AGENDA ITEM #5.

CITY COUNCIL COMMUNICATION FORM

FROM:

Dan Foote, City Attorney

DATE:

October 11, 2016

ITEM:

Council Member participation

Court proceedings. (Foote)

X
X

in

Municipal

ORDINANCE
RESOLUTION
MOTION
DIRECTION
INFORMATION

I. REQUEST OR ISSUE:
This item is an information item and request for direction regarding the propriety
of Council member participation in Municipal Court proceedings, particularly with
respect to City Council President Walter Magills September 21, 2016 appearance
in Municipal Court.
II. BACKGROUND:
Municipal Court
The Municipal Court is created by Section 6.2 of the Citys home rule charter.
Although the Municipal Court judge is appointed by the City Council, the Court is
an independent branch of government that must be insulated from influence
from other branches of government. Due process and separation of powers
provisions in the state and federal constitution require the City to protect
preserve the independence of the Municipal Court.
Due process applies in this context because it guarantees to the parties to
Municipal Court cases that the Court officers will be impartial. The impartiality of
the Court is susceptible of being undermined by City Council members because

the City Council appoints the Municipal Court judge and reviews that
appointment every two years.
The current judges appointment is scheduled to be reviewed for renewal by the
Council on October 25. Councils power of appointment creates obvious
potential for the interests of City Council members to influence judicial decisions.
For this reason, it is preferable that Council members not appear in Municipal
Court to represent clients or otherwise advocate for a party to a Municipal Court
action.
However, the due process clause of both the state and federal constitutions
guarantee Municipal Court defendants a fair trial. The right to a fair trial includes
the right to call witnesses. If a defendant in a Municipal Court case wishes to call
a Council member as a witness to testify about factual matters relevant to the
defense, the policy of preserving the independence of the Municipal Court would
have to yield to the defendants right to a fair trial. In any given case, the
Municipal Court judge would have the ultimate authority to determine whether a
Council member, or any other person, may be called as a witness.
For the foregoing reasons, the Citys policy regarding Council member
participation in Municipal Court proceedings should be to prohibit such
appearances except to the extent that it is necessary for the Council member to
appear as a witness. This policy is, as stated above, the product of constitutional
considerations. It is not codified or otherwise set forth in writing in the Municipal
Code or Charter.
The City does not have any recent history of Council member involvement in
Municipal Court proceedings. According to the Municipal Court prosecutor, who
has held her office for twenty-two years, September 21 was the first time a
Council member appeared in Municipal Court other than as a defendant.
Preserving judicial independence is also essential to maintaining public
confidence in the integrity of the Court. Concerns about the fairness of
municipal court proceedings statewide have recently led to significant restrictions
on municipal court powers. For example, state law now requires municipal
courts to provide counsel to incarcerated defendants in circumstances where
counsel would not otherwise be required by the constitution. State law also now
prohibits municipal court judges from issuing warrants when defendants fail to
pay fines, fees, or restitution.
September 21, 206 Municipal Court hearing
This agenda item was prompted by the appearance of City Council President
Walter Magill at the September 21, 2016 Municipal Court hearing. Four of the

defendants at the September 21, 2016 hearing were appearing on charges of

using property in the Captain Jack Subdivision for outdoor storage without having
obtained the requisite permits. Mr. Magills company, Four Points Engineering,
represents these defendants in connection with applications for land use
applications for the approval of the outdoor storage uses.
Whether these defendants had applied for, pursued, or obtained permits for their
outdoor storage uses are facts that are relevant to the Municipal Court
proceedings. As the person responsible for preparing and submitting these
permit applications, President Magill was a witness with relevant information.
President Magills appearance on September 21 would have been appropriate if
he were appearing as a witness at a trial. However, the September 21 hearing
was not a trial. It was a first appearance for each of the defendants. Witnesses
are never called to testify at first appearances.
Furthermore, Court officers report that Mr. Magill conducted himself in a manner
that was not consistent with a role as a witness. In particular, they report that
Mr. Magill initiated a conversation with the Court Clerk during which he not only
presented information regarding his clients permit applications, but questioned
whether the City should have issued citations and pursued prosecution and
generally advocated for a resolution of the case favorable to his clients.
The conversation described above goes beyond providing factual information as
a witness. It amounts to advocacy on behalf of the defendants. It is not
appropriate for a Council member to advocate on behalf of any party to a
Municipal Court proceeding.
Advocacy by a Council member threatens the independence of the Court.
Permitting advocacy by Council members is not necessary to providing a
defendant with a fair trial. Defendants are limited in their selection of witnesses
to those people who have personal knowledge of the relevant facts. No similar
limitation applies to advocates. Defendants may argue their own cases or may
retain legal counsel to assist them in presenting their cases.
President Magill has provided a written explanation of his actions and his
understanding of the relevant ethical rules. It is attached as Attachment 1.
III. ACTION ALTERNATIVES
Ethics Code Amendment
Staff recommends amendment of the Municipal Code to regulate the conduct of
Council members who interact in a professional capacity (i.e. not as a Council

member) with City boards and commissions, the Municipal Court, and other City
bodies.
The only rules currently existing in the City Code are the provisions in the Code
of Ethics addressing conflicts of interest and the provisions prohibiting Council
members from appearing before City Boards or Commissions. These provisions
are in the process of being revised by the ethics ordinance that will be presented
to Council on October 25. None of these provisions apply to appearances before
the Municipal Court.
Staff recommends that the ethics ordinance include new language specifying
standards for Council member involvement in Municipal Court proceedings.

Additional considerations
Council may also wish to review the relationship between Council members who
are acting in a professional capacity and City employees. For example, it is not
uncommon for planning and public works staff members reviewing applications
for land use approvals to deal directly with a Council member who represents the
applicant. These interactions can be uncomfortable for the administrative staff
because the facts and development code provisions may require them to make
decisions or recommendations adverse to the interests of the Council members
client.
Section 4.3 of the Charter permits Council members to interact directly with the
Citys administrative staff only for the purpose of inquiry, i.e. obtaining
information. The City historically has permitted Council members who are
architects, engineers, realtors, attorneys and other professionals to represent
clients who are interested in City land use and other approvals. These
professionals have been permitted to communicate directly with City staff in
connection with their representation of their clients. This practice is a reasonable
interpretation of the Charter provision, but not the only permissible
interpretation.
It would be within the Councils power to prohibit Council members from
communicating directly with City staff when representing clients with applications
before City boards, commissions, or employees or to require those contacts be
carried out by other employees of a Council members business.
Prohibiting Council members from communicating directly with City staff when
representing clients would be a major change to City practice. It may have

undesirable consequences in the form of discouraging people in the development

professions from seeking to be elected to the City Council.
A second, and somewhat symbolic, option would be to revise the ethics
ordinance to require Council members representing clients in connection with
City applications to make some sort of formal acknowledgement that they are
acting purely in their professional capacities and that they should not and will not
use their governmental authority to influence any City decision relating to the
matter that is the subject of their representation. Council could also require that
this acknowledgement be communicated by the Council member to clients and
staff contacts.
Disciplinary action
Staff takes no position on whether Council should take disciplinary action. If
Council wishes to take disciplinary action, it could take the form of a resolution
disapproving of and/or reprimanding President Magills actions.
Some facts that would be relevant to a decision whether to pursue disciplinary
action are set forth below:
1) The officers of the Court who reported this matter have not requested
disciplinary action. They are seeking a clear statement of Council roles
and responsibilities with a view towards ensuring the independence of the
Municipal Court is protected going forward.
2) The City has no written standards of conduct relating to Council member
participation in Municipal Court procedures.
3) President Magill has reviewed his conduct with the City Attorney and has
indicated in his letter that he will not appear in Municipal Court in the
future.
4) President Magill was previously the subject of an ethical complaint
regarding his testimony on behalf of a client before the Board of
Adjustment. The complaint was withdrawn and no formal action taken.
END OF MEMORANDUM
Attachment 1

City Council President Walter Magill October 5, 2016 letter

and September 21, 2016 e-mail

Attachment #1.
October 5, 2016

Dear City Council;

I am writing this letter to address the complaint regarding September 21, 2016 Municipal Court
proceedings. The complaint is an allegation that my conduct and presence in the court was an attempt
to influence the proceeding in favor of four defendants, who were charged with violations of the
Community Development Code. My conduct was also described as intimidating by more than one
officer of the court according to the compliant.
I will start off with the description of my conduct as intimidating, certainly intimidating and
intimidation is in the perception of the receiver. I apologize to the clerks for any behavior or conduct
they deemed intimidating, however I do not feel I acted or conducted myself with any degree of
intimidation. If specific reasons or actions for the allegations can be presented, I will reexamine my
conduct and my actions when dealing with City staff. I can also provide witness statements from those
present in my defense of the allegations.
I also take issue with the statement by the City Attorney; I recognize that Mr. Magill represents at least
some of these defendants in his professional capacity as a licensed engineer and surveyor and that he is
entitled to do so. However, it does not seem to me that the alleged conduct constitutes the
performance of an engineer or surveyors professional duties.
I would agree that the alleged conduct does not constitute the performance of an engineer or
surveyors professional duties: but representation of my clients does constitute the performance of an
engineer or surveyors professional duties.
To provide a background, the company I am employed by and own, Four Points Surveying and
Engineering, has contracts with all four of the individuals cited for Outdoor Storage
violations. Additional, we are the certified owners representative on each project.
Each of the defendants (all small business owners in the City of Steamboat Springs) was charged with
use of their lot without a permit for outdoor storage. Each owner was cited for a mandatory court
appearance and a possible $999 per day fine. As the owners representative, professional engineer and
manager for each of the projects; I felt I had a duty to appear on their behalf with status of the permits
and other background information. One of the projects was approved and the property owner was still
in court. I had the approval letter since I was the project contact for the application. Two of the others
were pending approvals and the other had an on-going application. During the preliminary hearing each
owner was asked to plead and then wait to meet with the Court Clerk at which time the court was in
recess. During this hour of recess, I provided City of Steamboat Springs Planning Department permit
numbers on each application to the clerk by handing a piece of paper with the permit numbers. The
tickets for each case mandate a permit for compliance. When the defendants were called towards the
end of the proceedings; the clerk decided to meet with three of defendants together in the center of

Council chambers. They remained seating or standing and I was present leaning on the opposite aisle
chairs. The clerk stated the defendants needed to have a permit approval for outdoor storage and the
cases would be dismissed. I stated I would bring down the approval letter for one defendant and the
other permit numbers and deliver to the Court Clerk the next day. Since Four Points Surveying and
Engineering is the certifying project manager, City Planning correspondence had been sent to myself and
not the applicant. A few additional questions were asked by the defendants and all parties departed.
I did follow up that evening with an email which is attached herein offering input to settle violations of
the Community Development Code without mandatory court appearances. The email did trigger two
responses which are also attached. I was made aware of the allegation of my conduct on Friday
September 23, 2016 by City Attorney Dan Foote.
In closing, since the allegations, I have re-reviewed the ethics information (August 2, 2016) shared with
Council and the issue of addressing Courts is not clearly noted (Board, Commission, appointed areas
and/ or authorities are). Certainly, in hindsight should have checked with my City Attorney but I
honestly did not try to attempt to influence the proceeding in favor of the defendants. I was merely
trying to provide information to Court that the defendants did not have access. I do apologize to the
clerks for any intimidation they may have felt and I resolve to stay out of Council chambers except for
Council meetings.
Please feel free to call or email me if you wish to discuss the situation further.
Thank you;

Walter Magill

---------- Forwarded message ---------From: Walter Magill <wnmpepls@gmail.com>

Date: Wed, Sep 21, 2016 at 6:53 PM
Subject: Outdoor Storage or other planning code violations - Letter Revisions
To: Barb Wheeler <bwheeler@steamboatsprings.net>, Tyler Gibbs
<tgibbs@steamboatsprings.net>, Gary Suiter <gsuiter@steamboatsprings.net>, Randy Nelson
<pourboysconcrete@yahoo.com>, Jeff Kortas <alpinemason@gmail.com>, Mike Contois
<mike@pioneerpavers.com>, Big Mike Kortas <makortas@gmail.com>

Folks;
I was just in municipal court following Outdoor Storage violations on the Captain Jack West
Subdivision. I have a couple of suggestions to make it easier for property owners to avoid time
in court.
Please add a sentence or paragraph to the violation letter from Planning; stating that owner can
resolve the issue by submitting an application to planning and providing proof of an application
submittal to the City Court Clerk. If the letter clearly stated to provide proof with the City Court
Clerk from the planning office; the cases would be dismissed and the Court will not have to hear
each case. A very simple correction can save the court and violators time.
The other major issue is the uneven enforcement. There were four violation on Mr. Michael
Kortas' Captain Jack West lots; sold to individuals and two cases where the violation was after a
permit application was started. From the code if an application is started there should not be a
violation. Please review/check the dates for the start of permit for AFDP-16-01 and AFDP-15-11
and the date of the ticket issued on the lots. I know for a fact there are not permits for outdoor
storage on every Miller Frazier lot on the east side of the road, yet no enforcement. Why are
only the Captain Jack lots in violation on the same roadway? Last night, Council was informed
that violations were complaint based and yet these four citations were issued on the Captain Jack
West lots without a complaint.
I look forward to further discussions and a reply.
Thank you;
Walter

Walter Magill, PE & PLS

Four Points Surveying and Engineering

P.O. Box 775966
Steamboat Springs, CO 80477
970-819-1161
wnmpepls@gmail.com