Conflict of Interest? I Think Not…

Hello,

There have been some posts on social media (Facebook) that certain Wheat Ridge elected officials should not be voting on the 38th Ave. designs because they own a business on 38th Ave. and it is a conflict of interest. Other Facebook posts have stated that elected officials should not be a board member of other organizations because that is a conflict of interest.  Unfortunately, It seems every year these accusations arise from one issue or another in the City. Usually the accusers are overlaying their “political correctness” on others.  Others are looking for an edge on a City Council vote or an election.

Here are the facts: 

Elected officials are allowed to serve on boards for other organizations – public or private.  They have not lost that right because they are elected.  Elected officials are members of the community and they do not lose that right to serve as board members of other organizations.  Elected officials across the country serve on boards of other organizations without any problems.  The City Attorney has confirmed this position more than once.

The conflict of interest recognized in the City Charter is a financial conflict of interest.  A member of City Council must recuse themselves from voting if they have a financial conflict interest (be paid tax dollars).  For example, their company has bid on a City project and their company has been awarded the bid.

In the recent past, two former members of City Council have voted on the 38th Ave. projects.  Both former members own property and businesses on 38th Ave.  No conflict of interest then AND no conflict of interest now.   What’s good for the goose is good for the gander.

Let’s put this to rest once and for all!   Below is an email from the City Attorney based on a recent accusation (email text printed with permission from the City Attorney):

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……whether Councilmember Hoppe’s ownership interest in a business on 38th Avenue constitutes a conflict of interest affecting her ability to vote or otherwise participate in the decision-making Council has or will engage in on that matter. This email is my response.

The Home Rule Charter, Section 4.10, governs conflicts of interest of Councilmembers. It prohibits Councilmembers from being compensated City employees, and, relevant to the present question, having “any material or significant financial interest, direct or indirect, with the City.”

With this language in mind:

  • Conflicts of interest under the Charter are financial. Notice that the interest has to be “with the City” to qualify as a conflict.
  • Councilmember Hoppe’s ownership of a business on 38th Avenue is not a financial interest with the City. It is an interest she shares with all other business owners on that street.
  • The 38th Avenue issues are legislative in nature, not quasi-judicial. Councilmembers may well be affected by legislation, but this does not conflict them from voting.
  • As an example, Councilmembers may vote on legislative proposals which may affect them (tax proposals, leash laws, etc.).

I conclude no conflict exists to prevent Councilmember Hoppe from voting on 38th Avenue street width, design, retrofit or construction matters, unless the matter is itself a contract between her company and the City. Finally,  I should note that under Charter 4.10 it is the Council that ultimately determines a conflict and if so what action to take.

As always, please do contact me if this message raises questions.

Gerald E. Dahl

Murray Dahl Kuechenmeister & Renaud LLP

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In closing, “Nothing is as peevish and pedantic as men’s judgments of one another“, Desiderius Erasmus.

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City Treasurer Jerry DiTullio - Wheat Ridge, CO
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