Agenda Memo

City of Boulder City Council Agenda Item Meeting Date: December 4, 2025 Agenda Title Consideration of a motion to authorize the city attorney to appoint Jerome A. DeHerrera as Special Counsel to investigate and, if necessary, prosecute a complaint related to an alleged code of conduct violation filed pursuant to Section 2-7-8, “Expectations,” B.R.C. 1981.

Staff Contact •

Teresa Taylor Tate, City Attorney

Draft Motion Language Staff requests council consideration of this matter and action in the form of the following motion: Motion to authorize the city attorney to appoint Jerome A. DeHerrera as Special Counsel to investigate and, if necessary, prosecute a complaint related to an alleged code of conduct violation filed pursuant to Section 2-7-8, “Expectations,” B.R.C. 1981.

Executive Summary Code of Conduct Complaint #2025-003 was emailed to city council, Nuria RiveraVandermyde, City Manager, Luis Toro, Senior Counsel, The Police Oversight Panel and Sherry Daun, Independent Police Monitor, on October 31, 2025. This complaint was filed pursuant to Section 2-7-10, “Enforcement,” B.R.C. 1981 by Michael Joseph. The city clerk acknowledged official receipt of complaint #2025-003 October 31,2025.

On November 4, 2025, the city manager also acknowledged Mr. Joseph’s submitted complaint and put in an official request for the City Attorney’s Office to initiate an investigation, also pursuant to Section 2-7-10(c), “Enforcement,” B.R.C. 1981 Teresa Taylor Tate, City Attorney, is unable to investigate this code of conduct complaint due to an existing conflict of interest. The purpose of this agenda item is a request by the city attorney for council to authorize authority allowing her to appoint Jerome A. DeHerrera as special counsel to investigate and potentially prosecute this ethics complaint. Under the city’s code, council does not have any discretion with respect to whether or not there should be an investigation of a verified ethics complaint. The Code provides in Section 2-7-10 “Enforcement,” B.R.C. 1981 state that city council shall request the city attorney to conduct an investigation regarding a violation of this chapter. The code provides further that the “city attorney may request that the council appoint special counsel to investigate and potentially prosecute any case that may cause the city attorney to have a conflict of interest or may cause an appearance of impropriety under the provisions of this chapter or may violate any rule regarding professional responsibility.” Pursuant to this authority, the City Attorney requests that council appoint Jerome A. DeHerrera with the Achieve Law Group as special counsel to investigate and, if appropriate, prosecute the verified ethics complaint filed by Michael Joseph due to the existing conflict of interest.

Council Action Options Option

Outcome

Approve motion language as drafted

If the motion is approved, Jerome A. DeHerrera will be appointed as special counsel.

Define and adopt a modified motion

Council would need to define any modifications or amendments to the draft motion language. This will likely require staff to bring back an amended version.

Deny the motion or take no action

If this motion is denied, Jerome A. DeHerrera will not be appointed as special counsel. The requirement to investigate complaint #2025-003 will still be present,

so other options for special counsel would need to be explored. Refer back to staff

If council refers this item back to staff, staff would need further direction before placing this item back on the agenda.

Alignment with City Plans and City Council History Sustainability, Equity and Resilience (SER) Framework and Citywide Strategic Plan Alignment SER Framework Goal Area This item connects to the goal area of Responsibly Governed. By the city attorney requesting that special counsel be assigned to investigate this code of conduct complaint it acts to enhance transparency while continuing to provide quality customer service to the city organization and community members. Citywide Strategic Plan This item connects to Strategy 12, Implement organizational and financial best practices to continuously improve asset management, customer experience, and project and program performance. Requests from the city attorney to appoint special counsel to investigate and have the authority to take necessary steps within that scope of authority after completing the investigation of this complaint is a best practice when a conflict of interest exists. Careful and independent investigation of ethics complaints supports community trust in government.

Alignment with Additional City Plans This item is work that can be absorbed within the city attorney’s current and on-going work plan. Especially since this request also allows the city attorney and her office to not utilize staff time or city resources for the investigation or potential prosecution.

City Council History This item has not previously come before this or any other council.

Analysis The city attorney is requesting that council authorize her to appoint special counsel to investigate ethics complaint #2025-003 filed with the Clerk’s Office by Michael Joseph on October 31, 2025. Although the city attorney has authority to investigate this complaint, there is an existing conflict of interest. It is important that community members trust that all complaints of this nature will be investigated thoroughly and

without bias. That is why the city attorney is recommending that special counsel be appointed in this matter. On October 31,2025 the city clerk received a sworn Code of Conduct Complaint pursuant to § 2-7-10 (Attachment A) from Michael Joseph alleging violations of the Code of Conduct amounting to discrimination. The complaint alleges systematic governance failures attributable to the City Manager’s Office: • • • • •

Suppression of oversight via PSU gatekeeping; Failure to ensure ADA Title II compliance & effective communication; Equal-protection/disparate-treatment concerns; Record-integrity and preservation failures; and Non-action despite actual and constructive notice.

Section 2-7-10(b)(2), “Enforcement,” B.R.C. 1981 provides as follows: A resident of the city or any city employee may initiate an investigation of any city council member, employee or appointee to a city board, commission, task force or similar body by filing a sworn statement with the city clerk setting forth facts which, if true, would constitute a violation of a provision of this chapter. The filing of a sworn complaint triggers an obligation of either the city manager or the city council, depending on the subject of the complaint, to refer the complaint to the city attorney for investigation and prosecution. This referral is mandatory. The code does not provide for any discretion. Here, the complaint is filed by a community member; therefore council “shall request the city attorney to conduct an investigation regarding a violation of this chapter.” § 2-7-10(c), “Enforcement,” B.R.C. 1981. This request does not reflect any decision regarding the merits of the complaint, because the referral is required by the city code. The code further provides: The city attorney may request that the city council appoint special counsel to investigate and prosecute any case that may cause the city attorney to have a conflict of interest or may cause an appearance of impropriety under the provisions of this chapter or may violate any rule regarding professional responsibility.

§ 2-7-10(c), “Enforcement,” B.R.C. 1981. The city attorney and multiple members of her staff provided legal advice regarding these matters, thus a conflict of interest exists.

Equity Analysis An equity analysis was not necessary on this item.

Climate, Resilience, and Sustainability Considerations This item has no considerations related to climate, resilience, or sustainability

Community Engagement This item does not require community engagement

Workplan Considerations This work is absorbed as a routine part of the City Attorney’s Office workplan.

Next Steps for City Council There are no next steps for this item and no related agenda items

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Attachments Attachment A – Complaint #2025-003 filed by Michael Joseph Attachment B – Bio Jerome A. DeHerrera .