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To: City Council

From: Colorado Springs Independent Ethics Commission

Date: August 31, 2018

Re: Complaint 2018-01

Complaint 2018-01 was filed with the Colorado Springs Independent Ethics

Commission (“IEC”) on Mar. 27, 2018, by Barbara Sutherland, alleging that Council

President Richard Skorman violated The City of Colorado Springs Code of Ethics. On

April 5, 2018, the Commission met to conduct an Initial Review under IEC Rules of

Procedure 7.0. At this meeting, the Commission voted unanimously that the Complaint

required additional investigation under IEC Rules of Procedure 8.0.

INVESTIGATION

The Commission, through its legal advisor, obtained all known 911 recordings

for the incident. It also obtained Facebook posts and media interviews given by Barbara

Sutherland and Richard Skorman. Additionally, Commissioners Schmidt and Valentine

conducted recorded interviews of Barbara Sutherland, William Sutherland, Richard

Skorman, Madalyne Mykut, and Jackson Sutherland. There were no other people who

were present or alleged to be present during the interaction between Mr. Skorman and

the Sutherlands. Mr. Skorman’s attorneys also submitted two briefs that were

considered.1

1 The July 2, 2018, submission argued that no violation could have existed under the old
Code of Ethics, not the Code as amended in 2016. It did not, however, give any reason
the old Code should apply here, and we cannot think of any reason it would. To the

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A list and copy of all the documents considered by the IEC in its investigation

are attached hereto.

CONFIDENTIALITY

The Code of Ethics requires that a complaint submitted to the IEC “...must be

filed confidentially.” City Code, 1.3.105(A). Of note, while the Code requires the

complaint be filed confidentially, it does not require the complainant keep the factual

allegations giving rise to the complaint confidential. While the facts giving rise to the

complaint were made public, the complaint itself was kept confidential throughout this

process.

Moreover, even if the complaint were not filed confidentially, the IEC has

discretion to decide whether to dismiss a complaint on that basis. City Code,

1.3.106(A)(10). Dismissal is not automatically required for nonconfidential complaints.

Id. As such, even if there had been a violation of confidentiality, dismissal is not

automatically required.

FACTUAL FINDINGS

On Mar. 21, 2018, Madalyne Mykut drove a vehicle that rear-ended Ms.

Sutherland, causing property damage to Ms. Sutherland’s car, but no personal injuries.

for various reasons, there was a significant delay in police response to the accident,

resulting in all parties being on edge. During this delay, William Sutherland (Ms.

extent the arguments based on the old Code could apply here, we considered them. To
the extent they argued provisions of the old Code which no longer exist, we
disregarded the arguments.

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Sutherland’s husband) and Jackson Sutherland (Ms. Sutherland’s son) arrived at the

scene of the accident and waited. Mr. Skorman, a close, personal friend of Ms. Mykut,

also came to the scene of the accident. During the short time he was at the scene of the

accident, he had a conversation with the Sutherlands. His purpose in going to the scene

and talking to Mr. and Mrs. Sutherland was to convince them to cancel the request for

the police to come to the scene of the accident so that Ms. Mykut could leave-and be

with her small child. During this conversation, Mr. Skorman identified himself as Ms.

Mykut’s godfather. When that wasn’t sufficient, he self-identified as Council President,

or President of the Colorado Springs City Council, and gave two of his Council

President business cards to Mr. and Mrs. Sutherland.2 His stated purpose in doing so

was to convince Ms. Sutherland to trust him and to allow him to vouch for Ms. Mykut

so that she could leave the scene of the accident.

As a result of this interaction, Ms. Sutherland accused Mr. Skorman of violating

the Code of Ethics.

It has been suggested by Mr. Skorman’s attorneys that this incident is a he

said/ she-said situation requiring any fact-finder to determine the credibility of the

witnesses. That is incorrect. All parties essentially agree on the material facts. Indeed,

there was no reason for the IEC to rely upon any statement other than Mr. Skorman’s

statements in reaching its decision.

2 Notably, Mr. Skorman was the person who brought up his position with the City.

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In that vein, the IEC was presented with many assertions and claims that are

immaterial to the analysis of whether Mr. Skorman’s actions violated the Code of

Ethics. We choose not to recite those allegations here as they are irrelevant,

inflammatory, and distract from the question at hand.

ANALYSIS

While we initially considered a number of provisions of the Code of Ethics, we

feel that there is only one applicable provision. The relevant portion of the City Code,

1.3.113(D), states:

No Covered Person in his or her official capacity with the City


shall.. .request... any.. .individual any special consideration, treatment, or
advantage beyond that which would be made available to every
other. individual in similar circumstances.
. .

The first question that we must answer is whether Mr. Skorman, during his

conversation with the Sutherlands, was in his official capacity with the City. In his

recounting of the incident, Mr. Skorman stated:

“When she said she couldn’t trust me to identify Ms. Mykut, that’s when I
said do you know who I am, I’m Richard Skorman, the President of
Council. She angrily told me that she still didn’t trust me to verify Ms.
Mykut’s identity. Then I gave her my Council business card and said ‘I
really am the President of Council, I can vouch for her and I am not hard
to find.”

Skorman Email, April 3, 2018.

During his interview, Mr. Skorman was entirely consistent. When recalling why

he went to the scene of the accident, he stated “I just thought I was there to vouch for

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her identity. That was my purpose.” Skorman Interview 10:20-27. When Ms.

Sutherland did not believe or trust him after his initial identification of Ms. Mykut, he
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stated: pulled out my business card and said that ‘Well do you know who I am? I’m

Richard Skorman. I’m the President of Council.” Id. at 7:29-42. When that was

insufficient for Ms. Sutherland to allow Ms. Mykut to leave the scene of the accident,

Mr. Skorman stated, “I’m easy to find, I’m the President of Council.’ I showed her my

card and the address and, uh, ‘You can trust me.” Id. at 7:55-8:03.

Mr. Skorman’s official capacity with the City is President of City Council. On at

least two separate occasions during this brief conversation, Mr. Skorman inserted his

official capacity into the conversation attempting to persuade Ms. Sutherland to allow

Ms. Mykut to leave the scene of the accident.

The requirement that the Covered Person be in his or her official capacity with

the City is not a requirement that the Covered Person be on City business, or purport to

be on City business. Compare e.g., City Code 1.3.113(C) with 1.3.113(D). In part, 113(D)

prevents Covered Persons from benefiting or seeking to benefit personally from their

official capacity with the City.

Here, Mr. Skorman repeatedly inserted his official capacity with the City into his

interaction with the Sutherlands, which is sufficient to meet the requirement that he

was in his official capacity at the time of the conversation. Notably, Mr. Skorman was

3The recordings of the interviews were not professionally transcribed. Rather, these
quotes are the IEC’s best effort to capture the oral statements in written form. The
recordings themselves are included so that no one need rely solely on the IEC’s best
efforts at transferring the oral statements to written form.

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the one who interjected his official capacity into the interaction. There was no

requirement that he identify himself as President of City Council, nor was it an instance

where the Sutherlands simply recognized and identified Mr. Skorman as President of

City Council. Rather, during his interaction with Ms. Sutherland, and unprompted, Mr.

Skorman identified himself as “President of Council.”

That does not, however, end the inquiry. Merely identifying oneself by the

capacity in which the person serves the City during a conversation or even an argument

is not a violation of the Code of Ethics.

The second question is whether Mr. Skorman requested or granted special

consideration, treatment or advantage while acting in his official capacity. While self-

identifying as President of City Council, Mr. Skorman requested that Ms. Sutherland let

Ms. Mykut leave the scene of the accident without a valid ID before the police arrived.

“1 did try to convince Ms. Sutherland that I could identify Ms. Mykut, that I was

worried about her childcare, I was her medical power of attorney and I even had those

papers in my car to help identify her.” Skorman Email, April 3, 2018.

At the time of Mr. Skorman’s interaction with the Sutherlands, Ms. Mykut

certainly appeared to be at fault for the accident and, if so, would have been responsible

for repairing Ms. Sutherland’s car. Without valid identification, Ms. Sutherland could

not be sure that Ms. Mykut was who she said she was, that she had valid insurance or

self-insurance, or that Ms. Sutherland would have ever been able to find her again.

Requesting that Ms. Sutherland allow Ms. Mykut to leave the scene of the accident

without valid identification, was requesting that Ms. Sutherland take Mr. Skorman’s

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word that Ms. Mykut was who she and he said, and that Ms. Sutherland act against her

own self-interest based on Mr. Skorman’s identification of Ms. Mykut.

Also, Mr. Skorman has business cards that identify him as the owner of a

number of well-known businesses in Colorado Springs. Skorman Interview, 14:21-15:10.

(Mr. Skorman stated that he did not have any of these business cards with him at the

time of the interaction with the Sutherlands, but even without those cards on him he

could have identified himself as the owner of these businesses). Presumably, he would

have also had his driver’s license which would have identified him without interjecting

his position with the City. The only reason Mr. Skorman used his position with the City

to identify himself was to give his arguments on Ms. Mykut’s behalf more credibility

and force.

The final question is whether the special consideration is made available to every

other individual in similar circumstances. Mr. Skorman does not show up at accidents

involving drivers without identification to ask the other party to let them leave. It was

something Mr. Skorman did because of his personal relationship with Ms. Mykut.

By his own account, as President of City Council, Mr. Skorman requested that

Ms. Sutherland allow Mr. Skorman’s close, personal friend, Ms. Mykut, leave the scene

of an accident for which she appeared to be at fault without providing valid

identification, without insurance in her name, and in a vehicle not registered to Ms.

Mykut. That action violates City Code 1.3.113(D).

The concurring opinion, while arriving at the same conclusion and

recommendation, takes the additional step of only finding a violation because its

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finding of additional accusatory and derogatory comments by Mr. Skorman. This is

problematic for two reasons:

First, the Code explicitly requires only a request for special consideration. To

require additional accusatory and/or derogatory comments after the request for special

consideration before finding a violation introduces a level of uncertainty and subjective

interpretation to the Code that does not currently exist.

To use a hypothetical to illustrate, if a City-Councilmember walked into a

sandwich shop and said, “I’m a member of City Council and I’d like you to give my

spouse a free sandwich,” that action alone likely violates section 1.3.113(D) (provided

the other elements of 113(D) are met). Under the concurrence’s interpretation of the

Code, whether a violation occurred would depend on how the sandwich-shop worker

and City-Councilmember responded after that request, and — according to the

concurrence — if the hypothetical City Councilmember were rejected and walked away,

or their spouse was given a free sandwich, it would not be a violation of the Code.

However, in our opinion the improper request is what constitutes a violation, not the

actions after the request takes place.

Second, we do not believe the concurrence’s findings of accusatory and

derogatory language to be founded in sufficient evidence. It is our opinion Ms.

Sutherland felt accused and derogated by Mr. Skorman. It is also our opinion Mr.

Skorman did not intend to accuse or derogate Ms. Sutherland, rather intending his

comments as a tongue-in-cheek, poor attempt at humor. While we believe that

attempting to prevail on an improper request under section 1.3.113(d) through

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intimidation, accusation, or derogation could be grounds for a harsher sanction, we do

not believe the evidence supports that finding.

RECOMMENDATION

While we find that Mr. Skorman did commit a violation of the Code of Ethics, we

find there are significant mitigating factors. This was not an instance where Mr.

Skorman premeditatedly sought to benefit from his position with the City. Rather, he

was frustrated at how the situation unfolded. Skorman Interview 9:57-10:02. He

immediately realized that he should not have used his official capacity with the City in

the manner he did. Id. at 14:21-15:10. Moreover, he issued a public apology when he

was interviewed by Fox 21 News shortly after the incident.

Given all of the circumstances, we recommend that Mr. Skorman receive an oral

reprimand for his actions in this instance.

Colorado Springs Independent Ethics Commission

‘lIqj i___________________ Z—4--—-—-- Sj3tII


William G. Schmitt, Chair

‘itjig
Arthur N. Sapp( Dolores Grady

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Complaint 2018-01
CONCURRING OPINION

I concur with the result and recommendation of the other four IEC members, finding that

on March 21, 2018, Mr. Richard Skorman, as the Colorado Springs City Council

President, violated The City of Colorado Springs Code of Ethics, and specifically

Colorado Springs City Code § 1.3.113(D). The opinion of the other four IEC members

will be referred to as the majority opinion.

The majority opinion, in finding an ethical violation, stated, “By his own account, as

President of City Council, Mr. Skorman requested that Ms. Sutherland allow Mr.

Skorman’s close personal friend, Ms. Mykut, leave the scene of an accident for which

she appeared to be at fault without providing valid identification, without insurance in her

name, and in a vehicle not registered to Ms. Mykut. That action violates City Code

§1.3.113(D).” I did not feel that this adequately explained my reasoning in reaching the

conclusion that an ethical violation had occurred and, as such, I am writing this

concurring opinion.

I think the best way to explain my reasoning is to begin by using a couple of

hypothetical examples. Both examples are based upon hypothetical situations that did

not happen. In my hypothetical example no. 1, Mr. Skorman arrives at the accident

scene and states that he will vouch for the identity of Madalyne Mykut. When he is told

he is not trusted, he explains that he is Richard Skorman, President of the Colorado

Springs City Council. He says he can be trusted. He says he is easy to find. He hands
out his City business card and says he will vouch for Ms. Mykut’s identity. In response,

in this hypothetical, Ms. Sutherland then states, “I accept your offer. I was tired of

waiting for the police and I was waiting for a credible person to arrive, someone who

could vouch for Ms. Mykut. Now that you have done so, we can all go home. Thank

you, Mr. Skorman.” Of course, THIS IS NOT WHAT HAPPENED, but if it had, then I

would have found there was no ethical violation. In my opinion, Mr. Skorman would not

have been misusing or abusing his official position and he would not have been seeking

special treatment for Ms. Mykut. I would have found his purpose in identifying himself

as City Council President was to provide credibility for his vouching for the identity of

Ms. Mykut. At that point, he was exploring what Ms. Sutherland wanted or would be

willingly to do, and he was not using his City position to obtain special treatment, and

therefore there was no ethical violation.

In my hypothetical example no. 2, I will use the same scenario as in hypothetical no. 1,

up to the point where Ms. Sutherland responded to Mr. Skorman’s offer to vouch for Ms.

Mykut. In this second hypothetical, Ms. Sutherland states, “I reject your offer. I want

everyone to stay at the scene until the police arrive.” Mr. Skorman, in this hypothetical,

then states, ‘Well, okay. Thank you for your time ma’am. Have a good day.” Once

again, THIS IS NOT WHAT HAPPENED, but if it had, I would not have found an ethical

violation, for the same reasons set forth in example no. 1. Up to the point where Ms.

Sutherland clearly rejected his offer to vouch for Ms. Mykut, a reasonable interpretation

of what was happening was that Mr. Skorman was simply trying to find out what Ms.

Sutherland wanted or did not want to do. His identification of himself as the City Council

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President was intended to bolster his credibility as someone who could be trusted in his

vouching for Ms. Mykut. Being the City Council President is nothing to be ashamed of.

In fact, this is something he should be very proud of, and he can certainly let people

know that he is City Council President. This interpretation would be consistent with Mr.

Skorman’s email dated April 3, 2018, in response to being notified of the ethics

complaint, in which he stated, “I was only using my President of Council identification to

verify Ms. Mykut’s identity so she could go home and be with her child.” This seems

reasonable and believable, up to the point of Ms. Sutherland’s rejection of his offer to

vouch for Ms. Mykut’s identity. Mr. Skorman’s simply offering to vouch for the identity of

Ms. Mykut would not have been enough for me to find an ethical violation.

Unfortunately, their conversation did not end when Ms. Sutherland rejected Mr.

Skorman’s offer to vouch for Ms. Mykut. At that point, Mr. Skorman knew that Ms.

Sutherland did not want Ms. Mykut to leave the scene of the accident, even if he

vouched for her. After that point, his attempts to get Ms. Sutherland to agree to Ms.

Mykut’s leaving the accident scene are considered by this author to have been an

attempt to get her to do something she did not want to do, and at that point I think he

was seeking “special treatment” for his close family friend, Ms. Mykut. This also seems

to be Ms. Sutherland’s position, where she stated in her Complaint, “As I stood my

ground and position . . . he should never have used his position in City Council to

intimidate and try to ‘force’ me to back down.” My reading of this was that Ms.

Sutherland was asserting that after she made it clear to Mr. Skorman that she did not

want Ms. Mykut to leave the scene of the accident, Mr. Skorman should not have

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proceeded to use his City Council position to try to intimidate her in order to get her to

change her mind.

In this regard, although there is some disagreement between Ms. Sutherland and Mr.

Skorman over some of the things that were or were not said and how long their total

conversation lasted, Mr. Skorman agreed that he said a couple of things. The majority

opinion relied on Mr. Skorman’s agreed statements in making its finding of an ethical

violation, and in large part, I do likewise. However, the majority opinion does not

address what happened after Ms. Sutherland rejected Mr. Skorman’s offer to vouch for

Ms. Mykut, and it is based upon this subsequent conduct of Mr. Skorman that I have

found an ethical violation.

In my opinion, finding an ethical violation simply based upon Mr. Skorman’s attempt to

vouch for Ms. Mykut after identifying himself as the City Council President would be to

disregard “common sense” and would require a hyper-technical interpretation of the

Ethics Code. If the conversation had simply ended, after Ms. Sutherland rejected his

offer to vouch for the identity of Ms. Mykut, I would not have found a violation.

However, as previously stated, their conversation did not end there.

Mr. Skorman agreed that at some point during their conversation, he asked Ms.

Sutherland if she slammed on her brakes. The underlying traffic accident involved Ms.

Mykut rear-ending the vehicle driven by Ms. Sutherland. Mr. Skorman’s question to Ms.

Sutherland was accusatory in nature and in my opinion improper.

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One of the reasons given for wanting Ms. Mykut to be able to leave the accident scene

was that she had a young child waiting for her. When Ms Sutherland would not agree to

Ms. Mykut’s leaving the scene, Mr. Skorman agreed that he asked her, “Don’t you care

about kids?” Ms. Sutherland has alleged that he said, “You don’t care about children.

Why don’t you care about children?” In either case, this was a derogatory comment

directed to Ms. Sutherland, accusing her of not caring about children. Once again, after

his earlier emphasis on his position as City Council President, this derogatory comment,

seeking special treatment for Ms. Mykut, is deemed by me to have been improper.

Ms. Sutherland has alleged that Mr. Skorman “kept asking me if I knew who he was and

then telling me that he was President of the City Council . . . He was clearly using his

position in City Council to intimidate and threaten me.” It was a result of all of the

interactions, including the accusatory and derogatory comments directed at her, that led

to Ms. Sutherland’s assertion that Mr. Skorman used his position as City Council

President to intimidate her into taking action she had already told him she did not want

to take. Ms. Sutherland was fully justified in the filing of her ethics complaint against Mr.

Skorman. In addition, having found an ethical violation largely based upon Mr.

Skorman’s own statements, I also wish to note that Mr. Skorman presented credibly and

was considered by this IEC member to be honest and cooperative throughout the IEC

investigation process.

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In summary, with the state of the evidence, I agree and concur with the lEO majority

finding of an ethical violation by Richard Skorman and the recommendation of an oral

reprimand.

INDEPENDENT ETHICS COMMISSION MEMBER:

Steven Helling (Date)