Jan. 22–Freebies flow regularly into Denver City Council offices from city departments and agencies, but most members gave little thought to accepting the mugs, commemorative items, city-grown holiday poinsettia plants, branded clothing and more valuable gifts that have come their way.
That has changed in the wake of a recent advisory opinion issued by the Denver Board of Ethics that called the practice into question.
The appointed five-member panel advised council members not to accept anything valued over $25 from other city offices, lest they be open to the appearance of influence by officials seeking their approval for big contracts and other proposals.
In the weeks since the advisory opinion landed, it’s drawn formal pushback from the city attorney’s office and has sparked debate among council members — who may have the last word by passing an amendment to the city’s Code of Ethics in coming months.
To Councilman Rafael Espinoza, whose office prompted the issuance of the opinion by requesting clarity on the acceptance and reporting of city-provided gifts, the issue comes down to a matter of maintaining the council’s independence from Mayor Michael Hancock’s administration.
He thinks council members should either reject or publicly disclose the free trips and pricier gifts they get from city government. He puts particular emphasis on Denver International Airport, which last year won council approval for billions of dollars worth of contracts for upcoming renovation and expansion projects.
“Our job as electeds is oversight,” Espinoza said. “While we are all at the city of Denver, we are not part of the executive. We don’t get to negotiate contracts or their terms, we only vote on them.”
But while Councilman Wayne New echoes his support for the ethics board’s advice, several colleagues disagree with it.
Kevin Flynn, who guided a package of ethics code changes through the council last year, sees council members as representatives of the same city government that’s providing the items and business trips. That makes the city officials lobbying them different, he said, from outside contractors that stand to benefit financially from the council’s decisions.
“Again, we are the airport. We are the city. We represent them and vote on their contract,” Flynn said, adding that the ethics board’s opinion “leads to a rabbit hole that was not intended to be there.”
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The diverging views of Espinoza and Flynn get at the crux of the philosophical — and legal — disagreement the ethics opinion has sparked, even if it still allows the giving of less-expensive items to council members.
In its Nov. 17 opinion, the board found that city agency-provided gifts meet the two thresholds required for restriction under the Code of Ethics: Council members are in a position to take direct official action over many city agencies — especially since they have approval power on contracts worth $500,000 or more — and the city has an ongoing relationship with the individual city departments or agencies providing the items to council members.
The board pointed to the council’s role as a “separate and independent branch of city government” as an additional justification, concluding: “The restrictions in the gift section of the Code of Ethics apply with equal force, whether gifts are from entities or persons inside or outside of city government.”
But three weeks after the opinion came out, city government pushed back on that reasoning.
Assistant city attorney Tracey A. Davis sent a letter to the board that asked for reconsideration. She argued that its advice was wrong because the charter and the ethics code consider departments and agencies to be subdivisions of the city. The city’s government as a whole enters into contracts, she wrote — whether they’re small ones negotiated and approved by a city official or larger ones approved by the council.
“The city and the department or agency are the same thing,” Davis wrote.
Her letter resulted in discussions between Davis and the Board of Ethics, first at its mid-December meeting and again at its meeting this past Wednesday.
Espinoza attended the December hearing. To underline how often council members receive free items, he said, he came wearing clothing provided by Denver International Airport: a knit cap, a puffy jacket branded with the airport’s DEN logo, and socks and a scarf that each featured DIA’s blue “Mustang” sculpture, colloquially known as “Blucifer.”
“I forgot my umbrella and growler,” he said in an interview, referring to one item given by DIA as a start-of-term welcome gift and another to commemorate a new direct flight to Munich, respectively.
Board holds firm, but council could pass change
Ethics board members weren’t inclined to budge on their stance at last week’s meeting — though Chairman Patrick Tooley told Davis that a formal written response that is likely to be issued early this week may add some clarification.
At one point in the discussion, board member Roy Wood compared city departments to for-profit businesses that engage in brand-building by giving out pens and trinkets with their logos on them.
“There’s a reason why they spend money on those water bottles,” he said, referring to water bottles that the parks department gave to council members recently to commemorate the opening of a new recreation center.
City officials, including a spokeswoman for DIA, disagreed that their motivation in giving gifts was to influence council members.
“There’s varying levels of stuff that we give or produce for various events, or when we’re celebrating an inaugural trip (for a new flight route) or if we give things to employees for the holidays,” said DIA’s Stacey Stegman. “In those instances, we always include council. We like to see high-profile members of our community wearing stuff with the airport brand on it. I think it looks good at community events — basically it’s advertising and promotion for the airport.”
As it stands, the advisory opinion isn’t binding on council members, though it could be used by the board to judge future ethics complaints brought against an elected official for accepting a gift or item worth more than $25. (An exclusion in the ethics code allows officials and employees to accept meals and tickets up to a $300-per-year limit from every donor with a city interest, requiring disclosure on public gift reports.)
And it’s still unclear how the opinion’s recommended restrictions would apply to some things, such as fact-finding trips like the ones to London and Amsterdam that DIA provided for most council members last summer to show them security setups, concession spaces and other inspirations for an upcoming terminal renovation.
Espinoza characterized the trips — which he didn’t join — as junkets meant to sway his colleagues on DIA’s controversial $1.8 billion terminal renovation partnership deal.
Flynn, though, said his trip helped him to understand the details of what DIA and its partner were proposing.
But it’s possible the ethics board’s advice might be rendered moot soon if the council approves an explicit exclusion for city-provided gifts to the Code of Ethics, as President Albus Brooks suggests is likely.
“At the end of the day, agencies are not … influencing council members with poinsettias that we don’t even take home,” Brooks said. “I think this is a distraction, and I think it’s going to be straightened out.”
Here are the advisory opinion issued by the Denver Board of Ethics and a request for reconsideration from the city attorney’s office:
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