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| The Morning After Email - Johnson's Regret Klen Vs. City of Loveland |
Dec. 2009
Councilwoman Carol Johnson, perhaps regretting her actions the night before, attempted to illegally conduct a council
vote via the city’s email system the next morning by continuing a closed session discussion in an open and publicly
available email message.
By openly discussing information from a conversation protected by attorney-client privilege, she also jeopardized the
city attorney’s ability to keep the meeting where the information was discussed confidential.
The first paragraph in the email sent Wednesday, December 16, 2009 at 8:12 AM stated,
“In follow-up to last night’s executive session, I am courting 4 votes in order to request that our legal
counsel pursue settlement in order that our staff no longer be subject to the time and stress of this
years [sic] long case, please indicate your support by hitting “reply all” and saying “yes” I support a
settlement conference.”
The email Subject line states, “Klen Executive Session” leaving no room for her to later deny the “follow-up” email
pertained to anything other than the executive session on the Klen matter the night before.
Damage To City's Case
The email raises a number of legal issues. Johnson’s blunder could cause significant damage to the City of Loveland’s
position in the Klen civil action against the city. This is because the plaintiff’s attorney can now argue that any
“privilege” protecting the city council’s unusually long closed session at the beginning of last Tuesday’s council meeting
(December 15, 2009) has been waived by Johnson’s actions.
Like your 5th amendment right to remain silent, the privilege to confer with legal counsel in private is not a right that
can be invoked partially or turned on and off for one’s own convenience. Once a person invoking such a privilege
decides to bring the conversation into the open the entire discussion becomes discoverable (a legal term meaning they
must reveal the content of the discussion if requested by the opposing party). Courts refer to this as “waiving” one’s
privilege.
What is worse is that Loveland’s city attorney, John Duval, is required to record any closed session council meetings
and make the recordings available to a judge should the need to keep the meeting confidential is challenged in a
reasonable period of time after the meeting. If a judge determines Johnson indeed waived the city’s right to conduct a
closed session meeting, he or she could also order the recording be made public as the justification for conducting a
closed meeting under Colorado’s open meetings law was removed.
Sources inside city hall say Loveland City Manager Don Williams was furious at the disclosure and attempt to illegally
conduct council business with a quorum of its members via email which would also constitute a violation of the open
meetings statutes in Colorado had the other responded to Johnson's email voted. Don Williams was forced to spend
his last day in the office, Friday December 18, 2009, before leaving for his scheduled Christmas vacation doing what he
calls “damage controls” according to one source. Williams, according to a source close to the case, does not want to
settle the case but instead use public funds to file an endless number of motions in hopes of exhausting the plaintiff's
resources. The larger strategy appears to be an effort to escalate the court costs and attorney fees while at the same
time blacklisting the contractor (plaintiff) to deny them any revenue from current or future projects in the city.
City Attorney John Duval has wondered aloud, according to another source, how Johnson, a trained attorney herself,
could be so careless. In addition to damaging the city’s claim to attorney-client privilege, the email reveals the city’s
concern about the weakness of their own case and will likely give the plaintiff’s attorney greater confidence about
litigating the matter instead of settling. Johnson's attempt to continue the closed session discussion in public emails
may also be a violation of city law because she revealed information from a closed session meeting without the
consent of her colleagues.
The final paragraph in Johnson’s email states;
“Having a settlement discussion now, does not preclude us from discussing it again after the judge
rules on all the summary judgment motions in the spring.”
The “summary judgment” motions Johnson refers to in the email are attempts by Loveland’s outside counsel to have
the case dismissed. It is highly unusual for any party in a civil lawsuit to seek settlement before their summary
judgment motions are decided by the court. Proposing a settlement conference before the motions are even decided
clearly indicates the city has little confidence in their ability to prevail either in the summary judgment motions or in a
full trial on the merits of the case.
Is the City Manager Using Tax Dollars Just To Settle Personal Score?
According to sources very close to the case, Don Williams is trying to “starve” the plaintiffs who have accused him of
outrageous and possibly illegal conduct in the suit. Sometimes a defendant with more resources than the plaintiff in a
civil case will try and “paper” the case by submitting countless motions to dismiss, endless depositions and requesting
volumes of evidence through the discovery process to increase the overall legal fees of the plaintiffs -- until the
plaintiff runs out of resources and abandons the case.
William’s strategy has now cost Loveland taxpayers nearly $250,000 in outside legal fees not to mention many hours
of city staff resources and time. Johnson’s suggestion they begin settlement discussions now, while probably prudent
advice, also angered Williams because she conveyed her opinion of the case over an open email system in the city that
is regularly reviewed by the Loveland Reporter-Herald. Her email betrayed the city's description of the closed session
meeting to the local newspaper which described the meeting as only an opportunity to "familiarize" new council
members with the case and not a strategy discussion.
Police Department Also Suffering From William’s Reaction To Civil Suit
Larimer County residents who reside near the City of Loveland’s open shooting range complained earlier in the year
to Loveland’s City Council that increased use of the facility was creating intolerable noise pollution in their area.
One easy solution to the problem was to contract with a newer private indoor Loveland shooting range, now called the
Front Range Gun Club, so Loveland police could train indoors in the community without having to commute to the
city's range outside city limits during inclement weather. Curiously, Don Williams attempted to block any attempt by
the police to contract with the indoor shooting range until the council directed him to allow the agreement to go
forward at the behest of frustrated residents who live near the outdoor range and police officers who want to train.
Williams’ opposition appears to be consistent with the complaint filed in the Klen lawsuit that Williams abused his
authority by acting in a retaliatory manner to harm the Klen’s business dealings in the city. The indoor shooting range,
while not operated by the Klens at the time, is owned by the Klens and is the building at the center of many of the
complaints in the lawsuit.
In July, just as the Klens took over management of the shooting range directly from their former tenants, Williams is
said to have ordered the police department to sever ties with the Klens and refuse to use the remaining month (July)
left on their contract for the police to conduct training. The administrative decision to abandon the city's rights under
their contract was not brought before the city council. Even when the Rocky Mountain Gun Club offered the Loveland
Police Department a 20% discount to continue using the indoor range where Mondays were set-aside exclusively for
the Loveland Police to train; Don Williams refused to allow the training to continue.
Williams recently admitted, according to one source, during his own deposition in the Klen case that he did indeed
direct the police not to contract again with any business interest associated with members of the Klen family. He
apparently justified the decision by saying he didn’t want any city money going to the Klen family. Another source
inside city hall also confirmed that Tuesday’s closed strategy session also addressed the same strategy by Williams
saying it was important not to “enrich the Klens.” Williams defends his manipulation of taxpayer resources to settle his
own scores as a way to keep the Klen brothers from “using that money to sue the city.”
Continuing Liability
Many complaints in the Klen civil suit are centered around a common theme that alleges Williams or his subordinates
on city staff used arbitrary and capricious means to enforce city regulations and manage public resources to reward
friends and punish enemies. Williams’ recent comments during his own deposition in the case has buoyed the spirits
of the plaintiffs who say his comments acknowledged Williams has continued retaliatory actions against the Klen family
for having been critical of Williams and the city in the past.
The two Klen brothers, Edward and Stephen Klen, were present at last Tuesday’s council meeting. They waited along
with the rest of the public in the council chambers as the city's outside legal council conferred with the city council in
closed session regarding motions to dismiss the city recently filed.
State law requires cities to provide accurate notice to the public of all agenda items for council meetings whether they
are closed or open sessions. Loveland’s staff apparently mislead the Loveland Daily Reporter-Herald about the
meeting agenda as the newspaper reported both before and after the council meeting that the closed session was
being held only to “familiarize” new council members with the ongoing case.
Johnson Notifies Williams About Closed Meeting Lawsuit in Longmont
On November 17, 2009 Carol Johnson forwarded Loveland City Manager Don Williams a link from Longmont’s Times
Call newspaper regarding a lawsuit the newspaper initiated against the City of Longmont claiming violations of
Colorado’s Open Meetings Law.
Johnson stated,
“All of us on Council received letters from Ken Amundson about obeying the open meetings law including a
booklet. The Lehmanns also own the Longmont paper so I am guessing their lawsuit against the city of
Longmont prompted the letter to us.”
Williams replied in a return email the same day;
“I was not aware of the letters but have now caught up via John Duval. Interesting approach by the RH.
Thanks for the heads up.”
| Excerpt of Civil Complaint Filed in District Court 199) "Defendants [City of] Loveland, [Don]Williams and [John] Duval instructed Hawkinson to issue citations to Ed Klen and the Defendants then prosecuted Ed Klen for conduct while ignoring identical conduct by other, similarly situated developers, including members of the Construction Advisory Board and City Council, with the improper purpose of interfering with and retaliating against Klen for his exercise of his First Amendment rights to criticize those officials in the performance of their duties." |
