Wednesday, October 26, 2011

Stormwater bills headed to the tax collector

Posted by on Wed, Oct 26, 2011 at 12:58 PM

Rushing stormwaters undermine the supports of a bridge across Platte Avenue in 2008 requiring major repairs.
  • Mary Scott
  • Rushing stormwaters undermine the supports of a bridge across Platte Avenue in 2008 requiring major repairs.

Deadbeats who didn't pay their stormwater fees soon will see those charges pop up on their property tax bills under a decision made by City Council in what might be ruled an illegal meeting.

The Council is expected to certify a list of stormwater bills to El Paso County Treasurer Bob Balink before the Nov. 17 deadline to get them on next year's property tax bills. Balink hasn't said whether he'll oblige, however.

But not everyone who owes will be dunned in this way. Anyone who bought their property later than Jan. 1, 2010, for which a stormwater bill is owed won't have the stormwater bill attached to property taxes. Rather, the prior owner will still be considered the one who owes. This results from the failure of some title companies to note the outstanding stormwater bill due on properties that have closed since the stormwater fees were discontinued effective Jan. 1, 2010.

Also, those who owe less than $20 won't see those bills go onto property taxes. But the city will continue trying to collect, although the method of collection hasn't been explained.

Here's the city's release:

Update on stormwater accounts going to
El Paso County Treasurer

City Council met in closed legal session on Tuesday, October 25, 2011, and made two decisions related to past due stormwater accounts to be certified to the El Paso County Treasurer for collection on the 2012 property tax bills.

1) Properties with unpaid stormwater fees that had an ownership change on or after January 1, 2010, will not be sent to the Treasurer. Instead, those amounts will remain the responsibility of the property owner who owned the property at the time the fees were due and staff will be investigating how to bill them. City staff will also determine a process to issue refunds for those citizens who purchased a property on or after January 1, 2010, and paid stormwater fees the previous owner neglected to pay.

“Having receiving several calls from citizens who purchased property in good faith and were not told at the time of closing that past due stormwater amounts were tied to the property, we believe this is the right decision,” said Council President Scott Hente.

2) Accounts owing less than $20 will not be sent to the Treasurer this year. The amounts are still owed under City ordinance and staff will investigate other collection options for those accounts.

Councilmembers were concerned that since accounts under $20 had not been sent to A-1 Collections, many of those citizens did not know they had an outstanding balance until the City mailed letters last month.

“These accounts don’t belong to people who never paid any stormwater fees over the three years of the enterprise, but rather are more likely people who didn’t pay that last quarter of 2009,” said Hente. “At that time, there was confusion among some about the effective end date. We believe we need to give these people additional opportunities to pay before resorting to using the property tax bills, which would incur additional administrative fees.”

City Council set the stormwater fee to zero effective January 1, 2010. All amounts due from 2006-2009 are still owed by City ordinance.

As of October 20, 2011, there were 10,800 unpaid accounts totaling $1.26M. Of those, 4,165 accounts totaling $50,106 were under $20.

Regarding the release's first paragraph, we question whether the Council can legally make decisions in closed session under the Colorado Open Meetings Act. The law states that meetings are to be open where public business is to be discussed or formal action might be taken.

Zansberg: Decisions must be made in public session.
  • Zansberg: Decisions must be made in public session.

Specifically, it says:

COML. prohibits "local public bodies," in the course of a properly authorized and convened executive session, from adopting “any proposed . . . position . . . or [take] formal action,” other than the approval of minutes of a prior closed meeting. See § 24-6-402(4), C.R.S. The Colorado Supreme Court has held that the prohibition against the closed-door adoption of a proposed position includes a ban on informal decision-making, even when the informal closed-door decision is subsequently approved in a public vote. See Hanover Sch. Dist. No. 28 v. Barbour, 171 P.3d 223, 228 (Colo. 2007) (noting prior holding that “important policy decisions cannot be made informally”) (citation omitted); see also WorldWest LLC v. Steamboat Springs Sch. Dist. RE-2 Bd. of Educ., Case No. 07-CA-1104, 37 Media L. Rep. (BNA) 1663, 1671 (Colo. App. 2009) (Carparelli, J, concurring) (concluding that the school board violated the COML when it decided in an executive session that all discussions concerning an employee survey would be confidential, and directed the Superintendent to provide the Board with the survey; the board thereby “adopted a position in a closed session”) (courtesy copy attached); Walsenburg Sand & Gravel v. City Council, 160 P.3d 297, 299-300 (Colo. 2007) (holding that an allegation that the mayor and the city council accepted a bid for purchase of real estate during an executive session adequately stated a violation of the Open Meetings Law).

First Amendment and open-meetings expert Steve Zansberg, of Denver, says in an e-mail responding to our question:

The COML (Colorado Open Meetings Law) prohibits City Council (or any "local public body") not only from taking formal "votes" ("formal action"), but also from making any decision ("adopting . . . any proposed . . . position") on a matter while they are in an executive session. [The only exception, other than approval of prior exec. session minutes, is for "adopting positions" relative to ongoing negotiations, and instructing the negotiators accordingly]. Cases from other jurisdictions find that a public body's instructing an attorney to file a lawsuit, for example, is a decision that must be made in an open meeting.


Council President Scott Hente, though, says decisions, but not votes, can be made in closed session and the Council has done so frequently.

Hente: Made a secret decision.
  • Hente: Made a secret decision.

"We can make decisions in closed session," Hente says. "If there's a legal item, we can direct the city to do certain things. Say a cop was being sued by somebody he arrested, and the cop wants to be defended by the city. We can make a decision to do that (in closed session). We can authorize settlements in closed sessions. But we can't take votes."

OK. So what's next? How many other decisions were made illegally behind closed doors, and how does the public find out or prevent this from happening again?

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