Judging from recent election results, a majority of Colorado Springs voters will support any reasonable measure to cure the city’s ills, as long as the measure doesn’t involve the dreaded “T” word.

That may be why a proposal to change the city’s form of government to the so-called “strong mayor” system has gotten so much traction.

A strong mayor must be better than a weak mayor, right? Strong bodies trump weak bodies, strong minds are better than weak ones, and strong teams win the Super Bowl while weak teams don’t even make the playoffs.

By putting a strong mayor in office, we’ll rebuild our city, put in a real CEO, and he/she will work miracles! Jack Walsh took GE, a faltering legacy manufacturer, and turned it into world-devouring powerhouse-so why can’t we find our own Jack (or Jill) Walsh and let him/her work wonders?

No more quarrelsome council, no more stubborn, unaccountable bureaucrats-we’ll get someone who will crack down on all those slackers and make the streetcars run on time!

That’s fine, I guess, but the city manager form of government has served us well for nearly a century, and, despite its obvious flaws, may be superior to a strong mayor system.

In our present form of government, the mayor has little statutory power. He/she presides over council meeting and has a vote and a voice, and that’s about it. Council is predominantly a policy-making body, with hire/fire authority over half a dozen appointees, including the Utilities director and the city manager.

The mayor is elected at large, and is seen as the city’s leader. To be effective, a mayor must be respected and trusted both by residents of the city and by his/her fellow members of council. Gaining such respect and trust isn’t easy, but many of our recent mayors have managed to do so.

It’s difficult to imagine that Bob Isaac and Mary Lou Makepeace could have been more powerful or more effective leaders in a different form of government. With sure political instincts, patience, intelligence, and generally supportive colleagues, they didn’t merely preside-they governed.

Yet both of them understood that they couldn’t govern without the affection and support of city residents.

By contrast, Mayor Lionel Rivera, although just as smart, savvy, and experienced as either of his illustrious predecessors, has stumbled badly - and not because of deficient leadership skills. Fairly or not, he bears responsibility for the unpopular USOC deal, for the Stormwater Enterprise, and for November’s failed property tax increase. A mayor more sensitive to the times, and to the quirks of our city, might have steered a different course.

A paid, full-time, “strong mayor” wouldn’t need either continuing popular support or the support of a majority of council to govern. Council would devolve into a mere legislative body, whose actions would be subject to the mayor’s veto. Such vetoes would require a supermajority of council members to override.

Elections, as we all know, are not easily predictable. Under the present system, there are enough checks and balances to prevent an eccentric or incompetent mayor from doing much damage. That wouldn’t be the case in a strong mayor system.

And I can easily imagine a scenario that would result in the election of a certain former elected official and activist as the city’s first strong mayor.

Say hello to Mayor Douglas Bruce!

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Posted by John Hazlehurst on March 8th, 2010 :: Filed under Blog
Tags :: Bob Isaac, Douglas Bruce, Lionel rivera, Mary Lou Makepeace, strong mayor

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Colleen O’Connor reported this morning in the Denver Post that Herb Fenster, a prominent Boulder attorney, plans to sue the state over TABOR, claiming that the 1992 Douglas Bruce initiative, which extensively amended the Colorado Constitution is itself unconstitutional.

“His lawsuit,” O’Connor wrote,“ will argue that TABOR deprives the state legislature of its power to tax and made it “impotent, because the most important function of a legislature is to tax and spend.”

TABOR, he argues, violates Article IV Section 4 of the U.S. Constitution, which says the federal government must guarantee that states have a republican form of government, which he interprets as “a tripartite government, a legislative, executive and judicial branch.”

Under TABOR, the state legislature is unable to raise taxes. That power resides with the voters.

Fenster believes this constitutes a form of popular democracy, in which the population decides everything, not a representative democracy, in which the people are represented by a legislature that decides.

“If you want to vote on tax legislation, then send people to the legislature who are going to vote the way you want them to vote,” he said.

Fenster is one of those pesky, unpredictable, fearsomely smart people who are often despised by both political parties because they can’t be pinned down, demonized and dismissed. Is he a Rino (Republican in name only) or a Dino (Democrat ditto)?

Who knows? More to the point, does he have any chance of prevailing in court?

Probably not, since courts have historically deferred to the will of the voters (Bush v. Gore notwithstanding!). But it’s interesting to speculate how the Supreme Court might rule on such a case, if it ever reached that august and eccentric body.

The court includes in its membership at least four jurists (Roberts, Alito, Scalia, and Thomas) who hold, or pretend to hold, “originalist” views.

“Originalism” is a deceptively simple legal theory, which holds that the Constitution has a fixed, knowable, and invariable meaning, which was established at the time of its creation.

It seems clear that the Founders did not envision today’s unruly democracy. The right of initiative does not appear in the Constitution and is not listed as an “unalienable” right in the Declaration. Yet less than a century after the ratification of the Constitution, Colorado’s founding document guaranteed the right of initiative.

Strict originalism might suggest that the exercise of direct democracy via the process of initiative is of doubtful constitutionality. It’s clear, however, that no court in the land would dare strike down what voters in many western states regard as a fundamental right.

But are there limits to the rights of voters to tinker with the fundamental structure of government? Does TABOR violate those limits? It seems to me that Fenster has a pretty good argument - but I thought that Lindsay Fischer had a pretty good argument when he sued the city over its supposedly illegal uses of certificates of participation to fund the USOC deal. The court disagreed, and the deal went through.

But just suppose the Colorado Supreme Court agreed with Fenster? We’d have a delightful political/legal donnybrook on our hands. And if it made it to the Supreme Court, it’d be fun to watch the four most conservative justices wriggle and squirm, as they sought to find some justification for preserving TABOR. Is it an icon of the kind of limited government that the Founders sought to create? Or is it an example of the devolution direct democracy to mob rule, governance handed over to ignorant masses who are routinely deceived by demagogues of left and right?

Who knows? But if the Supremes were to issue a sweeping ruling empowering states to have whatever kind of government they might choose, we’d be on our way to fixing local government.

I can see it now - a simple proclamation from the mayor, altering our parochial city manager form of government to something a little more sophisticated - a kingdom!

King Lionel the first, Rex et Imperator! Ruling by decree, the king would establish a hereditary aristocracy, with dukes, earls, counts, lords, and a landed gentry. There’d be one catch - if you wanted a title, with the rights and privileges attendant thereto, you’d have to pay tribute. In fact, you’d have to pay tribute if you were the lowliest peasant. And if you didn’t pay, the king’s soldiers would come and squeeze it out of you. Taxes too low? The King would decree higher taxes! Taxpayers complaining? Off with their heads!

It’s simple, efficient and exactly what the Founders intended. Justice Scalia, read your Constitution!

Article 1, Section 9: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.

That may seem simple, but that just applies to the states! We’re a home rule city, Mr. Justice Smartypants! We can do what we please! Just ask Douglas, Lord Bruce …

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Posted by John Hazlehurst on February 11th, 2010 :: Filed under Blog
Tags :: Antonin Scalia, Bush v. Gore, Clarence Thomas, Colorado Supreme Court, Denver Post, Douglas Bruce, Herb Fenster, John Roberts, Lindsay Fischer, Lionel rivera, Originalism, Samuel Alito, Tabor, the Constitution, United States Supreme Court

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Scampered over to City Hall yesterday afternoon to attend the Mayor’s hastily announced press conference.

Like everyone else in the room, I was curious to hear what he had to say. Would he surprise us? Would he depart from his usual script?

Nope.

He was as confident, as knowledgeable, as well prepared, and as smooth as ever. Neither his face, nor his words, nor his body language revealed a thing. If he was angry about the results of Tuesday’s election, or dismayed at the unexpected passage of 300, he didn’t show it.

The mayor said that the voters had merely balanced their needs against those of the city, and had decided that they could spend their money more wisely than could city government. The vote, he implied, reflected the desire of Colorado Springs residents to shrink government, and thereby de-fund museums, parks, and public transit-and even trim public safety.

Asked whether the city would immediately discontinue the stormwater enterprise, as apparently mandated by 300, the mayor gave no definitive answer. Calling the wording of the initiative “ambiguous,” he said that council would have to receive the advice of the city attorney, and then decide upon a course of action.

It was, in some sense, a surreal performance.

2C would have been a long shot in the best of times, but 300??!! It was just another Douglas Bruce decepticon, a malevolent shape-shifter opposed by every responsible business/civic organization in the Pikes Peak Region-and it passed overwhelmingly.

Why?

Not because of the recession, but because the voters wanted to send a message to the city leadership-and that means you, Mayor. Look at the ruinous misadventures of the past couple of years, and reflect upon them. It’s not time for business as usual, but time for confession, contrition, and making amends.

Next time you have a press conference, bring your colleagues along and admit error. In case acts of contrition are unfamiliar to you, here’s a good start.

From the Book of Common Prayer:

“We have erred, and strayed from thy ways like lost sheep. We have followed too much the devices and desires of our own hearts.

We have left undone those things which we ought to have done;

And we have done those things which we ought not to have done.”

And by the way, when you receive the city attorney’s advice about the meaning of 300, do it in open session. That’d be change we could believe in.

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Posted by John Hazlehurst on November 5th, 2009 :: Filed under Blog
Tags :: 2C, 300, Douglas Bruce, Lionel rivera

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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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“History repeats itself, first as tragedy, second as farce.”- Karl Marx

Last week, councilmember Jerry Heimlicher vowed loudly and publicly that, joined by a majority of his colleagues, he would insist that council be updated on the USOC deal in open session.

That didn’t happen. 

Yesterday during the informal City Council meeting, avisibly chastened Heimlicher made only fleeting reference to his former devotion to the public’s right to know,  saying that “the press has reported that we’re within days of a new EDA (economic development agreement), and we promised the public that it wouldn’t be done behind closed doors.”

Assistant city manager Mike Anderson, who introduced himself as “assistant city attorney Mike Anderson,” gave a brief presentation on the progress of the deal.

A grim-faced Anderson characterized the negotiations as “complex,” involving as many as 13 lawyers representing the interests of the city, LandCo, and the USOC.  He noted that the USOC had not yet “staffed this to their board,” and that, since the organization’s board members are dispersed throughout the country, meetings are more difficult to plan than those of city council.

Mayor Rivera chimed in, saying that “I’ve been very cautious (about forecasting the date of a new EDA).  (But) the intention of Scott (Hente) and myself and Mike is to have a very public (process).”

Anderson finished his presentation by, in essence, saying that the “finalized agreement” would be brought to council for a public unveiling as soon as it was…well, agreed and finalized.

Councilmembers, having nothing of substance to talk about, then ruminated at length on what to call the document that they so yearn to see.  “Finalized agreement” sounded too much like a take it or leave it backroom deal-how about “finalized draft”?  Or maybe “coordinated draft?” 

Then, as if actors in Kabuki theater, councilmembers fell into long-practiced rituals, praising city staff, and condemning the evildoers of the media.

Vice mayor Larry Small sorrowfully sympathized with Mike Anderson.

“I see the anguish on your face,” he said, “and I hope when this is over you can go back to looking 20 years younger than your age.”

And councilmember Tom Gallagher’s often-tangled rhetoric reached new highs.

“So we need to mitigate the malcontents,” he said, referring to the ink-stained wretches of the fourth estate, “you ignore ‘em, they just grow and fester.”

“Growing and festering”- that’s us! 

Despite the happy talk, it seems clear that the proposed deal has hit some major snags.  If your mortgage broker tells you that your application is “very complex-but we’re making very good progress,” that means you’re not getting the loan.  If your attorney-or your assistant city manager-looks like death warmed over as he announces that 13 attorneys are working on your “very complex” business deal, you’d better hire a bankruptcy lawyer.

What’s holding up the deal?  We don’t know, but we can guess.

Holdup # 1: LandCo can’t perform according to the terms of the original EDA, but they can prevent a new deal from being done.  It’s simple: pay ‘em, and they’ll go away.

Holdup # 2: The original deal called for LandCo to give the USOC  16 million big ones.  LandCo can’t do it-but the USOC still wants the $-show us the money!!

Holdup # 3: The city is broke, and getting broker by the week.  The usual suspects-El Pomar, the state, local philanthropists aren’t stepping forward.  So where’s the money?

Holdup # 4:  The city doesn’t want anything in writing when it comes to the $16 million-no use getting those unmitigated malcontents all riled up!  The taxpayers just wouldn’t understand…but the USOC wants cash, or a firm commitment to provide the cash at a date certain.  Money talks, BS walks.

Actually, the deal’s simple.  Just find lots of money, and give everybody some!  That’s fine-but don’t ask the taxpayers.

“Those are my principles, and if you don’t like them… well, I have others” - Groucho Marx

 

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Groucho Marx

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Posted by John Hazlehurst on July 14th, 2009 :: Filed under Blog
Tags :: Groucho Marx, Jerry heimlicher, Kabuki Theater, Karl Marx, LandCo, larry Small, Lionel rivera, Mike Anderson, Scott hente, Tom Gallagher, USOC

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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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