Department of Law Kristin M. Bronson, City Attorney Municipal Operations Section 201 W Colfax Ave, Dept 1207 Denver, CO 80202-5332 p: 720.913.3275 f: 720.913.3180 December 8, 2017 Via E-mail Only (michael.henry@denvergov.org) Mr. L. Michael Henry, Executive Director Board of Ethics City and County of Denver 201 W. Colfax Ave., Dept. 703 Denver, CO 80202 Re: Request to Reconsider Advisory Opinion, Case No. 17-27 Dear Mr. Henry, On behalf of the City Attorney’s Office, I request that the Board of Ethics (“Board”) reconsider its Advisory Opinion in Case No. 17-27. Specifically, in that opinion, the Board concluded that the Denver Ethics Code, D.R.M.C. § 2-60, applies to gifts from City departments or agencies to members of the City Council. The Board stated that “Council members are prohibited by Section 2-60(a) from accepting gifts from city departments or agencies.” The Board also “reject[ed] the interpretation of the gift section of the Code that City Council members or other city personnel may accept gifts from city agencies or departments because they are all part of the same city government.” A copy of the opinion is enclosed. The City Attorney’s Office requests that the Board reconsider because D.R.M.C. § 260(a)(2) does not apply to gifts from City agencies or departments. Section 2-60(a) provides: Except when acceptance is permitted by paragraph (b) below, it shall be a violation of this code of ethics for any officers, officials, or employees, any member of their immediate families to solicit or to accept any of the following items if (1) the officer, official, or employee is in a position to take direct official action with regard to the donor; and (2) the city has an existing, ongoing, or pending contract, business, or regulatory relationship with the donor[.] Subsection (a)(2) does not apply to gifts from agencies or departments because these are not separate entities from the City. Rather, they are subdivisions created by the Denver Charter or Code. Therefore, it is not legally possible for “the city [to have] an existing, ongoing, or pending contract, business, or regulatory relationship with the” department or agency such that Section 2-60 applies. The City and the department or agency are the same thing. The City and County of Denver (“City”) is a home rule municipality and municipal corporation created by the Colorado Constitution, Article XX. Pursuant to Art. XX, by that name, the City may sue and defend in all courts; purchase, receive, hold, and enjoy or sell and dispose of Mr. L. Michael Henry December 8, 2017 Page - 2 real and personal property; construct and maintain public works; and undertake other acts and exercise other powers including as specified. The City’s Charter does not contain definitions of key terms, but the Denver Revised Municipal Code defines “city” as “the City and County of Denver, a municipal corporation in the State of Colorado.” D.R.M.C. § 1-2(2). “City officers, employees, departments, etc.” are defined as follows: “Whenever reference is made to an officer, employee, department, commission or other agency, the same shall be construed as if followed by the words ‘of the City and County of Denver, Colorado.’” Id. at § 1-2(4). The City’s Charter likewise provides for the City’s powers and obligations, including creating an “administration of the City and County of Denver” and providing for a Mayor, appointees of the Mayor and the appointment and compensation of City employees within the various departments. Charter §§ 1.2.11, 2.2.1, 2.2.6. The Charter also provides for contracts entered into by the City, rather than by individual agencies or departments. Id. at §§ 2.2.3, 2.2.4. Finally, the Charter creates various departments or agencies of the City who are subordinate to the Mayor, including but not limited to the Department of Parks and Recreation, the Department of Finance, the Department of Safety and the Department of Aviation. Id. at Art. 2 (“Mayor and Executive Departments”). Thus, the departments are not separate from the City and do not enter into separate contracts, hold real property, or otherwise operate as if they were separate legal entities. In addition, offices within the Mayor’s Office or departments of the City, such as the Mayor’s Office of the National Western Center, are not separate entities from the City. Therefore, D.R.M.C. § 2-60(a)(2) cannot apply to gifts from one City agency to employees or to City Council members because the City cannot have an “existing, ongoing, or pending contract, business, or regulatory relationship with the donor” department or agency as they are both the City. Accordingly, the City Attorney’s Office requests that the Board reconsider its decision in Opinion 17-27 and determine that D.R.M.C. § 2-60 does not apply to gifts from a department or agency of the City to officials, officers, and employees of the City. Please let me know if you have any questions or would like any other information. Regards, Tracy A. Davis Assistant City Attorney cc: Kristin M. Bronson, Esq. T. Shaun Sullivan, Esq. Kirsten J. Crawford, Esq.