'A power grab, pure and simple' 

By the time the Independent got a copy of it, the e-mail chain had been passed to about a dozen city employees and then leaked to City Council, causing considerable uproar inside the walls of City Hall.

No wonder. Apparently revealed in its casual text was an effort from Mayor Steve Bach, with support from City Attorney Chris Melcher, to at least partially erase one of the most important powers the city charter would seem to guarantee the legislature: the right to meaningfully amend the budget. Such a move would erode a pillar of the new government, a system of checks and balances meant to mirror the national government's, and intended to prevent any one branch from wielding too much authority.

It led City Council President Scott Hente to wonder aloud why Council should even bother trudging through a months-long budget process if its decisions are toothless.

"Why go through all the brain damage?" he asked in a Monday phone interview. "It doesn't matter. And remember — and here's the important thing — we made our changes after we listened to the public. So you can make the argument that this is dissing the Council, but it's dissing the public input we heard also."

In a Wednesday morning meeting with Council, Bach backtracked on the two issues on the surface of the debate, and his assurances and conciliatory tone defused a potentially heated situation. But when the meeting wrapped up, bigger legal and policy questions were left unanswered.

And that's why it's hard to believe that mayor-Council relations, seemingly at an all-time low heading into the meeting, will quickly improve. Even before the e-mails surfaced, Councilors were expressing confusion over a barrage of "confidential" legal opinions from Melcher's office, a lack of communication from the mayor's office, and an inability to talk about issues with city staff, who now answer only to the mayor.

While some Councilors — fearful of being labeled "uncooperative" by a local media that often seems enamored of the mayor — have continued hoping for an amicable resolution, others have said it's time Council hire a lawyer, lest it end up impotent in all important matters.

But even that door appears to be closing, with Melcher apparently opining that Council has no right to hire its own attorney.

Finding a loophole

The e-mail chain originated on Bach's iPad on Dec. 16 as a message to Melcher. It was CC'd to the mayor's secretary, Fire Chief Rich Brown, Interim Police Chief Pete Carey, then-Interim Chief of Staff Steve Cox and Nancy Johnson, a city administrator.

In it, Bach asked Melcher to clarify his and Council's authority on Memorial Health System and Colorado Springs Utilities, but the essence of the rest of the message was this: The mayor wanted to confirm that he could ignore several of Council's changes to the budget. Those included adding a Code Enforcement Officer to the police department, repairing tennis courts with city money, and moving some membership dues into the City Council budget. All changes had been approved by a supermajority of Council following mayoral vetoes.

"[N]otwithstanding Council's appropriation," the mayor wrote of the Code Enforcement Officer in his message to Melcher, "you stated thatI [sic] am not required to hire the individual. Therefore, we will not do so without my prior, written approval in the future."

The e-mails that followed showed that, on Melcher's advice, membership dues were transferred to the City Council budget in mid-January. Less clear was the fate of the code enforcement officer, and the funds Council directed to repair tennis courts.

In one e-mail, Carey said he was not planning to hire the officer. In another, Melcher suggested to Johnson that she funnel the funds for tennis court repairs into an escrow account, until she received further instruction.

At Wednesday's meeting, however, Bach said a code enforcement officer would be hired mid-year, and that money allocated to tennis courts would be spent within the year, in conjunction with a grant. Of the tennis courts, he said, "We are going to implement what Council wants to do."

It was unclear whether that means Bach has ceased buying into what Melcher wrote in an e-mail on Dec. 21, that "in general terms, the legislative branch of government has the authority to appropriate funds and make requests for how those funds are to be spent, but it does not normally have the authority to require that funds are expended by the executive branch in a particular manner or by particular division under the authority of the executive branch."

In other words, that Council can basically make suggestions — not orders — as to how to spend budget money.

That rationale began to take shape when the mayor and interim police chief suddenly ditched the city's red-light camera program in 2011, bypassing a law passed by Council in a move that left some members irate and others puzzled.

It's not entirely clear whether Melcher's interpretation would hold up in court. Upon hearing a summary of Melcher's Dec. 21 opinion on Monday, local attorney and longtime former City Councilor Randy Purvis took issue, saying that so long as Council passes changes to the budget using mandatory language like "shall," the mayor does have to spend the money as directed. Doing otherwise, he said, "stands on its head the concept of checks and balances."

Purvis called the legal maneuvering "a power grab, pure and simple."

Before Wednesday's meeting, Councilors Hente, Jan Martin and Lisa Czelatdko said Melcher had yet to give his legal opinion regarding budget amendments to Council. And neither Bach nor Melcher returned phone calls and e-mails seeking comment on this story on Tuesday.

Get a lawyer?

During the budget process, Martin, president pro tem, was part of a minority that wanted to put an attorney on retainer to serve Council's interests if they ever conflicted with the mayor's.

Her side lost that battle. But when she learned earlier this week of Bach trying to nix Council's changes to the budget, she said, "I guess we have to take a closer look at it to see if there's something we did that didn't require him to [follow through with the changes] ... and again, we would need an attorney to help us with that. And we have no access to that other than the mayor's appointed attorney."

Martin, along with other Councilors, has said Melcher told her that only he could hire a city attorney. Councilors think that's confusing because while the charter says that City Council's sole employee is the city auditor, it also states outright that Council can hire attorneys as it pleases. (Councilors would amend the budget to cover the costs.)

While some might argue that the conflicting language prevents Council from hiring an attorney as an employee, Martin reasons that nothing prevents Council from hiring outside legal help on retainer.

Both Martin and Czelatdko have said Melcher may be planning to assign one of his less experienced attorneys to Council. But they've worried that a newbie won't have what it takes to properly defend Council. Worse, the attorney might feel beholden to his or her real boss, the mayor.

Purvis said Monday that conflict of interest is a real concern.

"I think Chris Melcher, quite frankly, is in an inherently compromised position ... I don't think there's any way he can ethically do his job, because the person who's signing his paychecks is the person he may feel he has a duty of loyalty. However, he is not the mayor's attorney; by City Charter, he is the city attorney."

In short, Purvis said, the city is Melcher's client. This means that he cannot view Council or the mayor's interests separately. It also means that he needs to share his legal opinions with everyone they effect — not just whoever asked for it.

Looking at the situation, Purvis said Council needs its own attorney, no matter what.

"I think the City Council should pass an ordinance on a 9-0 vote that it's going to do that, that it's going to budget the money for that," he said. "And if Mr. Melcher and the mayor don't like it, they know where the courthouse is."


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