The meeting started normal enough. The board voted to limit public comment to the public comment period, consistent with the bylaws, as they have for the past several meetings.
Director Hanagan objected, as she has at every meeting. She prefers that her supporters have free reign to speak, usually personally attacking other members and threatening them with recall. She has also encouraged these same supporters to file CORA requests against the other board members.
Director Hanagan and her supporters appear to have an insatiable appetite for trying to undermine the other board members in front of the plaintiffs and provide as much fodder for the plaintiffs as possible. Whatever their agenda, it is completely antithetical to defending the board in the litigation. Director Hanagan and her supporters appear more than willing to sacrifice the District in order to personally persecute members of the board they disagree with.
And of course the plaintiffs are enjoying every moment and undoubtedly offering encouragement through their sources.
Once the meeting came to legal issues, Director Plotkin made a motion which was seconded. The three supporters of Director Hanagan erupted. Director Hanagan had unmuted them and they were all now free to unleash their new abusive tirade against the other directors.
Christopher Arlen was the first out of the gate “POINT OF ORDER”, he declared with no more authority than any other non-director. As if someone had elected him to sit on the board.
More like Point of DIS-Order. No one elected him. He ran for City Council and lost. Apparently he aspires to a seat on the board and is working overtime to persuade one or more members to resign. He is the self-appointed judge of whether or not the board members are behaving like “children” or “adults”. Mr. Arlen has lost count of the different ways he can express his disdain, disrespect and lack of knowledge about the issues before the board. But it sure doesn’t slow him down. The supporting chorus of regular two or three attack dogs were not far behind.
It was pure anarchy. In complete rejection of the majority vote that had just taken place limiting public comment to the comment period, Director Hanagan opened the gates, unmuted her supporters, and chaos reigned.
Director Karen Morgan bravely attempted to turn back the tsunami of disrespect but had no more success than the Capital Police on January 6. Just like January 6, mob rule completely disrupted the proceedings. A demonstrative point of DIS-order. The orderly conduct of business was violently shattered.
And what was the motion that so angered Director Hanagan’s supporters. Mr. Plotkin explained that after a long period of time, culminating in Ms. Timmons and Director Hanagan’s clandestine meeting with the plaintiffs to discuss settlement, he had completely lost confidence in Ms. Timmons as counsel for the District. He moved to terminate her as District Counsel.
To be sure, as he explained, the problems had been brewing for a long time. And given the fact of the pending litigation, his decision was not made lightly. He stated that had reached a point where as a director he believed he owed a duty to the district to make the motion and raise the issue for discussion by the board. And all he did was make the motion. It was seconded by Director Baker.
Normally, there would be discussion about a motion, any motion, and then a vote. Motions are often made to formally raise and frame an issue which then results in discussion. That is how any organization like the board communicates and does business.
But not this time. In this case, Director Hanagan and her supporters, unmuted and loaded for bear, completely hijacked the meeting.
It would be an excellent case study lesson for a high school or even college government/political science course. Complete and utter anarchy.
But for the zoom and unmuting, something like this never would have happened in a physical meeting. But it happened here. Complete and utter disrespect for the decisions of the district which can only be made by a majority of the elected directors.
After the spittle and spew was spent, the board voted to go into executive session. Director Hanagan objected and voted “no”, against going into executive session.
Following the executive session, one or more board members requested that there be a separate contract for each Attorney Timmons and Attorney Gessler (Gessler was hired by Timmons and disclosed last week his first loyalty to Counsel Timmons and his second loyalty to the board). One or more board members also requested that separate counsel be retained for the daily Title 32 issues, including attendance at the meetings. This would free Counsel Timmons and Gessler to work exclusively on the pending litigation.
Counsel Timmons was absent. Counsel Gessler then provided a review of the decision tree and outline he had prepared.
Counsel Gessler had previously disclosed he was new to the Title 32 issues but was getting up to speed quickly.
Here are some corrections to several points he raised. Notwithstanding the following corrections, he provided a general outline of the issues and his opinion, given his limited experience, about the likelihood of various scenarios. While long overdue, it was a suitable beginning.
1. “25 million cost to build out sewer in Rooney Valley and could be paid by the current Green Mountain district residents” if Green Mountain provided sewer outside its district boundary through inclusion (moving the boundary) instead of and IGA (across the boundary).
False. First, the cost of building out the “Big Sky Sewer System” according to Big Sky is only $3.8 million. Not $25 million. Earlier, Counsel Timmons thought she heard Terry Kenyon state that number.
Second, the cost will be paid by the developer and then the future residents. The current Green Mountain residents will pay nothing. (Counsel Gessler did allow that he was not quite sure how this worked).
Third, under inclusion, the cost of owning the new system, just like the cost of owning the current system, will be paid by the new residents. Just like the current residents pay for the current system. With inclusion, Green Mountain provides service to a larger area and has more people in that new area to pay for the new service.
(Curiously, with an IGA arranged for the District by the developers, like the Big Sky IGA, Green Mountain provides less service and charges more. Sounds a lot like the developers’ garden variety abusive metro district financing.)
2. “The Green Mountain voters would have to vote to approve inclusion of the Rooney Valley developments into Green Mountain District”
False. Under Title 32, CRS 32-1-401, (you can google it), the only residents or landowners who have to vote to do the inclusion are those who own the land in the Rooney Valley areas. Green Mountain voters will not vote. The Green Mountain board would make the decision for the District, not the voters. Green Mountain of course can and should have a public hearing before they vote. But it is the 5 board members, not the district voters, who vote to include or not include. Lakewood City Council would also have to vote to approve or not object.
3. Mount Carbon. The entity in Rooney Valley that was set up to provide sewer to the plaintiffs is Mount Carbon Metro District – limited to providing water and sewer to the Rooney Valley. Not Morrison.
Mount Carbon sanitation district is now providing sewer to the Red Rocks Center which is currently under construction southwest of Solterra and immediately south of the Cardel and Big Sky/CDN property. Mount Carbon already has the pipes in place to begin providing service to Rooney Valley. You can see them on the map. Of course more work will need to be done, whether the Rooney Valley developers get sewer from Green Mountain or Mount Carbon. According to Big Sky, $3.8 million of work (not $25 million).
One option to resolve the litigation is an IGA with Mount Carbon, an already established and publicly accountable sanitation district that was actually originally established to provide sewer to Rooney Valley. The plaintiff developers had to exclude themselves from Mount Carbon before they could come to Green Mountain to ask for service. They can now go back to Mount Carbon and obtain sewer service from them – their original sanitation provider.
4. “Cardel is already part of Big Sky.”
No. The Big Sky Service Plan approved by Lakewood in September, 2014 expressly states that Cardel will not be part of Big Sky until they exclude themselves from Mount Carbon and go through the inclusion process. As provided for in CRS 32-1-401, the Big Sky Service Plan also expressly states that Lakewood would have to approve the inclusion. These steps have not been completed. Indeed, Cardel is still talking about creating their own metro district which they cannot do if they are already part of the Big Sky district.
5. “Green Mountain and Big Sky might want to enter into a new IGA if Green Mountain wins the litigation.”
Say, what? This is nonsensical. Why, after spending at least $800,000 to uphold its decision to terminate the Big Sky IGA and a jury verdict against the Rooney Valley developers, would Green Mountain say “ok now that we won the lawsuit, lets enter an IGA so we can provide service outside our district for all of Rooney Valley”. Makes no sense.
If that is really the goal of going to trial, enter into the IGA now.
This is why its important to listen to the client.
6. “Green Mountain may not need permission from Lakewood to provide service outside the Green Mountain District boundary.”
Certainly Big Sky’s attorney and Adam Paul don’t think Green Mountain needs permission. They decided on their own to provide service to Solterra back in 2006.
Problem is, the Service Plan for Green Mountain only authorizes Green Mountain to provide service to the inhabitants of the district. Very simple. There is no authority in the Service Plan for providing service outside the district. The details have been explained in prior blogs. The simple solution is a request to Lakewood to modify the Green Mountain Service Plan to allow the board to provide service outside the district boundary. With a public hearing.
7. “Director Hanagan decides what is on the agenda.”
No. The majority of the board decides what is on the agenda for the meeting. It can be amended at the meeting. Nothing in the bylaws or Title 32 assigns that authority to one director over the majority.
Here is what the state statutes say about what is included in the agenda:
“. . . The public place or places for posting such notice shall be designated annually at the local public body’s first regular meeting of each calendar year. The posting shall include specific agenda information where possible.” §24-6-402(2)(c)(III). The point of the open meetings act is to give notice of the meeting. The specifics of the agenda are left to the board, a majority of the board.
7. One of the speakers from the public stated that the Court would have to agree to terminate Counsel Timmons.
False.
A majority of the board have the absolute right to terminate counsel at any time for any reason. Counsel Timmons could have been terminated at any time if she personally attacked one or more of the board members or staff. She could have been terminated if she failed to adequately represent decisions by the majority of the board. She could have been terminated for failing to claim a jury trial in the Big Sky case (a motion to restore that right is pending). She could have been terminated if she didn’t listen to the board about litigating various issues and taking depositions. She could have been terminated for supporting Director Hanagan’s decision to hold her own public meeting, Director Hanagan expressly endorsing one of the plaintiffs’ false claims about the other directors (“anti-development”) and obstructing review of her fees. She could have been terminated if she supported Director Hanagan’s solicitation of CORA requests against the other board members and if she failed to adequately defend the other board members in response to the CORA requests. She could have been terminated for facilitating Director Hanagan’s clandestine settlement meeting with the plaintiffs in direct contradiction to the intent of the other board members and endorsing Director Hanagan’s meeting as showing “great leadership”.
Once terminated, counsel must immediately withdraw from representing the district in any litigation. The Court has no say once her employment is terminated. It is a matter between the board and counsel.
By contrast, Counsel Gessler could not withdraw without permission and would need to show that the client terminated the relationship in some manner. There was no reference in the motion to terminating Counsel Gessler.
Terminating counsel is always a big decision. That is particularly true in the middle of litigation. However, in every case if the counsel is doing more harm than good to the district as assessed by a majority of the board, the majority has a fiduciary duty to his or her constituents to terminate the relationship and make other arrangements. Knowing the members of the board I am confident that they have the ability to consider all the alternatives and make the right decision, whatever it is.
Alex Plotkin obviously knows the documents, events and issues and has been very attentive to the status of the litigation. From his comments he clearly had reached a point where he felt compelled to raise the issue with the rest of the board. Thats what board members are supposed to do. The fact that Director Plotkin made the motion and it was seconded by the second of the three directors with the most experience on the issue, was noteworthy.
Counsel Gessler appears more than capable of going forward with the litigation and appears prepared to be responsive to the Board. He handled himself well at the last two meetings and was very respectful of the board. He expressed confidence in the District’s ability to win the litigation.
Director Peters stated, for a second time in the last two meetings, that she is ready to review a draft proposal for an IGA. Undoubtedly the plaintiffs counsel have one ready to go. Director Peters also stated her position that the plaintiffs should pay the District’s legal fees, given the plaintiffs refusal to accommodate Green Mountains’ multiple requests to address their concerns before terminating the IGA.
The plaintiffs should also be required to pay the attorneys’ fees of all those private citizens they harassed with irrelevant and immaterial subpoenas for their emails. Clearly another effort by the Rooney Valley developers to chill citizens participation in local government. Better for the Rooney Valley developers that the only conversations be between the elected officials and the developers. They have used the court system to punish private citizens and the board members from exercising their constitutional rights to free speech.
There still remains the question of whether or not to provide service outside the district and continue with trial.
However, there also appears to be momentum towards settling with a new IGA –
– either with Big Sky for all Rooney Valley or
– two IGAs 0ne with Big Sky and a second with Green Tree (Three Dinos at Dinosaur Ridge) separately – as proposed by Counsel Gessler, or
– a new IGA with Mount Carbon.
Of course there are other alternatives.
Much time has been lost that could have been spent on these issues. But the residents supporting Director Hanagan have their personal agendas. And it is clear that prosecuting their personal agendas against individual board members is more important than the work of the District. They will undoubtedly continue to harass the majority board members and press their cause, no matter how much damage it does to the District as a whole. The points of DIS-order reign supreme and continued anarchy are just another meeting away.
The directors first had to fight their own counsel’s and managers’ efforts to sabotage the new board’s review of the Big Sky IGA in 2018. Then they had to deal with the Rooney Valley developer’s obstructions and threats of litigation in 2018 and 2019. Then, after the Rooney Valley developers refused to work out the issues, the IGA was terminated and the lawsuits filed. The directors then had to contend with increasing hostility from their own counsel. And most recently, they have had to contend with an openly hostile chairperson who is encouraging her supporters to personally attack the other board members at the meetings and with CORA requests. Finally, they have to fight desperately each meeting to simply have a meeting that is not hijacked by Director Hanagan’s supporters with her help in releasing the mute button.
Someone commented that they have a tough job. Guess so.
And no one remembers the names of the prior directors who voted to sign the Big Sky IGA election night May 8, 2018. No one has asked them why they violated their fiduciary duty to the district. No one has asked them why they voted to approve an IGA to provide sewer outside the district boundary in violation of their Service Plan and in violation of the Big Sky Service Plan. No one has asked them why they voted to approve an IGA that they obviously never read.
Instead, a tiny group of residents crucify the board members who gave the community a voice and stood up to the Rooney Valley developer’s bullying tactics.
Despite all these challenges, the board is moving forward. Hopefully they will be able to fight off another round of chaos from Director Hanagan’s supporters. Hopefully they will actually have a thoughtful discussion of the issues uninterrupted, again and again, by Christopher Arlen and his repeated ad hominems and self-defined judgmental projections of moral superiority.
The board needs our support. No matter what the decision, they need some peace and assistance. No volunteer board member should have to suffer this kind of abuse to serve the public. But they have. And no matter how they decide to resolve the litigation – by trial or settlement – they have not changed from the same good people they were when they were elected and they continue to deserve our trust and confidence. They are doing a public duty and deserve the utmost respect for their time and efforts.
While the tiny band of anarchists fight to disrupt the board’s meetings and intimidate the board members with a constant barrage of personal attacks and repeated threats of recall, the rest of us need to let them know we are watching, we are remembering, we care and we will do what we can to provide a peaceful forum for the board to do the District’s business.
John Henderson