financial interest in, and was not a representative or agent of, a private organization when she recorded a vacation of an alleyway that bisected the organization's property prior to approval of the vacation by the town board of trustees. In re Ricotta, Indep. Ethics Comm'n Complaint 17-25.
However, as a representative or agent for a private organization, a member of the town's board of trustees violated subsection (2)(b) when he took official action by voting to remove an encumbrance on the organization's property which vote directly and substantially benefitted the organization. In re Ricotta, Indep. Ethics Comm'n Complaint 17-31.
Respondent violated subsections (2) and (3)(a) since he took official action by voting on an increased contribution to an entity with which he had begun negotiations for future employment and therefore had a personal or private interest in the vote on the entity's budget. Colo. Ethics Watch v. McCasky, Indep. Ethics Comm'n 11-03.
County commissioner respondent violated subsection (3)(a) when she voted on a matter in which she had a personal or private interest by voting in favor of a consent agenda that included a warrant to reimburse the respondent for legal fees she had incurred in defending a separate ethics complaint before the state ethics commission. Matter of Cozad, Indep. Ethics Comm'n Complaint 18-08.
Individual who holds a dual role as both a county commissioner and a director on the board of a regional transportation authority has neither breached her fiduciary duty nor the public trust under subsection (2)(b) since she receives no personal economic benefit from her service on the authority and since she represents the county's interests on the board, but is not expected to represent the authority's interests in the official business of the county. Indep. Ethics Comm'n Advisory Opinion 17-04.
The term "other undertaking" in subsection (2)(b) does not include a regional transportation authority which is a separate public body politic and corporate of the state. Indep. Ethics Comm'n Advisory Opinion 17-04.
There is no violation of subsection (3)(a) where city council member voted on a matter in which she did not have a personal or private interest. Arnett v. Brandau, Indep. Ethics Comm'n 12-06.
Subsection (3)(a) specifically addresses actions of a governing body of which a local government official is a member and not the official's actions related to another governing body of which they are not a member; therefore, a member of the county planning commission may attend a meeting of the board of county commissioners and speak freely as a member of the public at those meetings so long as they do not purport to speak on behalf of the planning commission or in their capacity as a member of the planning commission. Indep. Ethics Comm'n Letter Ruling 22-02.
Similarly, a member of the board of county commissioners would not violate this section when voting on or participating in discussions regarding short-term rental regulations, unless the member has an interest different in kind from that of the general public such that recusal would be merited. Indep. Ethics Comm'n Letter Ruling 22-02.
Mayor's actions in presiding over a city council meeting at which a purchase of land was approved and signing the purchase resolution did not violate subsection (2)(b) or (3)(a) since the land purchase did not directly and substantially affect to his economic benefit the mayor's business interest and therefore the mayor did not derive any personal or private benefit from the land purchase. Matter of Wood, Indep. Ethics Comm'n Complaint 20-21.
And there is no violation of subsection (3)(a) where there was no evidence that city council member derived a personal or private benefit above and beyond that of the general public as a result of his vote on the land-purchase matter before the city council. Matter of Kasper, Indep. Ethics Comm'n Complaint 20-22.
Member of town's board of trustees violated subsection (3)(a) when he voted to retain all of the town employees, including his wife who was the town clerk. In re Ricotta, Indep. Ethics Comm'n Complaint 17-31.
County commissioner violated subsection (3)(a) by failing to disclose his personal or private interest in the issue of overtime pay to employees of the county public health agency, by failing to recuse himself from voting, and by attempting to influence his fellow commissioners in voting on the matter knowing his wife was the primary beneficiary of that vote and the commissioner therefore stood to benefit financially by the board's approval of the overtime pay. Matter of Flower, Indep. Ethics Comm'n Complaint 20-73.