As predicted by many, the two-member Independent Ethics Commission cleared Mayor Lionel Rivera of any violation of the city Code of Ethics, as alleged in the complaint filed by Ron Johnson.

The report is carefully crafted, fair, judicious and as complete and accurate as it could be, given the limited scope of the inquiry.

As the report states: “the commission’s investigation was limited to a review of the Mayor’s actions concerning the project as they relate to the allegations contained in the complaint and its supplement.”

Such limitations were proper and necessary.  Johnson’s allegations should not, and did not, trigger a witch hunt, in which the commission might have interviewed dozens of witnesses, who might have made further allegations of unrelated misdeeds, which would then have been investigated, and so on ad infinitum.

Instead, the commission interviewed only the Mayor, Ray Marshall (accompanied by his attorney John Cook), councilmember Scott Hente, assistant city manager Mike Anderson, former councilmember Margaret Radford, and USOC consultant Jim Didion.  All witnesses appeared voluntarily, without subpoena.

The commission declined to interview any other individuals suggested by Johnson or his attorney, noting that “the information allegedly possessed by those individuals was either duplicative or not germane to the issue of the Mayor’s involvement in the USOC project.”

It’s pretty clear that none of the individuals interviewed held any animus toward the Mayor.  To the contrary, every one of them had powerful reasons to present the Mayor’s actions, and by extension their own, in the best possible light. 

During the time that the interviews were taking place, LandCo, the city, and the USOC were in the midst of renegotiating their deals with each other, in the wake of the disastrous collapse of the initial EDA.  Didion’s present role with the USOC, if any, is unknown, but Marshall, Anderson, Hente, and the Mayor have all been deeply involved in restructuring the deals.  Radford’s involvement ended with her council term last April, but she has long been an ally/admirer of the Mayor.

The city’s current spin on the collapse of the previous agreement is this: forget all the lawsuits, allegations, and angry words-it was all the economy’s fault!  In a presentation to council, Mike Anderson cited the “world financial meltdown” as the sole reason for the deal’s demise.  In other words, it’s nobody’s fault, so let’s all move on.

Based on the testimony of these individuals, the commission concluded that the mayor had no part in choosing LandCo as the designated USOC developer, did not take positions or actions that favored LandCo, and that any subsequent contacts with LandCo were made for the purpose of advancing the city’s interests, not LandCo’s.

The most significant omission on the list of witnesses may be that of former USOC CEO Jim Scherr, who, the report noted, had been quoted in “news reports” as saying that the LandCo selection had been made by the city, not by the USOC.  The commission chose not to interview him, both because of “overwhelming evidence” that the choice was made by the USOC, and because of Jim Didion’s statement that Scherr had little or no involvement in the process.

The omission is disturbing, because the “overwhelming evidence” that the report cites presumably comes from the testimony of the six interviewees.  One would think that possibly contradictory testimony would be welcome, even if it presented the two commissioners with the tiresome task of figuring out the truth of the matter from differing accounts.

The most interesting paragraph in the seven page report is this one, in which the commission gingerly tackles the question of Rivera’s failure to disclose a financial relationship with LandCo CEO Marshall

“Finally, the commission wishes to address the issue of whether the Mayor should have disclosed his prior business relationship with Mr. Marshall.  The Mayor’s explanation for not making the disclosure has been that it would constitute a breach of the UBS policy of respecting the confidentiality of its clients.  Had the Mayor disclosed the prior relationship it would probably have negated the suspicions that ultimately led to a request for an investigation.  In the Mayor’s view, it would also have been a serious violation of a business and ethical responsibility.  Whether the Commission agrees with the Mayor’s decision is not pertinent(italics added).  As noted previously, at the time the Mayor had the business relationship decisions were being made as to which developers would receive requests for proposals and, possibly, which developer should be selected to participate in the USOC project.  The Commission could find no evidence that the Mayor participated in any manner in these decisions.  Nor was there any evidence that the Mayor attempted to exert any influence, direct or indirect, in these decisions.  For these reasons the Commission does not believe that the Mayor’s failure to disclose constituted a violation of the Code of Ethics.”

Not even a slap on the wrist!  The commission simply decided that an apparent conflict wasn’t a conflict, since Rivera had, to the best of their knowledge, taken no actions that might unduly benefit LandCo, or disadvantage other applicants.

But here’s the crux of the matter: no person can serve two masters.  The Mayor can either serve his employer, or the people of this city.  He can’t just walk a tightrope, and pretend to serve both.  If his employment is of such a nature that he can’t reveal possibly conflictual actions, he should resign either from UBS or from elected office.

That may seem unfair-but too bad.  It may be that you can’t both be Mayor of Colorado Springs and an ambitious go-getter at the same time.

Clearly, neither the Mayor’s enemies nor the opponents of the USOC deal will be happy with this report.  Too bad for them-game, set, and match to Lionel.

There will still be questions and whispers, as in: How much did the Mayor make from his business relationship with Marshall?  Were there other accounts?  Was all the testimony truthful?  What really happened-surely seven pages of dry legalese can’t close the book on all this juicy gossip?

But from now on, it’s all pointless speculation. We’ll never know.

 In a few hours, the curtain will rise on what may be the final act in the USOC saga, when council is expected to approve the new USOC deal in all of its sleek, gleaming perfection.  It’ll cost the hapless taxpayers $40 or $50 million-but who’s counting?  Not I-I’ll be there, hoping that I can get USOC boss Stephanie Streeter to autograph my copy of the agenda…

 

 

 

 

 

 

 

 

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Posted by John Hazlehurst on August 11th, 2009 :: Filed under Blog
Tags :: ethics commission, Jim Didion, Jim Scherr, John Cook, LandCo, Lionel rivera, Margaret Radford, Mike Anderson, Ray Marshall, Ron Johnson, Scott hente, Stephanie Streeter

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As of early this morning, the Independent Ethics Commission had yet to release the results of their investigation into alleged conflicts of interest involving Mayor Lionel Rivera.

We don’t know who the ethics commission interviewed during their investigation, or whether they made use of their notably weak powers of subpoena. As we pointed out when the investigation was first launched, the commission has the power of subpoena, but there’s no prescribed penalty for failure to comply.

We may not know who was interviewed, but we do know a few individuals who were not.

Real estate investors Jack Mason and Ward Berlin, both of who were involved in now-settled lawsuits with LandCo and Ray Marshall, were not asked to appear.

Why not?

Berlin and Mason may know the details of any financial involvement that Mayor Rivera may have had with Marshall and LandCo. Mason’s lips are sealed, however, because the court documents that may conatin any such details were sealed by court order, and remain so, as a consequence of the settlement agreement.

If the commission has subpoenaed the documents, who knows what might have happened? Would have Mason’s lawyers released them-or would have lawyers representing LandCo, Marshall or the mayor contested any such release? We’ll never know-and not because the ethics commission has been careless or negligent.

The scope of any commission inquiry is limited by law to events that took place no more than a year prior to the receipt of a complaint. The Mason/Berlin lawsuits were filed well before that deadline, so the commission has evidently concluded that they fall outside the purview of the investigation.

So whatever the commission decides, the rumors may continue to fly. That’s unfortunate - but it’s the inevitable result of the commission’s inherent toothlessness, not because of any coverup or failure to investigate the obvious.

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Posted by John Hazlehurst on August 6th, 2009 :: Filed under Blog
Tags :: ethics commission, Jack Mason, LandCo, Lionel rivera, Ray Marshall, Ward berlin

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Last Friday, the Colorado Springs Independent Ethics Commission asked Central Bancorp CEO Ron Johnson to provide a list of all individuals whom he believes possess relevant information about the conflict of interest allegations that Johnson has made concerning Mayor Lionel Rivera.

In a reply dated June 19, consisting of 15 rambling pages of often-turgid prose, Johnson’s attorney, Lindsay Fischer, lists Rivera, LandCo CEO Ray Marshall, recused Ethics Commission member Jan Doran, Councilman Jerry Heimlicher, Vice Mayor Larry Small, Ward Berlin (an investor in a Marshall-controlled LLC), Jack Mason (as Mason Properties, an investor in a Marshall-related LLC), the board members of the Downtown Development Authority, “media persons” (including yours truly), the manager of the “local UBS office,” Jim Scherr (former head of the USOC), “Ms. (Stephanie) Streeter, the current head of the USOC,” Marshall attorney John Cook, and “any other person who does not come to mind at this time.”

Fischer notes that both Mason and Berlin are under “gag orders” arising from their agreement to confidential settlements of lawsuits involving Marshall, LandCo and certain LLCs. Because of these agreements, neither man could legally disclose any of the “relevant” information that Fischer believes they possess, absent a subpoena by the Ethics Commission.

The word “subpoena” has a certain awful gravity about it. Translated from the latin, the word means “under penalty.” One assumes that, if an entity has the power of subpoena, any failure to comply carries unpleasant consequences — like being jailed for contempt of court, or fined or hauled willy-nilly to the courthouse and forced to testify.

That might be true of a grand jury subpoena, or one from a court of appropriate jurisdiction.

But even a cursory reading of the ordinance establishing the Independent Ethics Commission reveals it to be a panel with neither bark nor bite.

The commission has “jurisdictional authority” only over members of City Council, city employees and appointees to various city boards and commissions. It can, in theory, require that persons belonging to any of those classes appear before the commission.

It can ask anyone else to appear, and can even issue subpoenas.

But here’s some “free legal advice”: If you don’t want to show up, don’t bother, subpoena or not.

That’s because there’s no “poena” in the subpoena. The ordinance prescribes no penalty for failure to appear. All the commission can do to scofflaws is to say “tut-tut, dear fellows — how terribly unsporting of you to decline our kind invitation!” The commission is a cat without claws, a pit bull without teeth, a rattlesnake without fangs.

It’s as if council passed an ordinance empowering the city to set speed limits, but neglected to include any penalties for speeding.

In that happy state, some of us would speed, some would slow down and some would obey the limits anyhow.

But in the event that the commission, in all of its august majesty, issues subpoenas, some recipients might be ready, even eager, to comply — while and others will politely (or impolitely) decline.

We’ll see — or, since the commission has decided to close its proceedings, maybe we won’t.

Our very own Star Chamber — albeit one which is utterly powerless.

And by the way, don’t interpret my ramblings as legal advice. Don’t want to get subpoenaed for impersonating a lawyer …

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Posted by John Hazlehurst on June 25th, 2009 :: Filed under Blog
Tags :: ethics commission, Jack Mason, Jan Doran, John Cook, larry Small, Lindsay Fischer, Lionel rivera, Ray Marshall, Ward berlin

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The city charter is not exactly a pleasure to read.

Unlike the United States Constitution, its words were not composed by highly literate, profoundly intelligent men who were deeply conscious of the weight of history and who together deliberated at length over each phrase, each word and each article.

The Constitution was written by our founding fathers-the charter, by lawyers and politicians. Enough said.

Yet the charter makes interesting reading, especially as the Independent Ethics Commission investigates (or pretends to investigate) the mayor’s alleged ethical breaches.

Here are some salient sections.

“The Council shall be the judge of the election and qualification of its own members and of the grounds for the forfeiture of the office of Mayor or Councilmember subject to review by the courts in case of contest.”

So council may, upon the vote of a majority of its members, kick out the mayor or any other member of council, and let him/her sue for reinstatement.

“Any three (3) electors may commence recall, initiative, or referendum proceedings by filing with the City Clerk an affidavit stating they will constitute a Petitioner’s Committee and be responsible for circulating the petition and filing it in proper form, stating their names and addresses and specifying the address to which all notices to the Committee are to be sent, and setting out either:

(a) The name of the officer or officers sought to be removed and a general statement in not more than two hundred (200) words on the ground or grounds upon which removal is sought;

(i) For the recall of Mayor or a Councilmember at large, the petition must be signed by electors entitled to vote for a successor of the incumbent sought to be recalled and such signatures must be equal in number to at least twenty-five percent (25%) of the total ballots cast for the office of Mayor in the last preceding election for such office.”

It’s easy to take out a recall petition - but you’ve got to get a ton of signatures.

(1)  Recall . All petitions shall be returned and filed with the Clerk within sixty (60) days from the issuance of such blank petition forms. (1979; 1985)

And you have almost no time to do it, especially compared to the time granted to collect signatures for an initiative.

(3)  Initiative . All petitions shall be returned and filed with the Clerk within one hundred eighty (180) days from the issuance of such blank petition forms. (1979; 1985)

The charter has some pretty stern words about the penalties that would be incurred by any “city officer” who failed to reveal any “substantial financial interest” in a city contract.

“Any City officer, employee, or appointee who has a substantial financial interest, direct or indirect or by reason of ownership of stock in any corporation, in any contract with the City or in the sale of any land, material, supplies, or services to the City or to a contractor supplying the City shall make known that interest and shall refrain from voting upon or otherwise participating in their capacity as a City officer or employee in the making of such sale or in the making or performance of such contract. Any City officer or employee who willfully conceals such a substantial financial interest or willfully violates the requirements of this section shall be guilty of malfeasance in office or position and shall forfeit said office or position…”

Conclusion: there’s a lot riding on this little contretemps. If council finds that the mayor has “willfully violated the (disclosure) requirements of this section,” then they would have little alternative other than expulsion.

But that won’t happen. The Ethics Commission, which now consists of two retired white guys, is toothless by design, and torpid by nature. They’ll have a genteel interview with the mayor, who’ll claim he did nothing wrong. Absent delivering a subpoena to UBS, they’ll have no evidence of any possible wrongdoing, so they’ll just pass along their non-findings to Council. They don’t want to rock the boat-just pass the buck.

And Council, far from saying “The buck stops here,” will most likely say “Buck? What buck? All is well…”

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Posted by John Hazlehurst on June 16th, 2009 :: Filed under Blog
Tags :: city charter, City Council, ethics commission

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