“We face enormous challenges and big decisions. But we’re not going to be able to do it if we are distracted. We’re not going to be able to do it if we spend time vilifying each other. We’re not going to be able to do it if we just make stuff up and pretend that facts are not facts. We’re not going to be able to solve our problems if we get distracted by sideshows and carnival barkers”. President Barack Obama April 27, 2011 responding to the Trump Birth Certificate allegations – just days before the raid on the Bin Laden compound in Abbottabad, Pakistan.
The integrity of public debate about serious public policy issues is just as critical at 13919 West Utah Ave, Lakewood Colorado as it is at 1600 Pennsylvania Ave, NW, Washington DC.
One speaker asked at the meeting this past Tuesday, “what is the board’s end game”. Of course he hasn’t answered that question for himself or the other carnival barkers who persist in personally attacking a majority of the Green Mountain board and endlessly calling for their resignation and threatening time and time and time and time again, recall.
At least one resident loudly cheered and enthusiastically encouraged aggressive intimidation of the board members. To what end. Disruption. To what purpose.
I suspect one “end game” for the board is just to have a meeting where the board can peacefully discuss the merits of the decisions it has to make. Since at least late January, they have been trying to address the litigation issues only to be distracted and overwhelmed with personal attacks, CORA requests and divisive spews of misinformation.
It took two hours this past Tuesday before the board could begin to discuss substantive matters. This, in part, because Director Hanagan insists on “overruling” the majority who have consistently voted to limit public comment to the public comment period, again consistent with the bylaws.
There is nothing in the statutes, including the Sunshine law and Title 32 that talks about how much public comment or when. That is exclusively up to the board and can be set at any time with a simple vote of a majority of the board, meeting by meeting. CRS 24-6-401 and 402.
At this rate, the board will still be trying to get information about settlement issues, a draft IGA and narrowing the options . . . in August when the trial begins.
And of course the plaintiffs are taking full advantage of the chaos they have helped create. They are taking more depositions and harassing the board members, trying to apply that much more pressure on the board members to settle – just to stop the abusive intimidation.
And there is no pressure on the plaintiffs. No depositions of the key plaintiff witnesses have been scheduled while the plaintiffs are now planning to take a second round of depositions of board members.
One position the board may want to consider is stating, in no uncertain terms that if the plaintiffs want to take more depositions, then all settlement discussions will cease. Its either settlement or litigation. And if its litigation, here is the list of depositions of plaintiff witnesses that will be scheduled.
After much discussion, the board did address the first agenda item – organization of legal representation. The board voted to prepare an RFP for counsel to provide advice and counsel on Title 32 issues related to the operation of the district. The counsel would report directly and only to the board. It was clear that this attorney would be separate from litigation counsel. Counsel Timmons and Gessler would continue to represent the District in the pending litigation.
One source of concern was who would be “general counsel”. Counsel Timmons did not want her work “disrupted” by another attorney. In other words, she wanted to control all the attorneys working for the board.
The simple response is , consistent with the decision by the District through a majority of the elected board, there will be two “general counsel” reporting to and directly accountable to the board (not another attorney). One general counsel responsible for the litigation. A second general counsel responsible for addressing operational issues.
Who will be in charge. The elected board. They have the power and responsibility to manage their attorneys and direct who will do what when.
I share this based upon my experience representing a multi-national Fortune 500 company as in-house counsel and representing many organizations and serving on many organizations in the past 37 years.
Counsel Timmons did her best to try to stop the board from getting another attorney to help out with the routine operational issues. She can handle it all she asserts.
But then at the very end of the meeting, all the board members disclosed they had been subpoenaed by the plaintiffs for document production and potential depositions, in two cases, a second deposition. In the middle of trying to address settlement issues. Counsel Timmons had no idea. Under normal circumstances, she would have heard about it first. The plaintiffs clearly have little or no respect for her position.
Counsel Timmons needs to be free to deal exclusively with the litigation. She herself has complained on several occasions about not being able to address litigation issues because she is bombarded with CORA requests and other operational issues.
A final note. Christopher Arlen, in addition to going on about his moral superiority, complains bitterly about the board members meeting one or two at a time with residents. “Unethical and unlawful” he asserts.
But he also disclosed he has met with board members one or two at a time. And he fervently defends Director Hanagan meeting with the plaintiffs without the knowledge of the board and Director Hanagan recently getting another local attorney involved. Still unethical or unlawful if you or your friends do it?
To be clear, the only legal authority that applies is the Open Meetings (Sunshine) law which expressly applies to only meetings of more than two board members. Under the law, meetings by board members of two or one are simply, by definition, not a “meeting” that the Open Meetings law cares about. And, to be clear again, if Mr. Arlen is elected to city council, he will soon learn that the city council members routinely meet, one and two at a time, with residents to discuss important issues. CRS 24-6-401 and 402.
The board meeting concluded with a discussion initiated by Director Peters of obtaining a confirmation that the pipe that Big Sky would access is already larger than originally designed and a second opinion on the modeling to confirm there is enough capacity to provide sewer to Rooney Valley. This is not the first time the issue has been raised.
Director Peters also stated she would like the board’s permission to meet with the plaintiffs along with a second board member to discuss settlement issues. She invited Director Baker to join her and he accepted. This in stark contrast to Director Hanagan’s and Counsel Timmons’ unilateral decision to meet alone with the plaintiffs without telling the board or seeking approval.
Counsel Gessler is intent on getting time for the board to focus on deciding whether to settle or not. Perhaps there will be progress next week. It all depends on how much more time Director Hanagan allocates to the Sideshows and Carnival Barking.
And, if the plaintiffs insist on a campaign of disrupting the board and threatening subpoenas – litigation instead of settlement – then the decision becomes very very easy. If nothing else, the plaintiffs know how to intimidate and burn bridges. That is why they have been so successful so far.
John Henderson