Monday, January 13, 2014

Ethics complaint against Bach deemed frivolous

Posted By on Mon, Jan 13, 2014 at 9:39 AM

An ethics complaint that accused Mayor Steve Bach of inappropriately committing city money to City for Champions without proper authority has been deemed frivolous by the city's Independent Ethics Commission.

In an undated letter, Kanda Calef, a conservative political operative, alleged that Bach told the state Economic Development Commission the city could use existing bond capacity, general fund revenues, city sales tax increment revenues, city parking enterprise money and Pikes Peak Rural Transportation Authority money to fund City for Champions, Bach's $250 million tourism package.
click to enlarge Calef: Ethics complaint shot down. - COURTESY KANDA CALEF
  • Courtesy Kanda Calef
  • Calef: Ethics complaint shot down.

The initiative would build four venues — downtown sports center, downtown Olympic museum, sports medicine center at the University of Colorado at Colorado Springs and a new Air Force Academy visitors center — using $120.5 million over 30 years granted by the EDC on Dec. 16.

In a Nov. 8 letter to the EDC, Bach said the city "can provide funding from the following sources," and listed those described above and in Calef's complaint.

Calef says in her complaint that the City Ethics Code states, "No covered person shall knowingly make unauthorized commitments or promises of any kind purporting to bind the City.” Her complaint expounds on Bach's stated revenue sources as follows:
The Mayor’s statement directly commits funding sources that are outside the purview of what the Mayor has the authority to commit, particularly in view of the fact the Colorado Springs City Council has approved neither a letter nor resolution of support for the RTA application. Statutory/charter authority for each source of funding is described below:
“Utilizing existing bond capacity” Bonding requires an affirmative vote of the electorate under the City’s TABOR laws and the City Charter Section 7-80 and 7-90. Since no ballot measure has been approved nor even proposed, committing this bond capacity is misleading.

“Increases in the general fund revenues” and “efficiencies in the municipal government” are not sources the Mayor can commit to these projects without appropriating ordinances from City Council as provided by City Charter Section 7-50 (Appropriations): “Upon the basis of the budget as adopted and filed, the several sums shall forthwith be appropriated by ordinance to the several purposes therein named for the ensuing fiscal year.”

City sales tax incremental financing, either through the Urban Renewal Authority and/or a newly designated “regional tourism zone” as contemplated by the Regional Tourism Act would also require an affirmative action by City Council. Although the Urban Renewal Plan for Southwest Downtown has been approved by a previous City Council, the implementation of incremental sales tax financing has not occurred. According to the Colorado Springs Urban Renewal Authority’s Application Requirements for Proposed Urban Renewal Projects, “The Authority will request the establishment of an urban renewal/tax increment area for the selected project through the Colorado Springs City Council and enter into a tax sharing agreement with the City of Colorado Springs.”

City Parking Enterprise System bonding. As an enterprise of the City, the Parking Enterprise finances are separate from the City and that separation was reaffirmed by Ballot Initiative 300 which precludes payments from enterprises to the City. Regarding debt, although finances of the enterprise are independent, the annual budget and approval of any incurred debt lies with City Council.

Pikes Peak Rural Transportation Authority (PPRTA). The latest voter-approved list of capital projects for the PPRTA includes “Pikes Peak Greenway Improvements.” The determination of whether a pedestrian bridge connecting the Pikes Peak Greenway with downtown fulfills the intent of “Pikes Peak Greenway Improvements” and whether such a project would be prioritized ahead of other vital PPRTA projects during the 10-year period of the ballot-approved tax measure are both decisions to be considered and made by the PPRTA Board of Directors—not with the Mayor of Colorado Springs. According to the latest Intergovernmental Agreement, “The PPRTA Board will determine annual appropriations and the order in which projects shall be funded…”
Calef's complaint notes that Bach's letter could be construed by the state as "an authorized commitment" upon which EDC members "will base their decision" on state sales tax rebates. She also expresses concern about the City Attorney's Office, which participated in the city's City for Champions application, being involved in her ethics complaint process.

"There is clearly a conflict of interest when the City Attorney, who serves at the pleasure of the Mayor, is the one directing the 'Independent\ Ethics Commission in its decision making regarding a complaint against the Mayor," she wrote.

The Ethics Commission concluding her complaint was frivolous. Here's what it said in a Dec. 23 letter to her:
Although the Commission believes the November 8, 2013 letter to Ken Lund should have been more clearly worded, the Commission has determined the complaint should be dismissed as frivolous. After a careful review of the language and consideration of the intent of the letter, the Commission has determined the letter does not "knowingly make unauthorized commitments or promises . . . purporting to bind the City” as prohibited by City Code §1.3.106(C) (emphasis added).

You also alleged in your complaint that the City Attorney’s Office should not be involved in
processing your complaint. The City Attorney and the City Attorney’s Office had no knowledge or role in drafting or reviewing the November 8, 2013 letter from Mayor Bach to Ken Lund. Section 1.3.103(G) of the City’s Code of Ethics provides that the “City Attorney, or a designee of the City Attorney, shall be the chief liaison and legal advisor to the Independent Ethics Commission, but shall have no vote.
Here's Calef's take on the issue, conveyed via email:
It's sad when you see that government processes are shoddily thrown together to favor one branch of government to give the illusion of accountability. While on paper there is an "Independent Ethics Commission" whose alleged purpose is to root out corruption in our city's government, the reality is that, just like the City Attorney, City Clerk, and the entire Judicial branch, none of them are independent. They are all subject to the whim of the Mayor according to how the Charter is currently worded. This so-called Independent Ethics Commission acknowledges that Mayor Bach’s letter “should have been more clearly worded,” yet proceeds to determine that Bach’s committing taxpayer dollars, the City Council’s general fund monies, and other City funding which is not in his control, as “frivolous.” Accountability measures for those under the Executive Branch of our local government, including the Mayor, is elusive. The deck is stacked against the citizens and the Mayor has used that to his advantage, as he runs amok.
Members of the Ethics Commission are Eileen Docherty, retired Brig Gen. Malham Wakin, Thomas Conter, Craig Valentine and Russ Bogardus.

Calef says the ethics complaint process apparently ends with a finding of frivolous complaint. From the code: "Frivolous Complaints; Inquiries: The Independent Ethics Commission may dismiss frivolous complaints or inquiries without further action. A record of dismissal as deemed frivolous shall be maintained as confidential by the Independent Ethics Commission."

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