My lawsuit challenging the Town Council’s decision to meet secretly in executive session on September 17, 2015 — behind closed doors, with their attorney Bob Cole and two private developers — reached a substantial conclusion when Judge Greg Lyman ordered the Town to make public a portion of the audio recording made during that secret meeting.
The Town Council decided on Thursday not to appeal Judge Lyman’s ruling to a higher court… and on Friday, Town Manager Greg Schulte emailed me the audio recording I was seeking. The Town’s attorney, Bob Cole, had assured the Council on September 17 that numerous instances of case law supported their decision to meet behind closed doors with two private developers. Apparently, Judge Greg Lyman did not agree with that assessment.
All that remains now is to settle up the attorney fees. As the losing party in the suit, the Town government may be responsible for all or most of my attorney costs.
After waiting almost a year for resolution on this case, I suppose the least I can do — for my readers and for anyone else in Colorado with the same concerns about secret government meetings — is to transcribe the recording I’ve been provided with, and share it here on the Daily Post.
Portions of the audio recording are inaudible — as was also mentioned by Judge Lyman in his written ruling (which you can download here.) I have occasionally used three dots “…” to indicate portions of the audio that I could not discern adequately. But I believe the following transcript is a fairly accurate textual record of the executive session meeting with developers Matt Mees and Bill Dawson.
We start off by noting that Mayor Don Volger instructed everyone to speak clearly into their microphones, perhaps knowing that the meeting — and the audio recording – were going to be the subject of a possible lawsuit. In some cases, the admonition was in vain.
Much of what was discussed will sound familiar to those of you who have been closely following the contentious South 5th Street Bridge controversy over the past year. But I still feel it’s important to share here, word for word, what the Council talked about during a meeting that — according to Judge Lyman and the Colorado Open Meetings Law — should have been conducted in open public session.
Attorney Bob Cole was first to speak to the Council:
“The topic is to consider revisions to the Springs Partners vested rights agreement, so you need to determine your positions relative to that matter, develop some strategy, and ultimately instruct your negotiators — that is, Town staff. In order to do that, it’s helpful for you to have all the background, and the proposal, and the understanding of what’s on the table at this point. And so, Matt and Bill are here from the Springs Partners…”
Town Manager Greg Schulte then provide a bit of background.
“There’s a little bit of history to this, that you all need to understand, and I guess a couple of nuances that I think are important regarding this… Basically, in July 2012, a resolution was passed [by Town Council] that created a vested rights agreement for ten years…
“And the vested rights agreement contemplated two possible paths, if you will… and it talks about the area there, that probably will be developed. In Sketch Plan A, it says that the property will probably be developed in a certain pattern, but it specifies that there will be a bridge at South 5th Street, and a connection road. And it says that the Town will include the bridge [and connection road] in our 2017 Capital Improvement Plan, our CIP. It also says, if the Town is unable or unwilling to build the bridge, then [the Springs Partners] have the ability to develop according to Sketch Plan B. In Sketch Plan B, it doesn’t have a bridge.
“So the Partnership does have the right, right now, to develop their property in that manner. And the way I’m looking at this — and Bob, please feel free to chime in on this — the Town committed to build a bridge. Now the bridge, and the connection road… the most recent cost estimate for the bridge and the connection road is $6.5 million.
“So, looking back at the record…”
And here the audio becomes inaudible. The best I can gather is that someone — either the Town or the Springs Partners or someone else — had been attempting to get a federal grant of some type from the Federal Highway Administration (HWA) to help fund the bridge project.
“The [inaudible] grant is very difficult to achieve; the competition is nationwide, and to get there, you basically have to be approved on the local level by Region 5 [of the Colorado Department of Transportation?] and then you have to compete with a lot of other projects within the state of Colorado, and then those that are successful with the state Transportation Commission will go before the HWA for a completion on a national level. So it’s profoundly competitive, and I believe — if my memory serves me right — the last time someone in the state received this grant it was for [a large project] in Colorado Springs. So it’s that kind of project that the federal government is looking for, and for whatever it’s worth, my opinion is that we would never be competitive for a [HWA] grant. Not for a small bridge… that is not part of the state highway system…
“So, we have already tried twice, and we did not get far.
“The other option is to put this before the public and see if there’s a willingness to fund the bridge through revenue bonds, supported by sales tax or property tax.
“The third option is to consider, basically, what is called a ‘Lease Purchase.’ And this is essentially the same mechanism that the Town used to finance Lewis Street [street reconstruction.] Basically, it’s a financing mechanism that doesn’t require a vote, and you finance it for a period of years, just like a loan essentially, and you have to put up security.
“Why we are here today is that the Springs Partners have approached the Town and have been inquiring of us about our intention regarding the bridge and connection road. And so there is an executed agreement that the Town voted on, saying we agree we are going to execute this, and if we want them to develop according to Sketch Plan A, then the Town would try and finance the bridge. And we have put this [project] in our 2017 CIP, so that means to me that this is an obligation that we have taken on. Now, the resolution does say that we may, or may not, do it…”
Council member David Schanzenbaker wanted to clarify what Mr. Schulte meant by “an obligation.”
“It seems like the ‘obligation’ would be for us to make a decision, should the developer give us notice that they are going to develop,” Mr. Schanzenbaker suggested.
Mr. Schulte:
“Well, we did put it in our [2017] Capital Improvement Plan, so it seems to me, when I read it that way, that says that there is some sort of intent that we try and finance this…”