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Loveland City Council Meet Secretly with McWhinneys
On Land Swap
Meetings Could Constitute A Violation of Open Meetings Law  
Loveland - April 16, 2008

Secret Meetings Commenced Today

The Loveland City Council began meeting with Chad McWhinney and members of his staff today to
discuss a land deal that will likely be coming before the Loveland City Council for approval.

Chad McWhinney and his employees are briefing councilors on a proposed "land swap" involving
parcels on both sides of Highway 34 (one near Target and the other the city's new sports park).  What
makes the meetings unusual is they involve multiple members of the city council discussing a proposal
with McWhinney but contrary to Colorado's Open Meetings statute, they are occurring in private.  

Participating in the meetings are City Manager Don Williams, City Attorney John Duval along with Chad
McWhinney, and his attorney Lucia Liley and other McWhinney staff members Rocky Scott, Rich
Shannon and Kim Perry.  Four meetings have been planned to pitch their concept for the "land swap"
each involving two members of Loveland's City Council.  Today, the first of the four meetings was
conducted in secret at the McWhinney's offices in Centerra.

Isn't That A Violation of The Law?

Colorado's Open Meetings Laws specifically prohibit public officials from "meeting" in private to
conduct city business unless the meeting is publicly announced and also meets one of several criteria
required for keeping the public out.  In this case, no public announcement has been made and
LovelandPolitics was informed by sources inside city hall that Don Williams is trying to limit who on
staff attends the meetings or even know about the meetings.  Especially peculiar is the absence of
Loveland's professional planning, zoning or land use staff for the secret meetings involving a land use

A "meeting" according to the open meetings law is normally construed to be 3 or more members of the
city council.  Therefore, in an attempt to evade the intent of the open meetings law (also called the
Sunshine Law), only two councilors will be rotated into a series of meetings involving the same topic
and people seeking council approval in-advance of an application for McWhinney's proposal.  This
apparent method of evasion is called holding a public meeting "in-series" in an effort to avoid the intent
of the statute by rotating the public officials in and out of the same basic meeting to obtain their
approval before the item comes before them in public.  

The McWhinneys, unlike most companies or citizens of Loveland, enjoy unfettered access to Loveland's
City Council during public meetings and is seldom given any limit on how long they wish to present
their views.  As an example, Rocky Scott presented information to Loveland's City Council regarding
McWhinney's view on business development for two-hours during an off-site of the Council.  It is clear
the secret meetings this week have been arranged for the sole purpose of obtaining a decision from the
City Council before the public's right to hear the matter or comment is satisfied.

Similar Violations Alleged in Fort Morgan City Council Incident Last Year - City Paid $30,000

Fort Morgan's City Council tried a similar stunt in 2006 and later had to settle a lawsuit with the local
Fort Morgan Times, that included allegations (among other allegations) of the city using the
in-series process to decide city business.  Before
settling and paying the $30,000 (mostly for attorney
fees) the city admitted no wrong doing in that specific allegation.  According to the
Fort Morgan Times;

“On or before Nov. 6, 2006, four members of the City Council gathered through the use of ‘seriatim’
(a series of one-on-one) meetings to consider whether they should lodge a ‘Report of Violations’
against Mayor Jack Darnell.”

Courts Across the Country Find "En Seriatum" Meetings To Violate Open Meetings Laws

The trick used by City Manager Don Williams to avoid public knowledge or scrutiny of the meetings
with McWhinney by rotating multiple members of the City Council into the same meeting isn't new and
certainly puts those councilors at risk for violating state law.  According to George Mason School of
Law, "in-series" meetings with public officials have long been determined by courts across the country
to constitute a violation of state open meetings laws which are fairly similar in most states. According to
2004 review of compliance with open meetings laws, the report concluded;

“Similarly, enterprising public officials have at times sought to evade the strictures of a state open
meeting statute by engaging in a pre-planned series of one-on-one conversations, and courts have
had to determine whether such an evasion is permissible under state law.”

Colorado doesn't appear to have any decisions regarding this specific tactic of evading the statute but
likely because most city attorneys will advise public officials to avoid making their city the test case for
this state.  What is clear, however, is that many states' courts have found the practice a violation of their
open meetings statute since the practice is clearly an attempt to evade the law.  

Two Councilors Opt Out Of Meetings

Two City Councilors, Carol Johnson and Cecil Gutierrez, have declined to participate in this effort to
determine a proposal for McWhinney in an apparent violation of Colorado's open meetings laws.  

We were informed that each councilor protested the private meetings with both the City Manager Don
Williams and his accomplice in planning the secret meetings with McWhinney, Loveland Mayor Gene
Pielin.  Carol Johnson, a practicing Colorado attorney, we understand is concerned about the legal
ramifications of attempting to evade a state statute.  Despite several attempts by McWhinney's attorney,
Lucias Liley, and Loveland's City Attorney to persuade her to participate, it appears Johnson relied on
her own understanding of the law and good judgement.

We also understand Gutierrez has declined to participate given his campaign promise to halt the secret
meetings with McWhinney.  Gutierrez was a critic of the previous City Council for meeting privately with
McWhinney regarding their proposal to have Loveland taxpayers subsidize their Trolley for Grand
Loveland Councilman Glenn Rousey is among those on
Loveland's City Council who chose to participate in
secret meetings with McWhinney instead of opting out.