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| Loveland City Council Meet Secretly with McWhinneys On Land Swap Meetings Could Constitute A Violation of Open Meetings Law |
Loveland - April 16, 2008
Secret Meetings Commenced Today
The Loveland City Council began meeting with Chad McWhinney and members of his staff today to discuss a land deal
that will likely be coming before the Loveland City Council for approval.
Chad McWhinney and his employees are briefing councilors on a proposed "land swap" involving parcels on both sides
of Highway 34 (one near Target and the other the city's new sports park). What makes the meetings unusual is they
involve multiple members of the city council discussing a proposal with McWhinney but contrary to Colorado's Open
Meetings statute, they are occurring in private.
Participating in the meetings are City Manager Don Williams, City Attorney John Duval along with Chad McWhinney,
and his attorney Lucia Liley and other McWhinney staff members Rocky Scott, Rich Shannon and Kim Perry. Four
meetings have been planned to pitch their concept for the "land swap" each involving two members of Loveland's City
Council. Today, the first of the four meetings was conducted in secret at the McWhinney's offices in Centerra.
Isn't That A Violation of The Law?
Colorado's Open Meetings Laws specifically prohibit public officials from "meeting" in private to conduct city business
unless the meeting is publicly announced and also meets one of several criteria required for keeping the public out. In
this case, no public announcement has been made and LovelandPolitics was informed by sources inside city hall that
Don Williams is trying to limit who on staff attends the meetings or even know about the meetings. Especially peculiar is
the absence of Loveland's professional planning, zoning or land use staff for the secret meetings involving a land use
issue.
A "meeting" according to the open meetings law is normally construed to be 3 or more members of the city council.
Therefore, in an attempt to evade the intent of the open meetings law (also called the Sunshine Law), only two
councilors will be rotated into a series of meetings involving the same topic and people seeking council approval in-
advance of an application for McWhinney's proposal. This apparent method of evasion is called holding a public
meeting "in-series" in an effort to avoid the intent of the statute by rotating the public officials in and out of the same
basic meeting to obtain their approval before the item comes before them in public.
The McWhinneys, unlike most companies or citizens of Loveland, enjoy unfettered access to Loveland's City Council
during public meetings and is seldom given any limit on how long they wish to present their views. As an example,
Rocky Scott presented information to Loveland's City Council regarding McWhinney's view on business development
for two-hours during an off-site of the Council. It is clear the secret meetings this week have been arranged for the sole
purpose of obtaining a decision from the City Council before the public's right to hear the matter or comment is satisfied.
Similar Violations Alleged in Fort Morgan City Council Incident Last Year - City Paid $30,000
Fort Morgan's City Council tried a similar stunt in 2006 and later had to settle a lawsuit with the local newspaper, Fort
Morgan Times, that included allegations (among other allegations) of the city using the in-series process to decide city
business. Before settling and paying the $30,000 (mostly for attorney fees) the city admitted no wrong doing in that
specific allegation. According to the Fort Morgan Times;
“On or before Nov. 6, 2006, four members of the City Council gathered through the use of ‘seriatim’ (a
series of one-on-one) meetings to consider whether they should lodge a ‘Report of Violations’ against
Mayor Jack Darnell.”
Courts Across the Country Find "En Seriatum" Meetings To Violate Open Meetings Laws
The trick used by City Manager Don Williams to avoid public knowledge or scrutiny of the meetings with McWhinney
by rotating multiple members of the City Council into the same meeting isn't new and certainly puts those councilors at
risk for violating state law. According to George Mason School of Law, "in-series" meetings with public officials have
long been determined by courts across the country to constitute a violation of state open meetings laws which are fairly
similar in most states. According to 2004 review of compliance with open meetings laws, the report concluded;
“Similarly, enterprising public officials have at times sought to evade the strictures of a state open meeting
statute by engaging in a pre-planned series of one-on-one conversations, and courts have had to determine
whether such an evasion is permissible under state law.”
Colorado doesn't appear to have any decisions regarding this specific tactic of evading the statute but likely because
most city attorneys will advise public officials to avoid making their city the test case for this state. What is clear,
however, is that many states' courts have found the practice a violation of their open meetings statute since the practice
is clearly an attempt to evade the law.
Two Councilors Opt Out Of Meetings
LovelandPolitics has been informed that two City Councilors, Carol Johnson and Cecil Gutierrez, have declined to
participate in this effort to determine a proposal for McWhinney in an apparent violation of Colorado's open meetings
laws. We have not been able to confirm such directly with either member of Loveland's City Council but believe our
sources to be reliable.
We were informed that each councilor protested the private meetings with both the City Manager Don Williams and his
accomplice in planning the secret meetings with McWhinney, Loveland Mayor Gene Pielin. Carol Johnson, a practicing
Colorado attorney, we understand is concerned about the legal ramifications of attempting to evade a state statute.
Despite several attempts by McWhinney's attorney, Lucias Liley, and Loveland's City Attorney to persuade her to
participate, it appears Johnson relied on her own understanding of the law and good judgement.
We also understand Gutierrez has declined to participate but haven't confirmed this directly. Gutierrez was a critic of
the previous City Council for meeting privately with McWhinney regarding their proposal to have Loveland taxpayers
subsidize their Trolley for Grand Station.
Secret Meetings Commenced Today
The Loveland City Council began meeting with Chad McWhinney and members of his staff today to discuss a land deal
that will likely be coming before the Loveland City Council for approval.
Chad McWhinney and his employees are briefing councilors on a proposed "land swap" involving parcels on both sides
of Highway 34 (one near Target and the other the city's new sports park). What makes the meetings unusual is they
involve multiple members of the city council discussing a proposal with McWhinney but contrary to Colorado's Open
Meetings statute, they are occurring in private.
Participating in the meetings are City Manager Don Williams, City Attorney John Duval along with Chad McWhinney,
and his attorney Lucia Liley and other McWhinney staff members Rocky Scott, Rich Shannon and Kim Perry. Four
meetings have been planned to pitch their concept for the "land swap" each involving two members of Loveland's City
Council. Today, the first of the four meetings was conducted in secret at the McWhinney's offices in Centerra.
Isn't That A Violation of The Law?
Colorado's Open Meetings Laws specifically prohibit public officials from "meeting" in private to conduct city business
unless the meeting is publicly announced and also meets one of several criteria required for keeping the public out. In
this case, no public announcement has been made and LovelandPolitics was informed by sources inside city hall that
Don Williams is trying to limit who on staff attends the meetings or even know about the meetings. Especially peculiar is
the absence of Loveland's professional planning, zoning or land use staff for the secret meetings involving a land use
issue.
A "meeting" according to the open meetings law is normally construed to be 3 or more members of the city council.
Therefore, in an attempt to evade the intent of the open meetings law (also called the Sunshine Law), only two
councilors will be rotated into a series of meetings involving the same topic and people seeking council approval in-
advance of an application for McWhinney's proposal. This apparent method of evasion is called holding a public
meeting "in-series" in an effort to avoid the intent of the statute by rotating the public officials in and out of the same
basic meeting to obtain their approval before the item comes before them in public.
The McWhinneys, unlike most companies or citizens of Loveland, enjoy unfettered access to Loveland's City Council
during public meetings and is seldom given any limit on how long they wish to present their views. As an example,
Rocky Scott presented information to Loveland's City Council regarding McWhinney's view on business development
for two-hours during an off-site of the Council. It is clear the secret meetings this week have been arranged for the sole
purpose of obtaining a decision from the City Council before the public's right to hear the matter or comment is satisfied.
Similar Violations Alleged in Fort Morgan City Council Incident Last Year - City Paid $30,000
Fort Morgan's City Council tried a similar stunt in 2006 and later had to settle a lawsuit with the local newspaper, Fort
Morgan Times, that included allegations (among other allegations) of the city using the in-series process to decide city
business. Before settling and paying the $30,000 (mostly for attorney fees) the city admitted no wrong doing in that
specific allegation. According to the Fort Morgan Times;
“On or before Nov. 6, 2006, four members of the City Council gathered through the use of ‘seriatim’ (a
series of one-on-one) meetings to consider whether they should lodge a ‘Report of Violations’ against
Mayor Jack Darnell.”
Courts Across the Country Find "En Seriatum" Meetings To Violate Open Meetings Laws
The trick used by City Manager Don Williams to avoid public knowledge or scrutiny of the meetings with McWhinney
by rotating multiple members of the City Council into the same meeting isn't new and certainly puts those councilors at
risk for violating state law. According to George Mason School of Law, "in-series" meetings with public officials have
long been determined by courts across the country to constitute a violation of state open meetings laws which are fairly
similar in most states. According to 2004 review of compliance with open meetings laws, the report concluded;
“Similarly, enterprising public officials have at times sought to evade the strictures of a state open meeting
statute by engaging in a pre-planned series of one-on-one conversations, and courts have had to determine
whether such an evasion is permissible under state law.”
Colorado doesn't appear to have any decisions regarding this specific tactic of evading the statute but likely because
most city attorneys will advise public officials to avoid making their city the test case for this state. What is clear,
however, is that many states' courts have found the practice a violation of their open meetings statute since the practice
is clearly an attempt to evade the law.
Two Councilors Opt Out Of Meetings
LovelandPolitics has been informed that two City Councilors, Carol Johnson and Cecil Gutierrez, have declined to
participate in this effort to determine a proposal for McWhinney in an apparent violation of Colorado's open meetings
laws. We have not been able to confirm such directly with either member of Loveland's City Council but believe our
sources to be reliable.
We were informed that each councilor protested the private meetings with both the City Manager Don Williams and his
accomplice in planning the secret meetings with McWhinney, Loveland Mayor Gene Pielin. Carol Johnson, a practicing
Colorado attorney, we understand is concerned about the legal ramifications of attempting to evade a state statute.
Despite several attempts by McWhinney's attorney, Lucias Liley, and Loveland's City Attorney to persuade her to
participate, it appears Johnson relied on her own understanding of the law and good judgement.
We also understand Gutierrez has declined to participate but haven't confirmed this directly. Gutierrez was a critic of
the previous City Council for meeting privately with McWhinney regarding their proposal to have Loveland taxpayers
subsidize their Trolley for Grand Station.
| Loveland Councilman Glenn Rousey is among those on Loveland's City Council who chose to participate in secret meetings with McWhinney instead of opting out. |