I am writing in connection with the conflict of interest which a number of citizens believe burden you with respect to the Independence project. This conflict arises from your decision to serve simultaneously on the Board of County Commissioners and the Elizabeth School Board.
As you know, the Elizabeth School District submitted a statement of support for the project to the Elbert County Planning Commission and stands to gain financially from additional enrollment which could accrue if Independence is developed. No doubt you are also aware that when a BOCC member considers land use and special district applications he or she is acting in a quasi-judicial capacity and must be free from involvement which carries even a hint of a conflict of interest. In this case, I believe you face a problem because you hold two positions of public trust, one on the BOCC and the other on the school board, which are irreconcilable insofar as Independence is concerned. If, acting as a BOCC member, you were to vote against Independence you would be acting against the financial interests of the district. If you were to vote to approve the applications your action could be seen, regardless of your actual intentions, not as an exercise of independent judgment, but as an exercise of loyalty to the Elizabeth School District. Your quasi-judicial decision would be tainted, just as a decision by a judge who has a financial relationship with a party interested in the outcome of litigation would be similarly tainted.
It is my understanding that you have recognized that the two offices are incompatible in this context, for a post on the Elbert County Republicans Facebook page reports that you have stated that you have removed yourself “from any discussions or votes on Independence as a school board member”. This is a meaningless gesture, for it is the BOCC, not the school board, that will be sitting in a quasi-judicial capacity on these issues. At this point it seems to me that you have three options:
Section 5(A) of the IEC’s rules provide, in relevant part, that any “local government official” [defined in section 3(A)(9) of the Rules as “an elected or appointed official of a local government”] may submit a request for an advisory opinion from the IEC “as to whether any particular action by that person would constitute a violation of Article XXIX [of the Colorado Constitution] or any other standards of conduct….as provided by law.” Section 5(B) allows members of the public a similar avenue, though it refers to the resulting opinion as a “letter ruling.” You and I each have the ability of ask the IEC for an opinion on this matter. If the IEC ends up agreeing with your position you may be vindicated and, perhaps, have some confidence that you will not face more formal proceedings before the IEC. Finally, it’s possible that an advisory opinion in your favor would eliminate one possible basis for a legal challenge were the BOCC to approve the applications, though IEC advice might not impact additional statutory or common law recusal requirements, if any.
The need for IEC advice arises from the statutory Code of Ethics set forth at C.R.S. sec 24-18-101, et seq. and enforced by the IEC. Under these statutes there are at least two questions for which which it is appropriate to seek advice from the IEC. First, is it consistent with the ethical principles applicable to local government officials set forth in C.R.S. sec. 24-18-105 for you to continue to serve on both the BOCC and the school board of the Elizabeth School District? Second, would your involvement adjudicating Independence applications violate the terms of C.R.S. sec. 24-18-109(2)(b)? To assist you in evaluating your position I will discuss these statutes in greater detail.
C.R.S. sec. 24-18-105(2) reads, in relevant part, as follows:
“A …local government official…..should not acquire or hold and 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.”
While C.R.S. sec. 24-18-105(1) tells us that the standards in the section are “guides to conduct” and not “violations as such of the public trust” advice from the IEC would give both you and the citizens of Elbert County a basis for judging your actions in light of what the heading of the statute describes as “ethical principles for public officers, local government officials and employees.” My view is that as a school board member you are holding an interest in a business or undertaking, the Elizabeth School District, which could be directly affected to its economic benefit by a positive adjudication of the Independence applications by the BOCC and subsequent action based on that decision by Elbert County Community Development Services, an agency over which the BOCC has substantive authority.
C.R.S. sec. 24-18-109(2)(b) provides that a local government official has breached his or her fiduciary duty and the public trust [see C.R.S. sec. 24-18-109(1)] if he or she performs “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.” Here, if you were to vote in favor of the Independence applications you would be performing an official act which the school district apparently believes would bring it a significant financial benefit. As a school board member you are a representative or agent of the district.
I request that you give serious consideration to the options presented in this email. Simply ignoring the problem and claiming that the irrelevant school board recusal you have offered is sufficient will call the integrity of any BOCC decision into question with regard to this and other contentious issues in the future.
In order to give you a chance to reconsider your position, I will refrain from seeking a letter ruling until after the close of business on Tuesday, August 15. If I haven’t been advised by then that you have either chosen to resign from the school board or recuse yourself from the BOCC’s consideration of Independence I will proceed with a request for a letter ruling. I don’t believe that such an action would preclude you from asking for an advisory opinion as well.
Thank you for your attention to this matter.
Sincerely,
Rick Brown