Lawsuit against Loveland alleges new council member wasn’t eligible

Editor’s note: This story has been updated with reaction from council member Troy Krenning.

LOVELAND — Yet another lawsuit has been filed as part of the ongoing controversies swirling around the city of Loveland and its city council.

Loveland resident Peter M. Gazlay sued the city of Loveland on Friday in Loveland Municipal Court, claiming that Troy Krenning was ineligible to be elected to the council because he had refused to submit to a background check before the election.

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According to Gazlay’s Loveland-based attorney, Russell Sinnett — who finished third to Krenning in the Ward 1 council race on Nov. 7 — Gazlay is seeking a legal determination that, “pursuant to the requirements of the Loveland City Charter, as well as the rules, policies, and procedures of the City of Loveland,” that Krenning was ineligible as a candidate on Nov. 7 when he won the Ward 1 council seat, defeating Dan Anderson 2,762 to 2,323. Sinnett received 896 votes.

The Gazlay case is the second lawsuit filed in Loveland Municipal Court by Sinnett. The other case was filed on behalf of several former members of the city council alleging city charter violations when the council voted Nov. 21 – just after Krenning was sworn in — to rescind the Centerra South urban-renewal agreement. It is separate from the case that developer McWhinney Real Estate Services Inc. filed in Larimer County District Court on that issue.

Among the allegations in the municipal court filing was that the council failed to follow the charter’s new provisions regarding urban renewal areas and that council members, in failing to follow the charter, were ineligible to serve in office. That lawsuit called for the disqualification of the five council members who voted to rescind the McWhinney agreements: Krenning, Mayor Jacki Marsh, Mayor Pro Tem Jon Mallo, Laura Light-Kovacs and Erin Black.

The city has yet to file a response in the former case, Sinnett said, and has until next Friday to do so. A status hearing on the previous case has been set for Feb. 29, which is the same day the McWhinney district court case is set for trial. It’s possible that the district court case will be determined based on the motions for summary judgment, because the parties have stipulated to the facts but disagree as to application of the law.

Sinnett told BizWest on Saturday that “I would not have filed either of these cases if I did not believe the law had been violated. There are few things more dangerous to a society than a government with leaders who believe they are above the law or the rules don’t apply to them.”

Sinnett has lived in Loveland for eight years and was born and raised in Fort Collins.

Gazlay was a police officer in Fort Collins from 1985 to 1998 and worked with Krenning there. They were peers, and the relationship was cordial, he said.

“This is a case of the city not following its process,” Gazlay told BizWest on Saturday. “There was an issue a few years back with people running for office with criminal backgrounds and it wasn’t discovered until after the election. I don’t think he (Krenning) has anything criminal in his background. That’s not the issue.”

Gazlay said he was a backer of Dan Anderson in the last election and wrote a letter to the editor on his behalf.

In that Oct. 15 letter to the Loveland Reporter-Herald, Gazlay wrote that “Troy was and is super intelligent. He loved constitutional law, and that eventually led him to becoming a lawyer.

“I knew him to be cynical and rarely supportive of leadership. He didn’t work well with others, and this frustrated his career path. As he’s gotten older, these qualities haven’t aged well. It’s easy to be the critic and tear things down. Wrecking is easy. Building takes a lot more work.”

The new lawsuit filed Friday notes that the Loveland City Charter requires that candidates cannot have been convicted of “certain enumerated criminal offenses” or have willfully violated the Charter to be an eligible candidate, and to make sure that’s the case, the city conducts a background check for each party that is conducted by a third-party vendor hired by the city.

The filing says Krenning refused to complete the background check before the election, contending that his personal information would not remain private and that the vendor’s terms of use were overly broad when only limited information was necessary. In a Sept. 8 email to the office of City Clerk Delynn Coldiron, Krenning also noted that his identity and personnel records were compromised while he was an employee of the U.S. Department of Justice.

Gazlay’s lawsuit says Krenning didn’t pursue an administrative appeal or a court finding before the election, instead telling Coldiron, “I look forward to seeing how this plays out.”

The lawsuit contends that the fact that the city certified Krenning as a candidate anyway and allowed him to be seated on the council was a violation of the equal-protection clause of the 14th Amendment to the U.S. Constitution because Krenning wasn’t required to undergo the same background check as other candidates before the election.

“Voters were left with candidate choices that included a candidate who may not be eligible for office under the charter,” Sinnett wrote.

The lawsuit further contends that, after the election, Coldiron’s office, on instructions from City Attorney Moses Garcia, used a different vendor to conduct the background check without Krenning’s knowledge to make sure Krenning wasn’t in violation of the city charter before he was sworn in.

According to a news release sent to BizWest by Sinnett on Saturday, the winning candidates, except for Krenning, were sworn in on Nov. 14, but Krenning was not sworn in until Nov. 21 because the city clerk had not received the results of the alternate background check until Nov. 17.

In the archived video of the Nov. 14 City Council meeting, Marsh states that Krenning was not being sworn in that night because he and his wife were on vacation, an account confirmed to BizWest on Saturday by former council member Don Overcash, who lost his bid to replace Marsh as mayor in the Nov. 7 election.

Gazlay’s lawsuit contends that the alternate background check was a further violation of due process and equal-protection rights, and that the city violated its fiduciary duties in failing to enforce its own rules intended to ensure candidates are eligible to be elected on election day.

Gazlay is not seeking monetary damages against the city, but wants a legal declaration that Krenning was an invalid candidate on Nov. 7 and that candidate Anderson should be declared the winner of the election.

Just after being sworn in at the Nov. 21 meeting, Krenning sparred with Garcia over whether the city charter required council members to submit to a background check, with Krenning contending that the requirement wasn’t part of the city charter and Garcia responding that it was part of the procedures the city follows. Krenning subsequently called for Garcia’s firing.

“I just know a number of parties are at fault,” Overcash told BizWest on Saturday. However, he added, “we also know Mr. Krenning has been a personal lawyer representing the mayor in other cases.”

Overcash recounted being “personally attacked” by Krenning when they both served on the city council, adding that “it never surprises me that Mr. Krenning looks for a way to cause a disturbance.”

Krenning did not return calls from BizWest to his city office, law firm and mobile phone on Saturday seeking his reaction to the lawsuit. However, on Sunday, he posted on Facebook, “Just another of the Local Election Deniers and Praise the Lord for Making Me Rich club. Don Overcash surrogates who just can’t stand that the City is moving in the right direction. At least Sinnett has a few clients and apparently discovered the Constitution, not saying he understands it, but at least he knows one exists.”

The case is Peter M. Gazlay v. City of Loveland, in Loveland Municipal Court. A case number has yet to be assigned.

This article was first published by BizWest, an independent news organization, and is published under a license agreement. © 2024 BizWest Media LLC.