For most of us, the law is black and white.
Lately, however, that hasn't been the case for the Colorado Springs city government. Behind closed doors, a drama has been playing out, as rich as any TV lawyer show. And as in any good plot, a lot is at stake: The decisions being made these days could erase legal gray areas that blur how power is distributed in city government.
City Council appears to be losing ground as legal opinions — rather than any organized efforts by citizens, or a judge's decisions — dictate what its role in city politics will be. Power, instead, is tipping to the mayor's office.
The cause of all this fuss is the City Charter, newly amended to include the changed government. It doesn't take a lawyer to know that the updates weren't executed with total precision. After all, the new form of government asks both the mayor and City Council to separately develop the city's strategic plan — its goals moving forward. Oops.
To a legal eye, the situation is much worse. Two attorneys consulted for this story pointed to several major ambiguities in the charter, after only examining a small portion of it.
Take, for instance, the mayor's power to sign all city contracts — a power recently used as a de facto veto when the mayor became uncomfortable with a Springs Utilities line of credit approved by Council. Does the mayor even have the right to withhold his signature on this type of Council-approved document?
When questions arise about what the charter means, Mayor Steve Bach and Council turn to the same man: City Attorney Chris Melcher. For his part, Melcher says he provides written legal opinions when asked to do so by his "clients," including the Council and Bach.
Melcher, whom Bach appointed in September, typically doesn't share those opinions with media. In a recent conversation, he even evaded answering whether he had issued a final legal opinion in one instance involving the budget, choosing repeatedly to answer a question this reporter hadn't asked.
Asked if he thinks the charter leaves room for interpretation when it comes to separation of powers, he answered, "I wouldn't say that."
Others say problems are obvious.
Case in point
Last week, the issue was whether the mayor could ignore Council-approved budget allocations ("'A power grab, pure and simple,'" News, Jan. 19). In that case, Bach wound up retreating.
The city-contracts issue arose even before that, when Bach held off on signing lines of credit authorized Dec. 13 by Council. Bach expressed concerns with the contract, noting it issued up to $125 million in credit and held the city liable. The line of credit had never been used before — but the city had long been paying financing fees on it, which also troubled Bach.
(The Independent tried to set up an interview with the mayor days in advance of this week's deadline, but was told by spokesperson Cindy Aubrey that he was not available.)
Since the mayor is specifically forbidden from vetoing Utilities ordinances in most cases, his refusal to immediately sign this contract led to confusion in City Hall.
"It kind of puts the mayor between a rock and a hard place," Council President Scott Hente says. "...He's saying, 'I can't sign this because I don't know anything about it,' and I'm somewhat sympathetic to that ... but he's vetoing it, and the charter says he can't veto it."
As of this printing, Bach, Melcher and Council were working together to get those lines of credits issued, apparently with changes. But where had Bach's de facto veto power come from?
During the 2010 campaign for the new form of government, organizers emphasized the new mayor wouldn't have power over Utilities or Memorial Health System. But the amended charter says: "The Mayor shall execute all contracts." Since the city includes all enterprises, and since "execute" can mean "sign," Bach has assumed control.
It's not clear if the mayor's done so on the advice of the city attorney, who's had to get up to speed quickly in his first job in government. Melcher notes, "When I discussed with the mayor and with Council the mayor's role in executing contracts, we have discussed what would be the appropriate guidelines for that and what would be the mayor's duty under the charter and under the code." But Melcher also says, "I have not been asked to issue a written opinion on whether the mayor is required to execute all contracts."
And that may be in question. Attorneys Randy Purvis, a longtime Council member until leaving last April, and Luis Toro, executive director of watchdog group Colorado Ethics Watch, point out that the charter's meaning in regard to the mayor's signature is far from clear. The word "execute" can mean "sign" or "carry out."
Most troubling is the word "shall." Purvis says that may require the mayor to sign, whether he likes it or not. This is called a "ministerial duty," and it's common. Hente has a ministerial duty to sign ordinances passed by Council and approved by the mayor, whether or not Hente voted for them.
Toro sees it similarly, but goes a step further. He can't imagine that the language could be interpreted as anything but a ministerial duty: "He has to sign. He's compelled."
Toro goes on to opine that if the mayor can sign at his discretion, that's tantamount to a veto. And the mayor is barred from vetoing ordinances in certain instances, such as when an ordinance issues bonds for an enterprise, or pertains to Utilities in certain ways. The mayor gets a veto on other ordinances, which can only be overcome by a Council supermajority.
Giving the mayor discretion in signing contracts gives him control over areas he's barred from, and a right to disregard decisions of a Council supermajority. That's just wrong, Toro explains: "It doesn't mean he gets an extra veto."
For now, Melcher's legal opinions are guiding how law is interpreted and applied, and setting up a precedent for how it will be viewed in the future. In fact, if parts of the charter are ever challenged in a court, a judge would surely consider those precedents in rendering a decision.
But there are other ways to clarify the charter. A Charter Review Committee, or a more powerful Charter Convention, could be called, with appointed citizens advising changes that could be sent to voters for consideration. At a recent meeting, Hente expressed interest in putting proposed charter changes on the November 2012 ballot. The mayor says he'd rather wait until April 2013.
Purvis and Toro say it's also possible that a judge could interpret the charter. But that means going to court, with the mayor and Council having separate legal counsel. And Melcher has made clear that he believes the City Charter and Code dictate that Council should rely only on him for legal advice.
"Council's lawyer is the city attorney," Melcher says. "...So if Council wishes to retain outside counsel to assist me in supporting them, they have that ability under the charter. But if they wish legal advice, the City Charter says the city attorney shall be the one to provide legal advice."
Other attorneys disagree with Melcher's reading of city law, saying he's not the final say on what city law means.
"The lawyer's opinion is just another opinion," Toro says. "It's just like my opinion; it doesn't carry any more weight."
Purvis feels a court should decide any ambiguities in city law — after the charter is reviewed formally and voters are given a chance to make advised changes.
"The best way to clarify," he says, "is to put through a charter change."
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