[bouldercouncilhotline] Hotline: Substitute Planning Board Member

[cmosupport at bouldercolorado.gov]

Sender: Carr, Thomas

There will be only 5 planning board members available to attend the December 17, 2015 planning board meeting.   At CAC this morning, I was asked whether council could appoint a substitute.  One vacancy will exist due to Aaron's election to council.  The other is the result of an anticipated absence.  My view is that under current code and rules council cannot appoint a substitute to fill either position.


The relevant code language is as follows:



(f)  The mayor, with the consent of the city council, may appoint former board members as alternates to hear matters under title 9<https://www.municode.com/library/>, "Land Use Code," B.R.C. 1981, when the mayor finds that there will be an absence due to an appearance of impropriety or a conflict of interest under Chapter 2-7, "Code of Conduct," B.R.C. 1981, or due to an anticipated absence of a board member. An alternate board member may be appointed pursuant to the following standards and procedures:


(1)   The board member with the conflict of interest, a recusal because of an appearance of impropriety or anticipated absence shall inform the board at a meeting prior to the meeting when the item where such conflict or recusal exists is to be considered or the time of an anticipated absence;

(2)  If the board or chair finds it necessary to appoint an alternate board member as set forth above, the board or chair shall request that the mayor appoint an alternate member from among the former members of the board; and

(3)  The alternate board member shall only be authorized to act upon the matters that have been requested by the full board or chair and authorized by the mayor.



There is also language in the council rules, which is as follows:



Appointment of Board Alternates. In the event that the Boulder Revised Code provides for the appointment of temporary alternate board members, such members shall be appointed as follows: The most recently departed member of the board needing a temporary alternate, who is eligible and able to serve, shall be appointed. In the event that more than one member departed at the same time, alternates shall be chosen in reverse alphabetical order, with appointments alternating between the eligible and able former members who departed at the same time. In the event that the most recently departed member is not eligible or able to serve, the next previously departed member shall be chosen, applying the procedure above if there is more than one potential appointee. No person shall be eligible for a temporary alternate appointment if he or she was removed from the board by the council. A temporary alternate shall be appointed only when a member's absence either results in the lack of a quorum or may prevent the board from taking action. No person appointed as a temporary alternate shall serve at two consecutive meetings of the board to which he or she is appointed unless it is necessary to complete an agenda item that has been continued to another meeting.


The highlighted language precludes appointment in this case.   First, the code only provides for substitution for a "board member."  A person who has been elected to council is no longer a board member and therefore there is no authority to provide a replacement.  In addition, when this ordinance was adopted, council was very concerned about limiting the times that it would be used.  The xouncil discussed this proposed ordinance at the December 6, 2011 council meeting.  Council originally considered limiting replacements to situations in which a replacement was necessary to have a quorum.  Tim Plass said that the Landmarks Board only used the authority once.  He said that this was a situation in which the board split two-two and needed an appointment to break the tie.  Council's discussion made it clear that the authority should only be used to decide applications.  The reference to title 9 in the code and the highlighted sentence evidence this intent.  It would not be consistent with that intent to appoint a substitute to consider changes to the Comprehensive Plan.

Council may wish to amend the code or its rules to allow for appointment of a temporary replacement for a planning board member who has resigned or to allow for a broader scope for a replacement.  Of course, when someone has left a board, council has the alternative of making an appointment using the appointment process.



Tom