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Home My Public Portal AboutTBP 2016-04-20 Ethics, Liability, and Best Practices for Elected Officials Tami A. Tanoue General Counsel/ Deputy Executive Director n www.cirsa.org 800.228.7136 Speaker Bio Tami A. Tanoue  In-house General Counsel/Deputy Executive Director  for CIRSA Previously in private practice with the firm of Griffiths,  Tanoue, Light, Harrington & Dawes, serving CIRSA as its contract General Counsel for 12 years, and serving as City or Town Attorney for several Colorado municipalities. Previously Staff Attorney for the Colorado Municipal  League, representing the collective interests of Colorado municipalities. Regular speaker on local government liability topics;  author of several publications on liability issues. Speaker Bio Suggestions today are based on my years as a  municipal attorney and observing the ways in which governing bodies can get into or stay out of trouble from a liability standpoint Suggestions are those of the author, who takes full  responsibility for them…any resemblance strictly coincidental, etc.  Here as a training resource; in the event of any  conflict between my training tips and the advice of your entity’s attorney, the advice of your attorney prevails! Introduction In this presentation, we’ll examine these  issues: Governance versus administration:  respecting the allocations of responsibility in your organizational structure: Meeting practices –transparency, orderly  and effective public participation Personal conduct towards one another,  staff, and the community Governance Models John Carver’s work on “policy governance” is perhaps the  most comprehensive model for board governance Addresses many common and recognizable  inefficiencies in governing body-staff relationships Seems to have caught on in part because it is a  complete and holistic model, and provides a template for distinguishing between governance versus management/administration, and for honoring that distinction Carver, Boards That Make A Difference (2006)  More recent updating of policy governance model by  Ken Schuetz, “Aligned Influence” (www.alignedinfluence.com) Policy Governance Basics Ends versus means : Governing body determines the “ends,” and CEO and staff determine and carry out the “means” Ends: the outcomes to be achieved, for whom, and at what costs Executive limitations : Governing body sets forth the boundaries of ethics and prudence, in carrying out the means, beyond which the CEO and staff must not cross But within those boundaries, the CEO is free to choose the means to the board’s ends Board-staff linkage : Governing body determines the manner in which it delegates authority to the CEO, how it will evaluate CEO performance (in achieving the “ends” and meeting the executive limitations) Governance process : Governing body determines its own philosophy, the specifics of its own job, and its accountability Governance characteristics Is the governing body’s focus on governance  rather than management or administration? Management is not the same thing as  governance! Being a “super-manager” is still not governing. Governance is policy-setting, big picture, and  forward-looking, rather than making reactive, case-by-case decisions as issues arise, or after-the-fact after a problem surfaces Boards should develop “a taste for the  grand expanse of the big picture,” says Carver Where are you focusing your efforts? Ownership | Governance | Management | Supervision | Front Line Employment Governance characteristics Does the governing body speak with one voice? “Deliberate in many voices, but speak with  one” Recognize that, while there may be  dissension or disagreement, the CEO (the Town Manager) is accountable only for directions given by the body as a whole Is the voice directed at the CEO, the  governing body’s sole employee? Honoring the Governance- Management Distinction Why is this a liability issue? Public officials have protection from liability when they are within the “scope of employment” –term used in Colorado Governmental Immunity Act “Scope of employment” means everyone must respect the parameters of your job description So to the extent your Charter sets out parameters that include an allocation of responsibilities (and it does so very well), those parameters are part of your job description; honoring those parameters will help keep you within the “scope of employment” Liability coveragesalso hinge on your being within the scope of your authorized duties If you are going outside the parameters, you could be outside the scope of your job description…and outside the scope of your liability protections! If you’re doing management/administration, then who’s doing the governance? And what about those who are supposed to be doing the management/administration? What are they doing? Transparency and Public Participation -Meetings Transparency is a basic expectation of the citizens  for meetings of the governing body Citizens take great interest in the goings-on of their  community, how/when those goings-on are discussed, and opportunities to listen in on and/or participate in the discussion “Watchdogs” may be present to ensure transparency  is maintained and appropriate participation is afforded A lack of transparency or a perception of inadequate  or ineffective opportunities for public participation can cause massive trust and credibility issues Honoring Transparency Open Meetings Law (OML) applies to all meetings  of the governing body, boards, commissions, committees, etc. Applies to 3 or more or a quorum, whichever is  less Requires discussion/action on all public business  to take place only at a meeting open to the public and of which timely notice has been given Permits executive sessions only for limited and  specified purposes and following specified procedures It’s critical to conform to the letter and the spirit of  the OML in conducting meetings Orderly and constructive public participation Lay the groundwork for orderly public  meetings Council rules of procedure/rules of conduct  should address matters such as: Time limits for speakers  Be consistent about enforcing time limits  No “out of order” comments  Recess or adjournment for disruptions  Public participation, cont’d Governing body presiding officer (Mayor)  is crucial in maintaining order Culture of civility flows from the top down –  if members practice incivility towards one another or towards staff/citizens, they can expect incivility from citizens in return Maintain a degree of formality at meetings  –use titles, insist that speakers come to podium to be recognized, etc. Discreet law enforcement presence can be  helpful Public meetings, cont’d For high profile or controversial agenda items, take  special precautions Have overflow area with closed circuit TV, or move to a  larger venue Arrange to have officers present and stationed at  appropriate locations Uniformed, plainclothes, or both?  Presiding officer or members should be prepared to  ask for recess if emotional tenor of meeting starts to get out of hand Arrange a “retreat” path for members that does not  require them to go through the audience CIRSA training session on orderly meetings available  Public participation, cont’d Are “public comment” periods turning into  “public inquisition” periods or “public argument” periods? What are the dynamics that are allowing this  to happen? “I’d like to respond to what you just said.”  “I’d like to answer that question.”  Public participation, cont’d Elected officials should not be baited into  responding inappropriately when someone says something inflammatory You always have the last word: you’re the  decider. You don’t need to engage in argument, stop the offending remarks, or try to have the last word during “public comment.” If you forget that you’re the decider, things  may escalate…. Public participation, cont’d http://www.westword.com/news/eric-f-ck-cops-brandt-files-free- speech-suit-against-mayor-who-had-him-arrested-6051358 “\[D\]uringthe public-comments section of the August 11 … City Council meeting, which was captured on audio, \[Eric Brandt\] speaks calmly and thoughtfully about his reasons for coming before officials --at first, anyhow. But soon into the address… interrupts to say Brandt can't continue \[the\] Mayor … speaking due to a pending lawsuit against the city.” “When Brandt tries to continue, \[the Mayor\]… insists that he can't do so and will be forcibly removed if he tries. In response, Brandt begins speaking louder and becomes upset when someone lays hands on him. He can be heard complaining passionately as he's led away.” . Public participation, cont’d “The suit reveals that Brandt was placed in handcuffs  and taken to jail… then transferred to a detention center in Adams County on charges of obstructing a police officer and resisting arrest. However, all charges against him were dismissed on August 21.” "This was absolutely appropriate speech with no  F-bombs," \[the citizen’s attorney\] points out. "And as political speech, it's the highest protected speech that exists. Speech doesn't get any more protected than that." Public participation, cont’d http://www.reporterherald.com/news/ci_28638008/co  unty-resident-sues-city-councilor Public participation, cont’d “At council's July 21 meeting, Lynne spoke during  public comment about the pending litigation against Detective Brian Koopmanand Chief Luke Hecker, as she has done previously, urging councilors to take action and fire several city employees”. “Lynne spoke about alleged document destruction,  fraud and child pornography, mentioning not only Koopman, the police department and city's alleged involvement.” “Shaffer responded after Lynne's comments and said  that Hecker was slandered in Lynne's … comments. ” Public meetings, cont’d “In the future, everyone will be famous for 15 minutes.” ~Andy Warhol “In Council meetings, everyone gets to speak his or her mind for the allotted number of minutes.” ~Tami Tanoue Don’t try to suppress the content of citizen speech! It’s not just unlawful, it’s futile! People do not take well to being suppressed. But if someone is being disruptive, engaging in personal attacks, etc., then a response may be appropriate. Don’t “Disarm” a tense situation. match tone for tone, and “out- shouting” doesn’t work. If a response is necessary, lower your tone to below the speaker’s. De-escalate, don’t escalate! Establish and communicate shared norms for meetings, e.g., “We appreciate everyone’s viewpoints, but not personal attacks. Personal attacks are unproductive and unhelpful. Please redirect your comments towards the issues, and away from personalities.” Honoring Transparency and Public Participation Why is this a liability issue? We tend to see the same firms over and over in litigation against municipalities for alleged OML violations CIRSA has “executive session defense cost coverage” for its member governing bodies for this reason Efforts are made, through litigation, to “push the envelope” on OML interpretations that are not favorable to public entities…don’t be the one to “make bad law”! You may suffer the embarrassment of having your executive session discussions being made public Thwarting public participation can likewise bring about litigation for suppressing speech –we’ve now seen a couple of instances of this Personal Conduct The way you conduct yourself in relation to other members of the body, staff, and the community greatly impacts your effectiveness as a governing body member The incivility and divisiveness that characterize partisan politics need not be imported into nonpartisan local government! Personal Conduct With respect to one another: Is someone maintaining the “outsider” perspective even after becoming the ultimate “insider”? You may have started as a “critic” of the status quo, or been propelled to seek public office because of one particular issue of interest to you, but changes to your focus and perspective may need to change once you are in public office Is someone not recognizing that a governing body member’s power can be exercised only through the body as a whole? Acting as “I’ rather than “we”? Is there an “imbalance of information” on the governing body? Is there a sense of distrust among one another? Is there constantly the same split vote on every issue with the same people lining up on the same side every time? This could mean that the entire power of the governing body is always being given over to the one “tie breaker”! Personal Conduct With respect to staff: Is staff viewed as “the enemy”? Is there frequent second-guessing of staff, or a desire on the part of one or more governing body members to do individual “research” on staff recommendations? Is staff frequently blindsided by issues that are raised for the first time only in the middle of a governing body meeting? With respect to the community: Are “public comment” periods turning into “public inquisition” periods or “public argument” periods? (see previous slides) Is “staff bashing” or “elected official bashing” happening at governing body meetings? Honoring Personal Conduct Guidelines Why is this a liability issue? CIRSA’s observation: How a governing body interacts with one another and with staff is a great predictor of liability. A dysfunctional governing bodyinevitablyattracts claims. A governing body that mistreats staff or citizens is modeling bad behavior organization-wide. “You know what” rolls downhill! A governing body that creates or allows chaos in the chain of command is asking for employment claims! A governing body that is over-involved in administrative matters is straying away from its “job description” as well as its best areas of immunity. Conclusion Ethical behavior is not just about instances where a  financial or other conflict of interest may exist In a larger sense, ethical issues are present in all of  your dealings with one another, staff, and the community The ethical choices you make in those dealings will  either enhance or reduce your effectiveness, and enhance or reduce your liability Following best practices for maximizing your  effectiveness as a governing body member also maximizes your liability protections! About CIRSA Colorado Intergovernmental Risk Sharing Agency Public entity self-insurance pool for property, liability, and workers’ compensation coverages Formed by in 1982 by 18 municipalities pursuant to CML study committee recommendations Not an insurance company, but an entity created by intergovernmental agreement of our members Total membership today stands at 266 member municipalities and affiliated legal entities Out of 271 incorporated municipalities in Colorado: 81% are members of our PC pool 45% are members of our WC pool About CIRSA Member-owned, member-governed organization No profit motive –sole motive is to serve our members effectively and responsibly Have returned over $30,000,000 in contributions to our membership CIRSA Board made up entirely of municipal officials Seek to be continually responsive to the liability-related needs of our membership –coveragesand associated risk management services, sample publications, training, and consultation services, as well as specialty services such as home rule charter review We have the largest concentration of liability-related experience and knowledge directly applicable to Colorado municipalities 1 “Get outside and play.” —Mom 2 “Why don’t you play here?” —Fraser Rocky Mountain Adventure Quest Proposal for a New Outdoor Recreation Destination in Fraser, Colorado 4 Rocky Mountain Adventure Park in Fraser, Colorado Proposal by Rocky Mountain Adventure  Quest, LLC Private funding  Expand in-town recreation opportunities at  the existing Fraser Outdoor Activities Center Phase 1: Aerial Adventure Park  Phase 2: Trails Center  5 Proposed location at Fraser Activities Center 6 Outdoor Adventure… Builds resilience and self esteem  Enhances independence  Fosters balance and risk taking  Helps participants build confidence  Develops intellectual flexibility…  7 ...and is a major economic driver nationwide $331 billion$646 billion : annual consumer annual U.S. consumer spending on spending on pharmaceuticalsoutdoor recreation 8 Year 1 Aerial Adventure Park (winter 2016)  Year 2 Trails Center (2017)  9 What’s an Aerial Adventure Park? In Summer and Fall… 10 Aerial Adventure Park features 20 to 32 above-ground elements like rope  bridges, nets, climbing elements, logs Self-guided locking belay system  Built on six to eight 24-inch diameter posts set  into the ground, with steel cable supports 60 x 60 feet in area  20 to 30 feet high  Minimal footprint/site disturbance (~1/4 Acre)  11 12 13 Need park photo 14 What’s an Aerial Adventure Park? In Winter… 15 Aerial Parks Offer: Approachable adventure  Family fun with safe thrills  Team-building opportunities  Groups/event/corporate  Educational applications for camps,  schools, special interests Mental and physical empowerment  Opportunity for repeat visits  16 RMAP Aerial Adventure Park Projected Visitor Traffic (paying visits) 12000 9000 6000 3000 0 Year 1Year 3Year 5 17 Version 2 18 Benefits of Proposed Site Existing parking, Picnic areas  restrooms, Activities Trail access/  Center Office connectivity Builds on existing Attractive feature   designated year-round including recreation 900,000 + annual destination visitors passing Adjacent lodging, through to Rocky  food, refreshmentsMountain National Park 19 RMAP Trails Center 20 Trails Center features: Create trailhead Offer rental fleet of   destination for winter fat bikes, snowshoes and summer sports and x-c skis users at Fraser Activities Center Act as concierge for  Provide access to area recreation and  Fraser Valley Trail local businesses Offer trail maps,  general trail info Possible nature  programming, fishing 21 RMAP Trails Center Projected Visitor Traffic 2250 1800 1350 900 450 0 Year 1Year 3Year 5 22 Year-Round Benefits of Park/Trails Center Dedicated visitor Concierge for outdoor  destinationactivities Unique in all the Generate awareness  valley/county and support of HTA, partner on trail Approachable price  promotion point for visitors/families Partner with local Cross-selling and referral   schools and businesses for area businesses in outdoor curriculums 23 Considerations SafetyCurrent offices of  Headwaters Trails Geotechnical /  Alliance Engineering Neighborhood Environmental   impact impact (wetlands and wildlife)Adjacent trails  Legal/Insurance Long-term use  (lease terms) 24 Recent Progress Rocky Mountain Adventure Park formed as a  Colorado LLC Comprehensive business plan complete  including 6 year Profit and Loss projections and first year cash flow. Initial feasibility review with construction, legal,  financial, and environmental advisors Funding secured, able to move ahead with  detailed feasibility studies 25 Consultation with Colorado Parks and Wildlife 10Feb16 Recommendations: Wildlife Plan –moose and deer, 1. songbirds, bear, wildlife appreciation benefits Safety Plan –per Town Staff, re: signage, 2. access during off hours Stormwater Management Plan + 3. Landscape –vegetation and erosion, landscaping/parking/snow storage, floodplain 26 Consultation Grand Enterprise Initiative  Town of Fraser Staff  Headwaters Trails Alliance  Colorado Parks and Wildlife  US Army Corps of Engineers  Town of Fraser Board of Trustees  27 Moving Forward Feasibility Review with  FVMRD?  HTA  CPW  Corps  Fraser Town Staff, Board  Memorandum of Understanding with Town of  Fraser Environmental studies including wetlands,  wildlife Secure lease agreement with Town of Fraser  Permits –Wetlands, Building, Other  28 Team Cara McDonald, Project Manager  mcdonald.cara@gmail.com, 303-912-7395  Adventure Experiences Inc., Builder  Dan Culhane, Esq.  Darren Spreeuw, Ph.D., Economic adviser  Grand Environmental Services 