TC Ord. No. 2015-05 Amending Town Council Code of EthicsTOWN OF AVON, COLORADO
ORDINANCE NO. 15-05
SERIES OF 2015
AN ORDINANCE AMENDING CHAPTER 2.30 TOWN CODE OF ETHICS
OF THE AVON MUNICIPAL CODE
WHEREAS, the Town of Avon ( "Town ") is a home rule authority municipal corporation
and body politic organized under the laws of the State of Colorado and possessing the maximum
powers, authority and privileges to which it is entitled under Colorado law; and
WHEREAS, pursuant to Section 5.5(d) of the Avon Home Rule Charter states that, "Council
shall adopt a Town Code of Ethics which shall set forth ethical standards and standards of
conduct for elected and appointed officials of the Town;" and
WHEREAS, Town Council believes that amendments to the Town Code of Ethics which are
more stringent than the State Code of Ethics will promote the highest level of governmental
integrity and public confidence in the proper conduct of governmental affairs of the Town of
Avon and therefore will promote the general welfare of the Avon community; and
WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the
Town Council desires to comply with state law, the Avon Municipal Code and the Avon Home
Rule Charter by setting a public hearing in order to provide the public an opportunity to present
testimony and evidence regarding the application and that approval of this Ordinance on first
reading does not constitute a representation that the Town Council, or any member of the Town
Council, supports, approves, rejects, or denies the proposed amendment to the Avon Municipal
Code.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO the following:
Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein
by reference and adopted as findings and determinations of the Town Council.
Section 2. Amendment. Chapter 2.30 of the Avon Municipal Code is hereby amended by
repealing and deleting language shown in strike -out and adopting language depicted by underline
as depicted in EXHIBIT A: AVON TOWN CODE OF ETHICS AMENDMENTS attached to
and made a part of this Ordinance.
Section 3. Codification Amendments. The codifier of the Town's Municipal Code,
Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes
as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal
Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any
typographical error in the enacted regulations, provided that such correction shall not
substantively change any provision of the regulations adopted in this Ordinance. Such
corrections may include spelling, reference, citation, enumeration, and grammatical errors.
Ord 15 -05 Amending Town Code of Ethics
July 28, 2015 - FINAL
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Section 4. Severability. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall
not affect other provisions or applications of this Ordinance which can be given effect without
the invalid provision or application, and to this end the provisions of this Ordinance are declared
to be severable. The Town Council hereby declares that it would have passed this Ordinance and
each provision thereof, even though any one of the provisions might be declared unconstitutional
or invalid. As used in this Section, the term "provision" means and includes any part, division,
subdivision, section, subsection, sentence, clause or phrase; the term "application" means and
includes an application of an ordinance or any part thereof, whether considered or construed
alone or together with another ordinance or ordinances, or part thereof, of the Town.
Section 5. Effective Date. This Ordinance shall take effect thirty days after the date of final
passage in accordance with Section 6.4 of the Avon Home Rule Charter.
Section 6. Safety Clause. The Town Council hereby finds, determines and declares that
this Ordinance is promulgated under the general police power of the Town of Avon, that it is
promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and
welfare. The Town Council further determines that the Ordinance bears a rational relation to the
proper legislative object sought to be obtained.
Section 7. No Existing Violation Affected. Nothing in this Ordinance shall be construed to
release, extinguish, alter, modify, or change in whole or in part any penalty, liability or right or
affect any audit, suit, or proceeding pending in any court, or any rights acquired, or liability
incurred, or any cause or causes of action acquired or existing which may have been incurred or
obtained under any ordinance or provision hereby repealed or amended by this Ordinance. Any
such ordinance or provision thereof so amended, repealed, or superseded by this Ordinance shall
be treated and held as remaining in force for the purpose of sustaining any and all proper actions,
suits, proceedings and prosecutions, for the enforcement of such penalty, liability, or right, and
for the purpose of sustaining any judgment, decree or order which can or may be rendered,
entered, or made in such actions, suits or proceedings, or prosecutions imposing, inflicting, or
declaring such penalty or liability or enforcing such right, and shall be treated and held as
remaining in force for the purpose of sustaining any and all proceedings, actions, hearings, and
appeals pending before any court or administrative tribunal.
Section 8. Publication. The Town Clerk is ordered to publish this Ordinance in accordance
with Chapter 1.16 of the Avon Municipal Code.
INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC
HEARING on June 23, 2015 and setting such public hearing for July 28, 2015 at the Council
Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado.
BY:
Jenn ancher, Mayor
Ord 15 -05 Amending Town Code of Ethics
July 28, 2015 - FINAL
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ATTEST:
Debbie Hoppe, Town Cl rk
ADOPTED ON SECOND AND FINAL READING on July 28, 2015.
B :, �—� ATTEST:
Voig �_ a-b&p'
Je4nie Fancher, Mayor Debbie Hoppe, Town Uerk
APPROVED AS TO FORM:
O
Eric J. He' own Attorney
Ord 15 -05 Amending Town Code of Ethics
July 28, 2015 - FINAL
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EXHIBIT
A:
AMENDMENTS
TO
AVON
TOWN
CODE
OF
ETHICS
Page 1 of 7
July 28, 2015 - FINAL
Town Code of Ethics
2.30.010 Citation.
This Chapter shall be known and may be cited
as the "Avon Town Code of Ethics."
2.30.020 Declaration of policy.
The proper operation of democratic
government requires that public officers be
independent, impartial and responsible to the
people; that government decisions and policy
be made within the proper channels of the
governmental structure; that public office not
be used for personal gain; and that the public
have confidence in the integrity of its
government. In recognition of these goals, a
code of ethics for all Town oOfficers is
adopted. The purpose of this code is to
establish guidelines for ethical standards of
conduct for all such oOfficers by setting forth
those acts or actions that are incompatible with
the best interest of the Town, and by directing
disclosure by such oOfficers of private
financial or other interests in matters affecting
the Town.
2.30.030 Finding of local concern.
The Town Council finds and determines that
the matter of ethical municipal government is
a matter of local concern upon which home
rule municipalities in Colorado are fully
empowered to legislate and to supersede
conflicting state statutes.
2.30.040 Effect of common law.
This Chapter shall supersede and override the
common law as to the subject matter of this
Chapter.
2.30.050 Definitions.
As used in this Chapter, unless the context
requires otherwise:
Business means any corporation, limited
liability corporation, partnership, sole
proprietorship, trust or foundation, or other
individual or organization carrying on a
business operated for private profit.
Confidential information means all
information, whether transmitted orally,
electronically or in writing, , which is intended
to be confidential and which does not
constitute a public record under the Colorado
Open Records Act set forth in C.R.S. §24-72-
200.1 et. seq. including but not limited to
attorney-client confidential and privileged
communications and information received in
an executive session.
Council or Town Council means the Town
Council of the Town of Avon.
Council Member means any member of the
Town Council.
Officer means any person holding a position
by election or appointment in the service of the
municipality, whether paid or unpaid,
including the members of the Town Council,
any other Town board, committee or
commission, any employee and any
independent contractor.
Official act or official action means any vote,
decision, recommendation, approval,
disapproval or other action, including inaction,
which involves the use of discretionary
authority.
Substantial financial interest means an interest
owned or held by an oOfficer which is:
a. An ownership interest in a business;
b. A creditor interest in a business;
c. An ownership interest in real or personal
property;
d. A loan or any other debtor interest;
e. A directorship or officership in a business.
An officer shall be presumed to have a
substantial financial interest in any of the
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abovementioned interests owned, held or
controlled by such oOfficer's spouse or
dependent children.
2.30.060 Conflict of interest.
A Town Officer shall not:
(1) Disclose or use confidential information
acquired in the course of such Officer's duties
(a) in order to further a business or other
undertaking in which such Officer has a
substantial financial interest or (b) for any use
which would be detrimental to the Town;
(2) Engage in a substantial financial
transaction for his or her private business
purposes with a person whom such oOfficer
inspects or supervises in the course of his or
her official duties;
(3) Perform an official act which directly and
substantially affects to its economic benefit a
business or other undertaking in which such
Officer has a substantial financial interest;
(4) Perform an official act which directly and
substantially affects a business or other
undertaking by whom the oOfficer is
employed, or by whom such Officer is
engaged as counsel, consultant, representative
or agent;
(5) Acquire or hold an interest in any business
or undertaking which such Officer has reason
to believe may be directly and substantially
affected to its economic benefit by official
action to be taken by the agency over which he
or she has substantive authority;
(6) Perform an official act directly and
substantially affecting to its economic
detriment any business or other undertaking
when such Officer has a substantial financial
interest in a competing business or
undertaking;
(7) Solicit or accept a present or future gift,
favor, loan, service or thing of value from a
person under circumstances which would lead
a reasonably prudent person to believe that
such gift, favor, service or thing of value was
made or given primarily for the purpose of
influencing or attempting to influence such
oOfficer in connection with an official act, or
as a reward for official action he or she has
previously taken. The provisions of this
Subsection shall not apply to those
circumstances described in Subsection
2.30.070(3);.
(8) Perform any official act under
circumstances which give rise to appearance of
impropriety on the part of the Officer;
(9) Make or accept any ex parte
communication or contact concerning a matter
which is to be determined after a public
hearing without making the contents of such
communication or contact a part of the record
of such public hearing;
(10) Appear on behalf of any private person,
business or entity, other than himself or
herself, his or her spouse, or minor children,
before the Town Council, any Town
Commission or the Municipal Court.; or,
(11) For members of Town Council, seek or
obtain employment or compensation
concerning matters upon which he or she took
an Official Act during his or her term of office
for six (6) months following expiration or
termination of office, if such Official Act
occurred less than four years prior to such
employment or compensation, provided that
this provision may be waived by a majority of
the disinterested Town Council members.
2.30.070 Exemptions.
The provisions of Section 2.30.060 shall not
prohibit an Officer from:
(1) Accepting or receiving a benefit as an
indirect consequence of the performance of an
official act;
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(2) Taking official action when such Officer is
similarly situated to other Town residents,
such as adopting general land use regulations,
owning property within a special or local
improvement district, voting for taxes or
bonds, adopting ordinances of general
applicability or otherwise acting upon matters
involving the common public interest, except
that this exemption shall not apply to interests
of Officers of the Avon Urban Renewal
Authority in any project or in any property
included or planned to be included in any
project and the provisions of C.R.S. §31-25-
104(3) shall control;
(3) Soliciting or accepting gifts or loans which
are:
a. Campaign contributions reported as required
by law;
b. An occasional nonpecuniary gift,
insignificant in value;
c. A nonpecuniary award publicly presented
by a nonprofit organization in recognition of
public service;
d. Payment of or reimbursement for actual and
necessary expenditures for travel and
subsistence or attendance at a convention or
other meeting at which such Officer is
scheduled to participate;
e. Reimbursement for or acceptance of an
opportunity to participate in a social function
or meeting which is not extraordinary when
viewed in light of the position held by such
Officer;
f. Items of perishable or nonpermanent value,
including, but not limited to, meals, lodging,
travel expenses or tickets to sporting,
recreational, educational, or cultural events;
g. Payment for speeches, debates, or other
public events, reported as honorariums to the
Town Manager;
h. A loan at a rate of interest which is not
substantially lower than the commercial rate
then currently prevalent for similar loans
within the Town.
(4) Receiving such compensation for his or her
services to the Town as may be fixed by
ordinance, pay plan, budget or other similar
official action.
2.30.080 Disclosure of conflict of interest in
Town Council action.
Any member of the Town Council who
believes he or she has a conflict of interest as
defined in Section 2.30.060 on any matter
proposed or pending before the Town Council
shall disclose such potential interest to the
Town Council. Any member of the Council
who believes that another member of the
Council has a conflict of interest shall bring
the matter to the attention of the Council prior
to Council consideration of the issue involving
the alleged conflict. The Council shall
determine whether a conflict of interest exists.
The Council member who has an alleged
conflict of interest shall not vote on the
determination of whether a conflict of interest
exists; however, such Council member may
participate in the discussion and may remain in
the room with the consent of the majority of
the remaining Council members. If the
Council determines that an actual conflict of
interest exists, the Council Member shall not
attempt to influence other members of the
Town Council in connection with such matter,
and, except as provided in Section 2.30.100,
the Council Member shall not vote upon such
matter. The Council Member shall leave the
room during Council's discussion and action
on the subject, and shall return only when the
council has taken up the next agenda item.
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2.30.090 Disclosure of conflict of interest in
Planning Commission action.
Any member of the Planning Commission who
believes he or she has a conflict of interest as
defined in Section 2.30.060 on any matter
proposed or pending before the Planning
Commission shall disclose such potential
interest to the Planning Commission. Any
member of the Planning Commission who
believes that another member of the Planning
Commission has a conflict of interest shall
bring the matter to the attention of the
Planning Commission prior to Planning
Commission consideration of the issue
involving the alleged conflict. The Planning
Commission shall determine whether a
conflict of interest exists. The Planning
Commission member who has an alleged
conflict of interest shall not vote on the
determination of whether a conflict of interest
exists; however, such Planning Commission
member may participate in the discussion and
may remain in the room with the consent of
the majority of the remaining Planning
Commission members. If the Planning
Commission determines that an actual conflict
of interest exists, the member of the Planning
Commission shall not attempt to influence
other members of the Planning Commission in
connection with such matter, and, except as
provided in Section 2.30.100, the member of
the Planning Commission shall not vote upon
such matter. The member of the Planning
Commission shall leave the room during the
Planning Commission's discussion and action
on the subject, and shall return only when the
Planning Commission has taken up the next
agenda item.
2.30.100 When Council Member or member
of the Planning Commission with conflict of
interest may vote.
Notwithstanding the provisions of Sections
2.30.080 and 2.30.090, a Council member or
member of the Planning Commission may vote
upon a matter as to which he or she has a
conflict of interest if:
(1) His or her participation is necessary to
obtain a quorum or to otherwise enable the
Council or Planning Commission to act, and
(2) he or she complies with the disclosure
provisions of Section 2.30.110, and
(3) a majority of the Council members or
Planning Commission members present at a
meeting who do not have a conflict of interest
find that the participation of such Council
member or Planning Commission member will
not be contrary to the public interest and vote
to permit such Council member or Planning
Commission member to vote despite the
conflict of interest.
2.30.110 Voluntary Disclosure to
Secretary of State.
A Town oOfficer may, prior to acting in a
manner which may impinge on his or her
fiduciary duty and the public trust, disclose the
nature of his or her private interest to the
Colorado Secretary of State. Such Town
oOfficer shall make the disclosure in writing
to the Colorado Secretary of State, listing the
amount of his or her financial interest, if any,
the purpose and duration of his or her services
rendered, if any, and the compensation
received for the services or such other
information as is necessary to describe his or
her interest. If he or she then performs the
official act involved, he or she shall state for
the record the fact and summary nature of the
interest disclosed at the time of performing the
act. Such disclosure shall constitute an
affirmative defense to any civil or criminal
action or any other sanction under this Town
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Code of Ethics or any other local, state or
other code of ethics or standards of conduct.
2.30.120 Public contracts.
(a) The Town shall not enter into any contract
with a Town Officer (including spouse or
minor children of the Town Officer) to provide
any compensation from the Town for the
provision of goods or services and shall not
approve any vendor permit or privilege to
conduct commercial business on Town
property during such Officer’s term,
appointment or employment with the Town;
provided that this restriction shall not apply to
compensation provided to any Town Officer
for performance of official duties for the
Town. This section shall not operate to restrict
the Town from entering into contracts or
approving vendor permits and privileges to an
organization which employees a Town Officer
if such Town Officer is not an owner or
controlling officer of such organization that
receives such compensation, permits or
privileges and such Town Officer declares a
conflict of interest in accordance with Section
2.30.060(3) and does not participate in any
Town decision related to such public contract.
For the purposes of this section, ownership in
an organization shall include any ownership
interest that is greater than 1%.
(b) The provisions of Subsection (a) of this
Section shall not apply to:
(1) Investments or deposits in financial
institutions which are in the business of
loaning or receiving money; or,
(2) with respect to which the Town Officer has
voted therein in accordance with Section
2.30.100.
(c) It shall be a violation of this Code of Ethics
for any Town Officer to enter into a contract
with the Town or receive compensation or
receive vendor permits or privileges from the
Town in violation of this section.
(d) Any contract approved by the Town or
vendor permit or privilege granted by the
Town in violation of this section shall be
unenforceable against the Town.
(a) Except as provided in Subsection (b) of this
Section, no Officer shall have an interest in
any contract made by the Town.
(b) The provisions of Subsection (a) of this
Section shall not apply to:
(1) Contracts awarded to the lowest
responsible bidder based on competitive
bidding procedures;
(2) Merchandise sold to the highest bidder at
public auctions;
(3) Investments or deposits in financial
institutions which are in the business of
loaning or receiving moneys;
(4) A contract between the Town and an
officer if, because of geographic restrictions,
the Town could not otherwise reasonably
afford itself of the subject of contract. It shall
be presumed that the Town could not
otherwise reasonably afford itself of the
subject of a contract if the additional cost to
the Town is greater than ten percent (10%) of
a contract with an officer or if the contract is
for services that must be performed within a
limited time period and no other contractor can
provide those services within that time period;
(5) A contract with respect to which the officer
has disclosed his or her personal or financial
interest to the Town Council and has not voted
thereon, or with respect to which the officer
has voted therein in accordance with Section
2.30.100.
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(c) No Town officer shall be a purchaser or
vendor in connection with any sale or purchase
made by him or her in his or her official
capacity. The provisions of this Subsection
shall not apply to those contracts described in
Subsection (b) of this Section.
2.30.130 Limitation on subsequent
employment.
A former Town oOfficer may not, within six
(6) months following the termination of his or
her office with the Town, contract with or
become employed by an employer who
contracts with the Town involving matters
with which such oOfficer was directly
involved during such Officer’s the term of
office or with the Town.
2.30.140 Enforcement.
(a) The Town Council shall have the primary
responsibility for the enforcement of this
Chapter. It shall have the power to investigate
any complaint, to initiate any suit and to
prosecute any criminal or civil action on
behalf of the Town wherein it believes such
action is appropriate.
(b) The Town Council may direct the Town
Attorney to investigate or prosecute any
apparent violation of this Chapter or the
Council may employ or appoint any qualified
attorney to investigate or prosecute any
violation or series of violations by one (1) or
more persons of this Chapter. In the event the
alleged conflict of interest involves a Council
member (or multiple Council members), the
Council member(s) who has an alleged
conflict of interest shall not vote upon whether
to investigate or prosecute the alleged conflict
of interest.
(c) Any person who believes that a violation of
any portion of this Chapter has occurred may
file a complaint with the Town Council, which
shall promptly investigate such complaint and
take such action thereon as the Council shall
deem to be appropriate.
(d) The district attorney of the district where
the trust is violated may bring appropriate
judicial proceedings on behalf of the people.
Any moneys collected in such actions shall be
paid to the general fund of the Avon Town
government. Judicial proceedings pursuant to
this section shall be in addition to any criminal
action which may be brought against such
Town oOfficer.
2.30.150 Penalties and remedies.
(a) It is unlawful for any person to violate any
provision of, or to fail to comply with any of
the requirements of this Chapter. Any person
who violates any provisions of this Chapter
shall be punished in accordance with the
provisions of Section 1.08.010 of this Code.
Additionally, upon conviction such person
shall be liable to the Town for such damages
as may have been suffered or incurred as a
result of such violation.
(b) Upon conviction for any violation of this
Chapter such oOfficer shall immediately
forfeit his or her office or position. Nothing in
this Chapter shall be construed to prohibit such
public oOfficer from being reelected,
reappointed or otherwise rehired to any
position forfeited under the provisions of this
Chapter.
(c) Any court of competent jurisdiction called
upon to enforce the provisions of this Chapter
may, with the consent of the Town Council,
exempt from the provisions of this Chapter
any conduct of a Town Officer upon the
finding that the enforcement of this Chapter
with respect to such Officer's conduct would
not be in the public interest.
2.30.160 Distribution of code of ethics.
The Town Clerk shall cause a copy of this
code of ethicsthe Avon Town Code of Ethics
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to be distributed to every Officer of the Town
within thirty (30) days after enactment of the
ordinance adopting this Chapter. Each Town
Officer elected, appointed, or engaged
thereafter shall be furnished a copy before
entering upon the duties of his or her office.
2.30.170 Gift Reporting.
(a) In accordance with §7, Article XXIX of
the Colorado Constitution, the requirements of
Article XXIX of the Colorado Constitution
shall not apply to the Town of Avon. It is the
intention and purpose that this section
2.30.170, Chapter 2.30 Avon Town Code of
Ethics of the Avon Municipal Code, and any
other applicable Avon Home Rule Charter
provision, ordinance or resolution adopted by
the Town of Avon shall completely address all
matters set forth in Article XXIX of the
Colorado Constitution.
(b) Any Town Officer who receives any
present, or offer of future, individual gift,
favor, loan, service or thing of value in excess
of $50.00 and such gift is offered due to such
person’s status as a Town Officer then such
Officer shall report such gift and the estimated
value to the Town Clerk. The Town Clerk
shall promptly disclose gifts received, or offer
of future gifts, to the Town Council. The
failure of a Town Officer to report a gift to the
Town Clerk shall constitute a violation of the
Avon Town Code of Ethics.
(c) Council shall determine if gifts received or
offered in the future constitute a conflict of
interest in accordance with the Avon Town
Code of Ethics. Council members who are the
recipient or intended recipient of a gift shall
not vote on whether such gift constitutes a
conflict of interest unless such gift is offered to
Council as a whole or offered to Town
generally.
(d) Gifts which are given by an individual who
is a relative or personal friend of the recipient
on special occasions shall not be deemed a
conflict of interest. Gifts which are given
without the purpose or intent to influence a
Town Officer in connection with an official
act or as a reward for an official act performed
and gifts which do not create the appearance of
impropriety shall not be a conflict of interest.
(e) Gifts which are received which are
determined by Council to be a conflict of
interest shall be returned. The receipt of a gift
or the failure to return a gift or reimburse the
equivalent value when Council determines
such gift is a conflict of interest shall
constitute a violation of the Avon Town Code
of Ethics.
STATE
STANDARDS
OF
CONDUCT
Page
1
of
12
Title 24. GOVERNMENT - STATE
ADMINISTRATION
Article 18. Standards of Conduct
Part 1. CODE OF ETHICS
§ 24-18-101. Legislative Declaration
The general assembly recognizes the
importance of the participation of the citizens
of this state in all levels of government in the
state. The general assembly further recognizes
that, when citizens of this state obtain public
office, conflicts may arise between the public
duty of such a citizen and his or her private
interest. The general assembly hereby declares
that the prescription of some standards of
conduct common to those citizens involved
with government is beneficial to all residents
of the state. The provisions of this part 1
recognize that some actions are conflicts per
se between public duty and private interest
while other actions may or may not pose such
conflicts depending upon the surrounding
circumstances.
Law reviews: For article, "Conflicts of
Interest in Government", see 18 Colo. Law.
595 (1989); for article, "Advising
Quasi-Judges: Bias, Conflicts of Interest,
Prejudgment, and Ex Parte Contacts", see 33
Colo. Law. 69 (March 2004).
§ 24-18-102. Definitions
As used in this part 1, unless the context
otherwise requires:
(1) "Business" means any corporation, limited
liability company, partnership, sole
proprietorship, trust or foundation, or other
individual or organization carrying on a
business, whether or not operated for profit.
(2) "Compensation" means any money, thing
of value, or economic benefit conferred on or
received by any person in return for services
rendered or to be rendered by himself or
another.
(3) "Employee" means any temporary or
permanent employee of a state agency or any
local government, except a member of the
general assembly and an employee under
contract to the state.
(4) "Financial interest" means a substantial
interest held by an individual which is:
(a) An ownership interest in a business;
(b) A creditor interest in an insolvent business;
(c) An employment or a prospective
employment for which negotiations have
begun;
(d) An ownership interest in real or personal
property;
(e) A loan or any other debtor interest; or
(f) A directorship or officership in a business.
(5) "Local government" means the
government of any county, city and county,
city, town, special district, or school district.
(6) "Local government official" means an
elected or appointed official of a local
government but does not include an employee
of a local government.
(7) "Official act" or "official action" means
any vote, decision, recommendation, approval,
disapproval, or other action, including
inaction, which involves the use of
discretionary authority.
(8) "Public officer" means any elected officer,
the head of a principal department of the
executive branch, and any other state officer.
"Public officer" does not include a member of
the general assembly, a member of the
judiciary, any local government official, or
any member of a board, commission, council,
or committee who receives no compensation
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other than a per diem allowance or necessary
and reasonable expenses.
(9) "State agency" means the state; the general
assembly and its committees; every executive
department, board, commission, committee,
bureau, and office; every state institution of
higher education, whether established by the
state constitution or by law, and every
governing board thereof; and every
independent commission and other political
subdivision of the state government except the
courts.
§ 24-18-103. Public Trust - Breach of
Fiduciary Duty
(1) The holding of public office or
employment is a public trust, created by the
confidence which the electorate reposes in the
integrity of public officers, members of the
general assembly, local government officials,
and employees. A public officer, member of
the general assembly, local government
official, or employee shall carry out his duties
for the benefit of the people of the state.
(2) A public officer, member of the general
assembly, local government official, or
employee whose conduct departs from his
fiduciary duty is liable to the people of the
state as a trustee of property and shall suffer
such other liabilities as a private fiduciary
would suffer for abuse of his trust. The district
attorney of the district where the trust is
violated may bring appropriate judicial
proceedings on behalf of the people. Any
moneys collected in such actions shall be paid
to the general fund of the state or local
government. Judicial proceedings pursuant to
this section shall be in addition to any criminal
action which may be brought against such
public officer, member of the general
assembly, local government official, or
employee.
§ 24-18-104. Rules of Conduct for All
Public Officers, Members of the General
Assembly, Local Government Officials, and
Employees
(1) Proof beyond a reasonable doubt of
commission of any act enumerated in this
section is proof that the actor has breached his
fiduciary duty and the public trust. A public
officer, a member of the general assembly, a
local government official, or an employee
shall not:
(a) Disclose or use confidential information
acquired in the course of his official duties in
order to further substantially his personal
financial interests; or
(b) Accept a gift of substantial value or a
substantial economic benefit tantamount to a
gift of substantial value:
(I) Which would tend improperly to influence
a reasonable person in his position to depart
from the faithful and impartial discharge of his
public duties; or
(II) Which he knows or which a reasonable
person in his position should know under the
circumstances is primarily for the purpose of
rewarding him for official action he has taken.
(2) An economic benefit tantamount to a gift
of substantial value includes without
limitation a loan at a rate of interest
substantially lower than the commercial rate
then currently prevalent for similar loans and
compensation received for private services
rendered at a rate substantially exceeding the
fair market value of such services.
(3) The following shall not be considered gifts
of substantial value or gifts of substantial
economic benefit tantamount to gifts of
substantial value for purposes of this section:
(a) Campaign contributions and contributions
in kind reported as required by section
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1-45-108, C.R.S.;
(b) An occasional nonpecuniary gift,
insignificant in value;
(c) A nonpecuniary award publicly presented
by a nonprofit organization in recognition of
public service;
(d) Payment of or reimbursement for actual
and necessary expenditures for travel and
subsistence for attendance at a convention or
other meeting at which such public officer,
member of the general assembly, local
government official, or employee is scheduled
to participate;
(e) Reimbursement for or acceptance of an
opportunity to participate in a social function
or meeting which is offered to such public
officer, member of the general assembly, local
government official, or employee which is not
extraordinary when viewed in light of the
position held by such public officer, member
of the general assembly, local government
official, or employee;
(f) Items of perishable or nonpermanent value,
including, but not limited to, meals, lodging,
travel expenses, or tickets to sporting,
recreational, educational, or cultural events;
(g) Payment for speeches, appearances, or
publications reported pursuant to section
24-6-203;
(h) Payment of salary from employment,
including other government employment, in
addition to that earned from being a member
of the general assembly or by reason of
service in other public office.
(4) The provisions of this section are distinct
from and in addition to the reporting
requirements of section 1-45-108, C.R.S., and
section 24-6-203, and do not relieve an
incumbent in or elected candidate to public
office from reporting an item described in
subsection (3) of this section, if such reporting
provisions apply.
§ 24-18-105. Ethical Principles for Public
Officers, Local Government Officials, and
Employees
(1) The principles in this section are intended
as guides to conduct and do not constitute
violations as such of the public trust of office
or employment in state or local government.
(2) A public officer, a local government
official, or an employee should not acquire or
hold an interest in any business or undertaking
which he has reason to believe may be directly
and substantially affected to its economic
benefit by official action to be taken by an
agency over which he has substantive
authority.
(3) A public officer, a local government
official, or an employee should not, within six
months following the termination of his office
or employment, obtain employment in which
he will take direct advantage, unavailable to
others, of matters with which he was directly
involved during his term of employment.
These matters include rules, other than rules of
general application, which he actively helped
to formulate and applications, claims, or
contested cases in the consideration of which
he was an active participant.
(4) A public officer, a local government
official, or an employee should not perform an
official act directly and substantially affecting
a business or other undertaking to its
economic detriment when he has a substantial
financial interest in a competing firm or
undertaking.
§ 24-18-106. Rules of Conduct for Members
of the General Assembly
(1) Proof beyond a reasonable doubt of
commission of any act enumerated in this
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section is proof that the member of the general
assembly committing the act has breached his
fiduciary duty and the public trust. A member
of the general assembly shall not accept a fee,
a contingent fee, or any other compensation,
except his official compensation provided by
statute, for promoting or opposing the passage
of legislation.
(2) It shall not be a breach of fiduciary duty
and the public trust for a member of the
general assembly to:
(a) Use state facilities or equipment to
communicate or correspond with a member's
constituents, family members, or business
associates;
(b) Accept or receive a benefit as an indirect
consequence of transacting state business; or
(c) Accept the payment of or reimbursement
for actual and necessary expenses for travel,
board, and lodging from any organization
declared to be a joint governmental agency of
this state under section 2-3-211 (2), C.R.S., if:
(I) (A) The expenses are related to the
member's attendance at a convention or
meeting of the joint governmental agency at
which the member is scheduled to deliver a
speech, make a presentation, participate on a
panel, or represent the state of Colorado or for
some other legitimate state purpose;
(B) The travel, board, and lodging
arrangements are appropriate for purposes of
the member's attendance at the convention or
meeting;
(C) The duration of the member's stay is no
longer than is reasonably necessary for the
member to accomplish the purpose of his or
her attendance at the convention or meeting;
(D) The member is not currently and will not
subsequent to the convention or meeting be in
a position to take any official action that will
benefit the joint governmental agency; and
(E) The attendance at conventions or meetings
of the joint governmental agency has been
approved by the executive committee of the
legislative council or by the leadership of the
house of the general assembly to which the
member belongs; or
(II) The general assembly pays regular
monthly, annual, or other periodic dues to the
joint governmental agency that are invoiced
expressly to cover travel, board, and lodging
expenses for the attendance of members at
conventions or meetings of the joint
governmental agency.
(3) Notwithstanding any other provision of
law, no member of the general assembly shall
lobby, solicit lobbying business or contracts,
or otherwise establish a lobbying business or
practice respecting issues before the general
assembly prior to the expiration of his or her
term. Where the member tenders his or her
resignation prior to the expiration of his or her
term, the requirements of this subsection (3)
shall apply up through the date of the
member's resignation from office.
§ 24-18-107. Ethical Principles for
Members of the General Assembly
(1) The principles in this section are intended
only as guides to a member of the general
assembly in determining whether or not his
conduct is ethical.
(2) A member of the general assembly who
has a personal or private interest in any
measure or bill proposed or pending before the
general assembly shall disclose the fact to the
house of which he is a member and shall not
vote thereon. In deciding whether or not he
has such an interest, a member shall consider,
among other things, the following:
(a) Whether the interest impedes his
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independence of judgment;
(b) The effect of his participation on public
confidence in the integrity of the general
assembly; and
(c) Whether his participation is likely to have
any significant effect on the disposition of the
matter.
(3) An interest situation does not arise from
legislation affecting the entire membership of
a class.
(4) If a member of the general assembly elects
to disclose the interest, he shall do so as
provided in the rules of the house of
representatives or the senate, but in no case
shall failure to disclose constitute a breach of
§ 24-18-108. Rules of Conduct for Public
Officers and State Employees
(1) Proof beyond a reasonable doubt of
commission of any act enumerated in this
section is proof that the actor has breached his
fiduciary duty.
(2) A public officer or a state employee shall
not:
(a) Engage in a substantial financial
transaction for his private business purposes
with a person whom he inspects, regulates, or
supervises in the course of his official duties;
(b) Assist any person for a fee or other
compensation in obtaining any contract, claim,
license, or other economic benefit from his
agency;
(c) Assist any person for a contingent fee in
obtaining any contract, claim, license, or other
economic benefit from any state agency; or
(d) Perform an official act directly and
substantially affecting to its economic benefit
a business or other undertaking in which he
either has a substantial financial interest or is
engaged as counsel, consultant, representative,
or agent.
(3) A head of a principal department or a
member of a quasi-judicial or rule-making
agency may perform an official act
notwithstanding paragraph (d) of subsection
(2) of this section if his participation is
necessary to the administration of a statute and
if he complies with the voluntary disclosure
procedures under section 24-18-110.
(4) Repealed.
§ 24-18-108.5. Rules of Conduct for
Members of Boards and Commissions
(1) Proof beyond a reasonable doubt of
commission of any act enumerated in this
section is proof that the actor has breached his
fiduciary duty.
(2) A member of a board, commission,
council, or committee who receives no
compensation other than a per diem allowance
or necessary and reasonable expenses shall not
perform an official act which may have a
direct economic benefit on a business or other
undertaking in which such member has a
direct or substantial financial interest.
§ 24-18-109. Rules of Conduct for Local
Government Officials and Employees
(1) Proof beyond a reasonable doubt of
commission of any act enumerated in this
section is proof that the actor has breached his
fiduciary duty and the public trust.
(2) A local government official or local
government employee shall not:
(a) Engage in a substantial financial
transaction for his private business purposes
with a person whom he inspects or supervises
in the course of his official duties; or
(b) Perform an official act directly and
substantially affecting to its economic benefit
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a business or other undertaking in which he
either has a substantial financial interest or is
engaged as counsel, consultant, representative,
or agent.
(3) (a) A member of the governing body of a
local government who has a personal or
private interest in any matter proposed or
pending before the governing body shall
disclose such interest to the governing body
and shall not vote thereon and shall refrain
from attempting to influence the decisions of
the other members of the governing body in
voting on the matter.
(b) A member of the governing body of a local
government may vote notwithstanding
paragraph (a) of this subsection (3) if his
participation is necessary to obtain a quorum
or otherwise enable the body to act and if he
complies with the voluntary disclosure
procedures under section 24-18-110.
(4) It shall not be a breach of fiduciary duty
and the public trust for a local government
official or local government employee to:
(a) Use local government facilities or
equipment to communicate or correspond with
a member's constituents, family members, or
business associates; or
(b) Accept or receive a benefit as an indirect
consequence of transacting local government
business.
§ 24-18-110. Voluntary Disclosure
A member of a board, commission, council, or
committee who receives no compensation
other than a per diem allowance or necessary
and reasonable expenses, a member of the
general assembly, a public officer, a local
government official, or an employee may,
prior to acting in a manner which may
impinge on his fiduciary duty and the public
trust, disclose the nature of his private interest.
Members of the general assembly shall make
disclosure as provided in the rules of the house
of representatives and the senate, and all
others shall make the disclosure in writing to
the secretary of state, listing the amount of his
financial interest, if any, the purpose and
duration of his services rendered, if any, and
the compensation received for the services or
such other information as is necessary to
describe his interest. If he then performs the
official act involved, he shall state for the
record the fact and summary nature of the
interest disclosed at the time of performing the
act. Such disclosure shall constitute an
affirmative defense to any civil or criminal
action or any other sanction.
§ 24-18-111. [Repealed]
§ 24-18-112. Board of Ethics for the
Executive Branch - Created - Duties
(1) There is hereby created a board of ethics
for the executive branch of state government
in the office of the governor. The board shall
consist of five members to be appointed by
and serve at the pleasure of the governor.
(2) The board of ethics for the executive
branch shall:
(a) Comment, when requested by the
governor, on each proposed gubernatorial
appointment, including the heads of the
principal departments and the senior members
of the governor's office based upon the
provisions of this article;
(b) Upon written request of the governor,
review complaints of any violation of the
provisions of this article by a member of the
executive branch of state government;
(c) Make written recommendations to the
governor concerning his requests; and
(d) Review appeals brought before the board
of ethics pursuant to section 24-30-1003(4).
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§ 24-18-113. Board of Ethics for the
General Assembly - Created - Duties
(1) (a) There is hereby created a board of
ethics for the general assembly. The board
shall consist of four legislative members. One
member shall be appointed by and serve at the
pleasure of the majority leader of the house of
representatives; one member shall be
appointed by and serve at the pleasure of the
majority leader of the senate; one member
shall be appointed by and serve at the pleasure
of the minority leader of the house of
representatives; and one member shall be
appointed by and serve at the pleasure of the
minority leader of the senate.
(b) The terms of the members appointed by
the majority and minority leaders of the house
of representatives and the senate and who are
serving on March 22, 2007, shall be extended
to and expire on or shall terminate on the
convening date of the first regular session of
the sixty-seventh general assembly. As soon
as practicable after such convening date, the
majority and minority leaders of the house of
representatives and the senate shall each
appoint or reappoint members in the same
manner as provided in paragraph (a) of this
subsection (1). Thereafter, the terms of
members appointed or reappointed by the
majority and minority leaders of the house of
representatives and the senate shall expire on
the convening date of the first regular session
of each general assembly, and all subsequent
appointments and reappointments by the
majority and minority leaders of the house of
representatives and the senate shall be made as
soon as practicable after such convening date.
The person making the original appointment
or reappointment shall fill any vacancy by
appointment for the remainder of an unexpired
term. Members appointed or reappointed by
the majority and minority leaders of the house
of representatives and the senate shall
continue in office until the member's successor
is appointed.
(2) The board of ethics for the general
assembly shall, upon written request of a
member of the general assembly, issue
advisory opinions concerning issues relating
to the requesting member's conduct and the
provisions of this article.
Part 2. PROSCRIBED ACTS RELATED
TO CONTRACTS AND CLAIMS
§ 24-18-201. Interests in contracts
(1) Members of the general assembly, public
officers, local government officials, or
employees shall not be interested in any
contract made by them in their official
capacity or by any body, agency, or board of
which they are members or employees. A
former employee may not, within six months
following the termination of his employment,
contract or be employed by an employer who
contracts with a state agency or any local
government involving matters with which he
was directly involved during his employment.
For purposes of this section, the term:
(a) "Be interested in" does not include holding
a minority interest in a corporation.
(b) "Contract" does not include:
(I) Contracts awarded to the lowest
responsible bidder based on competitive
bidding procedures;
(II) Merchandise sold to the highest bidder at
public auctions;
(III) Investments or deposits in financial
institutions which are in the business of
loaning or receiving moneys;
(IV) A contract with an interested party if,
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because of geographic restrictions, a local
government could not otherwise reasonably
afford itself of the subject of the contract. It
shall be presumed that a local government
could not otherwise reasonably afford itself of
the subject of a contract if the additional cost
to the local government is greater than ten
percent of a contract with an interested party
or if the contract is for services that must be
performed within a limited time period and no
other contractor can provide those services
within that time period.
(V) A contract with respect to which any
member of the general assembly, public
officer, local government official, or employee
has disclosed a personal interest and has not
voted thereon or with respect to which any
member of the governing body of a local
government has voted thereon in accordance
with section 24-18-109(3)(b) or 31-4-404(3),
C.R.S. Any such disclosure shall be made: To
the governing body, for local government
officials and employees; in accordance with
the rules of the house of representatives and
the senate, for members of the general
assembly; and to the secretary of state, for all
others.
ANNOTATION
Local government officials should not be
interested in any contract made by them in
their official capacity and an official who has
a private interest in any matter proposed or
pending before the governing body should
disclose the interest to the governing body and
not vote on it; however, this section
specifically exempts any contract awarded to
the lowest responsible bidder based on
competitive bidding procedures. Independent
Ethics Commission Advisory Opinion 12-01.
It would not pose a violation of this section
for a retired community college accounting
professor to enter into a contract with the
college since he was not involved in the
accounting procedures at the college when he
was employed there and the proposed contract
does not involve a matter in which he was
directly involved as a professor. Independent
Ethics Commission Advisory Opinion 10-08.
It would not violate this section for a former
employee of the department of health care
policy and financing to enter into a contract
with a consulting company to work on project
management issues relating to a major health
care provider, where the state agency
indicated there is no conflict. Independent
Ethics Commission Letter Ruling 10-02.
Because employee's duties as area
maintenance manager for the governor's
office of information technology (OIT) have
been reassigned and he no longer has
responsibilities or duties over the site in
question and the employee has made a full
disclosure to his supervisors and there is no
information that he took advantage of
information unavailable to others not in
government employment, the employee is not
in violation of this section if he leases
properties owned by a limited liability
corporation controlled by his wife to the OIT.
Independent Ethics Commission Advisory
Opinion 13-05.
A state agency is in the best position to
determine whether a state employee's
future employment outside of state
government poses a conflict of interest
given the agency's superior understanding of
the duties performed by the state employee
involved. Independent Ethics Commission
Advisory Opinion 13-13.
§ 24-18-202. Interest in sales or purchases
Public officers and local government officials
shall not be purchasers at any sale or vendors
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at any purchase made by them in their official
capacity.
§ 24-18-203. Voidable contracts
Every contract made in violation of any of the
provisions of section 24-18-201 or
24-18-202 shall be voidable at the instance of
any party to the contract except the officer
interested therein.
§ 24-18-204. Dealings in warrants and other
claims prohibited
State officers, county officers, city and county
officers, city officers, and town officers, as
well as all other local government officials,
and their deputies and clerks, are prohibited
from purchasing or selling or in any manner
receiving to their own use or benefit or to the
use or benefit of any person or persons
whatever any state, county, city and county,
city, or town warrants, scrip, orders, demands,
claims, or other evidences of indebtedness
against the state or any county, city and
county, city, or town thereof except evidences
of indebtedness issued to or held by them for
services rendered as such officer, deputy, or
clerk, and evidences of the funded
indebtedness of such state, county, city and
county, city, or town.
§ 24-18-205. Settlements to be withheld on
affidavit
(1) Every officer charged with the
disbursement of public moneys who is
informed by affidavit establishing probable
cause that any officer whose account is about
to be settled, audited, or paid by him has
violated any of the provisions of this part 2
shall suspend such settlement or payment and
cause such officer to be prosecuted for such
violation by the district attorney of the
appropriate jurisdiction.
(2) If there is judgment for the defendant upon
such prosecution, the proper officer may
proceed to settle, audit, or pay such account as
if no such affidavit had been filed.
§ 24-18-206. Penalty
A person who knowingly commits an act
proscribed in this part 2 commits a class 1
misdemeanor and shall be punished as
provided in section 18-1.3-501 , C.R.S. In
addition to the penalties provided in section
18-1.3-501 , C.R.S., the court may impose a
fine of no more than twice the amount of the
benefit the person obtained or was attempting
to obtain in violating a provision of this part 2.
Article 18.5. Independent Ethics
Commission
§24-18.5-101. Independent ethics
commission - establishment - membership -
subpoena power - definitions
(1) As used in this article, unless the context
otherwise requires:
(a) "Article XXIX" means article XXIX of the
state constitution approved by the voters at the
2006 general election.
(b) "Commission" means the independent
ethics commission created in section 5 (1) of
article XXIX.
(2)(a) The independent ethics commission,
originally established in the office of
administrative courts in the department of
personnel created in section 24-30-1001 , is
hereby transferred to and established in the
judicial department as an independent agency,
effective on June 10, 2010. The commission
shall consist of five members. The appointing
authorities for the commission members, the
order of appointment of such members, and
other requirements pertaining to commission
membership shall be as specified in section 5
(2) of article XXIX. Subject to the
requirements of paragraph (b) of this
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subsection (2), the member appointed by the
senate pursuant to section 5 (2) (a) (I) of
article XXIX shall be appointed by the
president of the senate with the approval of
two-thirds of the members elected to the
senate. Subject to the requirements of
paragraph (b) of this subsection (2), the
member appointed by the house of
representatives pursuant to section 5 (2) (a)
(II) of article XXIX shall be appointed by the
speaker of the house of representatives with
the approval of two-thirds of the members
elected to the house of representatives.
(b) In connection with the appointment of
commission members, no more than two
members appointed to the commission shall be
affiliated with the same political party.
(c) The commission members shall be
appointed to four-year terms; except that the
first member appointed by the senate and the
first member appointed by the governor shall
initially serve two-year terms. Appointments
to the commission by the senate and the house
of representatives shall be made no later than
May 1, 2007, and the initial terms of
commission members shall commence July 1,
2007.
(3) Commission members shall serve without
compensation; except that commission
members shall be reimbursed for the actual
and necessary expenses that they incur in
carrying out their duties and responsibilities as
commission members.
(4) In accordance with the provisions of
section 5 of article XXIX, the powers and
duties of the commission shall be as follows:
(a) To hear complaints, issue findings, and
assess penalties on ethics issues arising under
article XXIX and other standards of conduct
and reporting requirements as provided by
law; and
(b)(I) To issue advisory opinions and letter
rulings on ethics issues arising under article
XXIX and other standards of conduct and
reporting requirements as provided by law.
(II) The commission shall prepare a response
to a request for an advisory opinion from a
public officer, member of the general
assembly, local government official, or
government employee as to whether particular
action by such officer, member, official, or
employee satisfies the requirements of article
XXIX as soon as practicable after the request
is made to the commission.
(III) Any person who is not a public officer,
member of the general assembly, local
government official, or government employee
may submit a request to the commission for a
letter ruling concerning whether potential
conduct of the person making the request
satisfies the requirements of article XXIX. In
such case, the commission shall issue a
response to the request as soon as practicable.
(IV) Each advisory opinion or letter ruling, as
applicable, issued by the commission shall be
a public document and shall be promptly
posted on a web site that shall be maintained
by the commission; except that, in the case of
a letter ruling, the commission shall redact the
name of the person requesting the ruling or
other identifying information before it is
posted on the web site.
(5)
(a)
Subject to the provisions of paragraph (c) of
this subsection (5), the commission shall
dismiss as frivolous any complaint filed under
article XXIX that fails to allege that a public
officer, member of the general assembly, local
government official, or government employee
has accepted or received any gift or other
thing of value for private gain or personal
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financial gain.
(b)
For purposes of this subsection (5):
(I)
"Official act" shall have the same meaning as
set forth in section 24-18-102(7) .
(II)
"Private gain" or "personal financial gain"
means any money, forbearance, forgiveness of
indebtedness, gift, or other thing of value
given or offered by a person seeking to
influence an official act that is performed in
the course and scope of the public duties of a
public officer, member of the general
assembly, local government official, or
government employee.
(c)
This subsection (5) is repealed if the
Colorado supreme court holds, in response to
one or more written questions submitted by
the general assembly pursuant to section 3 of
article VI of the state constitution, that the
standard of accepting or receiving "any gift or
other thing of value for private gain or
personal financial gain" specified in paragraph
(a) of this subsection (5) is unconstitutional in
applying section 3 (1) or (2) of article XXIX.
(6) Pursuant to the provisions of section 5 (1)
of article XXIX, the commission shall adopt
reasonable rules as may be necessary for the
purpose of administering and enforcing the
provisions of article XXIX and any other
standards of conduct and reporting
requirements as provided by law. Any rules
shall be promulgated in accordance with the
requirements of article 4 of this title.
(7) Subject to available appropriations, the
commission may employ such staff as it
deems necessary to enable it to carry out its
functions in accordance with the requirements
of this article and article XXIX.
(8) No subpoena requiring the attendance of a
witness or the production of documents shall
be issued by the commission unless a motion
to issue any such subpoena has been made by
one member of the commission and approved
by no fewer than four members of the
commission.
(9) Any final action of the commission
concerning a complaint shall be subject to
judicial review by the district court for the city
and county of Denver.
(10) Any state employee on the staff of the
commission as of June 10, 2010, shall be
transferred with the agency and shall become
an employee of the agency.
ANNOTATION
Law reviews. For article, "The Practitioner's
Guide to Amendment 41 and the Colorado
Independent Ethics Commission", see 38
Colo. Law. 37 (October 2009).
As personification of state, governor proper
party defendant in suit contesting
constitutionality of article XXIX
(amendment 41) at time of its filing. The
evaluation of whether a person or entity is a
proper party in a lawsuit must be determined
in light of relevant facts and circumstances.
Here, there was no alternative entity for
plaintiffs to sue in order to challenge article
XXIX. Colorado has long recognized the
practice of naming the governor, in his role as
state's chief executive, as proper defendant in
cases where a party seeks to "enjoin or
mandate enforcement of a statute, regulation,
ordinance, or policy". The only appropriate
state agent for litigation purposes was the
governor. Prior to creation of the independent
ethics commission (commission), the governor
was appropriate party defendant in a
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constitutional challenge. Developmental
Pathways v. Ritter, 178 P.3d 524 (Colo. 2008).
Considering both language of article XXIX
and voters' intent in initiating it, article
XXIX is self-executing in that it does not
require any further action by the general
assembly to be effective. A constitutional
provision is self-executing when the provision
appears to take immediate effect and no
further action by the general assembly is
required to implement the right given. Here,
article XXIX can take effect without any
further action by the general assembly. Its
provisions do not merely lay out bare
principles without any means of
implementation; rather, the article has a
built-in mechanism for operation. It provides
for the creation of the commission that, once
in existence, will be independent of the
general assembly and will promulgate
necessary rules to implement and enforce gift
bans and other ethical standards. There is no
indication that voters intended to require
further legislative action with respect to article
XXIX. To the contrary, voters used initiative
process to avoid possibility that general
assembly would prevent them from
establishing commission that would enforce
gift bans against general assembly's members
as well as other government employees.
Developmental Pathways v. Ritter, 178 P.3d
524 (Colo. 2008).
Because preliminary injunction issued
before commission came into existence and
before it had opportunity to act in
furtherance of this article, plaintiffs failed
to present a ripe as-applied constitutional
challenge. Relief plaintiffs seek is only
available in a successful facial challenge, not
in an as-applied challenge. In order for
plaintiffs to obtain a declaration that article is
unconstitutional as applied, there must be an
actual application or at least a reasonable
possibility of enforcement or threat of
enforcement. As of the time of suit, the
commission was not yet in existence, and it
had not yet acted to enforce the gift bans. No
enforcement or threat of enforcement of the
gift bans had occurred. Therefore, concerns
expressed by plaintiffs were merely
speculative interpretations of what might
occur once commission is operative. As such,
district court did not have jurisdiction to grant
preliminary injunction. Developmental
Pathways v. Ritter, 178 P.3d 524 (Colo. 2008).
ATTACHMENT B: STATE STANDARDS OF CONDUCT