The order, issued last week by an administrative law judge for the state Public Utilities Commission, marks a partial victory for two former Broadmoor employees who brought the violations to the state's attention by filing a complaint against the five-star resort.
As originally reported in the Independent [see "Drive-by Licensing," March 20, 2003, available at www.csindy.com], ex-employees Keith Nietert and David Archuleta claimed that The Broadmoor had shut down its transportation department in January 2002 and transferred the department's operations to an outside contractor, without the required advance approval by the utilities commission. The services the department had offered under state license included local sedan, limousine, shuttle and bus service for hotel guests, employees and the public.
The Broadmoor's failure to comply with regulations first came to light in February 2002, when the utilities commission held a hearing on the proposed transfer of the hotel's transportation licenses to the outside contractor, Ramblin' Express Inc. At the time, the Broadmoor's finance director, James Flood, testified that he had already gone ahead and shut down the hotel's transportation department because he didn't realize he needed to wait for the license transfer to be approved.
When the utilities commission pointed out his error, Flood pledged to restart all of the hotel's transportation services the very next day.
"I will do it first thing in the morning," Flood told the commission.
But he didn't, according to Judge Mana Jennings-Fader.
"Mr. Flood ... unequivocally promised the commission that the hotel would restart all of its authorized transportation services," Jennings-Fader's decision states. "This did not occur -- even after The Broadmoor knew that its actions violated the law."
Nietert said he and Archuleta were happy with the decision, even though the judge didn't uphold some of their most serious claims.
The two had alleged that Flood actually knew he was breaking the law all along, even before the February 2002 license hearing. Archuleta, who managed the transportation department, said he warned Flood in advance that he couldn't shut down the department without prior approval from the utilities commission. He claimed Flood ignored his warnings.
During the February 2002 license hearing, Flood denied having received any such warnings, prompting Archuleta and Nietert to also accuse him of perjury.
However, Jennings-Fader did not find evidence to support the claims that Flood had been warned, or that he subsequently lied about it. She also declined to rule on allegations that The Broadmoor subsequently fired Archuleta and Nietert in retaliation, saying those allegations were outside her jurisdiction.
"The Broadmoor is pleased that we're cleared of the centerpiece of the former employees' complaint," said Kyle Hybl, an attorney for the hotel. The judge's decision, he said, confirmed that "neither The Broadmoor nor any of its employees or executives misled or conspired to deceive" the utilities commission.
Hybl said the judge ended up citing The Broadmoor for what he characterized as a "technical violation." He disputed her finding that the hotel had intentionally broken the law, and he said the hotel plans to appeal.
"At no point did the hotel intentionally violate [commission] rules or regulations," Hybl said.
-- Terje Langeland
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