County sued over ballot measure controversy

By JoAn Bjarko
North Forty News

The controversial issue of whether voters should decide if five commissioners could do a better job of governing Larimer County is now in the hands of a district court judge.

Three members of a grassroots group that wants five county commissioners instead of three filed a lawsuit on Aug. 20 asking Judge Arnaud Newton to compel the county to place a referendum on the November ballot.

On Aug. 6, commissioners decided not to refer the measure to the ballot although Citizens for 5 Commissioners expected that to happen.

"We relied on their keeping their word," said Gina Janett, spokesperson for C5C.

The lawsuit followed two weeks of controversy over whether the county's three commissioners misled the citizens' group into thinking the commissioners would put the measure on the ballot and thus forego the need for the citizens to turn in petitions to the county clerk's office.

In their lawsuit, Bruce Joitel of Wellington, Dian Sparling of Fort Collins and Paul Ostrof of Fort Collins claimed they reasonably relied on a July 16 vote in which two county commissioners indicated a willingness to refer the question to the ballot. As a result, Citizens for 5 Commissioners did not get 9,500 signatures verified by the clerk's office. The state-mandated deadline for submitting measures by petition expired July 19.

In response to the lawsuit, county officials are saying they have no legal duty to put the measure on the ballot. Newton set an Aug. 28 hearing on the county's motion to dismiss. He is likely to make a prompt decision because of the Sept. 6 deadline to submit ballot language to the county clerk if he rules the issue should go to voters this fall.

"The decision whether to increase membership to five clearly involves the exercise of discretion," county attorney Jeannine Haag said in her motion to dismiss. "The decision has budgetary, managerial and political ramifications. These considerations all factor into each commissioner's decision whether to offer the voters an opportunity to make a change."

Because the county records its meetings on tape and with written minutes, the debate has centered on what the commissioners meant by what they said. Both audio and written records are available at www.larimer.org. As the controversy fermented, the commissioners changed their official minutes of the July 16 meeting. A summary of events follows:

July 16

Citizens for 5 Commissioners officially asked the county commissioners to put their initiative on the November ballot. Commissioners Tom Bender and Kathay Rennels voted yes on Rennels' motion to accept the referendum and to direct the county attorney to draft a resolution with options as to how five commissioners would be elected.

Rennels said: "I will put the question on; I would move to approve just to have the question answered. I would move to approve accepting the referendum and direct the county attorney to look at that."

Commissioner Glenn Gibson voted against the motion. After the vote, Gibson summarized: "So you have just said that we are not going to go with the petition process. We as commissioners are going to put it on the ballot. ... So we as the commissioners have directed staff, in other words they do not have to follow the petition process, and the commissioners now have put it towards the lawyers to draft information and give them three options."

No one appeared to disagree with Gibson's summary.

That week Citizens for 5 Commissioners issued a press release saying they would spare the county clerk's office the time and expense of validating thousands of signatures because of the commissioners' decision. Volunteers had collected more than 9,500 signatures. The clerk's office would need to verify 8,644 for the measure to qualify for the ballot.

Minutes of the July 16 meeting approved the following week said: "Commissioner Rennels moved that the Board of County Commissioners refer the ballot initiative to increase the Board of County Commissioners to 5 to the November ballot and direct the County Attorney to draft a resolution as such and include three options as to how the Commissioners would be elected."

Aug. 6

The county attorney provided the county commissioners with an official resolution to put the question on the ballot. After a short discussion, all commissioners said the ballot measure was a bad idea, and no one offered a motion to adopt the resolution.

Bender said he decided the ballot measure would be a waste of time and money because he did not think there was enough citizen support. He also said he was concerned that there would not be enough time to adequately explain what county commissioners do and to debate the merits of having five commissioners. Rennels said Citizens for 5 Commissioners should have turned in their petitions and called the group's decision not to a "bait and switch type of thing."

The action astonished members of C5C, and the debate has heated up from there. Janett took issue with Rennels' "bait and switch" accusation. "They baited us with a motion to refer it," she said. "We knew we took a risk when we did not submit our petitions, although we relied on their integrity to put it on."

Aug. 7

In a telephone interview, Bender said the county commissioners' official minutes of July 16 were in error. The motion, he said, meant that the county attorney should draft a resolution, not that the commission was going to put it on the ballot. In addition, Bender said, the discussion with C5C was not on the agenda for a final decision when the commissioners voted on July 16.

According to Bender, the citizen group should have turned in its petitions. "We can't interfere with citizen initiatives," he said. "I didn't feel it was my responsibility to tell them they needed to turn them in."

In the following days, numerous letters to the editor appeared in the daily newspapers accusing the county commissioners of deception.

Aug. 13

On behalf of C5C, Dian Sparling gave the county commissioners a letter asking them to reconsider their decision.

The commissioners corrected the July 16 minutes to say: "Commissioner Rennels moved that the Board of County Commissioners accept the referendum and direct the County Attorney to draft a resolution as such and include three options as to how the Commissioners would be elected."

Aug. 20

C5C was invited on short notice to bring in the petitions and discuss the issue again with the commissioners. The person with the petitions was on vacation, however, and other group members could not find the boxes containing them. Commissioners rescheduled the discussion for Aug. 27, but took the item off the agenda after the lawsuit was filed.

Citizens for the Preservation of Property Rights weighed in with a letter supporting the commissioners' decision to not put the issue on the ballot. "It will add unnecessary cost, drastically increase the bureaucracy, and seriously reduce the efficiency of the administration of the county by increasing the likelihood of unproductive 'turf battles' within the board," the CPPR letter said.

If the lawsuit fails to get the measure on the ballot this year, the next opportunity for Citizens of 5 Commissioners to seek voter approval of such an initiative is November 2004.