City Council - Regular Meeting

really lucky to have with us this evening Sam White Light who is the uh general counsel and deputy executive director of Cersea who is our insurance carrier but uh as part of being the insurance carrier they also provide us a wealth of training and other information some of the uh I'm sure you've already seen some of their publications we pass some of that out but CERSA is an excellent partner for us as a municipality and uh every you you know, before we have a uh an election each two years or every two years, I always uh try to get my reservation with Sam because he's he's a hot commodity about this time of year. And so, uh we always try to time it. So, it's the first council meeting right after the election. And this tonight is meant to not only be informative for you, but also help you as a council all get on the same sheet of music and and understanding so that you can start that uh that process of uh coming together as a governing body for us. So with uh without further ado, I'd like to turn the time over to Sam Light. Thanks for coming, Sam. Thank you, Mayor Council, for the opportunity to come visit with you all. Am I close enough to the mic where everyone can can hear me? Very good. Thank you very much for the invitation to come down and visit you. It's always wonderful, you know, uh to come down this way, particularly on beautiful spring days that you're having now, right? It's just fantastic. So, uh thanks for that opportunity. As as your city manager mentioned, I'm with Cersea. I'm the deputy executive director in the general counsel. Um, and CERSA is an acronym for the Colorado Intergovernmental Risk Sharing Agency, which is kind of a mouthful, right? Which is why we call it CERSA. So, a little bit more about us. Uh, we're your insurance provider for property and casualty uh, insurance coverages. That means kind of our breadand butter stuff is to make sure

that you have a property and liability policy in place. that we provide the insurance coverage for everything from your hard assets like this building right to your vehicles and equipment. Um that's on the property side of it. On the liability side, we handle liability claims against uh the entity and its employees and officials for everything from oh the routine slip and fall, you know, that bodily injury claim. Maybe someone slips in front of city hall, believes the city was negligent and brings that claim. We we handle those claims all the way over to the more unique and dynamic, I guess I would use that word, dynamic types of claims that public entities can face. Uh for example, we provide your law enforcement liability insurance uh coverage for your officers. And perhaps most interestingly to you all, we provide what's called your public officials liability coverage or wrongful acts coverage is uh what we also call that in the insurance world that protects you provides indent defense and inventification. We'll talk about that a little bit uh later. To give you a sense of our size, uh Cersei's got CERSA is a member-owned memberontcontrolled public entity self-insurance pool. Our only members, our only book of business is ensuring Colorado cities and towns and affiliated entities. And by affiliated entities, that's things like housing authorities, urban renewal authorities, downtown development authorities, some districts that have a connection to the municipality. So we have 295 members. We ensure about 90% of the cities and towns in the state of Colorado. So that's the most of the small, most of the small to mid, most all of the mid to um small large, but not the really large ones. For example, the Denvers and the Colorado Springs of the world are kind of probably too big for a pooling concept. Those big entities tend to completely uh self-insure. Um so we're

located out of Denver, but we have representatives in other places in the state as well, and we love to get out and visit with our members. Um, in addition to the breadandbut work that we do, you know, as a as a member-owned organization and not being a commercial insurance carrier, we kind of share with our members a different attitude and approach around risk management, right? Because just as you as the governing body, right, the corporate board of this entity are doing the right things at the local level to protect the interest and assets of the city as an entity. We aggregate that up. And in Cersei's world, there's really only two interests of importance to us. The interest of the member as a member and the interest of the pool as a pool. And the way that translates into risk management is we think we share with our members that idea that proactive risk management is a good idea. Right? As my claims manager says, the best claim is the one that never got filed. Right? Um but it's also the case, right? that a good riskmanagement culture starts at the very top of the organization, right? And do you agree with this notion that it's also the case that elected and appointed officials sometimes can find themselves either ins snared in, right, or perhaps inadvertently or knock on wood, hope this never happens, intentionally end up creating some liability risks for themselves in the organization, right? So we provide resources and training opportunities at all levels of the organization. So I in particular along with our executive director Tammy Tanoi and our associate general counsel uh we get out and visit members to provide risk management training and liability for training for you as the as the governing body um of the organization. I've got I brought some handouts with me if you'd like to learn more about CERSA. There's a CERSA at a glance handout in the pile that talks more about the resources we provide and the special services that we provide. We organized that by uh function. And then there's

some other handouts that I'll talk about as we go through the material. I understand we have some new members of council. Is that right? All right. Congratulations. Wonderful. Um whether you're new to council or have been on the council for a while. I want to make this presentation and training opportunity for you as useful to you all as possible. So feel free to ask questions as we go through the material. One other handout or publication that we've left for you is our CERSA ethics liability and best practices handbook for elected officials and it's to put on your radar some riskmanagement issues at the highest level in the organization at the governing body level just some things to think about right u from where you sit as an elected official so I hope you find that to be a useful resource to you as well okay let's make sure that my slides are advancing There we go. All right. So, my presentation is organized around suggestions or best practices around risk management issues arising at the governing body level. Risk management and liability issues for you individually and collectively as as a as a council. I hope that my suggested best practices will help you, you know, enhance your effectiveness individually as elected official and collectively as a council, but at the same time kind of help us reduce risk, right? Um, this is the opportunity, you know, to recognize some of the risks that we face and and kind of exercise that good governance muscle around risk management practices. So, we'll talk a little bit about the fiduciary role of being a public official. We'll talk about transparency issues for the newer members. Is this your first time in public service? Yeah. So, we're going to talk about how and we know this intuitively already that the public sector is completely

different than the private sector in terms of expectations around transparency and the rules that apply. So, we'll talk about that. We're going to talk about organizational structure and liability including the risks of liability to you individually and collectively as council members. We'll talk about ethics and personal conduct. And then as time permits, I also want to talk about the unique part of the job where you know your primary role is the legislative and governing body. I think we're kind of the local government version of a legislator, right? But in local government, you have another unique job where sometimes you as a council along with the planning commission, right? you get to stand in judgment of applications that come before you that concern people's individual protected property rights and that's a whole different ballgame in terms of conduct expectations. So, we're going to talk a little bit about that uh as much as time permits or as much as you'll allow me to dig into that. We'll talk about that because you have in front of you sometimes as a council land use applications. Is that right? Yeah. And then do you also have some licensing hearings every once in a while? Yeah. So, we'll talk a little bit about what what that means. Um, two dis two disclaimers for you before I dig into the subsidant material. Though I am an attorney, our conversation is not an attorney client communication. It's a training presentation only. I take sole ownership and responsibility for for my comments. Um, and then second, again, I do want to make the training as helpful to you as possible. So if you have questions for me or for uh your support team, please feel free to ask. Right. Um as respects my answering of questions though, do recognize I bet I have a pretty good radar for what I call the live one. Okay. So sometimes the question will be Sam, I've got a question for you. What if another member

of the city council does this? and everyone's eyes open wide and I get the sense now that this is kind of the live burning issue of the day for which you might need legal advice from your city attorney, right? So, I'm going to defer on those a little bit and say, "Yeah, talk to talk to Patrick about about that issue." I might make a couple of suggestions from our risk management perspective. Um, the same thing is true if your question is for something that's not legal but is in the wheelhouse of your administrator and your administrative support team, right? U because I don't know all the things you got going on. Uh so if it's a question for Drew and his team, I'll probably do the same thing. I'll pivot a little bit. So um which leads me to one primary riskmanagement suggestion for you as you're getting oriented to the role and as you're doing your work, remember as a council, do do you all get monthly payment for being on counsel? Kind of like a pittance, right? Right. So it almost really is right. This is a volunteer citizen, right? Public body, part-time work. You are never expected or required to know and be involved in everything that the organization is doing, right? Recognize that as you get oriented to the role, your team, particularly your direct reports, we're going to talk about that more in a little bit. your direct reports, your right, your city administrator and your city attorney, right? Are here to support you and help you and help keep you out of harm's way, right? So, as you're getting oriented to the role, if you're unclear about uh a qu how why do we do it this way, why do we do this or that, you ask, you know, never inappropriate to ask your city manager for some feedback on on those issues, right? Or to ask, you have a a question for your city attorney. you've adopted a protocol about how you handle requests to the city attorney's office so that you're using that time efficiently, right? But as as you're

getting oriented and trying to understand all these rules and procedures and risks, right, use your support team, right, to help you do great things, get them done effectively, and also stay out of harm's way. Okay. All right. Let's dig in on some of my substantive material. I got a I got a question for you all. Do you agree with this notion? When you got elected to the city council, do you agree that your role and relationship to the city changed pretty dramatically, right? Right. You're right. You're you're no longer just a citizen at Cortez, right? You're now a public official, right? And I'm here to tell you from a certain perspective, including the riskmanagement perspective, in some ways, that's a 247 job, right? Yes. Please have a personal life. Please enjoy it. Right? But recognize and you've already recognized this, right? In the eyes of your citizens, in the eyes of your constituents and eyes of the people you take your council from, they will always in any setting perceive you to be a member of the city council and a representative of the corporate entity of the city of Cortez. Right? No matter what we think of that, fair or unfair. You've probably already seen that dynamic unfold a little bit, right? Right. I know you have a lot of great festivals and events here in the city and you're out on the weekend doing your own thing with your family and you think it's personal time and there's a citizen and they see I've got a question for my city council member and they come marching over and they've got a question for you. Was the hat ever off in their mind? Right. And uh you know as they should, right? As elected public officials your your words, your deeds, your conduct matters. creates perceptions, leaves impressions, certainly has an impact particularly when you're gathering as a group of seven and making decisions that affect people's property rights or livelihoods,

right? So, just have to remember that we do uh always uh have that perception and reality as the elected leadership of the organization, right? Because you are viewed and you are uh the leaders of the organization. Okay? recognize also that you're no longer outsiders to local government. You're now the insiders. Right? And among other dynamics that we'll talk about later, I'll just put one on the table now for the for the new folks. Um well, I'll ask everybody. Do you like process? Do you like process? Right. Okay. Just remember, one of the things that the governing body delivers is process in and of itself as a product of local government. Right? If you think about that, you collectively meet in this room, right? And you hear the needs and wants of the community and then you're positioned at the top of the organizational structure as policy makers to help determine how we put governmental resources on those needs and wants, right? So, you have to be a champion of the process as the insiders. These are processes that you're bound by, right? That you may have even adopted, right? The ones in your ordinances, uh, you had a hand in making or your predecessors had a hand in making, right? Um, so you want to be careful of that and recognize that on the inside the rules stick to us, right? Right. Uh, they probably don't do this anymore, but uh, back when I was a city and town attorney, after you took the oath of office, everybody did that, right? Okay. Take the oath of office. It used to be then shortly after that, the city clerk would give you a book about this big that had the hundreds of pages of ordinances. I don't we don't do that anymore, right? because it

it's all still there though. It's all there. All those hundreds of pages of ordinances and even more statutes, they set the framework, right? Both procedurally and substantively about how we do our work as a city council, right? And as insiders, we need to understand that even if we don't like that state statute or we don't like that ordinance that sets up this process that the council has to follow, as insiders, we're bound to follow them. We don't have the luxury of just saying, "Well, in this particular application or this particular matter that requires our decision-m process, we don't like that rule. We're just not going to follow it." As legislators, following the appropriate legislative process, you can amend things that are within your control for the future, right? Uh but particularly on matters that are pending in front of you. If there are rules that apply under your ordinances, you have to understand that we're bound to follow those those rules. Okay? Uh part of the job as elected official certainly is to be a great representative and ambassador of the organization, but also recognize in legal terms for liability purposes, you're all fiduciaries, right? Colorado state law recognizes that elected officials are fiduciaries. From an attorney's perspective, I would define it this way. The um the fiduciary obligation under law is the legal obligation to put the interest of the organization that you serve as a fiduciary, i.e. the city, right? the city's interest and the public interest above all other interests, right? Um it requires the ability to place the city's interest when you're making policy in particular policym and legislating, right? The fiduciary responsibility is to think about what is in the best interest of the city as a city hopefully for the long term. Right? So the fiduciary responsibility is sometimes going to ask and require of you that you make sure right that we're placing the city's interest and the public interest above our obviously above our own personal interest right above narrow interests. What's what's our uh population at this point in the city?

10,000 10,000. You ever have those nights once in a while and maybe the new members you've already experienced this. Hopefully they're not all the time, but once in a while you're going to have that emotional high-profile issue and the room here is full and passions are running high and emotions are running high, right? But even when that's happening, when the room is packed, we maybe got 150 people in the room, right? And you have to recognize that in those moments sometimes, right, there may be this tug and pull of the very small but very vocal minority that wants you to do something. And you might be thinking that may not be the best thing to do for the city as a city regarding this policy issue. Right? So in terms of risk management outcomes and risk management tools around that, one of the things we do at CERSA is we provide the legal defense when uh some claimant seeks to challenge a decision of the governing body. Right? And it's not a lot. You know, they'll challenge an ordinance, maybe they'll say it's unconstitutional. uh they'll challenge a land use decision and say it was arbitrary, claim it was arbitrary or something like that. It's not a lot of the claims that we get, but some of them in retrospect it seems somewhat clear that the decision was taken in haste, right? Or was taken on less than good information, right? So recognize around this dynamic and fiduciary responsibility in those moments, one of your risk management tools as a council collectively, right? because you're the decision makers collectively is to take the time you need and get the information you need that will help you make good defensible decisions. That might be a little frustrating to the small but vocal minority, right, who's trying to ferment a sense of urgency and crisis and council, you got to jump into this fray and do this right away. But if you're feeling like, I'm not sure we got all the options. I'm not sure we've got the full information from the city

attorney on what our authority is here and where we might be getting on the thin ice. You know, it's perfectly fine in those situations if you're feeling collectively, hey, we need to continue this matter, get more information from our team on resources, authority, where this fits within our priorities, and then bring that back. That might help uh manage that risk uh a little bit. Also I think the fiduciary responsibility you know if you think about fiduciaries in contrast to where you usually read about it like um I guess lawyers are fiduciaries, doctors are fiduciaries, it includes other kinds of duties, right? The duty of accountability. Who are we accountable if we borrow that analogy? Right. Um duty of what else? Transparency. Does the fiduciary duty from where you sit as public officials include the duty, right, to help build and ensure the public's faith and trust in government? Probably, right? And so that translates into day-to-day questions about how we conduct ourselves both individually and collectively that helps put us in a better place both in terms of public faith and trust and in terms of risk risk management. So, with those broad comments, unless there are any questions, I'm going to pivot, start talking about some nuts and bolts kind of things. All right, let's talk about some transparency issues here. Let's talk first about the Colorado Open Meetings Law. Um, and you probably gotten I know the incumbents have gotten some training on this and new folks have gotten some training on this as well. But recognize that individually and collectively the council and its members are subject to the Colorado Open Meetings Law, sometime called the Sun Sunshine Law, right? Which is enacted back in 1972. It's got a policy statement right in this front that says it's declared to be a matter of statewide concern and the policy of this state that the formation

of public policy is public excuse me that the formation of public uh policy is public business and may not be conducted in secret. So that's the baseline expectation, right? And I think the interesting piece of that policy statement, the most interesting word is formation, right? Not announcement or final vote, but formation. The intent is to give your constituents, your citizens a window into your deliberations, right? Your policy perspectives, your give and take with each other, right? As you're making public policy, right? Get a window into it. Okay. So, I'm going to talk more nuts and bolts about what the actual rules are. There's a lot going on in the open meetings law, and it's often the subject of litigation and so on and so forth. But there really two basic rules, okay, in my mind. The first rule is what I call the openness requirement. Okay? And it it essentially says that if three or more members of the city council meet to discuss public business, that's a meeting that has to be open to the public. simply means a citizen has a right to observe that discussion. Okay. Okay. The second major rule is this. If four or more members are going to be in the discussion or the city council is going to take any kind of action, you know, adopt an ordinance, adopt a resolution, take a formal position, make an administrative decision that you're required to make under your charter ordinances, any kind of action, right? Or if you're going to have four or more present, right? You must have a previously posted notice and agenda out there in advance, right? That kind of meeting. It must be pre must be be preceded by a duly noticed um agenda. Okay? And staff takes care of that for you and you know that it's up on your website. Uh and that kind of thing. Okay. So, a couple things. Let's uh

drill down a couple of layers here. The openness requirement, it's got a couple of exceptions. It does not apply to purely social gatherings. Okay. So, it's it's true if the city council, four or more members of the entire city council decides to go to a barbecue at one of the council members house, that doesn't have to be an open meeting as long as that gathering, right, does not have the purpose, right, of turning to a discussion of public business. Okay? So, the openness requirement does not apply to purely social gatherings. It also does not apply to gatherings, but in either case, so long as those meetings, right, you don't turn those into discussions of public business. So, perfectly fine to bump in each other uh over here at the coffee shop, but if you're there in the coffee shop, you can't turn to each other and say, "Oh, well, you know, while the two of you are here, did you see the agenda packet and did you see the m city manager's request for a budget amendment? Let's talk about that. I want to know how you're going to vote." you're now having a deliberation about public business of the council that's not an open meeting and that would constitute right a violation of the of the statute. So you have to self-p police on that issue and make sure that your deliberations your substantive discussion right of public business policy matters pending before the council occur only in the duly noticed open public meeting. Okay. All right. Let's dig down yet a layer deeper. Um, so it is a rule of three. Three or more want to meet to discuss public business, it has to be open to the public. It does not apply, the openness rule does not apply to a one-on-one discussion. And particularly for the new members, you know, we kind of get the fact that when you're new, you know, part of the job of being an elected official is building relationships, right? And being an ambassador, so you want to sit down, have a coffee with the mayor or fellow elected official, just get to know each other one-on-one.

That's that's fine. Don't do that for discussing quasi judicial matters, which we'll get to later, but that's just fine. So, three or more openness applies. One-on-one does not apply. But what do you think about oneon-one on one on one on one meetings, right? Yeah. There's all sorts of names for that. In my world, the allegations come in as it was a serial meeting or a daisy chain meeting or a walking quorum, right? That's the allegation um in a lawsuit alleging violation of the open meetings law that the council members by some parallel process were meeting oneonone right in a series of discussions to figure out what they were going to do to figure out how they were going to vote to work things out in advance, right? And the way they look at it in terms of evidence in the legal proceeding is if the evidence comes in and it shows that what was happening at the city council meeting was a mere rubber stamping, right, of a decision that was reached through a series of one-on-one discussions, then that's going to run a foul of the open meetings law. But if you think about it more practically, would that sort of conduct be consistent with the policy statement right that I read that I read earlier that it's the policy of the state that the formation Right. So the idea is there is that citizens are entitled to a window into your deliberations. So it's always good and you should have those deliberations on the record in the open. That's why what a great thing a community of 10,000 people to have the trust of the people to be their elected leaders. Yes, it's going to be tough sometimes. Yes, you're going to feel a little exposed when you state your perspective. But your pol your meetings ought to be a safe space for each and every member no matter how much we might disagree on a policy issue to state our our viewpoints and perspectives to know that our colleagues are actively listening that if we have disagreements we respectfully agree to disagree all those dynamics are in play. Um but you want to have those

discussions and deliberations on the record. Um so keep that in mind. the serial meeting and rubber stamping and meetings outside the meeting have all become fodder for litigation. There's a little uptick of that in my world. The ways you can break faith with the open meetings law around these issues are things like meetings before the meeting to work things out. Meetings after the meeting like if something wasn't resolved at the meeting and it's, you know, we immediately break from the meeting and then we huddle up to talk about it, you know, this this that issue that's still lingering matter of public business that would be and it all creates perceptions too. even during breaks in public meetings at very early in my career and I my fellow colleague who was a town attorney he he both loved me and hated me for it but I I was in a very hotly contested um there's not a lot of good things come from municipality versus municipality right but it was one municipality was challenging the annexations of another municipality and uh so they it was very contentious and they decided to take a Right. There were some problems in the process and I was the one unfortunately that was sent by my municipality to go tell this other municipality why there were problems with the process. So they took a little recess and then three or four of them convened in the foyer. So I'm the one I just zealously representing my client. I had to go over there and remind him, hey, I I you know I don't know what you're chatting about, but if you're talking about what the the concerns and objections that I just raised when I was testifying, you can't do that. that's an open meetings violation. So you have to be careful of those issues um as well because there really is perception issues around that. Every community is different but people are watching that kind of stuff and be careful of that or even even the meeting within the meeting can be a little weird, right? Um I have had lawsuits where people have requested through litigation the copies of text messages right from elected officials who

appeared during a public meeting particularly a land use matter or some um property rights matter appeared to be texting at the dis and the evidence showed that they were texting each other from the dis and that's essentially if that allegation gets traction isn't it kind of a meeting within a meeting particularly if they're texting each other about hey how you going to vote or what's your position on this issue? Aren't we deliberating secretly within a public meeting? Right. So, those are kind of the nuanced allegations that I'm seeing in lawsuits by the the watchd dogss around these issues. By the way, with regard to litigation and actual claims risk, um, our Colorado Court of Appeals has confirmed that basically anyone in the state has standing to bring a challenge to your compliance with the open meetings law. So, it kind of counterintuitive because you would think, well, shouldn't they, you know, have some connection to the community in order to bring an open meetings law challenge or, you know, shouldn't they have some stake in the matter being discussed? And the answer is no. Our standing rule in Colorado is very broad. And in our litigation world, in the claims that we defend on behalf of our members, there are sometimes plaintists and plaintist attorneys who are on the other side of the state, right? bringing open meetings law challenges to the conduct of elected officials on the other side of the state. Now you go well how do they get that evidence? Well, the great thing is we are transparent, right? And our meetings are recorded and our minutes are agenda and posted, but we have this this I hesitate to call it an industry, but this sort of litigation activity popping up where people look for those technical violations, right? So, uh be be careful uh on on that, right? Um, so make sure uh that we're honoring that policy statement to get out of the weeds on that issue and make sure that we have our deliberations on policy with each other in the open during public meetings. Avoid texting, avoid any of those conducts that I mentioned about meetings before or after the meeting.

Um, even from the citizens perspective who maybe you know they may come to the council only once in a blue moon and this is the most important issue to them, right? But if they see that you're texting or maybe see that you're having side conversations, what's in their mind is the reaction that hey, what what's going on? Are they chatting about my application? That kind of thing. So be careful of that uh issue as well within the within the meetings. Okay. Uh, one other layer on this is to recognize that the state open meetings law says that a meeting for purposes of these rules includes any kind of gathering, whether it's in person like we're doing tonight, whether by phone, that's kind of an oldfashioned way of doing things, or by electronic means. And when they added that phrase to the statute back in 1996, they were thinking email back when we had to hear that weird noise, you know, when we dialed into the computer. But now it includ Do you agree? There's so many more ways to communicate. Yeah. And those can be good tools, right, for some purposes, but they're not good tools for discussion among three or more members of the merits or substance of public business because all those electronic tools are ways to have a meeting for purposes of the openness rule, right? Three or more members use email to discuss the merits or substance of some pending issue. That's an open meetings issue. What do you think about other forms of communication? text messaging, social media perhaps, right? You want to uh, you know, reminder of a high-profile situation around digital communications. You remember our own state legislature got into trouble a couple years ago where their their own members, newly elected members were saying to other members of the caucuses, hey, why are you sending each other messages on Slack, whatever that disappearing message app was, right? So, in the litigation world, all that stuff can still be found out. The state legislature, by the way, I

want to mention this because you may hear this in circles. And I want to make sure that we understand the dynamic here. Um, the state legislature when they realized they had that problem with Slack messaging, they they caucuses got together and said, "All right, okay. We won't we won't use that sort of disappearing message app to have conversations amongst ourselves about pending legislation, pending bills." Okay. The following year, the state legislature went in and amended the open meetings law to loosen the rules on themselves, not on local public bodies. Right? So, you might hear in some circles that, hey, we don't, you know, we if if a couple of us want to discuss pending legislation by text, that's not a problem. No, that's that's not true for local governments. for state legislators, you know, it's a larger body and they loosen the rules for themselves, but not not for you all. So, I just want to dispel that kind of urban myth that's out there a little bit because I've heard some people ask that question. All right, so let's flip this around. I'm going to talk that you mostly have to do your work right in an open meeting setting with a duly posted notice and agenda. You are allowed to have executive sessions. Well, let's remember you can only have executive sessions for a limited number of topics, right? And only after you follow specific procedures and staff helps with that. You probably use a script for executive sessions, right? We remember that just so you understand the underlying state law. The state statute says before you go into an executive session, you have to publicly announce the topic of the executive session. You have to state the specific number citation to the state statute that authorizes the executive session and you have to disclose the subject matter of the executive session in as much detail as possible without compromising the purpose of the executive session. So three things there. Staff's going to help you with that. They got that all sort of scripted out. But in terms of risk management, I would just suggest to you all that

everyone should feel comfortable that if something didn't sound right, you know, just go ahead and speak up. Hey, did we get that right? we check all the boxes on the motion. That's a good thing to do because once you do that and you adopt your motion and then you break and go into executive session, you can't get a doover on your compliance. So, just keep keep that issue in mind. Okay. And then couple issues more directly for you regarding executive sessions. When you go into executive session, we need to self-p police as the council members in the executive session and make sure we confine our discussions solely to the authorized topic. Right? It might feel convenient if we have an executive session and it was authorized and the motion was to go into executive session for a discussion with the city attorney for legal advice on pending litigation. if that's the only topic. It might sound convenient to say, "Hey, city manager, could you also give us an update on the negotiations for this other confidential matter, but you can't do that. You can't mix and match topics. You can only right have discussion on the authorized topic." Couple other nuances. Under Colorado law, the state statute requires that the proceedings in executive session be recorded. So, is it digital recording? Is that right? And so that conversation is being digitally recorded. Okay. Those tapes, by the way, by state law have to be held for 90 days. Okay. After the 90 days pass, on the 91st day, the tape can and should be destroyed. I'm sure staff takes care of that. The only exception to that would be city attorney says there's some reason we need to hold on to the tape. Right. But from where you sit, I always remember the one reason you can turn off the tape is when the attorney is in there. uh if it's an attorney matter and they ask that the tape be turned off for a privileged attorney client communication, then the tape can be turned off. Otherwise, the executive session proceedings are being recorded. It's very difficult for

someone to get a hold of those. They shouldn't be disclosed or shared. They're only being hold held for the purpose that if someone believes and has evidence to demonstrate that you went off topic, then they can go to a judge and ask uh and you go through that legal proceeding. Uh but in practical terms, the tape is on, right? So just like your open meeting setting, courtesy, respect, professionalism, staying on topic, tone and temperament matter, right? And in our litigation world, it's never helpful to the defense of a claim if uh the executive session tape has to be turned over in litigation because there because it's either an open meetings law violation case or it's one of these motive or animous cases where the plaintiff, the judge gives the other side um permission to access the executive session tape. It's never good if we have our name attached to a zinger that impairs the defense of our case, right? So be careful of that issue as well. And then also recognize as fiduciaries, you're bound to honor the confidentiality of that discussion. So can be a little tricky because sometimes particularly on matters subject to negotiation in that executive session, you might need to get some background from your staff. Let's say the executive session is to determine a strategy for purchasing a piece of property. Well, heck, as part of your discussion in in determining a strategy, you might have questions for staff. Hey, where does this purchase sit on our priority list? What kind of funds do we have available? Right? Are there problems with the property that ought to influence our uh offer one way or the other, right? And you're thinking to yourself after you hear all that information, well, is any of this stuff confidential? Well, you're in executive session, it's all confidential is the starting point, right? And so a good way of getting on the same page is maybe before you finish the executive session and break back into the open meeting, maybe it's the mayor leading the discussion, we say to ourselves as a council, right? Okay, of

all we ask ourselves of all the confidential information that we've discussed in this executive session, which information, if any, leaves the executive session and who's our spokesperson? Now, as fiduciaries, individually and collectively, we've defined our commitment to protecting confidential information. Right? It undermines your ability as council to do work on behalf of the corporation. If we have one person leaving the executive session and leaking confidential information, creates significant litigation risk if it's a matter subject to litigation because then we'll have defense attorneys who may be battling against the plaintiff's attorney who's claiming the privilege was waved, right? Um, and perhaps most practically, if we're the one that's doing that, well, I guess I got to come back to my colleagues at some point and say, "Well, do you trust me to keep cloistered information cloistered?" I know it can be frustrating sometimes. There can be different levels of views of of individual elected officials about how transparent we ought to be around issues. But if the motion was passed and we went into executive session, we're bound to honor that level of confidentiality, even if we voted against going into executive session, right? Right. Even if we can't stand the idea of whatever was discussed in executive session, as fiduciaries were bound to honor that confidentiality. Um, and if that's frustrating to you, go ahead and leave confidential information. It's to continue to discuss with your council members what more can we do in terms of transparency around this issue. Yeah. Yes. responsibility. responsibility.

Uh if they're in their executive session, I'll I'll turn to Patrick in a second to see if he has anything to add, but I think all participants in executive session have a responsibility to protect the confidentiality of information, you know, but one dynamic that might come out of that is we have that use that little tool that I mentioned and we say it's a property purchase. Obviously, let's maintain confidential confidentiality around the offering price or the range that we want to offer prices, but let's go ahead and authorize staff, right, to do some things that are going to end up being transparent. Let's u direct the city manager and the mayor or the city manager to go and talk to the property owner, but these are the things that we want you to do on our behalf and other things we keep confidential, right? So, Patrick, is there anything you want to add? Well, and just kind of backing up the recordings, and I believe it's in the statute that the city attorney maintains the executive session recordings unless the recording concerns the city attorney. Say, for instance, an employment evaluation or something like that, in which case our practice is that the city manager maintains those recordings. Uh, and one other thing, you're you're certainly free to come to my office and say, I would like to hear the recording. I don't remember what was said about this issue in executive session. You you can listen to it. You can't, you know, send an email with a link to it out to everybody you know or something, but you certainly can listen to it on your own. and and and Sam, if you think this is contrary to the law, I I think each one of you, you can have a one- on-one conversation with anybody that was in the executive session

uh about the confidential information. So, if if you weren't quite certain what instructions you gave the city manager and you wanted to clarify it, you could come to me or the city manager or another council member and and discuss that outside of the executive session. Obviously, you can't discuss it with somebody who wasn't in the executive session, otherwise you wave the confidentiality, but u it's never happened to me in in a lot of years. But you do have the right to come listen to the tape again because you you may, you know, maybe you were dozing off, it was a late meeting or something or or you just kind of forgot what what was being discussed. But you you definitely have that right.

And does that also apply if you were if you missed the executive session, but you're on council, can you come listen to the tape? Yes. Council members who do not attend the executive session still have the right to listen to it. Uh and u yeah, be made aware. And we we provide for remote participation in the executive session as well which some people have raised issues on security whether you know all we see is the person that's yeah

appearing on the computer there may be 10 of their best friends sitting in the other side of the room. uh but you know we have to rely on that gets back to the fiduciary duties and then the the integrity of the council members to not uh violate the confidentiality.

Yeah, I'm just best practices around that. I agree with all uh all the points that you raised on those issues regarding um executive sessions. So um I guess the last piece of executive sessions is um there's a perception issue. this a little bit over my pay grade, but I'll just tell you a couple things that I've seen in my experience. Sometimes, uh, if you have a lot of executive sessions, there might be this perception, why are they having so many executive sessions? Right? So, one thing to think about is to ask yourself, do we truly need an executive session? Even if it's an authorized topic, right? And every council's got their own viewpoints and preferences on that issue, right? But I do think a starting point is always, you know, do we need the executive session or something that we can handle without it, right? Um, what's the necessity? uh on that on that issue. And then second, um if you find that you're getting push back about the confidentiality piece, there are little tricks and tips, right, to remind the citizens or the persons who are the naysayer that look, we're doing this to protect the corporation and to advance the best interest of the city as a city and the community, right? So for example um you know maybe on the matter subject to negotiation if you feel like there's a this cloud in the room and people are very suspicious you know maybe it's a you can turn to the manager to ask him making affirming statement about the executive session or the mayor you know we can say on the record hey just want to remind everyone that the executive session that we just had right was uh for solely for the purpose of this as authorized by state law all discussions were confined to that topic in executive session there was no action taken. There was no straw poll taken, right? Um anything like that. And oh, by the way, in the executive session, it was a as announced, it was to determine matters subject to negotiation. And hey, everyone, if our negotiation strategy gets traction, please be assured that before any action is taken, there will be a duly noticed agenda item and we as

council will have a further discussion and deliberation before we make any decisions. And then sometime, oh, I get it. they're working in our best interest. It's not just, you know, and that can really help tamp down that public perception because sometimes people who come in interested in these topics, they have this real sense of frustration about why are they kicking me out of the room or why are they going over there? We just remind them we're doing this for their best interest. Okay, let's pivot and talk about email. Sam, excuse me. Oh, yes, sir.

Before you go on, uh I'm unclear. Who does uh the open meetings law, who does that apply to? Does it apply to just local officials? Does it apply to um like our planning and zoning committee? Does it apply to our advisory committees?

Right. Great, great question. Yeah, the three or more the openness rule, these these all apply to what's called a local public body. Okay. And that includes any duly constituted council board commission. Right. So it obviously includes the city council, the planning commission, your other boards and commissions or advisory commissions. Pat Patrick will chime in if I if I'm off on this, but my view is it a if it's an entity that uh we have created to help formulate public policy and help the organization do its work. It applies to them. They don't have to have decision-making power. Advisory boards, right, are subject to the open meetings law. It does not apply to administrative staff. So if two members of council would like to meet with the city manager, right, for a monthly meeting, that is not subject to the open meetings law. But the technical phrase that you used is local public body includes city council, any duly constituted board, commission, other decision-making body or any other body to which the city has delegated a governmental decision-making policym function.

And what is the penalty for violation? Um well the loss of faith and trust is the kind of practical uh penalty but the actual penalties are if action was taken in violation of the open meetings law a court can overturn that action which sounds like ah no big deal we just go back and do it over. But what if we took action and people started to rely upon right the decision that was made and started changing their legal position or incurring expenses or taking on obligations all in reliance upon an action that a court later overturned. That's a precarious place to be, right? Uh the other remedy of course is the judge can say you violated the open meetings law, don't do it again. Well, now we know of course and then the rest of the world knows too. and being an old newspaper reporter, I'd love to report on those things, right? Uh and then the successful plaintiff in an open meetings law challenge is entitled to their attorney's fees. It's an unbalanced attorney fee statute. As defense, we're only entitled to attorney's fees if the plaintiff's action was frivolous. But as a matter of course, a prevailing plainif gets their attorney's fees. Um, CERSA does provide some defense for alleged violations of the open meetings law by the governing body, but it's a sublimited coverage for which we provide some dollars for defense only of the alleged violation by the governing body. Um, and it does not cover the attorney's fees. So the other risk is spending potentially attorneys fees out of the city budget, right, for a open meetings law problem, right? That we could have hopefully avoided. Now there are some nuanced issues, but in general the the point in self-p policing and self-regulating on this issue is to make sure we understand and I I feel for elected officials particularly in this environment. you can feel exposed, you know, and you got a difficult issue and you're stating a minority opinion and you got a hostile audience, but

nonetheless, right, it's tough enough job. Support each other, remind each other, hey, no matter what our policy position is, if we're being civil, respectful, professional, we're going to have our deliberations, debates in an open public setting, and we're not going to look for ways, right, to kind of creep around the margins on these issues because that just sets us up for risk. That was an excellent question by Mr. Lewis because we have some people from planning and zoning in here. Yes, you're I didn't know if you knew that or not. Yeah, you're subject to these rules as well. And it doesn't matter that you, you know, planning commission, I don't know if you make some final decisions or all the work you do is recommendations, but it still applies. It applies to advisor advisory bodies that have a role in the city's decision- making process.

Mr. Light, so hi. Yeah, I have a question or maybe a comment on on this whole issue. I'm aware of other state committees that um ha have received dispensation I guess is a good term. I'm not sure. I'm not a legal person but uh regarding meeting and talking about issues on the Colorado.gov site which is where I've got pulled up on my phone right now. It says meetings for which notice is required.

Yeah. Not all meetings which are are required to be open to the public require public notice. Public notice is only required for meetings at which the adoption of any proposed policy, position, resolution, rule, regulation or formal action occurs or at which a majority or quorum of the body is in attendance or is expected to be in attendance. So I have found it's been my experience that we have become extremely tongue-tied and hamstringed when it comes to talking about issues just amongst ourselves just hey what what what is your thought on this or what what is your understanding of that as long as it's not a quasi judicial issue and we all want to be transparent. We know that you're there to protect us and defend us if ne necessary, but I find that we are extremely over the top on this on on occasion. And I get your point of being transparent and the like, but I have found it is one of the most frustrating things

when you're not trying to come to a quorum, when you're not trying to do anything, but you're trying to discuss an issue and get other people's input on it. Um, if it's three or more of you, it has to be an open meeting. Hard stop. If three if three or more of you are going to discuss the merits or substance of pending policy matters or pending public business, it has to be open to the public. That's a hard stop for me, right? We can we can hypothecate.

Yeah. I I've got I've I I worry about my 295 members, not what the state advises its own boards and commissions, right? Um, but that's that you can have a one-on-one if it's not a quasi judicial map. Oneonone, you know, talk to you. Hey, what's your perspective? Are you in support of this ordinance uh about rentals or whatever it may be, you can do that kind of thing, right? But I think I just want to be respectful of your time. If what we're suggesting is we're hamstrong as the collective decision making because we can't formulate our position, right? in some form other than our public discussion. Then go back to the policy statement of the open meetings law that says it's the policy of the state that the formation policy is public business and shall not be conducted. And I know from a defense perspective or from your perspective that sounds a little over the top risk perspective. We got plenty of claimants who I think are but nonetheless we got to deal with where they make allegations of

Sam I would add a couple points. You know the the the law says three or more it's a public meeting

or or a quorum or four or more you have to post it. So you don't necessarily have to post the three or more, but it has to be a public meeting. Now, it kind of raises the issue, how do you know it's a public meeting if the public isn't aware that it's occurring. So my advice is always post post whether it's three or more or four or more then you avoid the the the conflict. uh and I think the question was raised about what what are the penalties for violating the open meetings law. One of them that can be uh pretty damaging to the council or the commission or the whatever body is subject to it is if if the conver if it if if the open meetings law was violated by that they didn't use the proper topic or citation to go into executive session but once they're in there they recorded it. oftentimes the court will order that that recording be released to the public. And if those of you that are holdovers from the last council know that we kind of follow a strict script to make sure we're actually following the rules inside of that public meeting or that open meeting executive session. But still, sometimes stuff is said in there and we're we're all guilty of it. We might make a joke or we might, you know, make a comment about a member of the public or an applicant or whatever that we wouldn't want out to be released outside of the executive session. But if if we don't cite the right section of the

statute when we go in and if we don't stick to the topic that we cited when we went in that the court might authorize or require that the recording of that executive session be released. And oftentimes the judge will listen to it in camera. that's, you know, behind chambers without other parties in the room. But, you know, if they think you didn't follow the rules, they can and often do release the recording. And, you know, generally you didn't do something illegal necessarily, but it might be embarrassing. So just a a cautionary note and for for all of us too that we need to remember someday somebody may be listening to that that's not in this room today. And uh you know when you say something be sure it's something that if it were released to the public it wouldn't cause embarrassment to the city or potential more legal liability. I hope that's helpful. I know it can seem difficult. You know, as I said, it's not does not apply to one-on-one. You need to avoid one-on-one on quasi judicial. And you also need to avoid using one-on-one if you're leaving in the claims risk. I think if you have people who are want to be claimants, if they feel like what's going on is they're walking into the middle of a conversation, right? Their natural question is going to be, well, where and when did the rest of this discussion occur? And in the way that translates to actual claims risk is I'll give you uh some insight on just some pending claims that we have. I'm not saying they're winning claims, but I'm saying there were enough to create, you know, important issues about whether they're defensible is an executive session was held. What if you come out of executive session and you immediately without any

discussion, somebody makes a motion, right? And then somebody seconds it and then we act on some blockbuster consequential action, right? I I'm facing in some litigation right now the allegation that says well that was a pretty controversial issue and there were seven people to making that decision. They had absolutely no discussion amongst themselves about how they were going to decide that matter. They had no discussion on the record. They just went ahead and adopted a motion. So my allegation is they violated the open meetings law because on that divisive and controversial a topic they must have had a discussion somewhere somehow. And now we're in discovery, right? Where people are trying to find evidence, a mass evidence that there were conversations occurring outside of the meeting, right? And the other one, it's less frequent, but the three or more rule can come into play this way where somebody really wants to get a backup, they'll make this allegation. Uh, again, it doesn't apply to one-on-one, but three or more members, some super controversial topic, some super uh aggressive claimant sees three or more members talking, they come over and they go, "Can I listen in?" And he goes, "No, we weren't talking about public business." And then we all break, right? But then some other witness goes, "Oh, I heard the three overheard the three of them talking. They were actually talking about during the break the specific uh matter that they were just talking about from the DAS. In fact, they were talking about each other about how you going to vote, right? So you can see those risks as well. So all right, let's uh pivot on email. You all have city issued email addresses. Yeah, I would encourage you to use those uh when you're performing your duties as a public official, right? Uh it's true, you know, the new folks, people in the community knew still know your personal email address and stuff, but you can in managing and keeping your public and private life separate. You can certainly tell people, hey, you want to communicate with me as a council member, would you please use this city email address? uh recognize that separate from the open meetings law, the Colorado Open

records act, it basically says that if elected officials use email to discuss public business, then the starting point is those communications are public record. Statute also says the correspondence of elected officials is a matter of public record. There are certain exceptions to that that staff can advise you on, right? certain areas where um the rule requires that the content be shielded from disclosure, but those are the exceptions rather than the rule. So, just recognize that email can be a good tool, but completely separate from triggering the openness issue, the communications that you send and receive wearing your hat as a public official, right? that you send or receive performing your duties as an elected official or that concern public funds can be public records available to anyone who goes to the tax right maybe a last meeting right and interest public says well I'm going to ask the clerk for a copy of the packet any other staff materials related to that or any correspondence and now we're legally obligated to buy those things. Go Sam. One one thing that we do and those that are holdovers will remember um I think both the city manager and I when we send you something sometimes we'll say hey here's an article that was in the paper about XYZ and send it to everybody or I may provide legal advice or updates on litigation or something like that But at the end of all of those email conversations, we say, "Respond to me

directly. Do not reply to all because that may be a violation of the open meetings law." So, as long as you respond back to Drew or myself and not include any of the other council members, that's not an open meetings violation. But if you reply to all, then suddenly you have this or you apply to two and they reply to two more then you have the serial uh email uh problem. But just always remember if you're going to reply to anything you receive from me or the city manager, don't reply to all. He he will

Yeah. But but even then it's it's uh you know the emails from me and to from me to you and you back to me. I always put attorney client privilege communication. Those are not subject to Kora as long as it's legitimate. you know, if if if I said, "Hey, are you all going to uh you know, the the party over at the chamber or something like that and you respond back, "Yeah, I'm going. I can't wait. I need a beer." That's not attorney client privileged. And the public can have access to that type of email, even if I've labeled it attorney client privilege. So, make sure you're asking for legal advice or conveying information to either acquire legal advice or to respond to my question on a legal matter. Um, the city manager doesn't have that uh privilege. So, you know, be sure what you're what you're responding it it may end up in a quora request and we may have to, you know, provide the the answer or the the record. uh but definitely don't reply all and you know that he mentioned the BCC that on the Outlook accounts you know blind cover copy uh it doesn't get around the law and you know if if it's a very uh technologically advanced requesttor they can probably search or have somebody search or for have the court force us to search our records and show

what what's there. Um but it's still probably a good idea to you know do that and and keep it where it's at least on the surface it's not a uh uh an email to or from you. Well, council, the reason we use the BCC field is because we've all made that mistake of thinking we're replying to an individual and accidentally hitting reply to all is to protect you from accidentally doing that is all.

Um, on the open records piece, uh, one other reminder is the rules are content driven. They're not device driven. Sometimes the question I'll get is, "So, does this rule apply if I send an email on my home personal computer?" Right? And again, the answer is it doesn't matter what device is used. It's the matter what the content of the communication is. If the actual content of the communication relates to your duties as a public official or concerns public funds, then that's what can be potentially subject to Kora. So a good best practice is keep your personal communication separate from your public communication so that if we get a request don't have to go by through line by line to redact the personal uh stuff in that regard. The other um risk issue is just recognize that even in areas where a public record might be not subject to disclosure under Kora, it might still be something that's required to be divulged in litigation. So the net of civil discovery is broader than Kora. It all leads me to just the practical piece in using electronic communications of any kind wearing your hat as an elected official. My takeaways are, you know, don't don't say in a email or other electronic communication something that you wouldn't want to say in a public meeting, right? Or read in the newspaper, right? Or in my world have read back to you in a deposition, right? It's not that we're anti-technology. just trying to protect you to make sure you don't get crosswise with these considerations that can create um you know fodder for unfavorable news stories or in my world fodder for some claim or dispute. Um one of the handouts I have is some suggestions um around email use. There are many layers to it. We've only touched on some of them but I've got some suggestions for elected and appointed officials use of email. All these concepts do apply to the planning commission as well. Um, so there I take

full responsibility for that, but I hope it's helpful. It kind of unpackages the risk issue a little more and makes the suggestions around dos and don'ts. Okay, let's flip and talk about organizational structure and liability. Um, well, maybe before that I want to wrap up with just two more transparency pieces. Um, are we active on social media? Yes, the city is.

The city is Okay. Uh, individually, are we active on social media? Have Oh, yeah. Okay. That's a great, you know, social media is a great tool for we have a nice chapter about social media here on that issue. The there are some liability issues that I won't dig into, but I I would encourage you can be frustrating as an elected official. Somebody comes to you, did you see what's going on on social media? They're doing all sorts of things out there saying all sorts of things about us. I would encourage you to remind remember that social media is a great tool probably for pushing out information the city has about the things you're doing, the events you're having, where projects are at, all the great things that are going on for the city, but it's not a good tool for you as an individual elected official or a group of elected officials to jump into the social media fray to adjudicate, right, the important issues of the council, right? So, be be careful of that issue as well. And then on meeting best practices, I think we've covered a lot of issues. Let me get away from the transparency law issues and just talk about a couple of meeting best practices um and ask you because I'd love to ask all my members when I visit. How are how are your public comment periods? Your public comment periods, right? You have those.

Yeah. That's every every member that I know of has that, right? That's that opportunity for citizens to come up to the podium and provide comments on any item that's not on the agenda. Right. In terms of where you sit, you know, just remember you probably get a couple of minutes, three minutes. Yeah. Sometimes it doesn't go as well as we thought or hoped. You know, maybe it's like someone comes up and oh, Citizen Sam, you're next. And I come up and 30 seconds into it, I'm engaging in a personal attack on you, right? I'm pretty sure there's nothing you can say in the moment that's going to change Citizen Sam's mind, right? So, I would encourage you just to let that go. We're going to develop a thick skin as an elected official. Just know that that's kind of the way it goes sometimes because there are liability issues around that. We current we current certainly can't say to the mayor, "Hey, shut off the mic. I don't like what they're saying." That's a first amendment problem potentially, right? Um, so we just have to, but in more practical realities, I would encourage you not to have back and forth. It could be kind of tough because the citizen 30 seconds into it, instead of just giving you information that they want to share with you, they're saying, "Well, council, when are you going to do something about this?" And then there's a long pause. They're waiting for you to respond. So, I'm sure the mayor's got the tools where he reminds folks, look, this is your opportunity to give comments to us. This is not where council engages in it. back and forth or makes any decisions. I'm sure staff is keeping notes. If there's something you said that might require a follow-up comment, we'll do that at the end of the public comment period. I think that's a best practice. The other dynamic from a citizens perspective is is it three minutes, mayor? Yes. Be careful when you when you start that back and forth. What if it's uh you know, someone during their three minutes, they start asking questions and we start indulging them and before we know it, we've had a 15minute conversation with that citizen. But then the next citizen stands up and they make their three-minute comments, ask some questions as well, but then we say, oh,

we got to move the agenda along. We're not going to talk with you. To them, it feels like, hey, I'm not being treated the same. You know, the last guy had a nice back and forth with the council, but I don't get anything. That's why we encourage this to everybody gets their three minutes to give you and you're you're actively listening, respectfully listening, um that kind of thing. Uh, do you have rules of procedure that you've adopted? Robert's rules or is it Robert's rules of order? Okay. Um, there's a lot in Robert's rules. Do we agree with that? 483 pages last time I checked. Yeah. Um, well, remember that I think really in in in your world, the parliamentary issues that you bump into, there's probably no more than a dozen things that come up on a recurring basis, right? So I would encourage you to, you know, get a good working familiarity and understanding with each other about what are the parliamentary issues that come up and how can we effectively get through them in a way that helps get our business done. Right? I do recognize that there might be political aspects of parliamentarian. I'm going to botch it. Parliamentarianism, right? You know, like maybe you don't like some issue council is working on and you're thinking, do I have a parliamentary trick that I can use here to kill this issue? And I make a motion to postpone this matter indefinitely. Well, so what? Because there's no such thing as the 101st session of the Cortez City Council. It's not like the state legislature something

today, the session is adjourned tomorrow and it's over. You've successfully killed the matter, right? That's not true in local government, right? So just think about those issues that there can be complicated things that come up calls for a motion and you make a motion, get a second, then you say, "Well, I got a friendly amendment." Then we get the friendly amendment on the table and then someone says, "Well, I don't like the friendly amendment. I'd like to amend the friendly amendment." Now we're like, "What are we voting on at this point?" Right? So mayor's going to lead that, you know, and it's his prerogative. We all want to recognize We're trying to find a path through it that makes it efficient and shows that we're working to get that.

All right, Sam, just a comment. The the council previously has adopted Bob's rules of order. Okay. I'm sure you're familiar with that are basically a an abbreviated and less formal version of Robert's rules. And uh they're easier to follow. You don't have to be a parliamentarian to understand them. And so we I I would say we're somewhat relaxed on parliamentary procedure. Um

but we do have that as so somebody because every now and then we have somebody come in that's a parliamentarian or used to be and they know every rule. They say you didn't do that correctly and uh but under Bob's rules generally we have done it correctly. Good. Yep. And Bob's Rules even has a little cheat sheet and table for you to have available to kind of work through issues. That's a great um resource as well. All right, let's talk about organizational structure and liability. I'm going to pivot here and talk about some liability related issues, including uh the issue of whether you as an elected official Well, for the new folks, I hope this wasn't your first question for your city attorney, but it's a fair question. You might be asking yourself, can I get sued and be held individually and personally liable for something that I do or don't do as an elected official? And the answer is perhaps it's possible. Right? But here's the good news, and please tell me it wasn't your first question, right? We have good protections in Colorado and at the federal level to help protect you from personal liability because that helps encourage the calling of public service. So, thank you. Right? And in exchange for that, there ought to be, right, for people who are acting in good faith, right? And the law is so complicated, right? When we're acting in good faith, right, and staying within our lane, there ought to be protections for liability, right? So, um, what I'm first going to talk about to answer that question is just to remind you that there are good protections against state liability. And what I'm talking about here is whether someone could bring an action against you individually and personally and try to hold you liable for some tort under state law. There's two layers of protection. First, public entities and public officials and employees can only be sued and be held liable under state law for injury claims in areas where governmental immunity has

been waved. Okay? And in the area where there are waivers, most of those waivers don't relate to the work that you do. For example, there's a waiver of immunity for injuries arising from the operation and maintenance of a water or sewer system. That's not your job. There's a waiver for injuries arising from the dangerous condition of a public building. Is that your not your right? We have to be attuned to those because it can create entity liability. But others in the organization are help helping identify and deal with those kinds of risks. So that's the first layer. The second layer is the Governmental Immunity Act says that the city and by extension its insurer CERSA will defend you and pay judgments entered against you for acts or omissions as a city council member. But like so many things in life, there's a bit of a catch to that. Those protections apply so long as we are acting within the scope of our employment, right? And not acting willfully and wantingly. Scope of employment is an strange phrase from your perspective because you're thinking, I'm not an employee like the city attorney or the city clerk or the city manager. I'm an elected official, but scope of employment is the phrase that you used in this liability and defense statute. And it simply means job description or authority or duties and understanding and staying within our particular job description, right? And authority within the organization. So, I'll give you a real simple example of that. Within the city of Cortez, within our own ordinances and organizational structure, right, within whose job description, within whose scope of employment, right, is it to decide whether or not someone gets a ticket into municipal court? What do you think

for a misdemeanor under your city code? Yeah. Law enforcement, peace officers, that's an exercise of law enforcement authority, right? So within whose scope of employment, ain't it? Not only you, but the clerk and the manager and law enforcement authority has been delegated to and is the responsibility of the law enforcement officer. So we as city council members are not the individuals with authority to make probable cause determinations and decide whether someone or direct that a ticket be issued to someone. Right now there is a role for council at a policy level. Let's use one of your own ordinances as an example. Um you have a prohibition against selling fireworks in the city. I noticed when I looked at Okay. Well within whose scope of employment was it to decide whether we even have such a policy penal ordinance on the books? yours. But once you did that and you created right a penal offense for that then it shifted and scope of authority and enforcement of that now moves to the police department. Right? Another example within your own organizational structure within whose job description within whose scope of employment is it to determine whether someone's building project gets a red tag for failure to comply with the building code. Chief building official, a building inspector, right? Within whose scope of employment aiding? You all, right? So that whole idea if you adopted the building code, you had all the policy and legislative authority to adopt the building code, but in that you delegated to your building officials, your administrative staff the responsibility for enforcement of the code. So that's the idea of scope of employment. Um the other phrase that was interesting one is uh will want right you're protected as long as you're not engaging in will want conduct. That's

conduct that's just in it's conduct that's intentionally undertaken designed purposefully to injure someone's legal rights and taken with reckless disregard for what their rights are. That's a lot of legal ease. I got a simpler way of describing it. I just call it bad stuff. Stay away from bad stuff and you'll be just fine. Right? that there really is bad stuff in this world, right? And in my claims world, every year we get a couple of claims where some plaintiff is alleging that a elected or appointed official or an employee engaged in willful and wanting conduct and I'm going to sue them individually. Right? The fact pattern that gives rise to that is almost always this. It's almost always an individual elected or appointed official or employee misperceiving that they have some governmental authority that they actually don't have. Right? They throw on the purported cloak of governmental authority and start doing bad things individually to people for the wrong reasons. Could be something like really would be bad stuff like what do you think about intentionally defaming someone knowing that you're sharing false information about someone you share it publicly or intentionally uh putting people in false light or intentionally sharing private facts that we know are private and should never be shared with the public. criminal conduct, right? Malicious conduct. Code of ethics can raise this issue. What if it's a situation where you clearly any reasonable person would believe that we have a conflict of interest and we have to recuse oursel, but we nonetheless decide, hey, notwithstanding that conflict of interest, I want to get in there and make sure I can exercise my governmental authority over this because I want to make sure my business competitor never gets approval of their application. So, I'm never going to make the disclosure. I'm going to go off the rails and that could be willful and want and conduct. So we all know what bad stuff is.

So I just wanted to point out that's a limitation on that statuto and your public entity public right there you've got millions of dollars of public official. Um but it's got coverage exclusions that say we reserve the right right to deny coverage if the liability flows from criminal acts or willful and wanting conduct or malicious conduct. Right. So we just need to be understanding of that. So that's the state level. Sam. Yes sir. We're recording this. Oh and

can I encourage you to stand closer to the mic? Thanks. I appreciate it.

I'm sorry. I'll get back over here. Sorry about that. Uh, so that's the state level. Now, at the federal level, oh, lucky you, because did you know that public officials can face liability under both state law and federal law? Sure. Right. And the the statute that I just mentioned, the Colorado Governmental Immunity Act, does not apply to actions brought pursuant to federal law. But we do have a nice immunity for you under federal law. It's qualified immunity. We hear about a lot about it in policing, but it applies to all government actors. and you are government actors for purposes of federal liability. And that immunity basically says that you are protected from individual personal liability in so far as your conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. I always thought from your perspective the last phrase is the most interesting one. It's like would have known. How do I know, you know, whether something I'm about to do or we're about to do as a council is going to violate somebody's federal constitutional rights? You don't have to have the answer. You just have to have your radar on to know if it feels risky, then we need some help and support because some of the things that you do do are risky, right? Some of the regulations you passing, you know, sometimes somebody stands up and says, "You can't do that. you don't have the authority or if you do that that's a violation of my constitutional rights to equal protection or something like that right it's just a matter of you know taking the time as I go back to what I earlier said take time and information to understand what the risk is what your options are find a path forward that helps protect you okay now in terms of actual protections recognize this not only do you do your best work when you're acting collectively in a public meeting when all seven of you are together exercising that collective authority of the council. That's where you're most protected as well because when you're doing your work publicly together and you're voting on items that come in front of you in a meeting, there are all sorts of additional privileges

that attach a legislative privilege, a quasi judicial that protect you from individual liability. And you can see how that plays out. Have you ever turned down a land use application? you know, maybe you have or maybe you will at some point, you know, and somebody says in a last minute, in a last ditch effort to save their application, they have their attorney stand up and say, "Council members, if you turn down my application, I'm going to sue each and every one of you individually." And you're thinking, "What are you talking about? I'm just one council member among the council that speaks with one voice and is making the decision. How could you hold me individually and personally liable?" You can see how that's a much different risk dynamic than one individual, right? Not liking some business vendor or some consultant and, you know, uh, not thinking straight and going out and making defamatory comments with the intention of undermining that person's business. You can see now we're talking about personal tort liability exposure for that individual, right? So, uh, those dynamics are in play uh, as well. Okay, let's um all this is kind of building to the idea that one of the key components to risk management uh and to understanding the scope of employment is to understand and embrace the legislative administrative distinction that's embedded within your charter and your city code. All right. Under your voter approved charter, the city of Cortez operates as a council manager form of government. To analogize that to the private sector, it sets up an organizational structure where you are the corporate governing body, the board of directors. We just call you the city council. And you have a single CEO, but we call it your city manager. Right? What a wonderful place to be is the governing body because it gives you a single point of accountability and clarity of direction and purpose. City manager, we're going to define the policies, the objectives, the priorities for the corporate entity. And once we

give you that direction and authority, go get it done. Right. Um, but right there in your in your charter, it says that the city council is the legislative the governing body of the city. Leg. So your role, your scope of employment is policymaking and governance issues, right? And then the charter goes on to say that your city manager is your chief executive officer and head of the administrative branch of the municipal corporation is responsible for the daytoday, right? And it's not like we're silos, right? But we do have for scope of employment purposes we do have different roles whether it's by statute charter or by ordinance certain duties are performed by the council certain authorities exercised by the council right and certain other duties and authority are the responsibilities of other in the organization that only that defines how we utilize our resources it defines who does what and for liability purposes it defines scope of employment so embrace that embrace that concept here's some tips around this issue uh role, discipline and scope. Um as I mentioned, recognize that you act as a body, that the scope of employment of the council is to get together and make decisions as a council, right? In all those hundreds of pages of ordinances, right? You're not going to find a provision that says the authority of the council, the power of the council may be exercised by one of its members. It's a collective power. Thus, it's a wei job. Yes, we each bring our own voices to the discussion, but the council makes decisions with with one voice. So, avoid that temptation. Sometimes, you know, we have a seven member council or a seven member planning commission and we say to ourselves, well, I'm a member. I must hold 17th of the power. And that's kind of true in one perspective, but I hold one seventh of the power and darn it, I'm going to go out and use it. But think about these scenarios. Does one member have the power to negotiate and approve a contract that requires

city council approval? Does one member of the council um have the power to impose discipline on some direct report of the council? Yeah, all those. So, we know those kinds of things, right? The job is to collectively hash things out, right? Fight things out, right? Collaborate, consensus building. Uh that's the job, right? Um it is a group. It's a group role. That means you want to think in terms of we not I. From my perspective, it can be risky. Create liability situations where the dynamic is uh a member or minority of members say, "Hey, you council do what you want. I'm going to go ahead and do this." You have to ask yourself, "Do I have authority to do that?" Right. Um this last bullet on this page is a little more nuanced, but I want to mention this one. Mayor, do you have an opportunity during your council meetings for people to give a report? It's a is that like council member reports or that kind of thing and you all have like you're busy enough but you probably take on liaison assignments and right so even does so sometimes there'll be a dynamic when the mayor calls for council member reports and he said anybody got anything to report and I say yes mayor I've got something to report since our last meeting I did this and everyone's eyes open wide they go you did what? All right. We may never have a third party plaintiff in that situation, right? But it's a wise council that's attuned to that dynamic, right? So to the extent you can, you have agreed upon norms and expectations of how we conduct ourselves in between meetings purportedly as a liaison or ambassador or representative of the council as a whole. I think your protocols speak to some of these issues, right? Um, and I mentioned it because I want you all to feel supported. You're busy enough doing the council work in this room, but if you raise your hand to do something as a liaison, you know, but

it does require a little more attention sometimes. Like if you're the liaison to some intergovernmental group and it's an important issue for its council wants to have its own position, we got to be sensitive to the idea that if you go over to that other group, maybe they've got a crisis going on and they they say to you as the liazison, hey, what's the position of the Cortez city council? and you're thinking, I don't know because we haven't talked about it yet. Protect yourself and this entity, right? And protect your turf by saying, hey, my council's got to discuss that issue and we'll come up with it later, right? And we'll get back to you on that issue. It can be a tough dynamic, but that's an important issue as well. All right. Another topic on organizational structure is to remember that the adherence to the organizational structure is particularly important in the arena of employee relations and the handling of administrative matters assigned to staff. So, uh I don't know what your total employee count is at this point. Got a fair number of employees, right? How many employees are supervised by the city council? Three. city manager, city attorney, and the

judge. The judge

and the judge. So recognize by your own organizational structure, your own charter, your own employee handbook, right? That you as a council have delegated to the manager and supervisor downstream of the manager the responsibility for supervision of city employees. I would have to tell you from a riskmanagement perspective from where you sit what a great place to be right because you were never asked right to be involved in the HR realm. The ballot said I am a citizen part-time legislator and policy maker. I am not running for HR super manager here. Right? Embrace that. Right? Because in my world, public employment and employment law um the liability risks around that are as pervasive as the air we breathe. Right? It's it's just unbelievable how many different ways there are get an employment claim brought against the organization. Right? So with regard to your direct reports, you do want to embrace that role, but you want to be careful of this. I I'm not naive around this issue. I get it. Sometimes a citizen, as is natural, right? They may come to city hall, have an interaction with a staff member, and they didn't like the way it worked out. So, they want to complain to somebody about a city employee, and they come to you, right? Or it may even come from within. If the city employee comes to you and says, "Can I talk to you about my boss?" Right? There's real complications around that issue. There is protected activity, but there's also the issue of, "Well, I want to talk to you about my boss. Is that really something you ought to be jumping into?" Right? citizen comes to you and they want to complain about a a city employee, I would encourage you that your first response is, "Have you talked to our city manager?" I would encourage you to take your complaint to our city manager, right? And then, you know, if it's something you need to get off your chest, you go to the city manager and you say, "The city manager, I just want to pass on

that I got this complaint from this citizen about some employee. Give your manager a little bit of grace when he says what? I got it. Because he does. It's his responsibility and his authority, him and the supervisors downstream of him, right, to exercise supervisory control over um employees in the actual liability world. Recognize that one of the things that's doing is protecting you from risks. One of the very high-profile pervasive liability risks is retaliation, right? And retaliation is all about who knew what when, right? So yeah, it's uh we might be hear some gossip or want to make an inquiry, right? But you want to embrace the idea when the city manager says, "Look, it's a personnel issue. I can't discuss it with you." If it ever bubbles up into something where I need you need to know, like maybe it's going to be reported on the front page of tomorrow's newspaper. Maybe he'll reach out to you just to let you know, but otherwise let the supervisors do that work. Um they'll tell me afterwards whether I'm on point here or not. your professional supervisors, right? It's their responsibility and they love taking all that employment risk, right? That's but that's their job. They do it on your on your behalf and on behalf of the organization. There is an appropriate role for the governing body on certain issues. Maybe it's like determination of overall benefits, determination of the overall compensation plan, maybe abolishing, consolidating or creating departments, things like that. But you can see those are all high level. That's what the governing body does. But that's a lot different than day-to-day administration. Okay. Um so be careful of that. It's not that you know an inquiry or passing along a concern about a personnel or administrative matter is entirely handsoff. You know as the elected officials are entitled to ask a question. But if you hear something and you have a question, you want to go to your manager, right, and say, "Hey, whether it's personnel or some administrative issue, same kind of

thing. The citizens got having trouble with the building permit people and they got a complaint, right? Uh you report that if it's an administrative matter to your manager and let them handle that on your on your behalf. Sometimes administrative issues will bubble up into a re a new policy issue and you know maybe you hear like three or four or five ten citizens are complaining about how this new ordinance works and you keep telling the manager hey these people are having problems with this. Finally staff identifies the idea of hey okay the ordinance isn't working exactly how we thought it would work. We need to bring back to you the legislative question of amending the ordinance. Right? But if there are administrative difficulties in administering the ordinance, you want to have the staff continue to administer the ordinance. Um, okay. Any questions, thoughts around that issue? Couple of tips that flow from that. I think you have this process. Take a look into your protocols. Um, oops, we lost the piece that was on the screen. Oh, there it is. Have a process for bringing forward questions or concerns, whether they're raised by you or the citizens about administrative matters. Use your manager as a resource, right? Do you get a lot of emails from folks about questions they have? You know, you might get an email from a citizen. Hey, when's that project going to be done? Right? But you, you know, maybe you don't have the most current information. You send it over to your manager. He looks into it. He responds to the citizen. He lets you know that he responded. And now we're firing on all cylinders, right? Uh as an organization, um be careful. Do you agree with this notion? Sometimes there's more than one side to a story. Sometimes I get it. You know, part of your job is to be an ambassador, to be available if people have concerns. But if this someone's coming to you with a concern and they're excited about some administrative matter and they're telling you this is what happened, right? You have to ask yourself, hm, maybe there's more to this story. Maybe

it's as it should be. Maybe I need to punt this to the manager and he can sort this out, right? be careful of that effort that comes up every once in a while where where someone is attempting to conscript you into an end run around the administrative processes that you've put in place. I get it from a citizen's perspective, but it's simply mistaken belief that individual council members have individual authority, right? Um to undo or direct the different outcome on administrative matters and that can be outside your scope of employment, outside your scope of duties. Okay. All right. Um on the other hand, with regard to your direct reports, you are the supervisor of your direct reports, right? So develop hopefully mutually agreed upon respectful processes for reviewing performance, giving feedback, giving direction. The way it arises day-to-day, I would commend to you this one governing body best practice is commit to speak with one voice to your direct reports. And by that I don't mean it has to be a 70 vote or a universal thumbs up, even though that might be more comforting to your manager. But you have to commit to work out your differences as council members, right? And and arrive at that one voice of the council, right? The way that can unfold in reality is may you know maybe the mayor we've had an agenda item where we've got to have a discussion as the council and then we have to give direction to the manager. The mayor says that was a great discussion council. Now let's give some direction to our city manager. Right? And we go down the dice. We got one idea of direction, two ideas, and before we're done, we got seven different ideas of what the direction ought to be to the city manager. And that's when we turned and we say, "Drew, have you got your direction?" And he's looking at his watch going, "What time is Yeah, I do. I know." Right? But who who owns that issue? You

You're the boss. The council is the boss. You want to own that issue, right? But make sure that you commit to working those issues out, right? And you'll get through it no matter how difficult it is. Maybe you just need to bring it back at a future meeting. But don't let this dynamic unfold because it can lead to um frustrated expectations, disempowerment, disputes among members of the governing body. What if you have that messy discussion and like later on in the week, we stop we start dropping by the manager's office and we say, "Hey manager, that was a kind of a messy discussion at the council the other night, but here's what I want you to do." Is that consistent with the Wii? Would you be frustrated if another member of council who had an opposite view of yours was doing the same thing, lobbying for their own individual direction? Right? And your manager knows, right? He's going to press you and say, "Look, I need a little more clarity of direction." But help yourselves in that regard, too, right? Because you do want to own that. That's where you get clarity, credibility, accountability to your voice. Don't don't conscript your staff into resolving issues at the governing body level. I know that can be a temptation sometimes. You're butting heads with each other and you go, I just I want to talk to that sympathetic department director or attorney or manager who's g No, they can help you navigate. They may say, here's, you know, here's what I heard and maybe here's what you need to focus on or here's my suggestion, right? But, um, you know, they they don't have a vote. You're the ones that have the vote. So, you own those kinds of dynamics. All right, just a couple more things, then we'll finish up. Um, when you got elected to the council, remember that you became subject to the state code of ethics, right? You're a home rule organization. You can, if you would like, you could have local rules, but I believe at this point in time, what you follow is the state code of ethics, right? So, make sure that in in matters of ethics, you get a good

working familiarity with what the rules require. Okay? Um, your staff can get you a copy of the code of ethics. Maybe there's a good summary of that, right? But ethics is one of those areas where there's an if there's a found to be a violation of the state ethical rules that truly is a personal individual liability, right? For which there is no obligation of the entity to indemnify or defend. There's no insurance for those types of things. So it's critically important to stay ahead of ethics issues before they become problems. Right? Just the key areas I want to mention is you all know these concepts but the conflict of interest rule right a conflict of interest arises when the city council is going to take or the planning commission is going to take some kind of action that directly and substantially affects your own personal financial interest right and if that's happening we need to make sure that we disclose our conflict of interest we recuse ourselves from the council's discussion and vote and the statute also provides that we can also not attempt to influence the other decision makers, right? Do you leave the room after you announce a conflict of interest? Yeah, that's a good place to be. It might sound frustrating and as a council member, you're not required to give up your business interest or your personal interest in your own property or something like that, but if there's a decision coming before the council that affects your interest, you do have to step aside and have someone else do your speaking for that interest, right? Um, and make sure you make a full disclosure, right? of what your uh conflict is. Um recognize that an interest for purposes of the code of ethics is not only your own personal interest, but it's certain derivative interest. The interest of a spouse, the interest of a business where you're an owner or an agent or representative, the interest of uh some entity where you are an employee of that

entity, all those kinds of things create conflict of interest issues. Okay. I have a conflict or I'm stepping off. You could get away with that. But here's my practical reality. You say, "I have a conflict of mayor, before you start your the consideration of this license application, I have a conflict of interest. I'm going to recuse myself and get up and walk out." Back in the room, everyone's hair's on fire going, "What's the conflict? What's the conflict? Oh my goodness. Right. So, the state statute is kind of silent on the extent to which you need to disclose, but I encourage you to make a substantive disclosure of the reason because it tamps down that speculation. And it also helps build faith and trust that you've understood how the rules apply and you're you're saying directly, this is why I need to step aside. Now, all your constituents and the public knows where you're coming from. Why? Right? There's also that other dynamic. This can be a whipssaw effect. Sometimes you have a highprofile controversial issue. We have all our discussion and then somebody just says, "I'm going to abstain." Can you do that? Sometimes I've seen people try to abstain. Say, "I'm abstaining because I have a conflict of interest." That's mixing and matching. That's just impairing public trust. If you abstain and you claim conflict, but you don't really have a conflict, that's why I encourage people if they have an actual conflict, they make a full disclosure. So, I don't know if there's more you want to add there on that or whether I should keep rolling. No, I I think I think there's a fine line between disclosing what the conflict is and perhaps providing personal information

that the public's not necessarily entitled to. So, right, you know, perhaps you could say uh because of family financial interests, I'm recusing myself or uh I'm in a related business that could be adverse to this application. I'm recusing myself. Something like that.

Something like that. Something like that. Conflicts of interest can be difficult, too. There are the ones, the close calls. Uh another good risk management tool is I would encourage you it can be difficult to deal with a conflict of interest issue if it's arising for the first time at the dis night of right so as you know your city manager city attorney cannot serve as your own personal ethics advisor but they're a great resource right and I'll speak out of turn and say that I I bet Patrick would love to hear from you earlier if you have questions about how the code operates hey I see there's an application coming up for this land use matter. You know, I've got this relationship or this situation going on. I'm not sure whether it's a conflict. Can you help me understand how the rules apply? And they can give you guidance from where they sit as the city manager or city attorney on this is what the rules say, this is how they apply, help you think through uh those issues. It's great to do that preparatory work so that you're prepared, right? Um and then deal with that issue. So last thing on conflicts of interest is let's say you've gone through all that exercise and you determine that you don't have a conflict of interest. So you don't have to recuse yourself but you get to the meeting and you know there's still kind of this lingering cloud in the air. It's not this overt but you know there's you see somebody in the audience and they're like they're wondering to themselves why is she up there participating in this discussion? I thought she had a conflict of interest. Right? Well, those people don't know that you did all the hard work to analyze that issue and consult and figure out whether you had to recuse yourself, you know. So, don't underestimate the value of some statement for the record. That helps clear the air on that issue. You could say, "Mayor, you know, before you dig into this uh hearing item, I just want to make a comment to clear the air on something. I've heard some rumors, some gossip, some innuendo that I have a conflict of interest and I shouldn't be participating in this matter. I just

want to make it clear that I don't have any financial relationship to this matter or any other relationship that requires my recusal under the code of ethics, right? And I also want to assure everyone that I intend to make my decision on this matter and cast my vote on this matter, right? Solely under the applicable rules that apply to consideration of this decision. What a nice thing to say in terms of you know so that's a good thing. Do you agree with this notion? Sometimes elected officials can be on the receiving end of kind of allegations of ethical transgressions that are off the dart board. They're not even close to the mark, right? Well, that's where having a good working familiarity with the rules helps as well. Right? So, I wouldn't wait until you have a live burning issue to dig into these codes. I would I would work through them. The second one is confidential information. As you know, don't disclose. use confidential information for personal uh benefit gifts in Colorado. We're kind of interesting because we have a constitutional amendment on gifts. Um but I can boil it down into two sentences. There are all sorts of complications to it that staff can help you with and you can read in the statute. Uh there's exceptions, there's limitations, but it basically boils down to two sentences in terms of practical ways of looking at it. The first is don't accept any gift of more than $75 in any one year from any one person if that gift is in any way connected to your status as a local public official. Okay. Second, don't accept the gift no matter what its value if it's clear to a reasonable person that the gift is being offered to influence your vote to reward you for some vote or action that you've taken or is an attempt to get you to depart from the fair and impartial discharge of your duties as an elected official. That's a lot of legal ease, right? The takeaway is simply

from where you sit, if the gift doesn't look or smell right in context, then just protect yourself by saying no thanks to that gift and you'll be in a good spot. But your staff's available to help you dig into those issues. Last thing on ethics, Steve. S Sam, before you go on, getting back to conflicts of interest, and I I don't know that this necessarily provides legal cover, but from the perception standpoint, if somebody determines they don't have a conflict, right,

and they have consulted with me and I agreed and I provided them advice. I don't mind that they say I've consulted with the city attorney and I don't believe that I have a conflict of interest and I don't believe there's any requirement that I recuse. Yeah.

And and that way, you know, some people might perceive that as okay, I thought maybe she or he did have a conflict, but it looks like if they've talked to the city attorney, they must not. you know, so some people put higher value in the city attorney's advice than others, but I I think it's a uh you know, probably when you're talking about perceptions, if it looks like you did your homework and got third party advice, Yeah. maybe that helps.

Yeah. Yeah. Yep. That can help as well. Yep. Do you agree in matters of ethics uh fair or unfair whatever we think of it personally sometimes it isn't that isn't it the case that perception equals reality and reality equals perception right so whatever uh that means to you in your own individual calculus just think about that right because it may have different meaning to different folks right but it can absolutely be the case that you do all the analysis all the hard work you think it through and you conclude I have no actual full conflict that requires my recusal. But nonetheless, whether it's for sport or whether they think it's a fair argument to make or whether they think they've got credible indications otherwise, there might be people in the community that it's going to get reported in the paper, right? That you participated notwithstanding some alleged conflict of interest. And I get it, that can be pretty harmful when it's completely incorrect, right? But that that sort of aspect comes into play every now and then, right? So whatever that looks like to you, just be cognizant of those additional ways of looking at things, right? Try to look at things both not only subjectively but also objectively. You know, bounce it off the city attorney, bounce it off the manager. Um kind of get outside of our own way of looking at the issue to see if there are other perspectives on it. All right, just uh a couple more things real quick. Beyond compliance with the code of ethics, commit to personal conduct that strengthens the council as an institution. Right? I do believe, right, that being on a multimember public governing body really is a we job our we work together. We're going to have disagreements, but we can have disagreements without being disagreeable, right? And once in a while the job will probably ask of us that you know we engage in personal conduct that

we think to ourselves I'd rather not do that but in terms of strengthening the council as an institution right I'll I'll go ahead and and do something personally right um because I think part of the fiduciary role in the big picture is to make the council stronger when you're done with your tenure the council is a stronger institution than when we came on board right But it might ask some personal conduct once in a while. Things like setting aside a personal agenda or interest when there's lack of support. Even if I ran for office on the view that my only objective for me and my people that elected me to the city council is to make sure we get an ordinance on the books that does this, right? If I can't find three members of council that are willing to come along with me and it's not on the work plan or a priority of council, I need to be willing to shove that personal interest or agenda in view of service of the work plan as determined by the council. Um, have you ever had split votes, mayor?

Yeah. Once in a while you have a 4-3 vote, right? If you're on the three side of a 43 vote, is it okay to go back to your people and say, "I didn't vote for that stinker." Sure it is. I'm just an insurance person. You tell your folks whatever you want to tell them. Okay? That's your prerogative as a as a, you know, in the political realm. But they know how you voted, right? But in terms of personal conduct, right, isn't it true that we kind of have to admit we're probably all going to win some and lose some in this world, even on the city council, right? So, in terms of personal conduct, would it be stronger perhaps for the institution if I said, well, I didn't vote for that ordinance, you know, but you know, we had a great discussion as a council. We had a lot of differing opinions. I fought like heck for my point of view and the the point of view of the people that I represent, but ultimately the council decided to go a different direction and I respect the decision of the council. Right? You don't have to be in the number one cheerleader, but in my liability world, you definitely have to respect the decision. I've had actual liability claims where somebody on the three side was unwilling to let it go. Now we're going back to and they individually started undertaking conduct that was an attempt to you know frustrate the realization of the decision that was made. You know, as examples of that, I've had a situation where a contract was awarded to a vendor or a consultant on a split vote, and for some reason, somebody on the three side didn't like that vendor or consultant, started questioning their billing, try started making some incorrect accusations about their business practices. Next thing we get is a notice of claim that says, "You're impugning my reputation. You're defaming my business." I'm not saying that. I'm not even sure that case is over yet. Right. But is that a collective tort liability of the group? No, that's a tort liability potentially

of that individual. Right. I had one it was a 4-3 vote and uh the approval that was given was of a development and the approval was given upon condition that the developer get an easement from the neighboring property. So what the council was saying, yeah, it was a split vote, but by a 4-3 vote, we approve your development as long as you get an easement from the neighbor. One of the people on the 43 on the three side of the 43 went to the neighbor, started lobbying them to not grant the easement. Good idea. Yeah. So you can see the hat's still on, right? Uh in that issue. So be careful of that. Um I think other things are respecting council's protocols. You have a wonderful set of protocols. I encourage the new folks in particular, work through those, get a good understanding of our common expectations and agreements as a council. Uh the last one here is avoid. Do you agree with this notion? Particularly in this digital age, we're just like overwhelmed by content. But does it sometimes happen like that your citizens and your people, they want to know tomorrow's news, yesterday. You know, what's council going to do about this? What's council's position? Right. um be guarded and respectful of the council's voice in that regard, right? And try to avoid as best you can perceptions or realities either internally or externally of one or more of our members getting ahead of or purporting to speak for the council before the council has developed its own voice. Right? Your protocols say something about that with respect to communications with the media and communications with the citizens, but it's really the way I look at it is it's a best governance practice that it's the seven of us that develop that voice. Right? So, I'm not going to attempt to put my colleagues on an unequal playing field by trying to push some information out there and suggest that this is where this issue is going. can have a whipssaw

effect, too. Because if we're in out there individually saying, "Well, this is what council's going to do, but the council hasn't developed its own voice, it can come back to bite you." And somebody says, "Well, you told me that's what they're going to do, and now they're not going to do it. Now I'm mad at you." Right? That kind of thing. So, that's just the best governance practice around uh that issue. There's a couple more things uh that I see more in the um risk situations that we face. you know, recognize that inappropriate personal conduct can be destructive to a public body and its agenda. There's some things listed here uh that we've seen bubble up at at CUR. So, the only one I'll mention is my boss wrote a chapter in this handbook about the outlier syndrome and that just reaches back to the earlier concept of we have a a council or a small minority of council members who take the I approach, right? and I do what I want to do irrespective of what council says we should do. That can create um difficulties for the body and getting its work done and it can create potential risks um as well. So I'll just leave that there in the interest of time. And here I know you've got a meeting that starts in about 15 minutes. So I do want to give you gonna you want to have a break there. So I'm just going to introduce these slides and tell you that if you're willing to have me you probably heard from me enough. But um we present separately on this next topic, quasi judicial decision-making. We're happy next time come through town to stop by and do that presentation for you and the planning commission. But I just want to unpackage it quickly and tell you about some resources that we have. So as I mentioned under Colorado law, right, among our 10,000 residents, it's wonderful that we have local control of certain land use matters, right? But at the end of the day, what that means is how many members on on planning commission? How many members do we have on planning commission? Five. Yeah. Between that and

the council, it's ultimately 12 people get to decide whether someone, for example, can reszone their property or subdivide their property, right? That's a pretty awesome power. But what we're dealing with when we're making those decisions are people's constitutionally protected property rights, right? Both state and federal constitutions say no person shall be deprived of life, liberty, or property without due process of law. Right? So when we're exercising that power to make decisions about people's individual property rights, we need to make sure, right, that we're affording them due process. And in this role, we're not legislators, we're judges of the applications that come before us. Right? It's no longer freewheeling policy where we vote on our own personal preferences or our own policy perspectives. For these quasi judicial matters, right? There's basically four elements to a quasi judicial proceeding. We give additional notice so that all the interested parties know we're going to make a decision affecting property. For example, um we have a public hearing which is really an evidentiary hearing in front of the city council where everyone gets to come and present their information about the application. Then we're bound under law, right, to make our decision based solely upon the existing standards that provide the guidelines for decision- making? That all seem fair, right? If you were going to subdivide your property, you'd want to know what the rules are in advance. That's why we have a development code says these are the rules, right? It's not arbitrary. We can't just vote yes or no because we like you or don't like you. We we do it under certain standards and the decision has to be made by a fair and impartial decision maker. That's you. Does that all sound like a judicial type proceeding? And it is. We just call it quasi judicial proceeding,

right? It's a quasi judicial proceeding where you are the judges. Collectively, the city council is the judge. Okay? And it requires that we individually and collectively engage in completely different behaviors from what we do when we're legislators. It requires that we do the things that judges do and don't do the things that judges wouldn't do. Right? So, um the handout at the bottom of your stack talks more about what that role entails and what the expectations are for conduct before, during, and after the public hearing. There's some tips on that um as well, right? But here's some of the suggestions that are there. I'm just going to leave them. They're pretty self-evident, but we can provide more training on them. Uh the the one I want to leave with you is this one is important in any context, but it reaches back to my earlier comment. As the judge is making a decision on a land use application after a public hearing, critically important that you all have a deliberation before you make a decision. That's when you're taking the information you learned at the hearing. You're holding up those standards and criteria and you're deciding, right, whether the application meets or does not meet those standards. Right? When you're doing that, you want to speak and think in terms of a judge, right? You don't want to say I just don't like this application or I don't you know you want to say I find that the application meets our criteria. Well, why is that? Or I find that it doesn't meet our criteria and this is why I'm going to be voting no. Right? And what I call it is using Sam's rule of why. If we start a deliberation, mayor says, "All right, that was a good public hearing on a do you do the liquor applications as well?" on the liquor applications, you know, you you finish the public hearing and mayor says, "Okay, great hearing. Let's bring it back for our deliberations and we say,

"Okay, mayor, I'll start the discussion. I'm just going to vote no because I don't like it." It's a little rocky, but we can get there just by using the rule of why. Right? Somebody's going to ask that council member, why don't you like it? I'm going to vote no because I don't like it because it doesn't meet the applicable standards. Now, we're getting somewhere, right? Are we done? Ask the rule of why again? I'm going to vote why. Why doesn't it meet our standards? I'm going to vote no because I don't like it because it doesn't meet our standards. And in particular, it doesn't meet that standard under the liquor licensing code that says the applicant must be of good moral character. That's a strange one, but that's one of the standards. Are we done? We keep going. Right? And just when you naturally have that discussion with each other, then people are seeing the reasons and hearing the reasons why you're going to vote yes or no, most critically from a liability standpoint, you're making a record of the reasons for your decision. Staff's going to help you. If we kind of go off track, we start talking about a criteria that doesn't exist or isn't applicable, they'll help get you back on track. Um, but take that opportunity to have those deliberations. So, that's it on that. There's a link in the slides to some more materials on that. again if you'll have me back I'm I would love to come back and I'm happy to do the quasi judicial presentation for you for you all but in the meantime there's some links to

Sam one one comment I would have is that when you say make the record of course the record consists of the verbal comments and presentation of the applicant and staff and the public's comments that were presented at the public hearing and any written information, be it emails or copies of

technical reports, whatever that was submitted, th that's part of the record as well. But you know the the key is if if somebody appeals your decision whether it was a decision to approve or deny the record is what the appel the in this case the district court would use to decide the case. They don't hold another land use hearing and get everybody else to come in and speak again. they actually get a transcript and a recording of the public hearing that the city actually has to certify the record. So, it would include all of the written materials that were submitted as well. But if if it if you bring it back after you close the public comment portion of the public hearing and you bring it back up to the deis for council members. What you don't want to do is have one council member say, "Well, I support this because of XYZ, and based on that, I make a motion that we approve." Because you you you need uh you need to hear from more than just one of you

and really more than two. I I would say everybody that has a thought or an opinion on it should speak up at that point

because your your input becomes part of the record and the district court judge will look at it and say, "Well, it it looks it appears as if they had adequate reasoning based on their code and the evidence to approve or deny whatever the case may be. But if if you just let one of you give his or her opinion and then immediately make a a motion for action, it cuts off all the others that may have information. And if you know, sometimes you're a little hesitant to speak, don't be. So I I would certainly encourage you, you know, and and it only adds, you know, three or four minutes probably to the length of the hearing, but it's important that we find out why each of you may or may not support the project and uh then it creates a more complete record,

right? Yep. Yeah, I agree. Yeah. Take that opportunity. you know, even if you agree with the other council members who've spoken already, you know, you can build on that and say, I'm just going to add that I agree with Council Member Smith on those issues and here's why I find that it does or doesn't meet our criteria and so on so forth. So, um, just a couple of closing thoughts on the screen there that I'll leave there. Just a couple more things to mention to get up to the 40,000 foot level. Uh and that's the suggestion you know as council members and as a council use use your power wisely and humanely right I recognize you are the leaders of the corporate entity right you will always as I mentioned in my very first slide be perceived that way that you help set the tone for the entire organization even they may not seem front and center that really is um the fact commit to courtesy tact diplomacy mutuality of respect balance of particip ipation among um the membership commit to civility and mutual respect even if you're facing incivility, right? You as leaders can help recalibrate that to a civil respectful uh forum. Make sure as a me as members and as a body that you commit to a no surprises approach with each other. Meetings ought not to have surprise moments or gotcha moments. Definitely ought not to have staff bashing, right? Uh those kinds of things. and deal effectively with discord. You know, sometimes you don't want to have tough discussion and then have lingering feelings that to begin to drive your relationships with each other. You know, if that does start to bubble up, find the right time at a work session or retreat or whatever it may be to work through those differences so that we're always doing our best work collectively u as a council, right? And then commit to support service to the city as an entity and your fiduciary responsibilities. My last couple of slides are just some resources for you all about CERSA. There were two more handouts that I didn't mention. One was

a a one-page snapshot of the state ethics code. By no means it's all the detail of a 20page statute, but it's I hope a helpful handout and then there's a handout about quasi judicial matters. And then there is one more handout. We'd love to interact with our members. We've got a couple of uh lunches coming up over the summer. We'd love to see you there. If any of you are going to the CML conference, we have an appreciation lunch for elected and appointed officials on the first day of the CML conference. We'd love to see you there as well. So, mayor and council, thank you so much for having me out. Thank you for the staff for the invitation. I'll open it up for questions if you have any, but I know you probably would like to take a break at this point.

So, thank you very much. We appreciate it. It was very educational once again. All right. Thank you. Thank you. Good to see you all. Let's let's finish the work session and we will uh we're going to go on to item number B which is a council general discussion. Does anybody from council have anything they want to add on what we did at the workshop? Okay, we'll go on to C which is uh CA minutes for the Monzuma board of county commissioners meeting on April 21st, 2026. Okay, let's adjourn uh our work session and meet back here and let's give it just a little more time. Let's uh say 8 minutes.