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LovelandPolitics
Loveland's Independent News Source

Loveland - Septembr 1, 2013

Loveland City Attorney John Duval has notified the Loveland City Council that Larimer County will
begin printing ballots on the week of September 16, 2013 in order to meet its legal obligation to
mail ballots to residents serving overseas in the military by September 21, 2013.  

This complicates matters for the City of Loveland in determining whether or not the anti-fracking
petition circulated by Protect Our Loveland to pass a 2-year ban on fracking within city limits will
be on this November's ballot.  While the November 5, 2013 municipal election to elect a mayor and
four members of the city council is still months away, the ballots for that election must be final in
the next two weeks to make these early mailing obligations for the Larimer County Clerk &
Recorder who will conduct Loveland's next election.

Status of Larry Sarner's Protest Against Initiative Petitions

Last Tuesday (August 27, 2013) Loveland's City Clerk officially denied Loveland resident Larry
Sarner's protest and determined the anti-fracking petition was indeed valid and could be referred
to Loveland's City Council and later to the voters to become a city ordinance.   According to
Loveland's charter, the City Council could simply adopt the proposed 2-year ban or refer the
matter to city voters at either a regularly scheduled or special election.   It appears their options
may now be limited to only a special election which could cost taxpayers some $30,000.

LovelandPolitics has learned Sarner will appeal the clerk's decision on Tuesday morning
September 3, 2013.  Coincidently, Loveland's City Council is scheduled to consider the initiative
that same evening for either adoption or if not, schedule it for a future city election.

Loveland's City Attorney advised the councilors last Wednesday,

"It is likely, therefore, that the courts would consider the appeal in these circumstances as
occurring under Rule 106(a)(4) of the Colorado Rules of Civil Procedure.  Under this rule, the
protestor has 28 days from the date of the issuance of Terry’s determination in which to file the
appeal. Since Terry issued her decision yesterday, August 27, the protestor arguably has at least
until September 24 to file his appeal---well after the September 6 deadline to certify this ballot
question to the County for the November 5 election."

Even without the appeal, the petitioner's rights to appeal could be violated by the council acting to
place the measure on the November 5, ballot before September 24, which is too late for the
measure to be on the November 5, ballot.

City Manager Attempts A Partisan Solution -
Potentially In Violation of Colorado's Open Meetings Law

While most city managers try and remain impartial in such touchy political matters as denying
Loveland property owners their mineral rights for 2-years, Loveland City Manager Bill Cahill
attempted a partisan solution which could run the city afoul of Colorado's Open Meetings Law -
again.

Communicating under the cover of "privileged & confidential," in a memorandum sent to
Loveland's City Council last Friday, Loveland City Attorney John Duval wrote,

"A third alternative that the City Manager has suggested, and which I think is a viable option if
Council desires to see this initiative question make the November 5 ballot even the protestor
appeals, is for Council to exercise on Tuesday night its independent authority under CRS Section
31-11-111(2) to put the proposed ordinance on the ballot. This authority is independent of the
need for a qualifying citizen initiative. The advantages of doing this would be to moot any
resulting appeal of Terry’s determination and to make the November 5 ballot. However, if the
Council decides not to do this and any future appeal to the courts results in Terry’s decision
being upheld, an election on the citizen initiative will eventually be required to be held, whether
at a regular or special City election after November 5, 2013."

This Cahill crafted solution is perfectly reasonable if communicated openly to the council either in
a public forum or discoverable public email.  However, the city manager is instead trying find
consensus within the council in what is essentially a political - not legal - decision of whether the
council will decide to place the item on November's ballot by using the referendum authority of
the council to bypass Sarner's appeal.  Attempting to hide his negotiation with councilors on what
is essentially a public vote appears to LovelandPolitics to be an abuse of the attorney client
confidentiality rights of the city attorney.

Especially curious is the name of a former local reporter, Tom Hacker, now the city's Information
Officer as being copied on the internal and client attorney confidential city email.  Hacker reported
previously for the Loveland Reporter-Herald when the newspaper litigated against the City of
Loveland to expose secret voting by the council in a meeting presided over by Loveland Mayor
Cecil Gutierrez.  A judge later ruled the council, under the guidance of City Attorney John Duval
who participated in the secret meeting, had violated the state's open meetings law.
(see previous
story on lawsuit and illegal voting)

Anti-Fracking Measure Unlikely To Make November's Ballot

The recent voting patterns of this current city council indicate a 5-4 voting majority in favor of local
control over oil and gas exploration instead of an outright ban that is likely to land the city in state
court.  Provided this council allows Sarner the time necessary to excersize his rights of appeal, the
ballot measure will not make it to this November's ballot but could be voted on in a special election
should Sarner's appeal fail later this month.
Anti-Fracking Initiative Unlikely To Make
November 5, 2013 Ballot

       EMAIL FROM LOVELAND ATTORNEY
                               TO CITY COUNCIL


________________________________
> From: John Duval
> Sent: Wednesday, August 28, 2013 5:26 PM
> To: City Council
> Cc: Jeannie Weaver; Terry Andrews; Tom Hacker
> Subject: Citizen Initiative
> Privileged & Confidential
>
> I want to give the Council a heads-up on what its
next steps are concerning the citizen initiative for
the fracking moratorium now that the City Clerk has
issued her determination upholding her previous
decision that the initiative proponent’s petitions are
sufficient. On your agenda this Tuesday night will be
the item previously pulled from your agenda for
Council to decide whether to adopt itself the
initiative ordinance or to refer it to the voters at the
November 5 election.  In order to make the
November 5 election for this initiative, it is
necessary for Council to refer the initiative and
approve its ballot title in time for that ballot title to
be certified to the County Clerk by September 6.
Consequently, Council’s September 3 meeting is
your last chance to do this unless Council calls a
special meeting. However, the fact that the protestor
can appeal Terry’s recent determination complicates
things.
>
> The controlling statute requires that within 20
days after the “final determination of petition
sufficiency” is issued, the Council is to either adopt
the initiative ordinance as proposed or refer it to the
voters. Unfortunately, it is not clear in the statutes
when a city clerk’s determination of petition of
sufficiency is “final”. I think the better and safer
interpretation is that it is not final until all appeal
periods have expired.
>
> Unfortunately again, it is not clear what the appeal
period is in these circumstances because the
controlling statute is silent on when and how an
appeal is to be taken to district court. It is likely,
therefore, that the courts would consider the appeal
in these circumstances as occurring under Rule 106
(a)(4) of the Colorado Rules of Civil Procedure.
Under this rule, the protestor has 28 days from the
date of the issuance of Terry’s determination in
which to file the appeal. Since Terry issued her
decision yesterday, August 27, the protestor
arguably has at least until September 24 to file his
appeal---well after the September 6 deadline to
certify this ballot question to the County for the
November 5 election.
>
> To address this complicating fact, I have added
provisions to the proposed Resolution that refers the
initiative to the voters to authorize the City Clerk to
either withhold certifying the ballot title to the
County Clerk if an appeal is filed on or before
September 6 or to authorize her to ask the County
Clerk to take it off the ballot if the appeal is timely
filed after September 6.
>
> What I don’t know is how practical it will be to
expect the County Clerk to remove the ballot title if
we don’t know until after September 24 whether an
appeal has been timely filed. I have a call into the
County Clerk’s office to see if I can determine this. I
will let you know what I learn.
>
> In the meantime, please let me know if you have
questions about this.
>
> John
> 962-2541
John Duval
Loveland City Attorney
Anti-fracking petition circulators, city officials, Larry Sarner and others gather in city hall as Loveland's City Clerk (upper left)
presides over protest hearing flanked on the right by Loveland City Attorney John Duval
FACTOID

There are only two ways a measure is placed on the Loveland municipal election ballot,
referral or initiative.  The "referral" is simply by a majority of the council voting to place an
ordinance on the ballot for voter approval while an "initiative" is the result of a petitioner
gathering 5% of "qualified electors" signatures to place a measure on the ballot without
council.  Thus the difference between a "referendum" and an "initiative" plus the number
assigned it by the election authorities.  However, every initiative must first go to the council
who than have the option of simply adopting the initiative before deciding to spend the
money to place it on the ballot for voter approval or rejection.