Loveland council OKs city attorney’s separation pact

LOVELAND – Embattled City Attorney Moses Garcia won his not-so-amicable separation package Tuesday from a Loveland City Council that was so divided that the “no” votes in its 6-3 decision were for different reasons.

The fourth city official to resign since voters in November sent the council in an abruptly different direction, Garcia was granted the package he asked for, which councilmembers Troy Krenning and Jon Mallo termed “take it or leave it.” The deal totals more than $341,000, just short of three times the nearly $128,000 Garcia would have received under the normal termination provisions in his contract.

“Moses, in one of the conversations we had, you were hoping this would be an amicable separation,” said Mallo, the mayor pro tem. “It didn’t happen that way. I apologize for that.”

SPONSORED CONTENT

How Platte River is proactively managing its clean energy transition costs

Learn more about how Platte River Power Authority is proactively managing its clean energy transition costs across the region.

The agreement Garcia demanded sought “12 months’ pay and payment in the amount of 8% of the 12 months as an equivalent to retirement contributions, as well as the equivalent cost of benefits and additional previously unused vacation in the amount of 822 hours … based on the city attorney’s 2023 annual rate of pay, $215,001.07,” before the new council cut Garcia’s pay early this month. “The final pay would also include payouts to which an employee is entitled, including prorated floating holiday hours.” The proposal outlined the difference, which totaled $213,398.88.

Voting against the deal were new council members Krenning and Erin Black, as well as Garcia supporter Steve Olson.

Krenning, who had alleged “past collusion” between Garcia and McWhinney Real Estate Services Inc., developer of the Centerra projects on Loveland’s eastern edge, and also sparred with Garcia over several issues including whether the City Charter required new council members to submit to background checks, had called for Garcia’s firing last December but realized he didn’t have the supermajority of six votes to get it done. Instead, he won a motion to reduce Garcia’s pay effective this month.

“What could we do with an extra $200,000? That’s half of what we paid for the Loveland Resource Center,” Krenning said. “I know we have employees who may work here for a number of years and won’t make $200,000. I think it’s a classic case of stare-down, and we find ourselves in a very difficult position.”

Black’s opposition was more forceful.

“I don’t support the requested package, and the reason I was so vocal when I was campaigning that I felt like we needed new leadership was that although council didn’t have an issue with your performance review, as a public member, I saw surveys coming down from the community and from data that came out of the Jensen-Hughes report” — a 2022 study by a Westminster-based consultant that detailed improper conduct by Loveland police — “and surveys that came through the Trust Commission, and those numbers showed us that you had lost the public trust.”

The previous council had increased Garcia’s salary, she noted, “although we were seeing different data. As a public figure, I wasn’t in favor of those decisions at that time, and since I’ve had time with the city, time at the Trust Commission and time that I’ve watched council and now being an elected official, there have been many omissions — not following the chain of command we agreed on. … You omit, you don’t follow procedure, and you put this city at liability risk.”

She pointed to Garcia’s handling of a harassment claim against City Manager Steve Adams, who resigned in January, and his “downgrading of what our district attorney was trying to explain.

“What I’ve heard from the community is distrust with you,” Black said.

Olson, however, voted no because he didn’t want Garcia to leave.

“The new council came in with the express belief that they had a mandate, and they followed through on what they believed was necessary. It wasn’t unexpected,” Olson said, but added that “It doesn’t mean I think it’s right, and I certainly don’t think it’s fair. Having worked very closely with the city attorney and city manager for 6½ years, I’ve come to appreciate their integrity and the forthrightness of them communicating to council. And I found I’ve gone through four council changes, and I have watched that they always were respectful and responsive of the makeup of a council and regardless of the political views a member of council might have. So I’m just not supportive of disrespecting a person who provided services to the community for 18 years. But this council has the majority, so I guess that’s what they’ll do.”

Even the four members of the public who spoke during the comment period were divided. One asked, “Why should we pay him more than his contract to get rid of him?” while David Herrera, who said he retired from practicing law after 44 years, noted that “I remember when the plain language of a contract governed its operation and termination, but here, tonight, you’re contemplating terminating an at-will employment contract by adding more than $213,000 to the negotiated contract termination compensation.”

Pointing to the city staff’s projection of a $13.2 million budget shortfall this year, Herrera said, “I can tell you where to save point-2 million.” That additional $213,000, he said, would pay for “426 months of $500 emergency rental assistance.”

However, another commenter praised Garcia’s work, while former council member Kathi Wright said that “when I read the letter that his entire staff wrote and signed, I wept for our city. Just because of personal vendettas, we’re hurting another very good person.”

Council member Dana Foley echoed Wright’s plaudits for Garcia.

“The staff that you have created, and that team is remarkable, and that’s a direct reflection on your ability to lead,” he said. “It was also reflected in the latest employee survey as well, and I believe the city attorney’s office actually had the highest rate in the entire city.

“I commend what you’ve helped me through because, holy cow, if I would have went with what I was thinking versus the advice you gave me, I would have been in a different world of hurt, that’s for sure,” Foley said. “You may have not told me what I wanted to hear, but you always told me what I needed to hear.”

Noting Garcia’s statement that he had never had a negative review, Foley asked the city attorney why he made the separation proposal he did.

“I do love working for the city,” Garcia said. “I have loved it for 18 years. I enjoy the people I work with. I think they are brilliant. I am very lucky to have had such a great job. But this council has changed and sees a new vision for the city, and part of that change, you want a change in leadership. That change in leadership is at a cost. Frankly, I wish I could be here because I think my legal advice won’t change, and it won’t change no matter who the council is. I think my integrity is absolute, and my professionalism.”

Council member Andrea Samson praised Garcia’s perseverance.

“To say that the working conditions that you have been through, particularly in the last year, were even friendly would be a stretch. They were not friendly. You had your pay docked. You received very harsh critiques, and I personally didn’t believe they were warranted. I was part of the four who didn’t believe your termination was warranted, nor was your pay decrease warranted,” she said.

“I think the work you’ve done for Loveland is exemplary, the way that you view your department, the way your department has viewed you and respects you. I’m grateful for that work that you’ve done. I would rather that you stay and not have any sort of a payout, personally. .,.. It has been painful to be at some of the meetings for me when you’ve basically been on the stand. So I understand where you’re at, and I respect you enough to support you in this.”

Added council member Patrick McFall, “To say I’m against you leaving is minimal to how I actually feel. If this were for cause, I would be the sixth vote. But voting to ask you to leave goes against every aspect of my leadership and my business experience. We’re not paid to be liked, and we’re not paid to like people. We’re paid to ensure the job gets done. I’ve heard your integrity impugned, your honesty impugned, in my mind with no evidentiary aspect to it except for conjecture. There’s nothing that you have done, whether it was in regard to Centerra South or anything else, in the two years I’ve been here that you didn’t do without council direction. So if you were moving in a direction, it wasn’t your direction, it was (the) council’s direction. That’s why I can’t see being a sixth vote and coming out here and voting to just fire you.”

Krenning acknowledged he hadn’t had the votes to terminate Garcia’s employment.

“The naked truth of the matter is that we can’t effect change unless we have six votes,” he said, referring to himself, Black, Mallo, new member Laura Light-Kovacs and Mayor Jacki Marsh. “I think the evidence is pretty clear that there are five members of this council, myself included, who would like to see change, but we don’t have the sixth vote necessary to honor the contract, to honor what the charter gives us the right to do, and that’s simply separate with four months of pay, according to the contract that was reached by Mr. Garcia in a prior council.

“I don’t believe there is cause to terminate Mr. Garcia because cause is specifically defined in his employment contract, but even if there was, it would still take six,” Krenning said. “So we truthfully are facing a situation where, in order to invoke what I think is the will of the majority, not the supermajority, we have to decide whether or not an extra $200,000 to Mr. Garcia —  there’s a cost-benefit analysis to be had, and there’s also a benefit of what else could we do with $200,000. I have to confess, I’m torn. I would like us to enter into a separation agreement. I would like for it to be through the will of the majority. But as long as we have four councilors who don’t believe Mr. Garcia should leave, this is the crossroads we’re at.

“There will be an effort to change our charter,” Krenning said. “I will ask to bring back a ballot measure to put on November’s ballot if not sooner so that we can get in line with every other Colorado municipality except our friends in Windsor.”

Adams also had sought a year’s salary and benefits in his severance package plus a lump-sum retirement payment, but the council in January reduced his compensation for salary and benefits to nine months.

The resignations of Adams and Garcia follow the announcement from Kelly Jones-Sage, Loveland’s economic development director, that she would resign effective last Wednesday, Feb. 21, after seven years in that position. Jones-Sage confirmed to BizWest that the shifting political winds as they affect economic development were among her reasons for leaving.

And on Tuesday, just before taking up the Garcia severance package, the council emerged from an executive session that had been scheduled for a routine bi-annual performance review for Municipal Judge Geri Joneson to announce that she, too, was resigning after nine years on the city’s bench and 26 years of criminal law practice.

While serving Loveland, Joneson, a middle-school teacher who rose to become an adjunct law professor at Creighton University in Omaha, implemented several alternative sentencing solutions to address juvenile and homeless offenders.

Several council members praised the heart and discretion Joneson applied from the bench and accepted her departure with “regret” and “sorrow.”

The terms of her separation agreement, apparently reached during the executive session, were not revealed, but in introducing the motion to execute it, Krenning confirmed that her departure was for “personal reasons and nothing to do with the judge’s performance.”