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City Releases Tapes From Illegal Closed Session While Paying
$25,000 Attorney Fees To Newspaper

Loveland - August 13, 2011

The City of Loveland announced a settlement late last week of the lawsuit between the Loveland Reporter-Herald and the city regarding votes
taken in closed session meetings last year. Here is the
link to the settlement and the tape recording of the meetings posted on the city's website.

The lawsuit involved closed meetings of Loveland’s City Council around this time last year when the council was deliberating over which
candidate to choose as the next city manager to succeed longtime Loveland city manager Don Williams.  

The problem was none of the three final candidates qualified by the City’s Director of Human Resources, Todd Gamble, was favored by a 2/3
majority of the council.   City manager candidates Matt Brower, Matt LeCerf and Bill Cahill were each supported by less than 6 of Loveland’s
9 members of the City Council.  Without at least 6 votes for any one candidate the council was stumped and unable to move forward in
appointing a new city manager as the City Charter requires a new manager can only be appointed by a 2/3 majority of the council.

In order to narrow the field down to just two candidates while hiding their disagreements from public view, the council took several paper
ballot votes during the closed meetings to decide which of the three candidates should be removed from consideration.  The two remaining
would than under go more background checks in hopes a clear winner could emerge.

The problem is the council deliberated and voted while meeting in closed session to remove candidate Matt Brower from consideration.  
Councilman Solt even commented in one part of a tape released that no candidate yet had 6 votes.  After considerable discussion, 4 councilors
voted to remove Brower from consideration, 3 voted to remove Cahill from consideration while only 2 voted to remove LeCerf from further
consideration.  Later, another secret ballot was taken and Councilors Joan Shaffer and Daryle Klassen changed their previous votes.  This
resulted in a 7-2 vote to remove Brower (Councilors Donna Rice and Daryle Klassen were the only two who voted no).

Finally, on September 7, 2010, Bill Cahill received 6 votes for City Manager in the first and only public vote of the council on the
appointment.  

The Loveland Reporter Herald, apparently tipped-off to the prior secret votes, attempted to get copies of the votes and later litigated against
the city claiming the decisions made in private along with votes counted were a violation of Colorado’s open meeting laws.

District Court Judge Devin Odell
ruled July 1, 2011 in that case that the Loveland City Council did indeed violate Colorado Open Meetings
Law
(C.R.S. Section 24-6-402) during those closed council meetings between August 21 and September 7, 2010 when the votes were taken
or discussed.  Judge Odell ordered 40 minutes of tape recordings from those closed session city council meetings that he reviewed be
released to the newspaper and public.  

Late last week, The City of Loveland posted a streaming audio on its website giving the public access to the 40 minutes of secret meeting
discussions Judge Odell ordered released.  In addition, the City of Loveland will be paying $25,000 to the Loveland Reporter Herald for
attorney fees.  The total cost of the lawsuit for the city is expected to have exceeded $100,000 when the city’s own outside legal council fees
are included.  Here is a
link to Loveland Reporter Herald story about the settlement.

Tape Highlights

37:20 (37 minutes and 20 seconds into the recording)

Councilman Daryle Klassen asked, “If we’re asked how did we vote..” to which Todd Gamble inturrupts, “you didn’t vote..” and Klassen
quickly responds, “
excuse me, how did we (pause) move toward consensus” to which Gamble again reminded Klassen, “You are not talking
about the vote [in public]
…”

Loveland City Attorney John Duval than instructed the council on how to respond to public or press inquiries, “
You gave direction to
negotiators and (pause) ah (pause) that is the direction and you are able to announce what that direction is…


Councilwoman Donna Rice, who called in by phone to the closed session council meeting, asked Mayor Cecil Gutierrez to read for her the
vote tally that apparently Councilwoman Joan Shaffer was recording on paper. The tape clearly reveals a council trying to resolve the messy
matter of no consensus in private and breaking the law by clearly dening in public the private vote or even discussion until after all 6 votes
were negotiated for the appointment.

Councilwoman Joan Shaffer was fairly critical of candidate Matt Brower during the discussion.  At 12:30 into the tape she talks about him
seeming like a politician, giving her an uneasiness in her stomach and being difficult to get answers out of during his visit.

When Klassen complained later that even the U.S. Supreme Court allows the minority opinion to be released in a public statement he was
instructed by Duval to say anything he likes when they take the vote into public.  In another part of the tapes, Councilwoman Carol Johnson is
clearly heard strategizing about what they will say to keep the media “
off our backs.” Johnson suggested they pretend the due diligence and
background checks would take many weeks as an explanation for the council’s delay in concluding the selection process thus distracting the
press from the real issue.

While Councilwoman Joan Shaffer appeared more willing to provide the public information about the council removing one candidate from
consideration, it is clear her colleagues did not agree.  Councilman Kent Solt opined that it would be best not to have 6 different council
members talking about what was decided in the closed meeting.  They settled on an announcement by the Mayor after Gamble was to contact
each candidate first.

As reported by LovelandPolitics in 2008  (see blog comments from 2008) the Loveland City Council has long been criticized for planning its
public meeting votes in private.  Mayor Cecil Gutierrez and Councilman Kent Solt were both first elected on a platform to bring more
transparency to council.  Two years later Joan Shaffer and Cathleen McEwen ran on similar platforms.
Right to left: Council Members Donna Rice, Daryle Klassen, Hugh McKean,
Cat McEwen, Kent Solt, Joan Shaffer, Carol Johnson with City Attorney John Duval,
Mayor Pro Tem Larry Heckel, Mayor Cecil Gutierrez and City Manager Bill Cahill.
Loveland's City Charter Requires a 2/3
majority (6 of 9) must vote for the same
candidate to appoint the city manager.

SECTION 8-1 -- APPOINTMENT,
QUALIFICATIONS, EVALUATION AND
REMOVAL

(a) The City Council, by the affirmative vote
of two-thirds (2/3) of the entire Council, shall
appoint a City Manager to serve at the
pleasure of the Council.
TAPE CHRONOLOGY HIGHLIGHTS

The first tape begins with Councilwoman
Carol Johnson asking Human Resource
Director Todd Gamble how to proceed since
the council could not come to "consensus" on
one candidate.  Gamble suggests they vote to
eliminate one of the three.

3 minutes - by the second tape the council
takes the first vote in private.

City Attorney John Duval:
 I've got every
body's vote so...

6 minutes 40 seconds -
Councilwoman Johnson jokes: "This is why
we need electronic voting," while Duval counts
ballots.

8 minutes - Mayor Cecil Gutierrez recaps
vote tally.

33 minutes 25 seconds Councilman Solt

Councilman Solt "Is there nothing just to
make sure, just to make sure it doesn't look
like we are dragging our heels, is there nothing
that can be said officially to the press that we
narrowed it down to two"

37 minutes and 20 seconds - Colluding To
Hide The Truth They Voted In Private
Session:

Councilman Klassen:  If were asked how
did we vote –

Todd Gamble: You didn’t vote, it didn’t, you
tell em

Klassen Responds: Well excuse me, how
did we (pause) move toward consensus and
how was.

Gamble: You are not talking about the vote…

Klassen: Well I understand that….

Councilwoman Carol Johnson: We all
support the council decision whatever it is

Gamble..I don’t think…you guys talk…

Duval to Council:  You gave direction to
negotiators and ah that this is the direction and
you are able to announce what that direction is.