Springs City Councilor Andy Pico
can't discuss anything relating to Serco
, the giant United Kingdom
-based contractor that landed the city's fleet-maintenance contract, and for which Pico works, the city's Independent Ethics Commission
However, the three-member commission split on the matter, with a dissenting opinion coming from member Craig Valentine
that if Pico votes on the city's budget as a whole, he'll risk violating the city's Ethics Code, which bars even the appearance of impropriety.
Council released the Ethics Commission's decision today, ending a months-long wait, saying Council agreed with the majority opinion and considers the matter closed.
Former Councilman Bill Guman
filed the complaint in early June, alleging Pico's being employed by Serco means he can't vote on the city budget. (Guman was called on the carpet by his colleagues in the 1990s when, as a Councilman, he wanted to continue to contract with the city for landscape design work. As a result of the debate, Guman dropped all work with the city, and the city adopted rules barring conflicts of interest and even the appearance of them.)
The city's Ethics Code states, "No covered person shall directly or indirectly participate in any matter involving the City where they or a member of their family has a direct or indirect substantial financial interest. If a direct or indirect substantial financial interest exists, the covered person shall make known that interest to the appropriate persons and shall refrain from participating in the matter as it is dealt with by the City."
It also states: "No covered person shall engage in any actions that may create, or do create, the appearance that they are violating the law or ethical standards. No covered persons shall engage in any activity that may create, or does create, the appearance of impropriety."
Read the ethics code here:
Given that, Guman argues, Pico's mere employment with Serco, even though it's part-time and in a different unit than the one taking over the city's fleet work, means he must comply by recusing himself from voting on a budget that will pay Serco $10 million a year.
Two Ethics Commission members, Elaine Docherty
and Mal Wakin
, concluded the following:
The Commission has determined that a violation of the conflict of interest provisions of the Ethics Code has not been established by a preponderance of the evidence. Councilman Pico should be advised to recuse himself in all dealings related to Serco. During Budget review, Councilman Pico should recuse himself from any discussion relating to Serco, including line items as they appear on the Appropriations Ordinance for the final budget review.
Valentine, though, disagreed, largely because the Ethics Code's provision barring an appearance of impropriety is "incredibly broad."
"If Councilmember Pico participates in the approval of the City’s budget, he will have committed a violation of section 1 .3.106(1) as presently written," Valentine wrote in his dissenting opinion.
Read both opinions here:
Guman had this reaction to the rulings, as stated in an e-mail to Council:
I still maintain that Councilman Pico has not deliberately created a conflict of interest by being employed with Serco, a company with whom the city intends to contract to assume Fleet Management services. I want to reiterate that I bear no malice [emphasis added] whatsoever to Mr. Pico. But I believe the Code was drafted succinctly with regard to the public’s perception and that it requires all city officials to avoid creating even the appearance of a conflict of interest. Although Mr. Pico’s employment with Serco may be “insignificant,” (rationale was given by the IEC that Mr. Pico only works 20 hours a week with Serco, and he does not work with the department that will provide services to the city) his relationship as an elected official with a city contractor is still arguably indirect and remote.
Secondly, I want to be on record that neither the city attorney nor the IEC contacted either me or my suggested expert witness (former city attorney James Colvin) when it deliberated this matter. This concerns me deeply, as I was specifically asked to provide the names of any witnesses whose input and opinion I thought could support my position. I understand Mr. Pico’s witness (i.e. his employer at Serco) was in fact contacted for input.
All that said, it seems strange, in a way, that Pico would have obtained a legal opinion from the City Attorney's office
on June 25
that pretty much mirrors the finding of Docherty and Wakin. That opinion stated Pico would only be prohibited from participating in discussions and votes "directly addressing the negotiating, approval or management of the Serco Fleet contracts ..."
The City Attorney's Office also serves as counsel to the Independent Ethics Commission, which was investigating
The last time a Council member got into hot water with the Ethics Commission was last year. Tim Leigh
was accused of seeking personnel gain through a city vendor, among other things. The Ethics Commission ruled in Leigh's favor, but in that case Leigh hired his own lawyer, and taxpayers later reimbursed roughly $12,000
for those costs.