Loveland council to appoint counsels to investigate alleged meeting law, charter violations

LOVELAND — Members of the Loveland City Council approved dueling special counsel investigations of each other during Tuesday’s meeting. And then they suspended, with pay, the city attorney through the rest of his tenure with the city.

First out of the gate, council member Troy Krenning moved to hire a special counsel to investigate whether members of the current council and three former members violated the state’s Open Meeting Law and also the city charter.

Council member Troy Krenning asked the council to appoint Christopher Gregory, the former chairman of the Colorado Council on Judicial Conduct, to evaluate whether a violation occurred. He would be asked to report back to the council in time for the council’s first meeting in April, which would be April 2.

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Krenning’s motion came out of lawsuits filed by city resident Bill Jensen, who alleged that meeting law violations had occurred during the runup to the approval of the Centerra South urban-renewal area. During that debate, several members of the council sent letters to the state Legislature and to Gov. Jared Polis in opposition to legislation that was moving through the Legislature that could have derailed the development. Those letters, which carried signatures of multiple council members at the time, were not discussed at an open meeting. Krenning said that the city, through its attorney, concurred that a violation had occurred.

“If that’s true, that’s a problem, because a charter violation is a criminal offense,” he said.

“The open meeting law is not actionable by the council … but our attorney represented as a fact that on two occasions a quorum of the council came together and drafted letters that went to the Legislature and the governor,” Krenning said.

Four members of the council — Dana Foley, Andrea Samson, Steve Olson and Patrick McFall — were asked prior to the discussion Tuesday to recuse themselves because they were signatories on the letters. Olson asked that Mayor Jacki Marsh also recuse herself, because “Bill Jensen lives with you,” he said. She did not, but the other four did leave the room.

The remaining five members of the council approved Krenning’s motion.  

Krenning’s motion included a maximum budget of $10,000 for legal fees.

After a council recess, council member Dana Foley moved that the council appoint a special counsel to investigate whether charter violations occurred as alleged in lawsuits filed by a group of former council members, the so-called (Richard) Ball case, and the (Peter) Gazlay case that alleged another charter violation related to the lack of background investigation of councilman Krenning.

Foley asked the mayor and four other members of the council to recuse themselves, and the five ultimately left the chamber.

Foley’s motion asked the city attorney to find a special counsel to investigate. If probable cause was found to exist, the special counsel would be directed to prosecute each violation in municipal court, according to the motion. 

City Attorney Moses Garcia, when asked by the mayor prior to her departure whether the motion was in order, said it could be considered related to a later agenda item about the pending lawsuits and thus appropriate. He advised council members who might be conflicted not to interfere with the motion.

Without a mayor or mayor pro tem in attendance, councilmember Foley was appointed chair.

Garcia, when asked by council member Samson whether this had been done before, said “This is all new ground. I’m not aware that this has been done in Colorado before. I guess we’ll all find out together.”

Foley said, “If you investigate one, you investigate all. It’s time to get this mess cleaned up sooner rather than later.”

He also noted objections to the previously appointed special counsel, who according to published reports was dismissed from his role with the Council on Judicial Conduct. 

A few members of the public spoke — three opposed to Foley’s motion and another supporting. 

City resident Chuck Hubbard said that the motion “seemed to be an act of retribution.” He asked the council to consider hiring a mediator to work through the divide.

Olson said that was good advice, but “why didn’t you give it to the other council.” He said “this is exactly what I thought would happen. If we waited until April 2, we wouldn’t have a chance to respond.” 

Said Samson, “It’s nonsense. It’s pathetic that we’re in this position. We have no option to permit us to have our day in court but to go through this silly exercise.” 

The four members of the council still on the dais voted 3-1 with Olson opposed, to approve Foley’s motion.

When Mayor Marsh returned, she said, “Let the record reflect that at 8:50 p.m., quorum was restored. Actions taken without quorum are null and void.”

Samson said she objected to the mayor’s statement.

The council then recessed for 15 minutes.

Immediately upon return, Mayor Pro Tem Jon Mallo moved to suspend City Attorney Moses Garcia with pay through April 2 effective immediately. Garcia was scheduled to leave city employment in April.

“The last 45 minutes have been orchestrated, I would assume on the advice of the city attorney. We don’t need a reason (to suspend),” Mallo said.

Olson said the minority members of the council had just had a discussion about “tit for tat and retribution. You’re going to suspend the city attorney for providing legal advice to the minority of the council.”

Council member Laura Light-Kovacs said she objected to the “tit for tat” language and said she has witnessed situations when the city attorney was not truthful with all members of the council.

Garcia admitted to having drafted the language for Foley’s motion at his request, as he has “for virtually every member of this council.”

McFall said that “for those who talk about democracy, and fair(ness), and working together, this is what it looks like when you don’t do that. There’s a vindictive aspect to what’s going on now.”

Council member Erin Black said, “We have a disgruntled employee, and that’s dangerous for the city.”

Said Samson, “This is wildly unfair. The majority that would rather cause division and humiliate the staff. I wish there was something I could do to bring sanity to this.”

The motion to suspend passed 5-4.