State ethics director: Boulder should change attorney model

Boulder City Attorney Tom Carr
Jefferson Dodge | Boulder Weekly

The director of a state ethics organization says that the city of Boulder needs to change its model of having a city attorney hired by city council serve as its members’ advisor — and enforcer — when it comes to appearances of impropriety and ethical breaches.

Luis Toro, director of Colorado Ethics Watch, responded to one of the subjects that city council began to tackle this week at an Oct. 9 study session on ethics and financial reporting: Is it appropriate to have someone employed by the council be in charge of prosecuting violations of the council’s own code of conduct?

It seems like it could be a conflict of interest in and of itself, especially when considering that the city attorney is also charged with counseling council members about what is and isn’t an ethics violation.

“Definitely, that’s something they need to change,” Toro told Boulder Weekly. “Even if in practice it hasn’t been much of a problem, you can easily imagine a situation where it would be a problem.”

Following up on claims made by council outcast Seth Brigham that certain elected officials had been less than forthright about their financial dealings and relationships, BW uncovered a host of incorrect or omitted information on council members’ financial disclosure forms, discoveries that helped fuel the city’s current effort to re-examine its practices in this area. City Attorney Tom Carr has dismissed the possible violations as, among other things, a symptom of unclear language on forms.

Toro says that when confronted with possible ethics valuations, some cities turn to other cities’ attorneys for assistance, to avoid the conflict of having an employee put in the position of policing his or her employers. Even Boulder called on the Fort Collins city attorney to investigate an alleged code of conduct violation in 2007.

But as it stands now, the decision on whether to turn to another city’s attorney lies with Carr, so he’s ultimately the one making the decision about which of his bosses’ shortcomings should be investigated.

“It’s tough for the people to expect the city attorney to say ‘no’ to their boss,” Toro says. “It puts the attorney in a very difficult situation, really.”

He suggests creating an outside group to assess ethical dilemmas, an option council members are expected to take up at their next ethics study session on Oct. 23.

“I think a better solution for Boulder would be to have a local ethics commission, like Denver and Colorado Springs,” Toro says, adding that Colorado Ethics Watch is currently surveying the landscape of home-rule communities like Boulder to see which ones have such commissions.

“Some other cities have much worse systems,” he explains. “We looked at Trinidad. It’s almost a joke, because city council ends up deciding ethics complaints against themselves. So that’s kind of the other end of the scale, and completely ineffective. So it could be worse, Boulder. At least they’re not asking to pass judgment on themselves.”

He says the Colorado Springs iteration of the ethics commission has three members, while Denver’s has five. The state’s Independent Ethics Commission allows no more than two of its five members to be from the same political party.

“An independent ethics board is going to be a lot better at judging appearances and what a reasonable person in the community would think is a conflict,” Toro says. “The idea is they’re there to represent the conscience of the community.”

When asked about the immunity from prosecution granted to council members who seek advice from the city attorney on possible ethics violations in advance, Toro acknowledged that such a model should not be used after the fact, to excuse behavior that the attorney advises against.

“You have to follow the advice, guidance, if you want to claim it as a defense,” he says, adding that one positive thing about such a model is that it “encourages people to get ethics advice in advance, so that if the attorney says no, then they don’t do it, and you don’t have an ethics violation.

“So that’s good,” he continues. “It’s cynical to view it strictly as a ‘get out of jail free’ card, and maybe that’s how it’s been used, but the concept should be that people get advice in advance, and then they can avoid ethical problems before they show up.”