Loveland special prosecutor gets OK to file charges if warranted

LOVELAND — A special prosecutor appointed Friday by the five-member Loveland City Council majority was given the power Tuesday to file misdemeanor criminal charges if they’re warranted against four other members and three former members who are accused of violating state and local open-meetings laws.

To maintain prosecutor Kathy Haddock’s independence, any further communication between her and the council will go through acting city attorney Vince Junglas.

Junglas said Haddock will provide “a timeline of major steps to the extent she feels comfortable under the Colorado Rules of Professional Conduct, so that there’s one degree of separation both ways. I’m sort of a middleman of information.”

Haddock, former senior attorney for the city of Boulder, told the council that because she was being careful to avoid “extra-judicial remarks” about the case, she had purposely not yet reviewed the report presented last week by special counsel Christopher Gregory that outlined what he deemed probable cause to file the charges. 

“I will be reviewing this report,” she said. “I know the timeline is really quick; there’s a potential statute of limitations [deadline] on April 19. So whatever I do, I’ll be giving you a report before then. What happens between then and now is hard to predict until I’ve gone through everything.”

Mayor Jacki Marsh told Haddock, “We will count on you and Vince and Mr. Gregory to keep us on the straight and narrow because we want to do this properly.”

However, Troy Krenning, the only member of the city council who is an attorney, contended that Haddock didn’t need to issue reports about her progress.

“I don’t know that a report is due to the council,” he said. “You have been retained as a special prosecutor to make prosecutorial decisions. The council has no oversight over you at this point any more than we would have oversight over Mr. Junglas’ prosecutors on a traffic ticket in Municipal Court. So I’m not expecting a report. I’m expecting that you will confer with the investigator and review evidence, review the law and do what you’ve been hired to do.”

Haddock responded, “So go ahead and file charges if they’re appropriate without coming back to council.”

“I don’t think you need this council’s support to file charges,” Krenning said, “and I don’t think you need this council’s support to demur on a charging decision.”

Gregory, a Longmont-based attorney who is former chairman of the Colorado Council on Judicial Conduct and had been hired as special counsel by the city council majority on March 19, confirmed that such a procedure is proper to maintain the independence of the investigation.

“That’s part of the recommendation, is that we have an independent prosecutor, to the extent that there’s an independent law-enforcement investigation and independent judge,” he said. “That’s all going to be necessary for this process to move forward.”

Gregory confirmed that his report, finding probable cause to move ahead with the charging decision, was final, although he said interviews with the four accused city council members and former city manager Steve Adams would be conducted.

The four, who didn’t participate in Friday’s special meeting, stayed away again Tuesday night but were present remotely and made no comments during the discussion with Gregory and Haddock. One of the four, Councilmember Dana Foley, withdrew a motion he had placed on Tuesday night’s agenda that would have asked the council to hire another special counsel to investigate possible city charter violations against the five-member majority as outlined in three lawsuits against the city, two of which remain pending.

At issue in Gregory’s report and Haddock’s future decisions are letters that council members Dana Foley, Patrick McFall, Steve Olson and Andrea Samson and former council members Richard Ball, John Fogle and Don Overcash signed on Loveland City Council letterhead and sent to Gov. Jared Polis and state lawmakers.

The letter to Polis was sent April 19 and signed by all but Samson. All seven signed the letter to legislators. The letters expressed their opposition to Senate Bill 23-273, which would have prohibited the designation of undeveloped land as blighted so it could be eligible for urban-renewal consideration — the strategy that McWhinney Real Estate Services Inc. was pursuing to gain approval for its proposed $1 billion Centerra South development on farmland on Loveland’s eastern edge.

The urban-renewal plan and master-finance agreement would use 25 years of tax revenues that the development would generate to pay for Centerra South’s infrastructure, including streets and utility lines. The letters to Polis and lawmakers contended that the legislation would derail McWhinney’s project.

SB 23-273 passed the Senate and House last spring, but Polis vetoed it. 

The previous City Council approved the Centerra South plans in votes April 18 and May 2, just before Polis vetoed the bill. Gregory noted that in Polis’ veto statement, the governor explained “that part of his logic and thinking is what happened in that May 2 meeting.”

Gregory’s report contended that the coordinated letters, passed around in a “daisy chain,” constituted a clear set of violations of open-meetings provisions in state law as well as the Loveland city charter. The Loveland municipal code states that “willfully or knowingly” violating the charter provisions about open public meetings could result in a fine between $25 and $300, up to 90 days in jail or both.

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