Durango City Council approved an amendment to the city’s code of ethics effectively removing the Board of Ethics’ quasi judicial jurisdiction over city councilors.

The move was to eliminate a conflict of interest between having the Board of Ethics members, who are appointed by City Council, oversee the group that made the appointments, said Tom Sluis, city spokesman.

The amendment to the ethics code changed the definition of “city officer” to no longer include the mayor and council members, according to the ordinance text.

City Attorney Mark Morgan said it is never a good practice to have appointed officials with jurisdiction over the people who appointed them. Prior councilors had the best intent when they formed a restrictive ethics code that applies to councilors several years ago, but the code has had the opposite effect of what was intended.

He said councilors have tried to use the ethics board to hold other councilors accountable to one another, but councilors are ultimately answerable to the public, whether through the city charter’s recall process or the Colorado Independent Ethics Commission, which has authority over all elected officials from municipal councilors to the governor.

The city’s recall process is faster and more efficient than the Board of Ethics’ processes of quasi judicial review, he said. And a recall places the decision to remove a sitting councilor who is committing ethics violations or doing anything else the public deems unfit behavior for office into the hands of the public.

He said the recall process is clean and can be started anytime after six months of a councilor taking office.

“The hope is anything nefarious results in a recall and a vote to the people,” he said.

The change to the ethics code should help the city rid itself of complicated, conflict-ridden procedures, and it has the additional benefit of potentially huge cost savings, too, he said. He told The Durango Herald last month the city has paid out $39,723.41 to special counsels to the ethics board for complaints between councilors since 2019. About $26,000 of that was paid before Councilors Kim Baxter and Barbara Noseworthy left City Council in April.

It is still unclear how the change to the ethics code could impact pending matters involving councilors before the Board of Ethics, Morgan said.

For example, Councilor Olivier Bosmans requested a public hearing regarding an ethics complaint filed against him by four councilors, including Baxter and Noseworthy and current Councilor Jessika Buell and Mayor Melissa Youssef.

(Buell and Youssef later removed themselves from the complaint; Buell declined to comment on why she removed herself from the complaint in a phone interview last month.)

The public hearing is scheduled for late August.

Morgan said he recently discussed the issue with the special counsel to the ethics board, but no decision was reached.

He said neither he nor the special counsel to the ethics board have yet received an official request from the ethics board to provide a legal opinion about the procedural effect of the ethics code changes. But someone will need to determine whether the change precludes the public ethics hearing.

The Board of Ethics will continue to have jurisdiction of any city positions appointed by City Council, such as boards and commissions members, the city manager or the city attorney.

But there is another flaw in the code of ethics that will require correction in the future, and that is the ethics board appears to have jurisdiction over employees who report directly to the city manager, he said.

“Ideally, these systems work well when the ethics board is limited to providing advisory opinions for (possible conflicts or violations) that haven’t happened yet,” he said.

For example, ethics boards typically offer advisory opinions to someone such as a board member who has a potential conflict of interest and wants guidance on how to avoid it, he said.

“That is a current function of the ethics board but they also have quasi judicial punishment authority; but the relationship between city manager and staff, that could be a problem,” he said.

He said although the Board of Ethics having jurisdiction over the city manager’s direct staff could be troubling, that issue hasn’t really come up and all of the ethics board’s current and recent activities have concerned conflicts between city councilors.

Morgan called the ethics code revision “a simple change with a significant effect” that is part of a larger effort to reform the city’s code of ethics.

City Council voted to approve the first reading of the ordinance last week. The change to the code of ethics will take effect if it is approved on a second reading at a later City Council meeting.

cburney@durangoherald.com