As Chris Melcher points out, when he rebuffs Mayor Steve Bach with a legal opinion, it doesn't make the news —those deliberations aren't public, the way his are with City Council. And Melcher says it does happen.
Still, it's hard to ignore that within a month of his October 2011 appointment as city attorney, Melcher started making decisions that frustrated Council, and limited its influence. Here are a handful.
• Red-light cameras: Council passed an ordinance in 2010 to install red-light cameras at four intersections. Soon after his election, Mayor Steve Bach wanted them gone. Since ordinances can be undone generally only via another ordinance, it appeared to be Council's decision. However, Melcher ruled that because Bach holds all contracting authority and because the city contracted for the cameras, Bach could refuse to renew the contract. It expired Oct. 31, 2011.
• FREX: Council voted June 12, 2012, to continue the Springs Transit commuter service to and from Denver through the year. Bach wanted it abolished. On June 18, using the same "contracting authority" claim, the city announced Bach wouldn't renew a drivers contract that was to expire Aug. 31. FREX is now defunct.
• Panhandling: After months of mulling a downtown ban on panhandling, Council asked Melcher last fall to provide more options. "He kept putting it off until November when we were informed that it had to be done by December for the downtown shops to take advantage of holiday shopping," Council President Pro Tem Martin writes via e-mail. "He rushed [the ban ordinance] through in the last meeting in November and never did present Council with the requested options."
Melcher, in written responses to Indy questions, says his office worked "diligently, exhaustively, and very promptly throughout 2012" on the panhandling matter.
In any event, the American Civil Liberties Union filed suit against the city over the ban Melcher did write, and a federal judge issued an injunction, saying it looked unconstitutional. Martin says she and her colleagues haven't been consulted on whether to continue fighting in court; Melcher says that's untrue. He says he plans to ask for their recommendation on the matter in early March, and to act according to that recommendation.
• Neumann Systems Group: The Utilities Board, consisting of Council, voted 7-2 on July 18, 2012 to complete installation of Neumann Systems Group emissions-control technology on Martin Drake Power Plant and to launch a decommissioning study of the plant.
On Oct. 1, Bach said Utilities should help pay for repairs and upgrades to the city's decrepit stormwater drainage system. Utilities said it cannot legally do so, because bond agreements prohibit money collected for one service from being diverted to another purpose. Yet on Jan. 4, at a meeting in the mayor's office, Melcher said abandoning the Neumann technology would free money for stormwater, according to several people who were there.
"If the Neumann project is stopped, we will have more than enough to do the city's portion" of stormwater projects, stormwater task force member Jan Doran quotes Melcher as saying.
Writes Martin, "This was in direct contradiction to direction from CSU Board on moving forward with Drake/Neumann."
Asked about that apparent conflict, Melcher writes simply that he "has supported both the CSU board and the CSU management in their examination of the complex issues surrounding the Neumann Systems project and the Neumann contract, and will continue to do so as requested."
• Issue 300 reinterpretation: The Neumann controversy brings us to Issue 300, which would seem to be the biggest roadblock to Utilities paying for stormwater repairs. Former City Attorney Patricia Kelly advised Council in December 2009 that this voter-approved measure barring gifts between the city and its enterprises, allowed a payment in lieu of taxes from Utilities in exchange for services, such as use of city right-of-way for pipes and power lines. But she also noted Issue 300's intent was "that the enterprise not be used as a source of uncompensated cash, funds or other benefits to the city's general fund."
Councilor Val Snider reports Melcher told him in January he's decided to issue his own opinion about Issue 300. Melcher acknowledges that he is writing a new opinion, but contends Council and the mayor asked for "clarification and guidance during the 2013 Budget deliberations on the role of Issue 300," notably about "surplus funds" from Utilities and discounted water rates.
• Water for parks: Bach wants Utilities to give the city free or dramatically discounted water for parks. The Utilities Board never has allowed this, because bond ordinances prohibit free service to any customer. Martin says Melcher is working on a legal opinion that will say Utilities can give water to the city at no charge anyway.
Melcher writes that he is working on an opinion, noting that "most cities in the Front Range, including Denver and Pueblo, receive either discounted water rates or free water from their city-owned utility for watering their parks." He plans to present his opinion to the Board in March.
• Change in Utilities representation: Within the last few months, Melcher hired a firm he used to work for, Brownstein Hyatt Farber Schreck of Denver, to assist Utilities' long-standing bond counsel, Sherman and Howard. Council operates as the Utilities Board, and some members say this decision was made without their knowledge. "I think we should have been consulted," says Councilor Bernie Herpin.
Asked about this claim, Melcher answers generally, saying he "always" discusses the hiring of outside counsel with the Utilities board and management.
• Attorney relocation: About a year ago, Melcher ordered city attorneys assigned to handle Utilities business to move from their offices at Plaza of the Rockies to his suite in the City Administration Building.
"Why would he do that?" Snider asks. "Why would he want to cut off the flow of information [to Utilities officials] unless they're wanting to influence things? I don't get the feeling he's representing the best interest of Springs Utilities."
Melcher says the goal was to "improve coordination of legal services to both Utilities and the City," and that the move has allowed Utilities attorneys and other attorneys to take a "team approach" to certain issues.
• Sierra Club: The environmental group threatened to sue Utilities last year, alleging that Drake's operations violate the Clean Air Act. The Utilities Board directed Melcher to talk to the Sierra Club and to find out what it wanted, Martin says.
Melcher presented a proposed agreement with Sierra Club to the board on Dec. 13 that would stop installation of the Neumann technology while Drake's future is studied. The board rejected it.
On Jan. 17, Melcher hired the global law firm of Sidley Austin under a contract in which the city agreed to pay up to $1 million, including hourly rates of $950 for "case analysis, settlement negotiations, and serving as lead counsel in litigation should the Sierra Club file suit."
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