HomeMy WebLinkAboutMINUTES-05/05/1981-RegularMay 5, 1981
COUNCIL OF THE CITY OF FORT COLLINS, COLORADO
Council -Manager Form of Government
Regular Meeting - 5:30 p.m.
A regular meeting of the Council of the City of Fort Collins was held on
Tuesday, May 5, 1981, at 5:30 p.m. in the Council Chambers in the City of
Fort Collins City Hall. Roll call was answered by the following Council -
members: Cassell, Elliott, Horak, Knezovich, Kross, Reeves, and Wilmarth.
Absent: None.
Staff Members Present: Arnold, Liley, Lanspery, Krajicek, Lewis, and C.
Smith.
Agenda Review: City Manager
City Manager Arnold noted that this meeting would be the last meeting to
begin at the usual 5:30 p.m. starting time and that beginning May 19th,
meetings would begin at 6:30 p.m.
Councilman Cassell asked that Item #24, Resolution Authorizin the City to
Enter into an A reement with the Parkwood Property wners Association an
Everitt Enterprises for the Purpose of Utilizing Parkwood Lake for Storm
rainage, be removed from the Consent Calendar.
Councilman Elliott requested Item #22, Resolution Adopting Bylaws for the
Landmark Preservation Commission, be withdrawn.
Councilman Horak requested the removal of Item #21, Resolution Authorizi
the City hlanager to Enter into an A reement with Black and Veatch for t
rovision of Enqineerinq Services not to Exceed 50.000.
Councilman Knezovich
70, 1981, Appropriati
Fund, be withdrawn fr
asked that Item ##16,
g Prior Year Reserves
m the Consent agenda.
167
Second Reading of Ordinance No.
in tie Economic Development Act
Consent Calendar '
This Calendar is intended to allow the City Council to spend its time and
energy on the important items on a lengthy agenda. Staff recommends
approval of the Consent Calendar. Anyone may request an item on this
calendar be "pulled" off the Consent Calendar and considered separately.
4. Consider Approvin the Minutes of the Regular Meeting of April 21,
98 and the Adjourned Meeting of Apri 28 98 .
5. Second Reading of Ordinance No. 59, 1981, Changingthe Time Set for
egk—u�ar eetings o t e It
ounce r o m p.m. o p.m,
This Ordinance was unanimously adopted on First Reading on April 21st.
At the adjourned meeting of April 14, Council expressed a desire to
change the time of the regular City Council meetings from 5:30 p.m. to
6:30 p.m.
This Ordinance would enable this change. The May 19th meeting will be
the first meeting affected by the change.
6. Second Reading of Ordinance No. 60, 1981, Appropriatin Funds to Cover
the Increased Premium for Employee Medical Insurance. '
This Ordinance was unanimously adopted on First Reading on April 21st
and appropriates funds received from the Pacific Mutual premium
deposit fund to be used for payment of the increased monthly employee
insurance premium. When the 1981 budget was prepared, the premium was
$73/employee/month and has now increased to $88.66/employee/month.
7. Second Reading of Ordinance No. 61, 1981, Appropriating Unanticipated
Revenue in the General Fund.
This Ordinance was adopted by a 6-1 vote on First Reading on April
21st. The Police Department has been awarded a reimbursable grant
from the Colorado Division of Highway Safety totalling $8,472 to
implement a program of selective traffic enforcement. These funds
will be used to purchase a fully equipped police motorcycle, a police
motorcycle radio, a helmet with remote speaker, and an electronic
speed measuring device.
8. Second Rea ding of Ordinance No. 62, 1981 Appropriating Unanticipated
�e 'venue' in one S.A VF rant un
This Ordinance was unanimously adopted on First Reading on April 21st.
The City of Fort Collins has been awarded a grant totalling $24,905
from ACTION/United Way for Phase II of the Save America's Vital Energy I
Project.
168
'
9. Second
Read
of Ordinance fdo. 63, 1981, Vacatin
Utility Easements
Between
ots
an ory nn states u tvtston.
This Ordinance
was unanimously adopted on First Reading on April 21st
and is
a City -initiated
request to vacate existing utility easements
between
Lots 12
and 13 in the Lory Ann Estates Subdivision.
10. Second
Reading
of Ordinance No. 64, 1981, Vacating Easements in Block
2, agon Whee
i tng
This Ordinance was unanimously adopted on First Reading on April 21st
and is a request to vacate easements in Wagon Wheel First Filing.
Originally these easements were dedicated on the recorded plat as
easements for use and enjoyment granted to adjacent property owners.
After- some consideration the applicant has determined this approach is
undesirable.and unnecessary and is requesting the vacation.
11. Second Reading of Ordinance No. 65, 1981, Vacating an Access and
Parking Easement Between Lots and 14 to the Rep at of North .hore
PUO.
This Ordinance was unanimously adopted on First Reading on April 21st
and is a request to vacate a parking and access easement between Lots
' 9 and 14 in the North Shore PUD. The vacation of the existing ease-
ment will allow necessary changes to the building envelopes but will
not require replatting of the lots.
12. Second Reading of Ordinance No. 66, 1981, Annexing Property Known as
Arbor ommercta Annexation.
This Ordinance was unanimously adopted on First Reading on April 21st
and is a request to annex 25 acres located at the southwest corner of
the intersection of Harmony Road and College Avenue. The site is
zoned T-Tourist in the County and has one residence on it.
13. Second Reading of Ordinance No. 67, 1981 Zoning Property Known as
Arbor ommercta Annexation.
This Ordinance was unanimously adopted on First Reading on April 21st
and is a request to zone the property known as the Arbor Commercial
Annexation. Applicant is requesting zoning the 25 acres H-B, Highway
Business.
14. Second Reading of Ordinance No. 68, 1981, Reappropriating 1980 Funds.
This Ordinance was unanimously adopted on First Reading on April
21st. At the end of December, 1980, a City Charter provision (Article
V, Section 10) existed whereby all appropriations unexpended or
169
15.
16
cumbered at
the en' of the
budqet year lapsed to the applicable
'
sjpEzii;al or general fund. All
capital' projects and/ur- grant appro-
p ra.�Rions not
spent or encumbered
by the end of 1980, therefore,
tbWritJ. As a
result, we need
to reappropriate these lapsed 1980
arWriations
in order to complete the projects/grants.
SFararrd Reading
of Ordinance No.
69, 1981 Appropriating Unanticipated
RSmmues nn the_
apita ProOects
Fund.
'F%s, irdinance was unanimously adopted on First Reading on April
21st_ At the time the Capital Projects Fund was established, storm
Ab-aimage capital projects were budgeted in the Storm Drainage Fund and
t1e -:.even Year Capital Fund. In order to consolidate project budgets
and imclude the storm drainage capital projects in the Project Manage-
ment "Control System, certain projects need to be appropriated in the
Capit,al Projects Fund.
Reading of Ordinance No. 70, I981 Appropriating Prior Year
in the Economic Deve ooment Art Fnni_
This Ordinance was unanimously adopted on First Reading on April
21st_ The Economic Development Act (EDA) Fund contained grant monies
provi0ing funding for several projects. Included were the Northside
Comm ity Center and the solar systern for the new Municipal Building.
kudit fees of $4,000 are now due for these two projects.
There is a total of $5,941 in EDA Fund prior year reserves. This
Ordirance appropriates $4,000 from the EDA reserves for payment of the
audit. fees.
17. Secand Reading of Ordinance No. 71, 1981 Appropriating Prior Year
Reserves in the RevenuiF—arin Fund.
This Ordinance was unanimously adopted on First Reading on April 21st
and appropriates the $11,000 in the Revenue Sharing Fund to pay for
the City's share of the appraisal cost of the real property on the
proposed "City/ County" block.
18. Tablin of Hearin and First Readingof Ordinance No 47 1981
n opting a Noise ontro r finance.
Staff recommends tabling of this Ordinance until May 19.
19. Hearin and First Readin of Ordinance No. 72, 1981, Amendin Article
o e o e o t o l' y o Fort o ins a atin to l'remen s an
Policemen's Pension Funds.
An actuarial study of the Fire and Police Pension Funds has just been
completed by A.S. Hansen and Co. The results of the study indicate
170
that the annual contributions into the two funds have been in excess
of the amounts required.
Staff and the Police and Fire Pension Boards recommend that the normal
City contribution rate for Police and Fire Pension Plans be decreased
to eight percent (8%). The employee contribution rate will continue
to be eight percent (8%). This is consistent with the current State
pension plan and Poudre Valley Fire District rates.
20. Resolution Approving an A reement with Larimer County for the Collec-
tion of the rty s 90 Use ax on utomo i es Registered within t e
City Limits.
The City entered into an agreement with Larimer County on April 11,
1971 for the collection of the City's use tax on automobiles regis-
tered within the city limits, and this agreement is still in effect.
This new agreement will supersede this agreement and will allow the
County to withhold its 5% collection fee from the total City tax
collected rather than the City pay the County its 5% collection fee
within ten days of receipt of the taxes collected, as set out in
the existing agreement.
21. Resolution Authorizing the City Manager to Enter into an Agreement
with Black and Veatch for the Provision. of Engineering Services not to
This Resolution would authorize the City Manager to enter .into an
agreement with Black and Veatch to provide engineering services for -
improvements at Water Treatment Plant No. 1.
22. Resolution Adopting Bylaws for the Landmark Preservation Commission.
23
The Landmark Preservation Commission adopted bylaws at its April 22nd
meeting. In accordance with the Ordinance creating the Landmark
Preservation Commission, the Commission's bylaws require Council
approval by Resolution before they can take effect.
Resolution Endorsin the Actions of the PRPA Board of Directors
e ating to t e sta is ment o a o�nt Loa ontro rea it u is
Service.
For some six months, PRPA has been working on a problem with the Western
Area Power Administration (WAPA) on load control. The PRPA Board has
considered the problem and has resolved it to the Board's satis-
faction. Now the four cities of PRPA need to adopt the Resolution
backing the decision of the Board.
171 .
24. Resolution Authorizing the City to Enter into an Agreement with the '
Parkwood Property Owners Association and Everitt Enterprises for the
Purpose o Uti izing Parkwood Lae for Storm Drainage.
The purpose of the agreement between the City, the Parkwood Property
Owners Association and Everitt Enterprises is to formalize the res-
ponsibilities for stormwater control and maintenance at the lake, so
that a sedimentation control structure and an automatic outlet can be
constructed during 1981 at the lake.
25. Adoption of Minority Business Enterprise Plan.
As part of our grant application to the Urban Mass Transportation
Administration (UMTA) for four new buses and a facility, a Minor-
ity Business Enterprise Plan is required. Staff believes that this
plan well satisfies the purposes of the grant and is appropriate given
the nature and composition of minority business enterprises in the
Fort Collins area. Staff recommends the adoption of the plan.
26. Routine Deeds and Easements.
The following are routine deeds and easements requiring Council
approval. They have been reviewed by the affected departments and
legal staff.
A. Power line easement from James Street Builders, Inc. located at '
1300 West Stuart Street (Lot 26 of Village Park P.U.D.), needed to
provide electric service to that subdivision. Consideration:
$1.00.
B. Street and easement dedication from Fort Collins Jewish Community
Center. This document grants to the ity a 5 -foot wide street
right-of-way and an 8-foot wide utility easement on Drake Road.
Consideration: $1.00.
Ordinances on Second Reading were read by title by Wanda Krajicek, City
Clerk.
Item #5. Second Readiof
or egu ar ng eeti
p.m.
rdinance No. 59, 1981, Changi
s o the City ounce Tom
Item #6. Second Reading of Ordinance No. 60, 1981, A
Cover the ncreased Premium for Emp I oyee
Time Set
m
-opriating Funds to
edica In nSurance.
Item #7. Second Readin of Ordinance No. 61, 1981, Appropriating Unanti-
cipa e evenue in tle enera un
Item #8. Second e2diunonftO
iRevene hrdin.2 1981 Appropriating Unanti-
cpated eST.cFund.
'
172
' Item #9. Second Reading of Ordinance No. 63, 1981, Vacating Utility
asements Between Lots 12 and , Lory Ann Estates u ivision.
Item #10. Second Reading of Ordinance No. 64, 1981, Vacati
Block 7, Wagon Wheel Filing 1.
Item #11. Second Reading of Ordinance No. 65, 1981, Vacatin
Parking Easement Between Lots 9 and 14 in the
Easements in
an Access and
Item #,12. Second Reading of Ordinance No. 66, 1981, Annexing Property Known
as Arbor ommercia Annexation.
Item #13. Second Readinciof Ordinance No. 67, 1981, Zoning Property Known
as Ar or ommercia Annexation.
Item #14. Second Reading of Ordinance No. 68 1981 Reappropriating 1980
Funds.
Item #,15.
Second Reading
of Ordinance No. 61, 1981, Appropriating Unanti-
cipated Revenue
Tn t e CapitalProjects und.
Item #17.
Second Reading
of Ordinance No. 71 1981, Appropriating Prior
Year Reserves in
the Revenue Sharing Fund.
Councilman
Kross made a
motion, seconded by Councilman Knezovich, to
adopt and
approve all items
not removed from the Consent Calendar. Yeas:
Councilmembers
Cassell,
Elliott, Horak, Knezovich, Kross, Reeves, and
Wilmarth.
Nays: None.
THE MOTION
CARRIED.
Ordinance Adopted on Second Reading
Appropriating Prior Year Reserves in the
Economic Development Act Fund
Following is the City Manager's memorandum on this item:
"The Economic Development Act (EDA) Fund contained grant monies providing
funding for several projects. Included were the Northside Community Center
and the solar system for the new Municipal Building. Audit fees of $4,000
are now due for these two projects.
This Ordinance was unanimously adopted on First Reading on April 21st.
There is a total of $5,941 in EDA Fund prior year reserves. This Ordinance
' appropriates $4,000 from the EDA reserves for payment of the audit fees."
173
1
Councilman Knezovich noted that he had an apparent conflict of interest on
this item and asked that the record show he withdrew from vote and discus-
sion.
Councilman Cassell made a motion, seconded by Councilman Elliott, to
adopt Ordinance No. 70, 1981, on Second Reading. Yeas: Councilmembers
Cassell, Elliott, Horak, Kross, Reeves, and Wilmarth. Nays: None.
(Knezovich withdrawn).
THE MOTION CARRIED.
Resolution Authorizing the City Manager
to Enter into an Agreement with Black and Veatch
for the Provision of Engineering Services
not to Exceed $150,000
Following is the City Manager's memorandum on this item:
"It is recommended that the City enter into a contract with Black & Veatch
Consulting Engineers to provide engineering services with regard to needed
improvements at Water Treatment Plant No. 1. Such services would be
provided for a fee not to exceed $150,000. The staff also recommends that '
Black & Veatch be contracted with, at the appropriate time, for all engi-
neering services required for future phases of this project.
Included in the 1981 Water Fund budget is $150,000 for engineering services
to evaluate and recommend improvements regarding the treatment process,
chemical feed, flow monitoring and control, diversion structure, backwash
and sludge handling facilities, and plant hydraulics at Water Treatment
Plant No. 1.
s
In accordance with the Capital Project Management/Control System (CPM/CS),
requests for proposals were sent out on March 12th to numerous engineering
firms who were considered to possibly have the necessary qualifications to
perform the work. All proposals were to be completed and sent to the
Purchasing Agent by April 3rd.
On April 3rd, the Purchasing Agent received proposals from the following
ten (10) engineering firms:
James M. Montgomery M & I
ARIX McCall, Ellingson & Morrill
Engineering Professionals Black & Veatch
Camp, Dresser & McKee Brown & Caldwell
Water & Air Research Boyle Corporation
In accordance with CPM/CS, a committee was formed to evaluate the propo-
sals. The committee consisted of the following personnel:
174
' Dr. Dave Hendricks, CSU
Opal Dick, City Purchasing Department
James Hibbard, Water Utilities
Ben Alexander, Water Utilities
Michael Smith, Water Utilities
Under the guidelines of the CPM/CS, the committee evaluated the ten (10)
firms. The top three (3), which were James J. Montgomery, Brown & Caldwell
and Black & Veatch, were evaluated a second time at personal interviews.
After the interviewing, the committee determined that Black & Veatch could
best provide the required services. At that point in time, the City
proceeded with negotiations with Black & Veatch regarding the specific
scope of work and cost."
Councilman Horak questioned the staff recommendation that Black and Veatch
be contracted with at the appropriate time for all engineering services
required for future phases of the project.
City Manager Arnold replied that the past Council had asked that anytime
staff anticipated there would be future phases of a project, that fact be
highlighted in the contract and bidding documents. He added that all
future phases of a contract would come back to Council and would not be
handled administratively.
'
Councilman Horak noted that he would be in favor of future phases being
open to bid, adding that he felt the original firm has unfair advantage.
City Manager
Arnold noted that Councilman Kress had expressed
a similar -
concern and
since this concept is a difference from staff's
original
direction from
Council, he suggested that staff come back with
information
to change and
clarify this policy.
Councilman Kross asked if a cost estimate for additional phases of this
project was part of the Phase I contract.
City Manager Arnold replied that it was not.
Councilman Kross noted that in his business dealings he had not found the
automatic awarding of future phases of a contract to the Phase I contrac-
tor, to be a common practice.
Councilman Horak asked what the advantages are to the City.
Mike Smith, Director of Operations, replied that it shortened the time
spent and saved money in that the City does not have to go through the
interview and selection process again.
Councilman Knezovich asked if it would create any problem or hardship if
this item were tabled to May 19th.
175
Mike Smith replied that it was important to get the contract started '
because part of the work is evaluating the process at Water Treatment Plant
#2. This is critical because of the changes in the color of the water due
to spring runoff. To delay the contract now might mean delaying until next
year.
City Manager Arnold noted that a review of the consultant selection proce-
dure would be on the agenda of the May 12 work session.
Councilman Kross made a motion, seconded by Councilwoman Reeves, to
adopt this Resolution with the understanding that staff will come back with
further information on the concerns expressed. Yeas: Councilmembers
Cassell, Elliott, Horak, Knezovich, Kross, Reeves, and Wilmarth. Nays:
None.
THE MOTION CARRIED.
Resolution Adopting Bylaws for
the Landmark Preservation Commission
Following is the City Manager's memorandum on this item:
"The Landmark Preservation Commission adopted bylaws at its April 22nd '
meeting. In accordance with the Ordinance creating the Landmark Preserva-
tion Commission, the Commission's bylaws require Council approval by
Resolution before they can take effect. The proposed bylaws are attached
for your review. The Building Inspection office provides staff support for
the Commission."
Councilman Elliott asked about the purpose and objectives of the Commission
and asked if they overlapped other Boards and Commissions such as the
Planning and Zoning Board.
City Attorney Liley replied that she did not believe there was duplication
and added that the ordinance creating the Commission and setting forth its
responsibilities had been adopted several months ago.
Councilwoman Reeves made a motion, seconded by Councilman Elliott, to
adopt this Resolution. Yeas: Councilmembers Cassell, Elliott, Horak,
Knezovich, Kross, Reeves, and Wilmarth. Nays: None.
THE MOTION CARRIED.
Resolution Authorizing the City to Enter
into an Agreement with the Parkwood Property
Owners Association and Everitt Enterprises for the ,
Purpose of Utilizing Pdrkwood Lake for Storm Drainage
Following is the City Manager's memorandum on this item:
176
' "Parkwood Lake receives stormwater runoff from a tributary area generally
westerly from the lake, lying approximately 1/4 mile north and south of
Drake Road, and from College Avenue on the west to Lemay Avenue on the
east.
In 1965, Les Everitt agreed to accept the natural runoff into the lake as
long as there was control of sedimentation in the stormwater arriv-
ing at the lake. The City is responsible for whatever structures are
necessary to control sedimentation from stormwater.
In the ensuing years, development continued to take place in the tributary
area, and storm drainage lines were installed to the lake. A hydrologic
analysis of the area indicated that the lake level would increase by 4.2
feet during the 100 year runoff.
Until recently there was no reliable outlet for stormwater from the lake.
With the development of the Parkwood East Subdivision, an outlet pipe was
constructed to carry water to Spring Creek.
The purpose of the agreement between the City, the Parkwood Property Owners
Association and Everitt Enterprises is to formalize the responsibilities
for stormwater control and maintenance at the lake, so that a sedimentation
control structure and an automatic outlet can be constructed during
1981 at the lake. This will resolve questions which have remained un-
answered for many years pending completion of drainage studies and instal-
lation of an outlet pipe from the lake to Spring Creek. Alternatives to
this approach involve building storm drain lines at cost estimates in
excess of $1 million.
At the present time, the level of Parkwood Lake is being lowered to accom-
modate the installation of irrigation structures for the First Christian
Church. As long as the lake level is down, this is the opportune time to
construct the sedimentation control structure and the automatic outlet.
Everitt Enterprises has had design alternates completed and has taken bids
for the sedimentation structure and outlet pipe. The low bid received for
the concrete alternate, including associated work, engineering and contin-
gency is $79,909. The concrete structure is preferred by the Homeowners
Association representatives. The cost is higher than originally estimated,
due to the difficulties which the contractors anticipate of working in the
soft material a the edge of the lake. The cost of the project will be paid
from the 1981 budget for storm drainage capital for unspecified projects.
City staff has met several times with representatives of the Parkwood
Property Owners Association and Everitt Enterprises (the developer of the
Parkwood Subdivision) for the purpose of concluding an agreement between
the three parties relative to storm drainage considerations at Parkwood
Lake.
' In summary the agreement specifies that:
177
0 the City will construct a sedimentation control structure and an auto- ,
matic outlet device at the lake, at a cost of $79,909.
A the City agrees to remove sediment and maintain the structures.
0 the Property Owners Association agrees that the lake will be used for
storm drainage detention purposes for major rainfalls.
0 the Property Owners Association will be responsible for sedimentation
and weed control in the remainder of the lake.
The Storm Drainage Board has reviewed the Parkwood Lake issue and recom-
mends approval of the agreement."
Councilmembers Cassell and Kross asked that the record show they did not
participate in vote or discussion on this item due to a conflict of inter-
est.
Councilwoman Reeves made a motion, seconded by Councilman Elliott, to
adopt this Resolution. Yeas: Councilmembers Elliott, Horak, Knezovich,
Reeves, and Wilmarth. Nays: None. (Cassell and Kross withdrawn)
THE MOTION CARRIED.
Receiving the City's Comprehensive I
Annual Financial Report for 1980
Including the Auditor's Opinions
Following is the City Manager's memorandum on this item:
"Due to the physical size of the Comprehensive Annual Financial Report, it
is not included in the Agenda.
The Finance Committee has tentatively scheduled a meeting on May 12, 1981,
to discuss the Report and the Annual Audit process with the City's external
auditor - Clifton, Gunderson and Company." .
City Manager Arnold noted that the financial review of the audit report
with the auditors had been scheduled for the May 12 work session.
Ordinance Adopted on First Reading
Vacating a Portion of Tract B Between
Lots 45 and 46, Village West Eighth Filing
Following is the City Manager's memorandum on this item:
"The applicants, property owners adjacent to the tract, have requested I
the vacation of a portion of Tract B, a 1.02 acre detention area, in
Village West Eighth Filing. The applicants have indicated that the area
has become the source of neighborhood problems.
178
'
The specific area requested
for
vacation provides pedestrian access to
Tract B and to Rolland Moore
Park.
There is a 15-foot easement from the
north of Winfield Drive into
Tract
B. As the attached map indicates Tract
B is bordered on the east by
the
New Mercer Canal which runs along the
western edge of Rolland Moore
Park
and the Fisher Open Space area.
The City staff has reviewed the request and would like to maintain all
accesses to Rolland Moore Park. The Master Plan for the Park indicates
that the bridges across the New Mercer Canal would be constructed to
facilitate pedestrian access from the Village West area to the Park. The
construction and development of Rolland Moore Park is scheduled for mid -
November 1981. It is crucial to the ultimate viability and success of the
Park to provide pedestrian access from the adjacent neighborhood into the
Park.
Staff recommends denial of the request."
Don Huss, 1412 Independence, appeared to oppose the staff recommendation of
denial of the easement vacation. He noted the problems with vandalism that
he had experienced due to the easement. He asked Council to vacate the
easement. He suggested access in the Winfield Drive area.
Joan Huss, 1412 Independence, also spoke in favor of the easement vacation.
Councilman Horak moved that the Ordinance be tabled until May 19 when staff
can present more factual material as to the benefits of retaining this
easement.
The motion died for lack of a second.
Councilman Knezovich made a motion, seconded by Councilman Kross, to
adopt Ordinance No. 73, 1981, on First Reading. Yeas: Councilmembers
Cassell, Elliott, Knezovich, Kross, Reeves, and Wilmarth. Nays Council-
man Horak.
THE MOTION CARRIED.
Resolution Adopted as Amended Authorizing
Official Notice of Bond Sale for City of Fort Collins
Sales and Use Tax Revenue Bonds in the Aggregate
_i Principal Amount of $5,700,000
Following is the City Manager's memorandum on this item:
"The 1981 Budget includes debt financed street capital projects totalling
$5.12 million to be completed in 1981 and 1982.
I
The bond sale includes 2 issues of sales tax revenue bonds to be structured
as follows:
179
4 $1,500,000 - 5 year maturity for street rehabilitation '
0 $4,200,000 - 20 year maturity for street improvements (includes
$500,000 debt reserve and $80,000 issuance expenses.)
The attached information from Bond Counsel (DeMuth, Kemp & Backus) and our
Financial Advisory (Boettcher and Company) provides additional details
concerning the proposed sales schedule and structure."
Ron Wood suggested that the interest rate on page 4 of the Resolution be
amended from 12% to 14% to provide flexibility to the bidders on the
bonds.
Dunn Krahl, Boettcher and Company appeared to answer CounciI's questions
regarding the options available to Council as well as the proposal as
presented.
Councilman Elliott made a motion, seconded by Councilwoman Reeves, to amend
page 4 of the Resolution to read 14% instead of 12%. Yeas: Councilmembers
Cassell, Elliott, Horak, Knezovich, Kross, Reeves, and Wilmarth. Nays:
None.
Councilwoman Reeves made a motion, seconded by Councilman Cassell, to
adopt this Resolution as amended. Yeas: Councilmembers Cassell, Elliott, '
Horak, Knezovich, Kross, Reeves, and Wilmarth. Nays: None.
THE MOTION CARRIED.
Citizen Participation
A. Proclamation naming the week of May 11, 1981 to May 17, 1981 as
Save Our Fuel Week.
Sue Henderson, Junior Women's Club of Fort Collins, accepted the
proclamation on behalf of her organization.
B. The Proclamation naming 1981 as Red Cross Centennial was for-
warded to the appropriate persons.
Appeal from Decision of Liquor Licensing
Authority - Richard Weaver d/b/a Pop Shoppe-
Campus Exxon, 1331 W. Elizabeth, Decision Reversed
Following is the City Manager's memorandum on this item:
"In February of this year, Richard and Rebecca Weaver d/b/a Pop Shoppe- '
Campus Exxon, located at 1331 W. Elizabeth, applied to the Liquor Licensing
Authority for an off premise 3.2 beer license. At its March 4th hearing,
the Liquor Licensing Authority voted 2-2 on
'
a motion
to approve the
appli-
cation. The tie vote resulted in the failure
of the motion to
approve
the license. There was no affirmative motion to deny the license
at the
March 4th hearing. The resolution containing
the findings and.
conclu-
sions of that hearing and denying the license
was unanimously
adopted
April 1, 1981.
On April 10, 1981, the City Clerk received an appeal from the decision of
the Liquor Licensing Authority to the City Council. Upon recommendation
from the City Attorney, this hearing should be on the record and no new
evidence should be considered. The hearing will consist of a review of the
transcript of the hearing before the Liquor Licensing Authority (a copy of
the transcript accompanies this memo) and any presentation by the appel-
lant.
The City Council has the following options:
1. Sustain the decision of the Liquor Licensing Authority.
2. Reverse the decision of the Liquor Licensing Authority.
3. Return the matter to the Liquor Licensing Authority for further
hearing.
I
You will note that the hearing procedure which was read prior to the L.L.A. '
hearing on this matter and is included in the accompanying transcript,
states in part that:
"The burden is upon the applicant to satisfy this Authority that the
reasonable requirements of the relevant neighborhood for the kind of
license applied for are not presently being adequately satisfied."
The Council's action should be based upon the needs of the neighborhood and
the desire of the inhabitants of the neighborhood."
Joe Carroll, attorney representing Richard Weaver, noted Mr. Weaver's
application to the Liquor Licensing Authority had requested a 3.2% off
premise beer license for the Pop Shoppe, 1331 W. Elizabeth.
He further noted that his client felt the license should have been granted
at the hearing held on March 4th. He described Mr. Weaver's petitioning
procedures and stated that 250 signatures had been obtained in support of
the license and that there was no opposition to the_.license presented at
the hearing.
hie asked that Council reverse the decision of the Liquor Licensing Author-
ity and allow the license to be granted to Mr. Weaver doing business as Pop
Shoppe-Campus Exxon, 1331 W. Elizabeth.
1
181
1 '
Councilman Knezovich made a motion, seconded by Councilman Horak, to
reverse the Liquor- Licensing Authority's decision. Yeas: Councilrnembers
Cassell, Elliott, Horak, Knezovich, Kross, Reeves, and Wilmarth. Nays:
None.
THE MOTION CARRIED.
Report from Special Counsel
Mayor Wilmarth stepped down to allow Assistant Mayor Cassell to preside
over this portion of the meeting.
Assistant Mayor Cassell called on Kay Norton, Special Counsel, who gave a
very detailed review of her report ,which is reproduced in full as follows:
0
REPORT TO CITY COUNCIL LfL!!
' May 5, 1981
FROM: P. Kay Norton, Special Counsel CITY. MANAC
RE: Possible failure to disclose and conflicts
of interest on the part of Mayor Elery Wilmarth.
FACTS
On April 21, 1981, Burton C. Kross, a member of the Fort
Collins City Council, raised issues concerning the conduct of
Elery Wilmarth, council member and Mayor. Mr. Kross expressed
concern whether Mr. Wilmarth had properly disclosed a financial
relationship with Choicecare Health Services, Inc., whether the
existence of that relationship created a conflict of interest
with Mr. Wilmarth's duties as a city council member, and whether
Dir.. Wilmarth was conducting business with the City or involved
in a conflict of interest due to his law firm's continuing
practice in the municipal Court after Mr. Wilmarth's election in
1979.
On April 28, 1981, Mr. Wilmarth presented a written report
to the Council responding to Mr. Kress's concerns.
The City Council then chose to exercise its powers under
Article II, Section 5 (e) of the Fort Collins City Charter to I
' inquire into and investigate the official acts of any officer of
the City, and retained my services a,s Special Counsel., to "perform
such an investigation.
182
' A summary outline of the transactions of both Mr. Wilmarth
and the City with Choicecare Health Services, Inc., is attached,
showing the relative timing of the various transactions and
incidents. Reference to this chart will be helpful in comparing
the timing of various actions by all parties involved. In .1977,
Choicecare Health Services, Inc., was formed under a Federal law
governing what are known as health maintenance organizations or,
HMO's. The purpose of HMMO's is to provide comprehensive health
care and insurance coverage for individuals on a group basis at
rates equal to or lower than those prevailing for ordinary
health insurance coverage. The concept is to provide preventive
health care' as well as care when problems arise, thereby avoid-
ing the medical costs of undetected illnesses. The Federal law
requires a municipality to contract for HMO insurance for its
employees if an HMO is operating in the vicinity. Therefore,
when Choicecare Health Services, Inc. was formed, Fort Collins
was required to offer a Choicecare plan as an alternative
insurance source for its employees. No City Council action was
involved in this decision and no formal written contract was
entered into between the City and Choicecare at that timer
There were no negotiations regarding rates to be paid by the
City or the employees covered, or what coverage would be
offered. The employees had the only choice, that of opting for
Choicecare coverage or remaining with the existing Pacific
Mutual Insurance plan offered by the City.
' As Choicecare began providing services in the Northern
Colorado area, it made plans to build and furnish facilities in
Fort Collins. In order to finance the construction of its
building, Choicecare sought proposals for the financing from
various parties through a real estate broker. Mr. Wilmarth, as
part of a partnership with Dr. Donald B. Wells, entered into a
sale -lease back arrangement which provided financing for Choice -
care and tax benefits to Wells-Wilmarth. The building and land
on which the Choicecare facilities were constructed were deeded
to the Wells-Wilmarth partnership, which then executed a note
and deed of trust (mortgage) back to Choicecare requiring pay-
ments from Wells-Wilmarth on the note.
Choicecare then signed a lease of the facilities from
Wells-Wilmarth. The mortgage payments and the lease payments
were in identical amounts, thereby creating a "wash" situation
in which no cash gain was realized by either party. Dr. Wells
and Mr. Wilmarth would realize certain tax savings against
income which they might earn in other pursuits. A cash payment
of $1800.00 was made by Choicecare to Wells-Wilmarth to cover
initial accounting costs and other expenses of entering into the
transaction. The negotiations for this arrangement were com-
pleted prior to the time Mr. Wilmarth took office as a City
councilman in April, 1979•
' As a council candidate, and again as a newly elected
council member, Mr. Wilmarth filed disclosure statements which
did not include the arrangement with Choicecare described above.
In subsequent statements filed by Mr. Wilmarth, no mention of
the Choicecare relationship ever appears.
183
Throughout 1978 and 1979, Choicecare Health Services, Inc.,
continued to provide insurance for Fort Collins City employees. '
The terms of its provision of such insurance were never nego-
tiated by the City Council or acted on by the City Council
during that time. All arrangements for services were made
through the personnel officer of the City. Terms for benefits
provided and premiums for those benefits were not set down in
writing between the parties until some time in 1979.
On December 19, 1979, Choicecare Health Services, Inc., was
placed into receivership upon the motion of the State Insurance
Commissioner, due to Choicecare's insolvency. On that date, Mike
Powers, Employee Development Director of the City, informed all
City officials and employees of Choicecare's insolvency. The
City Council took no formal action or vote of any kind in
relation to the Choicecare insolvency until December 19, 1980,
when the Council voted to intervene in a lawsuit begun by
Hewlett-Packard Corporation concerning the payment of benefits
to its employees. Mr. Wilmarth was not present and did not vote
on that resolution. Some meetings and work sessions were held on
the matter, as shown in the accompanying outline, but no vote or
action was taken by the City which would a.ffect its relationship
with Choicecare.
After the insolvency of Choicecare in December, 1979,
Choicecare became delinquent in its lease payments to Wells-Wil-
marth. I After some correspondence with the State Insurance '
Commissioner, Wells-Wilmarth entered into a revised lease for
the Choicecare facilities. The new lease was a short term
document which continued the relationship of Wells-Wilmarth and
Choicecare for a year or less. In March, 1980, a settlement was
reached between the Wells-Wilmarth partnership and Mr. Arthur
Roy, acting as attorney for the receiver, that Wells-Wilmarth
would deed back the Choicecare real estate to the receiver in
return for a one time payment of $30,000.00. The amount of
$30,000.00 represented an estimate of the tax benefits to be
lost by Wells-Wilmarth due to the premature ending of the
sale -lease back arrangement. The agreement was approved by the
Court on April 25, 1980, and the money was paid on April 30,
1980. Receipt of this payment was not reflected in Mr. Wil-
marth's disclosure statement of May 16, 1980.
Mr. Wilmarth is a member of the law partnership of Fischer
and Wilmarth, Attorneys at Law of Fort Collins. Subsequent to
his election to City Council in April, 1979, Mr. Wilmarth
personally ceased representing clients in the Fort Collins Muni-
cipal Court, however, his partner, Mr. Gene Fischer and an asso-
ciate, Stephen Howard, did appear in the Fort Collins Municipal
Court representing various clients, usually on traffic charges.
184
1
LEGAL ISSUES
I. Choicecare
A. Disclosure ordinance.
Was disclosure of a relationship such as the one entered
into by Llr. Wilmarth with Choicecare Health Services, Inc.,
required under Chapter 8 of the Fort Collins City Code? If so,
does such a failure to disclose trigger the penalty provisions
of Section.8-IF of the Code?
The Fort Collins City Code requires that members of the
City Council must file a disclosure statement including informa-
tion of any type listed in six categories, as well as any
additional information the person making the disclosure may
desire. The categories and discussion of their applicability to
the Wilmarth interest in Choicecare follow:
1. "The source or sources of any income, includ-
ing capital gains, whether or not taxable, of the person
- making disclosure and such person's spouse." Technically,
the so long as Choicecare continued to live, up to its part
of the bargain, the sale -lease back arrangement with Wells-
Wilmarth did not generate any income, including capital
gains, to Mr. Wilmarth. A potential tax benefit is not
considered cash income, but -is only a possible write-off
against taxable income earned from other sources. A tax
benefit is not a cash asset that can be transferred, nor is
it taxable in itself as income. However, upon the failure
of Choicecare, the cash settlement of $30,000.00 made to
Mr. Wilmarth and his partner, Dr. Wells, could be construed
as income, since it converted an anticipated tax benefit to
a cash settlement. The only disclosure statement upon
which this payment could have been reported as income was
the statement of June, 1980 filed by Mr. Wilmarth where it
would be shown as a one time gain rather than a regular
source of income.
2. "Any financial interest in excess of Ten Thou-
sand Dollars ($10,000.00) in any business entity."
Mr. Wilmarth did not hold an interest in Choicecare in
the usual sense of owning stock or of having invested cash
in the ongoing business. He had a financial r,§.lat-ionship
with Choicecare, but not a direct interest in the entity or
in its profits, if any. His financial interests consisted
of an interest in Choicecare's continuing to pay its lease
payments. That is not the sort of interest usually con-
sidered as an interest in a business entity.
3• "The legal description of any interest in real
property held or acquired for the purpose of resale at a
profit owned by the person making disclosure or such
person's spouse."
185
Although Wells-Wilmarth acquired title to the Choice -
care real property, the partnership's stated purpose in
doing so was to realize a tax benefit rather than a cash
profit upon resale at a later date. The terms of lease
offered Choicecare an option to repurchase after an eight
year term for the balance due on the note, with no pro-
vision for profit. The transaction as it was originally
planned does not fit the disclosure requirement of this
section. The payment actually made by the receiver after
the later date of insolvency might be construed as profit.
However, the parcel would not hhave had to be reported in
June 1980 under this section, as it was no longer owned by
Wells-Wilmarth by that date.
4. "The identity by name of all offices and
directorships held by the person making disclosure and by
such person's spouse."
There is no question of any failure to disclose such
directorships.
$. "The name of each creditor to whom the person
making disclosure or such person's spouse owes money in
excess of Ten Thousand Dollars ($10,000.00)."
Choicecare Health Services, Inc. was a creditor of the
Wells-Wilmarth partnership, as Choicecare was the holder of
a note and deed of trust secured by the real property owned '
by Wells-Wilmarth. Although Choicecare owed to Wells-Wil-
marth an amount under the lease equal to the amount owed by
Wells-Wilmarth to Choicecare, this ordinance section clear-
ly requires the disclosure of any creditor no matter what
the relative position of creditor and debtor, so long as
more than $10,000 is involved.
6. "A list of businesses with which the person
making disclosure or such person's spouse are associated
that do business with or are regulated by the.City .of Fort
Collins and the nature of such business or regulati-on."
The City of Fort Collins was doing business with
Choicecare Health Services, Inc., as the City was purchas-
ing health insurance coveravje for its employees from Choice -
care. Mr. Wilmarth was associated" with Choicecare by
virtue of his partnership's legal ownership of the Choice -
care real property, although he was not receiving any
profits from Choicecare operations, nor was he involved in
the operation of its business. if the term "associated
with" is defined as "being employed by," then disclosure of
the Wells-1:'ilmarth interest was not required by this
section. However, the term "associated with" is more
general that "employed by," and disclosure of sale -lease
back arrangement would have been .appropriate under this
section. '
SO
It therefore appears that under at least two subsections of
' Section 8-113 of the City Code disclosure ordinance. Mr. Wil-
marth should have disclosed his financial relationship ,with
Choicecare Health Care Services, Inc. The evident intent of the
Code to be inclusive of all financial interests is shown both by
the length of the list of specific requirements and by the
alternative offered in Section 8-lE of the Ordinance, which
provides that any person subject to the provisions of this
section may elect to file a copy of his income tax return rather
than a disclosure statement. Certainly, Mr. Wilmarth's income
tax return would have shown the Choicecare relationship of his
partnership with Dr. Wells.
The issue then arises whether Mr. Wilmarth's failure to
disclose the interest of the Wells-Wilmarth partnership in
Choicecare's facilities triggers the penalty provisions of
Section 8-1F of the Fort Collins city ordinance, which provides,
"Any person who willfully files a false or incomplete disclosure
statement, amendment or notice that no amendment is required or
who willfully files a false or .incomplete copy of any Federal
income tax return or a false or incomplete certified statement
of investments or who willfully fails to make any filing re-
quired by this section shall be guilty of a violation of the
ordinances of the City of Fort Collins, punishable as.a misde-
meanor, and shall, upon conviction thereof, be punished by a
fine not to exceed the limits established in Section 1-23 of the
' Code of the City of Fort Collins." The key element in determin-
ing whether a person has violated Chapter 8 of the Code is
whether he has "wiIIfuly" failed to disclose information. In
legal terminology, a "willfull act" is generally described as
one done intentionally, knowingly and purposely, without justifi-
able excuse, as distinguished from an act done carelessly,
thoughtlessly, or inadvertently. It implies more than mere
non -conformity inattention or thoughtlessness. Usually, there
must be some deliberation or premeditation involved before an
act can be considered willful. The burden of proof in a
criminal case is that the violation must be proved.beyond a
reasonable doubt. Whether Mr.. Wilmarth's failure .to. disclose
his relationship with Choicecare in his disclosure statements
was willful or not would be a question for the trier of fact in
a prosecution for violation of the ordinance. The trier of fact
would be a municipal judge, or a jury if a jury is requested by
the defendant. Mr. Wilmarth has stated that it was not his
intention to omit or falsify his disclosure statement, and has
submitted his written report of April 20, 1981 as an amended
statement. In addition, he notes that the note and deed of trust
and deed relating to the transactions were of record with the
Clerk and Recorder of Larimer County. These statements would be
considered in a determination of the "willfulness" of his fail-
ure to disclose.
B. Charter.
' W'as disclosure of Mr. Wilmar.th's relationship with Choice -
care required under any provision of the Fort Collins City
Charter?
187
Article IV, Section 9 of the Fort Collins City Charter ,
requires that no city officer shall be financially interested
directly or indirectly in the purchase from or sale to the city
of land, materials, supplies or services. The charter provision
provides that any contract entered into in violation of this
section with the express or implied knowledge of the person
contracting with the city shall render the contract voidable by
the City Manager or the Council. As discussed above, Mr.
Wilmarth had no direct financial interest in the sale of Choice -
care insurance coverage to the City, nor did the City have any
choice in whether or not to purchase the Choicecare coverage and
whether or not to offer the Choicecare coverage•. The penalty
for violation of this provision is that the contracting party in
this case, Choicecare, would be in jeopardy of having its
contract voided. That result occurred in any event upon Choice-
care's insolvency.
It doe's not appear that Mr. Wilmarth's relationship with
Choicecare constituted a violation of this section. The City had
no option -whether or not to deal with Choicecare. Mr. Wilmarth
was never involved in any decision to contract for services with
Choicecare or in any negotiations of coverage or premiums to be
paid by the City. There is no evidence that Choicecare's
provision of services to the City would result in financial
benefit to Mr. Wilmarth.
Article IV, Section 11 of the Charter provides that any ,
violation of the Charter is a misdemeanor and that any officer
convicted of a violation shall be deprived of office and in-
eligible for such office for two years after such conviction.
C. State Statutes.
Was disclosure of Mr. Wilmarth's relationship with Choice -
care required by any applicable State statute?
There are several State statutes relating to the conduct of
public officials. A discussion of the pertinent statutes and
their applicability to Par. Wilmarth's relationship with Choice -
care follows.
The laws contained in Article 8 of Title XV111 of the Colorado
Revised Statues of 1973 define (in 18-8-101(3)) "public servant"
as any officer or employee of government whether elected or
appointed. This definition clearly includes city councilmen.
Section 18-8-301(1) defines "benefit" as a gain or advantage to
the beneficiary, including any third parties desired to be
benefited by the beneficiary. Section 18-8-301(3) defines "pecun-
iary benefit" as money, property, commercial interest or any-
thing else the primary significance of which is economic gain.
Section 18-8-301(4) extends the definition of "public servant"
for the purposes of disclosing conflicts of interest to include
persons elected, but not yet occupying, a position. Therefore,
the State statutes could be applicable to a situation involving
a Fort Collins councilmen if all other facts involved fit the
requirements of the State laws.
i•:
Section 18-8-368, C.R.S. 1973, defines the crime of
"failure to disclose a conflict of interest." It requires a
' public servant who "exercises any substantial discretionary
functions in connection with a government contract, purchase,
payment or other pecuniary transaction" to. notify, by actual
written notice, the Secretary of State and the governing body of
government involved (in this 'case, the City Council) of the
existence of any "known potential conflict of interest" in the
transaction before that. public servant acts upon the matter. A.
"potential conflict of interest" is defined as existing when the
public servant is an executive officer of the company involved
or owns or controls, directly or indirectly, a substantial
interest in any non -governmental entity participating in the
transaction." Violation of this Section is a Class II misdemean-
or. The duty to disclose under this State law arises only when
the public servant is required .to take official action on a
matter in which he is interested. In the case of Mr. Wilmarth,
the only official action of any sort taken by the Fort Collins
City Council concerning Choicecare occurred in December, 1980,
when the Council voted to intervene in the Hewlett-Packard
lawsuit. (The motion to intervene was later withdrawn by the
City.) Mr. Wilmarth did not participate in the discussion of
this action and was not present at the vote. From the existing
records of other, informal discussions by the City Council of
the Choicecare insolvency as it related to the City's employees,
it does not appear that a duty to disclose Mr. Wilmarth's
interest in Choicecare arose under the State law. Further, the
' disclosure requirement operates only when the public servant has
a "substantial" interest in the non -governmental entity parti-
cipating in the transaction. It is a matter for debate whether
the Wells-Wilmarth relationship with Choicecare constituted a
"substantial interest" in Choicecare's operations.
n
Section 18-8-402, C.R.S. 1973, concerns the misuse- of of-
ficial information by a public servant. This law prohibits a
public official's use of information gained from his official
position, and not of general public knowledge, for personal
gain. There is no evidence that Mr. Wilmarth was privy to any
inside information due to his public office which would affect
his relationship with Choicecare Health Care Services, Inc. The
City's relationship with Choicecare predated Mr. Wilmarth's
election, as did his own relationship.with the entity.
Section 18-8-404, C.R.S 1973, creates the misdemeanor of
first degree official misconduct. This offense arises if a
public official, with the intent to obtain personal benefit or
to maliciously harm another, knowingly violates any statute .or
lawfully adopted rule or regulation relating to his office.
This could be construed to apply to violation of a city
ordinance such as Fort Collins' disclosure ordinance. It
requires that the violation of the ordinance be intentional. In
189
the case of the Fort Collins ordinance, which requires that the '
violation of the ordinance be "willful," the application of the
State law becomes rather redundant. Similarly, Section 18-8-405
creates the offense of official misconduct in the second degree,
which occurs when a public servant "knowingly, arbitrarily and
capriciously" violates a statute, rule or regulation governing
his behavior. Violation of this statute is classified as a
Class I petty offense.
D. Conflict of interest.
Was a conflict of interest created by Mr. Wilmarth's rela-
tionship with Choicecare?
A conflict of interest is created when a person in public
office has personal interests which may affect his exercise of
judgment in his public capacity. The facts as presented by the
parties and public record do not reveal any action taken by Mr.
Pilmarth in his capacity as council member which could be
construed as being influenced by his relationship by Choicecare.
The City took no action of any benefit to Mr. Wilmarth in its
relationship with Choicecare. Mr. Wilmarth does not appear to
have made any attempts to prevent the City's action on behalf of
its employees after the Choicecare insolvency. A conflict might '
have existed between his interests and those of the City if a
delay in settling the City's claims on behalf of its employees
might have benefited the Wells-Wilmarth partnership by insuring
that enough assets were present to pay the $30,000. There is,
however, no evidence which has come to light of any such delay
on the part of the City or of .any actions by Mr. Wilmarth to
cause or encourage such a delay. Approval of the settlement
between Wells-Wilmarth and the receivership by the presiding
judge would indicate that the judge felt it was in -the best
.interests of the receivership to approve the settlement. The
receivership is set up to marshal the assets of the insolvent
company and, to as much as possible, to allow the insolvent
company to fulfill its obligations to the persons to whom it
offered coverage.
II. Municipal Court practice by Fischer and Wilmarth law firm.
A. Disclosure. Does Section 8-1 of the Fort Collins City
Code require disclosure of Fischer and Wilmarth's practice in
1,1unicipal Court?
Subsection 6 of Section 8-113 of the Fort Collins Code
requires the disclosure of a list of .businesses which a council
person is associated that "do business with or are regulated by"
the City of Fort Collins, and the nature of such business or
190
regulation. This subsection does not apply to the practice of
' law in the Municipal Court by members of Mr. Wilmarth's law
firm. The usual sense of "doing business" is the City expending
funds for services performed on behalf of the City or for goods
purchased by the City. When an attorney practices law before the
Municipal Court, he is not in the employ of the City but is, in
fact, representing persons charged with violations of City
Ordinances in opposition to the city. The City of Fort Collins
has no jurisdiction over the regulation of the practice of law
and therefore, cannot be said to regulate it.
In the same sense, practice in the Municipal Court by.
members and associates of the firm of Fischer and Wilmarth does
not constitute doing business with the City in violation of
Article IV, Section 9 of the Charter, which prohibits public
officers who are financially interested from contracting with
the City for the purchase from or sale to the City of goods or
services.
B. Does the practice of law in Municipal Court by Fischer
and Wilmarth constitute a conflict of interest which must be
disclosed under State law? Section 18-8-308, C.R.S., 1973,
requires 72 hours actual written notice to the Colorado Secre-
tary of State and the City Council of potential conflicts of
' interest in connection with government contracts, purchases,
•payments or other pecuniary transactions. By its language, this
State law is limited to matters involving the expenditure of
public funds for services and would not apply to the practice of
law by Mr. Wilmarth's partners or associates in Municipal Court.
C. Is the practice of law by members and associates of
Fischer and Wilmarth a violation of the Cannon of Ethics of the
legal profession?
The enforcement .of the ethical limitations on the legal
profession in Colorado is the sole province of the Supreme Court
of this State. The question of whether the representation of
clients in the Municipal Court by Mr. Wilmarth's law partner and
an associate constitutes a conflict of interest for Mr. Wilmarth
is a matter to be determined by the Supreme Court. by its
grievance procedures. It is clear that Mr. Wilmarth himself did
not represent any clients before the Municipal Court after his
election to the City Council in April, 1979• There has been no
testimony that Mr. Wilmarth, his partner Mr. Fischer, or their
associate practicing in the Municipal Court have at any time,
attempted to invoke the name, power or position of Mr. Wilmarth
as a threat or bargaining tool in Municipal Court. The question
of whether or not the representation by members of his firm did
constitute at least the appearance of impropriety on the part of
1
191
Mr'. Wilmarth is not an issue within the jurisdiction of the City
Council, as it has no legal authority underits ordinances to
sanction such behavior. Mr. Vlilmarth has stated that in the
future, no member of his firm will practice in the Municipal
Court of Fort Collins in order to avoid any appearance of
impropriety on his part.
Respectfully submitted,
Kay Norton; 7192
Special C-o-u--rTs—el for the
City of Fort Collins
1010 9th Avenue
Greeley, Colorado 80631
Telephone: 351-7010
Following her review, Councilman Knezovich stated that it was his feeling
that Mr. Kross follow the same course as Mayor Wilmarth and not question '
Mrs. Norton, as both a prosecutor and judge.
Assistant Mayor Cassell replied that it was his opinion that Councilman
Kross should be allowed to ask questions of Mrs. Norton, inasmuch as Mayor
Wilmarth was to be afforded that opportunity later. The questions of
voting should be addressed later.
Councilman Kross questioned Mrs. Norton's use of the word "income" noting
that he felt she was using the word synonomously with "cash" or "profit"
which he did not feel was a proper use.
Mrs. Norton replied that her feeling was that income is something that
could be spent and, since no definition of income exists in the Code, the
rule of legal construction is to use words in their ordinary sense. She
further stated that in her opinion, the concept of income becomes net
income.
Mayor Wilmarth noted the areas in which he disagreed with Mrs. Norton's
report, especially in the area of tenant/landlord relationships. He asked
the Council to vote on whether or not they find a willful violation on his
part of any ordinance of the City of Fort Collins relative to disclosure.
He further noted that he felt, for the appearance of propriety, that it
would be best that he not vote on the issue and that Councilman Kross not
vote either, although there was not legal bar from either of them voting. '
192
' Councilman Kross stated that he. felt that he had evaluated and documented
the situation carefully and that he was not in a conflict of interest
situation and therefore would vote, unless Council determined it to be not
appropriate.
Mayor Wilmarth stated that he then felt himself to be in the same position
and asked Council to determine whether it would be appropriate_ to vote.
Assistant Mayor Cassell again stated that there was not legal precedent on
which to ask either Councilman Kross or Mayor Wilmarth not to vote and
asked Councilmembers to give him their feelings on the subject.
Council consensus was to allow both Councilman Kross and Mayor Wilmarth to
vote, if they so desired.
Dr. Karl Carson, 1119 Parkwood Drive, spoke of his concern that the Council
work together for the good of the City of Fort Collins.
John Straayer, 944 Pioneer, pointed out that potential conflicts of inter-
est be taken seriously and deserve considered judgment.
After a
brief recess, Mayor
Wilmarth informed Council of his decision not
to vote
on the issue.
'
Councilman
Knezovich made a
motion, seconded by Councilman Elliott, that
Council
finds Mayor Wilmarth
did fail to disclose information as required
by the
City Code, but that
there is no evidence that the failure was
willful
on Mayor Wilmarth's part. Yeas: Councilmembers Cassell, Elliott,
Horak, and Knezovich. Ways:
Councilmembers Kross and Reeves.
THE MOTION CARRIED.
Mayor Wilmarth resumed his seat at this time.
City Attorney's Report
City Attorney Liley reported that she had been meeting with bond counsel to
look at airport financing. A report will be brought back on May 19th with
regard to the solution of the joint ownership problems at the airport.
Bids for the utilities at the airport will need to be awarded May 19th.
City Manager's Report
City Manager Arnold reminded Council that the retreat would be held May 8-9
in Boulder.
193
Councilmembers' Reports
Councilwoman Reeves reported that the airport ad hoc committee meeting
would be May 19th at 8:00 a.m. in the C.I.C..
Councilman Kross reported on the PRPA annual meeting on April 30. He added
that change orders increasing the Rawhide Power Plant costs ,were approved.
Councilman Knezovich reported on the formative meetings of the D.D.A.
noting that tax increment financing had been reviewed with bond counsel.
Councilman Horak reported on the COG meeting of April 23.
Other Business
Councilman Horak asked about the status of SB439 dealing with the feasi-
bility study for the Grey Mountain reservoir.
Public Works Director Roger Krempel replied that since the Senate and the
House had passed different versions of the bill, it's going to a joint
committee for resolution. I
Councilman Horak asked that copies of the City's position be forwarded to
the committee.
Adjournment
The meeting adjourned at 9:40 p.m.
ATTEST:
City Clerk
Mayor
194