Durango residents told city officials Monday they want an independent ethics board.
The city held two public workshops on its draft code of conduct and code of ethics for residents to give feedback, and attendees at both sessions want to see the board be primarily composed of people outside the city government structure.
The current draft proposes an ethics board with five members, two at-large members appointed by the City Council, City Attorney Dirk Nelson, City Manager Ron LeBlanc and the presiding municipal judge.
There would be two routes for the city itself to instigate an investigation. The proposal gives council the authority to demand the ethics board conduct an investigation by a majority vote, or a city official may request an investigation.
People outside city government would file a verified complaint with the city clerk.
A city official is defined as an appointed or elected city officer, a board and commission member, a candidate for one of those positions as well as a former officer, board and commission member for six months after their service.
“There’s talk in here about wanting both the reality and the appearance of being transparent and open,” said Sandy Burke, the chairwoman of the city’s Parks and Recreation Advisory Board. “But this appearance is that the board is pretty stacked with city staff. I can see the city attorney as an advisor or ex-oficio member, and the city manager or relevant staff would know the nitty-gritty, but they shouldn’t be the deciders. It would be awkward for everyone.”
Tom Darnell said he is concerned that a resident on the ethics board could be targeted by city councilors because there’s no external complaint process. However, Cristi Zeller looked at it another way. She said she was concerned because the City Council hires the city manager and also has great sway on the city attorney position.
“Let’s just say it’s me,” she said. “I’m a city councilor, and I’m in front of the board, but I’m still his boss. That doesn’t work.”
Attendees at the afternoon workshop would also like to see the ethics board work proactively by being available to give advice to people covered by the code on how to handle a potential ethical conflict.
“It would keep people out of trouble in the first place,” Mike Todt said. “This is only investigative, but ethics codes from other cities have both. We’re trying to head this stuff off.”
Burke was concerned that fears of violating confidentiality clauses in the code would be a deterrent to civic discourse.
“The intent is not to stifle conversation,” Nelson said. “It’s the same concept as you don’t want someone involved in a court case discussing it over coffee with the judge. This only concerns information that is not generally available to the public.”
The current draft continued to be silent on what information will be public and doesn’t address whistle-blowing. The proposed code also doesn’t address anonymous complaints.
“There needs to be some confidentiality brackets around the initial complaints and investigation,” Fay Schrater said. “This can damage reputations, and it would be wrong to have them open before some investigation has occurred.”
Transparency issues were discussed, Nelson said the findings of the investigation would be made public, but it was unclear whether information during the investigation, the complaint and other documents from a resident to a city official would be public or not.
Steven D. Zansberg, an attorney with Levine, Sullivan, Koch & Schulz who represents The Durango Herald, said only state agencies can withhold information during a noncriminal enforcement investigation. But the state agencies are subject to complete disclosure once an investigation is done, and there is no violation or sanction taken. However, Zansberg said a public document can be kept private under some exemptions.
The City Council would determine the penalties for violations based on the board of ethics’ findings, including written warnings, training, suspension or removal from position and public censure.
The city manager’s staff has worked on the drafts, pulling information from other cities, such as Castle Pines and Boulder, said Mary Beth Miles, assistant to LeBlanc, at the noon workshop.
“This is a working document,” Miles said.
Resident Alma Evans said having some kind of disclosure statement about what kinds of organizations an officer or an official belongs to or what their positions are in the beginning could help.
“A conflict is necessarily a pejorative term, it’s not a bad thing necessarily,” resident Joe Gambone said. “Someone can have a conflict, and you just have to disclose the conflict. Now, if the conflict is a serious one, or significant one, then you should also not vote.”
Darnell said there was a loophole in the city’s definition of “interest,” and Zeller suggested requiring people to divulge any officer positions on nonprofit boards or professional organizations. Gambone also said the board should be more focused on proactive than reactive processes.
People at the afternoon session suggested that everyone covered by the code should have an annual orientation, so that the code is clearly understood throughout the city’s staff, boards and commissions.
The city is accepting public comment on the proposed code through Aug. 4.