HomeMy WebLinkAboutordinance.council.019-03 ORDINANCE NO. 19
(Series of 2003)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AMENDING TITLE 2 OF THE CITY OF ASPEN MUNICIPAL CODE, ADMINISTRATION,
BY THE ADOPTION OF A NEW CHAPTER 2.02, RULES OF ETHICAL CONDUCT.
WHEREAS, Section 4.7 of the City of Aspen Home Rule Charter prohibits members of
Cotmcil from voting "on any question in which he has a substantial personal or financial interest,
other than a common public interest, or on any question concerning his own conduct;" and
WHEREAS, the Colorado State Legislature has adopted a Code of Ethics which include
rules of conduct for local officials and employees; and
WHEREAS, the City Council adopted Ordinance No. 50, Series of 1979, to define conflict
of interests and to regulate the conduct of City officials deemed to have a conflict of interest; and
WHEREAS. the City Council recognizes that "government is a trust, and the officers of the
government are trustees; and both the trust and the trustees are created for the benefit of the people"
(Henry Clay, Speech at Ashland, Ky., March 1829.); and
WHEREAS, the City Council desires to update the rules of conduct for members of
Council, members of appointed City boards, authorities and commissions, and City employees to
ensure that the people maintain their trust in city govemmem.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO:
Section 1.
That Title 2 of the Aspen Municipal Code is hereby amended by the addition of a new Chapter
~2.02, which chapter shall mad as follows:
Chapter 2.02
Rules of Ethical Conduct
2.02.010 Purpose.
The purpose of this chapter is to protect the public health, safety, and welfare of the public
and the integrity of city government by defining and proscribing certain conflicts of interest that
may arise between the City and City Council members, employees, or appointees to City boards,
authorities, and commissions. The City Council further recognizes that, when citizens of the City of -
Aspen obtain public office, conflicts may arise between the public duty of such a citizen and his or
her private interests. The City Council hereby declares that the proscription of some standards of
conduct common to those citizens involved with government is beneficial to all residents of the
City of Aspen. This chapter recognizes that some actions are conflicts per se between public duty
and private interest while other actions may or may not pose such conflicts depending upon the
totality of the circumstances surrounding certain actions.
2.02.020 Definitions.
As used in this chapter, unless the context otherwise requires:
"Affiliate" or "Affiliated with" means an employee, partner, agent, stockholder, joint venturer, or
corporate director of any business orgarfization or a person who shares office space with such
orgamzation.
"Appear on behalf of" means to act as a witness, advocate, or expert or otherwise to support the
position of another person.
"Business" means any corporation, limited liability company, partnership, sole proprietorship, trust
or foundation, or other individual or organization carrying on business, whether or not operated for
profit.
"Ci~ Council member" means a member of the Aspen City Council and includes the Mayor.
"City official" means and includes any member of a board, authority, commission or other body
where the members are appointed by the City Council. "City official" does not mean or include any
employee of the City with the exception of the Municipal Court judge.
"Compensation" means any money, thing of value, or economic benefit conferred on or received
by any person in return for services rendered by himself or another.
"Confidential inJbrmation" means all information, whether transmitted orally or in writing, which
is of such a nature that it is not, at that time. a matter of public record or public knowledge.
"Contract" means and includes any claim, account or demand against, or agreement with, the City
of Aspen, express or implied.
"Direct official action" means any action which involves:
(a) Negotiating, approving, disapproving, administering, enfoming, or recommending
for or against a contract, purchase order, lease, concession, franchise, grant, or other similar
transaction in which the City is a party, or other action, including inaction concerning any
legislative, administrative, quasi-judicial, or discretionary act of the City of Aspen, whether
by the City Council. a board, commission, court or employee With regard to
"recommending," direct official action occurs only if the person making a recommendation
is in the formal line of decision making;
(b) Enforcing laws or regulations or issmng, enforcing, or regulating permits;
(c) Selecting or recommending vendors, concessionaires, or other types of entities to do
business with the City;
(d) Appointing and terminating employees temporary workers, and independent
contractors; or
(e) Doing research for. representing, or scheduling appointments for an employee,
provided that these activities are undertaken with that employee's performance of (a)
through (d) above.
Direct official action does not include acts that are purely ministerial (that is, acts which do not
affect the disposition or decision with respect to the matter.) With regard to the approval of
contracts, direct official action does not include the signing of the insmanent unless the signer
initiated the contract. A person who follows the procedures set forth at Section 2.02.050 and
recuses himself or herself fi:om taking official action shall not be considered as exercising direct
official action.
"Employee" means any fulMime, part-time, temporary, seasonal, or penuanant employee of the
City of Aspen. except a City Council member and except an independent contractor under contract
with the City of Aspen.
"Financial interest" means a substantial interest held by an individual which is: (a) An ownership interest in a business;
(b) A creditor interest in an insolvent business;
(c) An employment or a prospective employment for ~vhich negotiations have begun;
(d) An ownership interest in real or personal property;
(e) A loan or any other debtor interest; or
(f) A directorship or officership in a business.
"Immediate family member" includes husband, wife, son, daughter, mother, father, grandfather,
grandmother, grandchildren, brother, sister, and domestic partner. The term includes any minor
children for whom the person or his or her domestic panner provides day~to-day care and financial
support. A "domestic partner" is an unmarried adult, unrelated by blood, with whom an unmarried
officer, official, or employee has an exclusive committed relationship, maintains a mutual
residence, and shares basic living expenses.
"Person" means and includes any individual, business, proprietorship, firm, entity, estate,
parmership, association, trust, corporation, holder of a legal or beneficial interest in any of the same,
or other similar entity.
"Personal services" means and includes the employment of a person to perform duties, which
labor does not produce tangible conunodities.
"Quasi-judicial proceeding" means any proceeding at which direct official action will be taken
where (al City or state law requires that the body give adequate notice to the community before
acting; lb) City or state law requires that the body conduct a public hearing, pursuant to notice, at
which concerned citizens must be ~ven an oppommity to be heard and present evidence; and lc)
City or state laws requires the body to make a determination by applying the facts of a specific ease
to certain criteria established by law.
'Substantial interest" means and includes a situation, including without limitation, a pecuniary
stake in the outcome of a direct official action in which, considering all of the c~rcumstances, a
reasonably prudent person would expect a marked tendency to make or take a direct official action
other than in an objective manner. By way of example, and not limitation, a person shall be deemed
to have a substantial interest if:
la/ He or she or a member of the immediate family ~s a party to a transaction:
lb) He, she. a spouse, or a domestic partner owns a one (1%) percent or more, or a
member of the immediate family other than a spouse or domestic parmer owns five (5%)
percent or more. of another party to the transaction;
lc) He or she or a member of the immediate family is an officer in another party to the
transaction;
(d) He or she or a member of the immediate family is directly involved in obtaining the
City's business for another party to the transaction;
(el He or she or a member of the immediate family is directly involved in direct official
action regarding a transaction for another party to the transaction, other than a purely
clerical capacity; or
(fl A member of his or her immediate family performs more than a nominal portion of
the work required by the transactiom or supervises or manages more than a nominal portion
of the work.
(gl He or she or a member of his or her immediate family resides or owns property
within 300 feet of a property that is the subject of a quasi-judicial proceeding.
"Transaction" means and includes any contract; any sale or lease of any interest in land. material.
supplies, or services; or any granting of a development right, license, permit, or application.
2.02.030 Rules of conduct governing City Council members, city officials and
employees.
A City Council member, City official, or an cuuployee shall not:
(a) Disclose or use confidential information acquired in the course of his official duties
in order to further substantially his personal financial interests;
(b) Disclose or use confidential information acquired in the course of his official duties
as an attorney-client communication from the City Attorney or other counsel retained by the
City without the consent of the City Council;
(c) Assist any person for a contingent fee to affect the outcome of a direct official act;
(d) Perform a direct official action without following the procedure prescribed by
section 2.02.050 of this chapter if such person:
(i) Has a substantial interest in any transaction with the City of Aspen;
(ii) Has an immediate family member with a substantial interest in any
transaction with the City of Aspen;
(iii) Has a substantial interest as an affiliate of a firm with a substantial interest in
any transaction with the City of Aspen: or
(iv) Has a substantial interest as an affihate of a firm appeanng on behalf of or
employed by a person with a substantial interest in any transaction with the City of
Aspen.
(e) Accept a gift of substantial value or a substantial economic benefit tantamount to a
gift of substantial value which: (1) would tend improperly to influence a reasonable person
in his position to depart from the faithful and impartial discharge of his public duties; or (2)
he knows or which a reasonable person in his position should know under the circumstances
is primarily for the propose of rewarding him for a direct official action he has taken. The
following shall not be considered gifts of substantial value or gifts of substantial economic
benefit tantamount to gifts of substantial value for proposes of this section:
(i) Campaign contributions and contributions in kind reported as required by
section 1-45-108, C.R.S., as amended;
(ii) An occasional nonpecuniary girl, insignificant in value:
(iii) A nonpecumary award publicly presented by a nonprofit organization in
recognition of public service;
(iv) Payment of or reimbursement for actual and necessary expenditures for
travel and subsistence for attendance m a convention or other meeting at which such
person is scheduled to participate:
(v) Reimbursement for or acceptance of an opportunity t9 pa~icipate at a social
function or meeting which is offered to such person which is not extraordinary when
viewed in light of the position held by such person;
(vi) Items of perishable oi- nonpermanent value, including, but not limited to,
meals, lodging, travel expenses, or tickets to sporting, recreational, educational, or
cultural events that take place within the Roaring Fork Valley drainage; or
(vii) Items of perishable or nonpermanent value, including, but not limited to,
meals, lodging, travel expenses, or tickets to sporting, recreational, educational, or
cultunil events that have a value less than $250 and take place outside the Roaring
Fork Valley drainage unless the event is directly related to City business; or
(viii) Payment for speeches, appearances, or publications reported pursuant to
section 24-6-203. C.R.S.
(fl Fail to comply with the Public Official Disclosure Law, 24-6-201, er seq., C.R.S.
(This law requires incumbents in and candidates elected to pubhc office - City Council
members - to publicly disclose the receipt of certain gifts, honoraria and other benefits on
forms available from the City Clerk's Office3
(g) Request, use, or permit the unauthorized use of City-owned vehicles, equipment,
materials or property for personal convenience or profit.
(h) Simultaneously serve in more than one capacity as a City Council member, City
official, or employee. City officials may serve on more than one City board, authority, or
commission; provided, however, they are not subordinate to one another in any respect; and
provided further, that such service does not violate Article VIII of the City Charter and the
by-laws of either board, authority, or commission.
2.02.040 Appearances before the City Council, boards, commissions, and courts.
Nothing in this section is intended to apply to any City Council member, City official, or employee
who appears before the City Council or any City board, authority, or commission to urge action on
a pohcy or issue of general civic nature or to the relationship betwe6n the City Council, the City,
any City board, authority or commission, or any department of the City.
City Council members.
(i) City Council members shall not appear before the City Council or any city
board, authority, or commission either on their own behalf or on behalf of another.
A City Council member may be affiliated with a firm appearing on behalf of or
employed by another person concerning any transaction with the City before the
City Council, board, authority or commission; provided, however, that the City
Council member follows the procedures prescribed by section 2.02.050 of this
chapter if the transaction is before the City Council.
(ii) A City Council member shall not be a party or, by himself or herself, or as
an affiliate ora firm, appear on behalf of a party in a civil suit, wherein the City is an
adverse party, unless the member first obtains the consent of the City Council.
(b) City officials.
(i) City officials may only appear or be affiliated with a firm appearing
concerning any transaction with the City under the following circumstances:
(1) A City official may appear on his own behalf before the City
Council.
(2) A City official may appear on his own behalf before the body of
which he or she is a member, provided the City official follows the
procedure prescribed by section 2.02.050 of this chapter.
(3) A City official may appear on behalf of another person before any
City board, authority or commission except the City Council or the body of
which he or she is a member.
(4) A City official may be affiliated with a firm appearing on behalf of
or employed by another person concerning any transaction before the City
Council, board, authority, or commission, provided the City official follows
the procedure prescribed by section 2.02.050 of this chapter if the
transaction is before the body of which he or she is a member.
(ii) A City official shall not be a party or, by himself or herself, or as an affiliate
of a firm, appear on behalf of a party in a civil suit, wherein the City is an adverse
party, unless the member first obtains the consent of the City Council.
City employees.
(i) City employees shall not appear on behalf of or be employed by another
person conceming any transaction with the City or before the City Council, or any
city board, authority, or commission.
(ii) City employees may appear before the City Council or any city board,
authority, or commission, on their own behalf or on behalf of such employee's
immediate family members.
(iii) City employees may be affiliated with a fil~. that appears on behalf of or is
employed by another person before the City Council or any city board, authority, or
commission; provided, however, the employee discloses his relationship as provided
in section 2.02.050.
2.02.050 Voluntary Disclosures of Interests.
(a) Whenever the provisions of this chapter require a City Council member, City official, or
employee to disclose an interest, the following procedures shall be followed. The affected person
shall disclose the interest on the record of a public meeting of the City Council or the City board,
authority, or commission of which the person is a member. The interested City Council member,
City official, or employee shall thereafter: (a) refrain from voting upon or otherwise taking a direct
official action in such transaction; (b) physically absent himself or herself from the room in which
the matter is being considered; and (c) not discuss the matter with any other member of the City
Council, board, authority, or conunission of which the person is a member. In the event that the
interest has arisen or become apparent after the City Council member, City official, or employee
has taken some direct official action on a transaction, the City Council member, City official or
employee shall give written notice of the interest and the nature of the transaction to the City
Attorney as soon as reasonably possible.
(b) A City Council member or City official may vote notwithstanding subsection (a) hereof if
his or her participation is necessary to obtain a quorum or otherwise enable the body to act;
provided, however, that the City Council member or City official discloses his or her interest.
2.02.060 Contracts for Goods and Services - Procurements.
The following roles of conduct shall apply to contracts entered into between the City of Aspen and
City Council members. City officials or City employees. These rules are in addition to any related
provisions set forth in Chapter 4.20 of this Code.
(a) City Council members.
(i) No contract for compensation to a City Council member shall be entered
into if the City Council member would perform services under the contract.
(ii) No contract shall be entered into by the City if a member of the City Council
would have an interest therein unless the City council member with an interest
follows the procedures prescribed by section 2.02.050 of this chapter.
(b) City officials.
A City official may contract for goods and services with the City of Aspen;
provided, however, that the City official does not take any direct official action
relating to the contract.
City employees.
Unless a specific waiver is obtained pursuant to section 2.02.090(b) herein,
employees shall not take any direct official action in a transaction when the
employee knows that:
(1) The employee or any immediate family mmuber of the employee has
a financial interest pertaining to the procurement;
(2) A business or organization in which the employee, or the employee's
immediate family member, has a financial interest pertaining to the
procurement; or
(3) Any other person, business, or organization with whom the
c~nployee or the employee's immediate family member is negotiating or has
an arrangemem concerning prospective employment is involved in the
procurement.
2.02.070 Restrictions on employment of present and former employees.
Current employees.
(i) No employees shall engage in outside employment which ~n any manner
interferes with the proper and effective performance of his or her duties or which
results in a conflict of interest. Employees shall report existing or proposed outside
employment or other outside business activity to their supervisors prior to accepting
the same. Employees shall report any change in employment status to their
supervisors which could give rise to a conflict of interest.
(ii) No employee shall take any direct official action with respect to their former
employers for a period of six (6) months from the date of termination of the prior
employment.
(iii) Unless he or she obtains a waiver pursuant to section 2.02.090(d), no
employee shall appoint or hire a member of his or her immediate family for any type
of employment, including, but nor limited to, full time employment, pan time
employment, permanent employment, temporary employment, and contract
employment.
(iv) Unless he or she obtains a waiver pursuant to section 2.02.090(d), no
employee shall supervise or be in a direct line of supervision over a member of his
or her immediate family. If an employee comes into a direct line of supervision of a
member of his or her immediate family, he or she shall have six (6) months to come
into compliance or to obtain a waiver pursuant to section 2.02.090(d).
(b) Permanent disqualification of former employees.
There shall be a rebutable presumption that former employees have a conflict of
interest when knowingly acting as a pnnmpal, or as an agent for anyone other than
the' City, in connection with any judicial or other proceeding, application, request for
ruling, or other determination, contract, claim, or charge or controversy, m which
the employee participated personally or substantially in any direct official action.
where the City is a party or has a direct or substantial interest. Accordingly, unless
the procedures set forth at section 2.02.090(c) below are properly foll6wed, such
former employees shall be permanently disqualified fi.om acting as a principal or as
an agent for another on said matters.
(c) Six month disqualification of former employees.
There shall be a rebutable presumption that former employees have a conflict of
interest when knowingly acting as a principal, or as an agent for anyone other than
the City, in connection with any judicial or other proceeding, application, request for
ruling, or other determination, contract, claim, or charge or controversy, in matters
which were generally within the former employee's official responsibility where the
City is a party or has a direct or substantial interest. Accordingly, unless the
procedures set forth at section 2.02.090(c) below are properly followed, such former
employees shall be disqualified fi.om acting as a principal or as an agent for another
on said matters for a period of six (6) months following the former employee's
employment with the City.
(d) Six month disqualification of City Council members for employment.
City Council members shall be disqualified fi.om employment with the City for a
period of six (6) months fi.om the last day of the term of their elected position
without the consent of the City Council.
2.02.090 Opinions and waiver.
(a) Advisory opinions. On written request of current, former, or prospective City
Council members, City officials, or employees, the City Attorney may render advisory
opinions regarding the appropriateness of the course of conduct to be followed in any
proposed direct official actions or transactions. If a significant controversy arises under any
provisiofi of this chapter, the City Attorney may appoint a neutral outside counsel to assist
in resolving the issue. Compliance with the requirements of a duly promulgated written
advisory opinion of the City Attorney shall be deemed to constitute compliance with the
ethical standards of this chapter.
(b) Waiver of conflict of interest for procurements. Employees presumed to have a
conflict of interest and therefore disqualified from taking any direct official action in the
procurement process set forth as section 2:02.060(c) may petition the City Manager in
writing for relief fi.om disqualification. The City Manager may waive the former employee's
disqualification upon a finding that to do so is in the best interests of the City and may
condition the waiver to ensure that conflicts of interests are avoided.
(c) Waiver of disqualification for former employees. Former employees presumed to
have a conflict of interest and therefore disqualified fi.om acting as a principal, or as an
agent for anyone other than the City pursuant to sections 2.02.070(b) and (c) above, may
petition the City Manager in wr/ting for relief fi.om disqualification. The City Manager may
10
waive the former employee's disqualification upon a finding that to do so is in the besl
interests of the City and may condition the waiver to ensure that conflicts of interests are
avoided.
(d) Waiver of disqualification of employment and supervision of immediate family
members. Immediate family members of current employees who might otherwise be
disqualified from employment in accordance with section 2.02.070(a)(iii) or disqualified for
certain positions by virtue of section 2.02.070(a)(iv), may petition the City Manager in
writing for a waiver. The City Manager shall grant a waiver if he or she deems it to be in the
best interests of the City to do so and may condition the waiver to ensure that conflicts of
interests are avoided. By way of example, and not limitation, the following are examples of
circumstances in which a waiver may be appropriate:
(i) The family member who is proposed to be hired was certified through a
competitive process conducted pursuant to law and the employee would make the
appointment did not influence or affect the certification;
(ii) The employee who would officially make the appointment is acting
ministerially and did not participate in the selection of the immediate family
member or attempt to influence the person who did;
(iii) The immediate family member who would be in the line of supervision
was already working for the City before the employee came into the line of
supermsion, and the employee can and will abstain from participating in any
personnel actions involving the immediate family member.
2.02.1 O0 Political activities.
(a) Fair Campatgn Practices Act. City Council members, City officials and employees
shall not violate any provision of the Colorado Fair Campaign Practices Act, Sections 1-45-
101. et seq. or the City of Aspen Election Code. Chapter 9.04 of the Aspen Municipal Code.
lb) Permitted Political Activities. City Council members, City officials and employees
may participate in the following political activities on their own time:
(i) Register and vote in any election;
(ii) As an individual, privately and publicly express an opinion on political
subjects and candidates:
(iii) Be a member of a political party and participate in its activities consistent
with this section;
(iv) Sign a political nomination, initiative, referendum, or recall petition as an
individual;
(v) Make a financial contribution to a political party, issue committee or
candidate's committee;
(vi) Be politically active in connection with any issue question or candidate;
(vii) Display bumper stickers, posters, or pamphlets on his or her personal
property for the e~dorsement of issues or candidates;
(viii) Take an active part in the management of political campaigns;
(ix) Directly or indirectly solicit, receive, or account for funds for a partisan
political purpose except as prohibited by this section;
(x) Solicit votes in support off or in opposition to, a an issue or candidate;
(xi) Serve as a delegate, alternate, or proxy to a political party convention;
(xii) Drive voters to the polls on behalf of a political party or partisan candidate;
and
(xiii). Endorse or oppose a partisan candidate for public office or political party
office in a political advertisement, broadcast, campaign literature, or similar
material.
h~ addition to the above listed activities, City Council members may:
(xiv) Use their official titles and make reference to their connection with the City
in political advertisements, endorsements, or speeches;
tc~ Prohibited Political Activities. The following political activities are prohibited for
City employees:
(i) No employee may use any official authority or influence for the purpose of
interfering w/th or affecting the result of an election, nor may funds be solicited or
contributions be received fTOm other employees for political purposes;
(ii) Bumper stickers and posters may be displayed on private vehicles and
property, but campaign materials, pamphlets, and buttons may not be displayed on
City vehicles, City property, or by an employee while on a work site or performing
his or her official duties;
(iii) Activities prohibited for an individual employee are also prohibited for
groups or organizations of employees, even though specific activities are being
performed by a non-employee as a representative of the employee group;
(iv) Activities permitted in subsection (b) of this Section are prohibited when an
employee is on duty; they are also prohibited on City property and when an
employee is wearing a uniform nonually identified with the City; and
(v) In local issues, an employee shall not use an official City title or designate
employment with the City in political advertisements, endorsements, or speeches,
without the express consent of the City Council.
Id) Political Candidac~ of Ci~ Employees. The following shall apply when City
employees seek elected office:
(i) A city employee may seek election to political office. If elected to political
office, and such office is clearly inconsistent, incompatible, in conflict with his or
her duties as a City employee, or the elected office is that of City Council member,
the employee shall terminate City employment prior to assuming elected office;
(ii) An employee may be a candidate for a board such as, but not limited to, a
school board, and if elected, may retain his or her City position. However. if such
office is clearly inconsistent, incompatible, or in conflict with his or her duties as a
City employee, the employee shall tcn'minate City employment prior to assuming the
elected position.
2.02.110 Quasi-judicial proceedings.
City Council members, City officials, and employees, required as part of their duties to take direct
official action that involves a quasi-judicial proceeding shall:
(a) Follow the voluntary disclosure procedures set forth at Section 2.02.050, if he or she
has a financial or personal interest in any quasi-judicial proceeding;
(b) Attempt as reasonably possible to remain impartial and make final decisions only
after a full and open heating based on evidence presented at a heating;
(c) Avoid as reasonably possible communications outside the hearing or public meeting
process on pending matters, and disclose all information regarding the pending matter that
he or she may have received from sources outside the public decision-making process;
(d) Avoid as reasonably possible taking any public position or stance on a pending
matter until all of the evidence has been presented and he or she is required to take a direct
official action on the pending matter;
(e) Avoid as reasonably possible any conduct through words or conduct that would lead
a reasonably prudent person to believe that he or she has prejudged the pending matter until
such time as he or she is required to take a direct official action on the matter.
(t) Endeavor to prevent personal feelings about an applicant or an application from
entering into the decision making process; and, if personal bias reaches a level where he or
she cannot make an impartial decision based on facts in the record, follow the voluntary
disclosure procedures set forth at Section 2.02.050; and
(g) ' If in doubt, seek advice from the City Attorney's Office on whether a particular
proceeding is a quasi-judicial proceeding.
2.02.120 Uniform Enforcement of City Regulations.
Purpose of Rules. The City of Aspen is charged with the enfomement of numerous
state and municipal laws and regulations designed and intended to protect and enhance
the public health, safety and welfare. Such regulations entail, for example, building and
zoning codes, environmental and health codes, business licensing regulations, and
regulations governing the use of public rights-of-way and other public property. In order
to promote consistency, predictability and fairness relevant to code enfomement
activities, the following rules of ethical conduct relating to code enforcement have been
devised to guide code enforcemenl personnel (excepting Aspen Police Department and
Parking Enfomement personnel) in the execution of their enforcemenl duties and
responsibilities. Because the nature and necessity of code enfomement is ofien dependent
upon the particular facts associated with any given situation or event, as well as the
availability and extent of enforcement resources, flexibility and sound judgment should
always be foremost in the execution of code enforcement activities. Consistent therewith,
the following policies are not intended to mandate hard and fast rules to be applied in all
circumstances at all times, nor should they be interpreted or applied m a manner that
would conflict with preexisting ordinances or other regulatory measures. Rather. the
policies are to act as guidelines in assisting enforcement personnel toward a fair and
consistent application of municipal regulations.
(b) Training. All code enforcement personnel shall be properly trained to carry
out their ass~gued duties and, when legally required, take an oath or affirmation as
administered by the City Clerk to faithfully perform such duties and to uphold and
enforce the regulations, ordinances and laws of the City of Aspen and State of Colorado.
(c) Progressive enforcement. Code enforcement personnel shall normally utilize a
progressive method of code enforcement in exercising their enforcement duties. Except
when circumstances warrant more immediate or forceful action, code or regulatory
violations shall be addressed as follows:
(i) Whenever reasonably possible, direct personal contact shall be made by
the enforcement officer with the violator and/or his representative. If personal
contact cannot reasonably be accomplished, then written notification of the
violation in the form specified below shall be left with an appropriate person or
posted at a conspicuous location appropriate to the violation.
(ii) Unless more forceful action is warranted, an initial violation shall be
subject to a verbal warning to the violator and a request for correction within a
time certain, generally no longer than ten (10) days, although a longer or shorter
time period may be necessary depending upon the relevant cimumstances and the
severity of the violation. The enfomement officer involved should always
document the nature of the violation, the specifics of the verbal warning provided
the violator, and the corrective action ordered.
(iii) Upon a failure or refusal to correct a violation after a verbal warning, a
violator shall be subject to a written notice of violation, a correction notice and/or
a stop work order. Such written notice or order shall specify the facts illustrating
the violation, reference the specific ordinance or regulation implicated by the
violation, specify the corrective action necessary and the time period within which
such corrective action must be completed or undertaken, and specify the name and
telephone number of the enfomement officer who can be contacted in regard to
the violation. The written notice or order shall be delivered to the violator or his
representative or employee, or when such delivery cannot be reasonably
accomplished, the notice or order shall be posted in a conspicuous location
appropriate to the violation.
(iv) Upon a failure or refusal to correct a violation or comply w/th a written
notice of violation, correction notice or stop work order, the violator shall be
subject to the issuance of a summons and complaint commencing a municipal
court prosecution for the violation. The determination to initiate a municipal
court action by the issuance of a summons and complaint shall rest primarily
within the reasonable discretion of the enfomement officer. Department heads
charged with the supervision of code enforcement personnel may reserve to
themselves final discretionary authority over the issuance or non-issuance of a
summons and complaint by their subordinates. Enforcement personnel should
consult with the City Attorney's office prior to the issuance of a summons and
complaint. Likewise, enforcement personnel should confer with the Aspen Police
Department regarding appropriate assistance to ensure against possible breaches
of the peace in effectuating proper service of any summons and complaint. Once
a summons and complaint has been docketed with the municipal court, the City
Attorney's office, in consultation with the enfomement officer, shall assume
primary responsibility and discretion as to how the violation shall be resolved, i.e.,
plea negotiation, trial or dismissal.
(v) In addition to the issuance of a summons and complain, enforcement
personnel may consult with the City Attorney's office regarding the initiation of
an ~njunctive or declaratory relief action in civil court to secure compliance .with
ordinances or regulations, or to restrain and enjoin ongoing or continual ordinance
or regulatory violations.
(d) Inspections. Whenever necessary to make an inspection to enforce any
ordinance or regulation, or whenever a code enforcement officer has reasonable cause to
believe that there exists in or upon any premises a code violation, such officer may
approach and enter upon or into such premises in an unforced manner at all reasonable
times to inspect such premises or perform any duty imposed upon the enforcement officer
by state or local law or regulation, by first presenting his or her credentials and request
access or entry. If the subject premises are unoccupied, the enforcement officer shall
make a reasonable effort to locate the owner or other appropriate person having control or
charge of the premises and request entry or access. If entry or access is refused, the
enforcement officer shall leave the subject premises and consult with the City Attorney
concerning the necessity of obtaining a search warrant. All questions or doubts
concerning the propriety of any inspection or investigation to be conducted on private
property shall be resolved in favor of delaying such inspection or investigation until after
full consultation with the City Attornqy.
(e) Response to Complaints. Code enforcement personnel shall respond to a
complaint or information concerning an alleged code violation within a reasonable period
of time taking into consideration available resources and current caseload. Normally, a
response should be rendered within ten (10) days from receipt of a complaint. Response
time will vary depending on the nature of the alleged violation or the frequency of same.
Enforcement personnel shall document all response activity and shall be brought to
resolution or closure within a reasonable time period. No complaint or enforcement
action shall be left open or unresolved.
OO Discretionary powers. In accordance with Section 1-14 of the Municipal
Code. whenever any law or regulation vests in an enforcement officer authority to direct,
approve, or permit any act, such authority shall encompass only such discretion as to
determine whether the law or regulation is applicable and whether it has been complied
with. No ordinance, law or regulation shall be construed to vest in an enforcement officer
discretion to waive, alter or evade any requirements or standard as contained therein, nor
shall any ordinance, law or regulation be construed to give an enforcement officer the
power or authority to require conditions or compliance with standards not prescribed by
such ordinance, law or regulation.
2.02.130 Violation, removal, and enforcement.
(a) No person shall willfully violate the requirements of this chapter.
(b) The City Council may remove any City official who willfully violates any provision
of this chapter.
(c) The City Manager may promulgate personnel policies and procedures not
inconsistent with the provisions of this chapter to regulate the conduct of employees and
establish disciplinary remedies for violations of any provisions of this chapter. Civil and
[6
administrative remedies against employees which are in existence on the effective date of
this chapter shall not be impaired.
(d) If a contract, transaction, or procurement is consummated contrary to anY provision
of this chapter, the City Council may void the contract, transaction, or procurement.
(e) Any person affected by a City transaction may commence a civil ~ction in the
District Court in and for Pitkin County for equitable relief to enforce the provisions of this
chapter upon a showing of willful violation of any provision of this chapter. Before filing
such an action, the person shall present a claim to the City Council and give the City
Council an opportunity to act thereon.
(f) The City Attorney may commence a civil action in the District Court in and for
Pitkin County for equitable relief to enforce the provisions of this chapter, or to recover
anything of value from an employee or third party, upon a showing of willful violation of
any provision of this chapter.
Section 2.
That Chapter 4.20 of the Aspen Municipal Code is hereby amended by the deletion of Sections
4.20.080(a) and (b) and the renumbering of Section 4.20.080(c) to Section 4.20.080(a).
Section 3.
That if any section, subsection, sentence, clause, phrase or portion of this ordinance is for any
reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be
deemed a separate, distinct and independent prowsion and shall not affect the validity of the
remaining portions thereof.
Section 5.
That this ordinance shall nol have any effect on existing litigation and shall not operate as an
abatement of any action or proceeding now pending under or by virtue of the ordinances amended
as herein provided, and the same shall be construed and concluded under such prior ordinances.
A public heating on the ordinance shall be held on th ~,~_'~_ day of ~ 2003, in the
City Council Chambers, Aspen City Hall, Aspen, Colorado.
INTRODUCED, READ AND ORDERED PUBLISHED as provided bY law by the City
Council of the City of Aspen on theaS['~ day of~, 2003.
ATTEST:
Kathryn S. 'K~och,tfit3 Clerk
FINALLY adopted, passed and approved this ~/ --day of
,2003. ~
ATTEST:
'Kathryn S. Koclff, City Clerk
JPW-06/10/2003 - G: ~ j ohn~word\ords\conf lict- of - iht eres¢, doc