TC Ord. No. 2008-03 Calling a special muni election to be held on Tuesday May 6,2008 to submit a ballot question concerning the approval of an amendment to the home rule charter of the TOA;TOWN OF AVON, COLORADO
ORDINANCE NO. 08-03
SERIES OF 2008
AN ORDINANCE CALLING A SPECIAL MUNICIPAL ELECTION TO BE HELD ON
TUESDAY MAY 6, 2008, TO SUBMIT A BALLOT QUESTION CONCERNING THE
APPROVAL OF AN AMENDMENT TO THE HOME RULE CHARTER OF THE
TOWN OF AVON; APPROVING THE FORM OF THE BALLOT TITLE; AND
PROVIDING FOR OTHER MATTERS RELATED THERETO.
WHEREAS, the Town of Avon (the "Town"), is a municipal corporation duly
organized and existing as a home rule municipality under Article XX of the Colorado
Constitution ("Article XX") and laws of the State of Colorado (the "State") and the Town's
Home Rule Charter (the "Charter"); and
WHEREAS, Section 18.6 of the Charter provides that the Charter may be
amended at any time in the manner provided by statute; and
WHEREAS, Section 9(3) of Article XX provides that the provisions of Article
XX, as they relate to procedures for the amendment of existing home rule charters, may be
superseded by statute; and
WHEREAS, the Municipal Home Rule Act of 1971 (the "Home Rule Act"),
codified at Title 31, Article 2, Part 2 of the Colorado Revised Statutes ("C.R.S.") expressly
supersede the requirements of Article XX as they relate to procedures for the amendment of
existing home rule charters; and
WHEREAS, Section 31-2-210(1)(b) of the Home Rule Act provides that the
Council may, by ordinance, submit a proposed amendment. to the Charter to a vote of the
registered electors of the Town; and
WHEREAS, Section 31-2-210(1)(b) of the Home Rule Act further provides that
such ordinance shall also adopt a ballot title for the proposed amendment; and
WHEREAS, Section 3.1 of the Charter and Section 31-2-211(1) of the Home
Rule Act call for a Town election on a proposed amendment to the Charter to be conducted
pursuant to the Colorado Municipal Election Code of 1965 (the "Election Code"), codified at
Title 31, Article 10, C.R.S.; and
WHEREAS, Section 31-10-108 of the Election Code provides that the Town may
call a special election on any Tuesday designated by ordinance or resolution of the Council; and
WHEREAS, the Council has determined that the interests of the Town and its
residents will be best served by giving the Council greater flexibility to enter into property
transactions that are consistent with the stated planning objectives of the Town, will provide the
Town with consideration with a value that is substantially equal to or greater than the value of
the consideration the Town will convey, and will provide a long-term economic, cultural or
social community benefit for the Town, as described in the proposed amendment to Section 18.3
of the Charter (the "Proposed Amendment"), which is attached hereto as Exhibit A; and
WHEREAS, the Council has determined that the interests of the Town and its
residents requires a special election to be held on Tuesday, May 6, 2008, to submit the Proposed
Amendment to the registered electors of the Town in accordance with Article XX, the Home
Rule Act and the Election Code; and
WHEREAS, it is necessary to set forth certain procedures concerning the conduct
of the special municipal election.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO:
Section 1. The Council hereby calls for a special election (the "Election") to
be held within the Town on Tuesday, May 6, 2008, at which the Proposed Amendment shall be
submitted to the registered electors of the Town. The Town shall utilize the requirements and
procedures of the Election Code with respect to the Election.
Section 2. All action heretofore taken (not inconsistent with the provisions of
this Ordinance) by the Town and the officers thereof, directed towards the Election and the
objects and purposes herein stated is hereby ratified, approved and confirmed.
Section 3. Unless otherwise defined herein, all capitalized terms shall have
the meanings defined in Article XX, the Home Rule Act, or the Election Code.
Section 4. The Council hereby designates the Town Clerk to act as the
designated election official with respect to the Election and the Town Clerk is hereby authorized
and directed to proceed with any action necessary or appropriate to effectuate the provisions of
this Ordinance and of Article XX, the Home Rule Act, the Election Code, or other applicable
laws. Without limiting the generality of the foregoing, the designated election official shall
appoint election judges as necessary, appoint the canvass board, arrange for the giving of any
required notices of Election, arrange for printing of ballots, and direct that all other appropriate
actions be accomplished.
Section 5. The ballot title for the ballot question to be submitted to the
registered electors of the Town at the special municipal election shall be in substantially the
following form:
Question 2A: Authorizing an Amendment to the Avon Town Charter
regarding Town property transactions.
Shall Section 18.3 of the Charter of the Town of Avon be amended to provide as
follows:
2
Section 18.3 Municipally-Owned Real Property
(a) The Town may sell, exchange, lease or dispose of any interest in real
property or buildings of the Town to or with any person, firm or corporation, or
other public or private entity. Any such sale, exchange, lease or disposition shall
be approved by ordinance after a public hearing thereon.
(b) Any ordinance adopted pursuant to subsection (a) of this Section shall
contain findings by the Council that:
1. the transaction will be consistent with the stated planning
objectives of the Town;
2. the appraised value of the interest in real property or buildings or
the value of other consideration to be received by the Town is
substantially equal to or greater than the appraised value of the interest in
real property or buildings or the value of other consideration to be given
by the Town; and
3. the transaction will provide a long-term economic, cultural or
social community benefit for the Town.
(c) Any legal or equitable action brought with respect to the transaction shall
be commenced within 30 days after adoption of the ordinance.
Section 6. Pursuant to Section 31-2-210(6) of the Home Rule Act, if a
majority of the registered electors of the Town voting thereon vote for the Proposed Amendment,
the Proposed Amendment shall be deemed approved and incorporated into the Charter. If so
approved, the Town Clerk shall file a certified copy of the Charter, as amended, with the
Colorado Secretary of State and shall record a certified copy of the Charter within the official
records of the Town within twenty days of the approval of the Proposed Amendment.
Section 7. Pursuant to Section 31-10-1308 of the Election Code, any election
contest arising out of a ballot issue or ballot question election concerning the order of the ballot
or the form or content of the ballot title shall be commenced by petition filed with the proper
court within five days after the title of the ballot issue or ballot question is set or within five days
after the ballot order is set. Pursuant to Section 31-2-218 of the Home Rule Act, no proceeding
contesting the adoption of the Proposed Amendment shall be brought unless commenced within
forty-five days after the Election.
Section 8. In addition to any notices required by the Election Code, the Town
Clerk shall, within thirty days of the date of adoption of this Ordinance, publish notice of the
Election, which notice shall contain the full text of the Proposed Amendment in accordance with
Section 31-2-210(4) of the Home Rule Act.
Section 9. If any section, paragraph, clause or provision of this Ordinance
shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of
such section, paragraph, clause or provision shall in no mariner affect any remaining provisions
of this Ordinance.
3
Section 10. All ordinances or parts of ordinances inconsistent herewith are
hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to
revive any ordinance or part of any ordinance heretofore repealed.
Section 11. Pursuant to Section 6.4 of the Charter, this Ordinance shall take
effect seven days after public notice following final passage.
[The remainder of this page is left intentionally blank]
4
INTRODUCED, READ BY TITLE, APPROVED ON FIRST READING,
AND ORDERED PUBLISHED IN FULL at a regular meeting of the Town Council of the
Town of Avon, Colorado, on February 12, 2008.
N OF A
TOWN VON, COLORADO
(SEALti S E A L
y G
COLOR Ronald C. Wolfe, Ma or
ATTEST:
INTRODUCED, FINALLY APPROVED AND ORDERED PUBLISHED BY
TITLE ONLY at a regular meeting of the Town Council of the Town of Avon, Colorado,
on February 26, 2008.
(S
TOWN OF'AVON. COLO
Ronald C. Wolfe, Mayor
ATTEST:
4attc envy, To rk
5
Exhibit A
Proposed Amendment
Section 18.3 of the Charter, which currently reads as follows:
Section 18.3 Restrictions on Sale of Municipally-Owned Real Property.
The Town shall not sell or dispose of municipally-owned buildings or real property in use for
public purposes without first obtaining the approval of a majority of the electors voting thereon.
would be replaced in its entirety by the following:
Section 18.3 Municipally-Owned Real Property
(a) The Town may sell, exchange, lease or dispose of any interest in real property or
buildings of the Town to or with any person, firm or corporation, or other public or private
entity. Any such sale; exchange, lease or disposition shall be approved by ordinance after a
public hearing thereon.
(b) Any ordinance adopted pursuant to subsection (a) of this Section shall contain findings
by the Council that:
1. the transaction will be consistent with the stated planning objectives of the Town;
2. the appraised value of the interest in real property or buildings or the value of
other consideration to be received by the Town is substantially equal to or greater than
the appraised value of the interest in real property or buildings or the value of other
consideration to be given by the Town; and
3. the transaction will provide a long-term economic, cultural or social community
benefit for the Town.
(c) Any legal or equitable action brought with respect to the transaction shall be commenced
within 30 days after adoption of the ordinance.
A-1
STATE OF COLORADO )
COUNTY OF EAGLE ) SS.
TOWN OF AVON )
I, Patty McKenny, the duly elected, qualified and acting Town Clerk of the Town
of Avon, Colorado (the "Town") do hereby certify:
1. That the foregoing pages are a true, correct, and complete copy of an
ordinance (the "Ordinance") concerning the submission of a proposed amendment to the charter
of the Town (the "Charter") to the registered electors of the Town by the Town Council (the
"Council"), duly adopted at a regular meeting of the Council held at the Town Municipal
Building on February 26, 2008.
2. The Ordinance was introduced, read by title, and approved on first reading
at an open, regular meeting of the Council on Tuesday, February 12, 2008 by an affirmative vote
of the majority of the membership of the entire Council as follows:
Name
"Yes"
"No"
Absent
Brian Sipes
✓
Richard Carroll
✓
Dave Dantas
Kristi Ferraro
✓
Amy Phillips
✓
Tamra Nottingham Underwood
✓
3. The Ordinance was published in full on February , 2008, by posting in
at least three public places within the Town in addition to posting at the office of the Town Clerk
in accordance with Section 6.7 of the Charter. Such notice additionally set forth the day, hour
and place set for a public hearing to be held by the Council on the Ordinance.
4. Following a public hearing thereon, the Ordinance was finally approved
on second reading at an open, regular meeting of the Council on Tuesday, February 26, 2008, by
an affirmative vote of the majority of the membership of the entire Council as follows:
Name
"Yes"
"No"
Absent
Brian Sipes
✓
Richard Carroll
Dave Dantas
✓
Kristi Ferraro
✓
Amy Phillips
✓
Tamra Nottingham Underwood
✓
5. After final passage, the Ordinance was published by title on February 7-1,
2008, by posting in at least three public places within the Town in addition to posting at the
office of the Town Clerk in accordance with Section 6.7 of the Charter.
6. The Ordinance has been signed by the Mayor, sealed with the corporate
seal of the Town, attested by me as Town Clerk, and duly recorded in the official records of the
Town; and that the same remains of record in the official records of the Town.
7. Notices of the regular meetings of February 12, 2008, and February 26,
2008, in the forms attached hereto as Exhibit 1, were posted in a designated public place within
the boundaries of the Town no less than twenty-four hours prior to such meetings.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of
said Town this 2lot% day of 2008.
'To erk
~OLORPO~a-;-'
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EXHIBIT I
(Attach Notices of Meetings)
s
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Conclusion
Staff recommends that the ordinance be adopted to submit the Charter amendment
•
Sherman & Howard L.L.C.
To:
Avon Town Council
From:
Randy D. Funk
/
Date:
February 6, 20,0
8
ATTORNEYS & COUNSELORS AT LAW
633 SEVENTEENTH STREET, SUITE 3000
DENVER, COLORADO 80202
TELEPHONE: (303)297-2900
FAX: (303)298-0940
OFFICES IN: COLORADO SPRINGS
PHOENIX • RENO - LAS VEGAS
MEMORANDUM
Re: Ordinance Calling Special Election on Charter Amendment
Section 18.01 of the Avon Town Charter states that the Town may not sell or dispose of
municipally-owned buildings or real property in use for public purposes without approval from
the Town's voters at an election. Current development plans call for the Town to exchange
property it currently owns for other property currently owned by private parties. This type of
exchange can assist economic development within the Town and provide the Town with property
that is more suited to its needs. However, the current charter provision would require each such
exchange or any similar transaction to be approved at an election, which can be expensive and
time-consuming.
The proposed ordinance would submit an election question to the Town's electors asking
them to amend the Town Charter so that an election is no longer required for Town land
transactions. Instead, the Council would be authorized to sell, exchange, lease or dispose of
Town property interests so long as it holds a public hearing on the transaction and finds that: (1)
the transaction will be consistent with the,stated planning objectives of the Town; (2) the Town
will receive property or other payment with an appraised value equal to or greater than the
property or other payment it gives as part of the transaction; and (3) the transaction will provide
a long-term economic, cultural or social community benefit for the Town. This new provision
will retain significant public input in Town land transactions while making. the process' more
flexible than the full election requirement.
to the Town electors.
001024000\PUB FIN\7747211
TOWN OF AVON
ORDINANCE NO. 08-03 •
SERIES OF 2008
AN ORDINANCE CALLING A SPECIAL MUNICIPAL ELECTION TO BE HELD ON
TUESDAY MAY 6, 2008, TO SUBMIT A BALLOT QUESTION CONCERNING THE
APPROVAL OF AN AMENDMENT TO THE HOME RULE CHARTER OF THE
TOWN OF AVON; APPROVING THE FORM OF THE BALLOT TITLE; AND
PROVIDING FOR OTHER MATTERS RELATED THERETO.
WHEREAS, the Town of Avon (the "Town"), is a municipal corporation duly
organized and existing as a home rule municipality under Article XX of the Colorado
Constitution ("Article XX") and laws of the State of Colorado (the "State") and the Town's
Home Rule Charter (the "Charter"); and
WHEREAS, Section 18.6 of the Charter provides that the Charter may be
amended at any time in the manner provided by statute; and
WHEREAS, Section 9(3) of Article XX provides that the provisions of Article
XX, as they relate to procedures for the amendment of existing home rule charters, may be
superseded by statute; and
WHEREAS, the Municipal Home Rule Act of 1971 (the "Home Rule Act"), •
codified at Title 31, Article 2, Part 2 of the Colorado Revised Statutes ("C.R.S.") expressly
supersede the requirements of Article XX as they relate to procedures for the amendment of
existing home rule charters; and
WHEREAS, Section 31-2-210(1)(b) of the Home Rule Acf provides that the
Council may, by ordinance, submit a proposed amendment to the Charter to a vote of the
registered electors of the Town; and
WHEREAS, Section 31-2-210(1)(b) of the Home Rule Act further provides that
such ordinance shall also adopt a ballot title for the proposed amendment; and
WHEREAS, Section 3.1 of the Charter and Section 31-2-211(1) of the Home
Rule Act call for a Town election on a proposed amendment to the Charter to be conducted
pursuant to the Colorado Municipal Election Code of 1965 (the "Election Code"), codified at
Title 31, Article 10, C.R.S.; and
WHEREAS, Section 31-10-108 of the Election Code provides that the Town may
call a special election on any Tuesday designated by ordinance or resolution of the Council; and
WHEREAS, the Council has determined that the interests of the Town and its
residents will be best served by giving the Council greater flexibility to enter into property
transactions that the Council determines, following a public hearing, will be consistent with the,
stated planning objectives of the Town, will provide the Town with consideration with a value •
P
that is substantially equal to or greater than the value of the consideration the Town will convey,
• and will provide a long-term economic, cultural or social community benefit for the Town, as
described in the proposed amendment to Section 18.3 of the Charter (the "Proposed
Amendment"), which is attached hereto as Exhibit A; and
WHEREAS, the Council has determined that the interests of the Town and its
residents requires a special election to be held on Tuesday, May 6, 2008, to submit the Proposed
Amendment to the registered electors of the Town in accordance with Article XX, the Home
Rule Act and the Election Code; and
WHEREAS, it is necessary to set forth certain procedures concerning the conduct
of the special municipal election.
. NOW, THEREFORE, BE.IT ORDAINED BY THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO:
Section 1. The Council hereby calls for a special election (the "Election") to
be held within the Town on Tuesday, May 6, 2008, at which the Proposed Amendment shall be
submitted to the registered electors of the Town. The Town shall utilize the requirements and
procedures of the Election Code with respect to the Election.
Section 2. All action heretofore taken (not inconsistent with the provisions of
this Ordinance) by the Town and the officers thereof, directed towards the Election and the
• objects and purposes herein stated is hereby ratified, approved and confirmed.
Section 3. Unless otherwise defined herein, all capitalized terms shall have
the meanings defined in Article XX, the Home Rule Act, or the Election Code.
Section 4. The Council hereby designates the Town Clerk to act as the
designated election official with respect to the Election and the Town Cleric is hereby authorized
and directed to proceed with any action necessary or appropriate to effectuate the provisions of
this Ordinance and of Article XX, the Home Rule Act, the Election Code, or other applicable
laws. Without limiting the generality of the foregoing, the designated election official shall
appoint election judges as necessary, appoint the canvass board, arrange for the giving of any
required notices of Election, arrange for printing of ballots, and direct that all other appropriate
actions be accomplished.
Section 5. The ballot title for the ballot question to be submitted to the
registered electors of the Town at the special municipal election shall be in substantially the
following form:
Question 2A: Authorizing an Amendment to the Avon Town Charter
regarding Town property transactions.
Shall Section 18.3 of the Charter of the Town of Avon be amended to provide as
follows:
•
2
3
i
Section 18.3 Municipally-Owned Real Property
(a) The Town may sell, exchange, lease or dispose of any interest in real •
property or buildings of the Town to or with any person, firm or corporation, or
other public or private entity. Any such sale, exchange, lease or disposition shall
be approved by ordinance after a public hearing thereon.
(b) Any ordinance adopted pursuant to subsection (a) of this Section shall
contain findings by the Council that:
1. the transaction will be consistent with the stated planning
objectives of the Town;
2. the appraised value of the interest in real property or buildings or
the value of other consideration to be received by the Town is
substantially equal to or greater than the appraised value of the interest in
real property or buildings or the value of other consideration to be given
by the Town; and
3. the transaction will provide a long-term economic, cultural or
social community benefit for the Town.
(c) Any legal or equitable action brought with respect to the transaction shall
be commenced within 30 days after adoption of the ordinance?
Section 6. Pursuant to Section 31-2-210(6) of the Home Rule Act, if a
majority of the registered electors of the Town voting thereon vote for the Proposed Amendment,
the Proposed Amendment shall be deemed approved and incorporated into the Charter. If so
approved, the Town Clerk shall file a certified copy of the Charter, as amended, with the
Colorado Secretary of State and shall record a certified copy of the Charter within the official •
records of the Town within twenty days of the approval of the Proposed Amendment.
Section 7. Pursuant to Section 31-10-1308 of the Election Code, any election
contest arising out of a ballot issue or ballot question election concerning the order of the ballot
or the form or content of the ballot title shall be commenced by petition filed with the proper
court within five days after the title of the ballot issue or ballot question is set or within five days
after the ballot order is set. Pursuant to Section 31-2-218 of the Home Rule Act, no proceeding
contesting the adoption of the Proposed Amendment shall be brought unless commenced within
forty-five days after the Election.
Section 8. In addition to any notices required by the Election Code, the Town
Clerk shall, within thirty days of the date of adoption of this Ordinance, publish notice of the
Election, which notice shall contain the full text of the Proposed Amendment in accordance with
Section 31-2-210(4) of the Home Rule Act.
Section 9. If any section, paragraph, clause or provision of this Ordinance
shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of
such section, paragraph, clause or provision shall in no manner affect any remaining provisions
of this Ordinance.
C7
3
Section 10. All ordinances or parts of ordinances inconsistent herewith are
• hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to
revive any ordinance or part of any ordinance heretofore repealed.
Section 11. Pursuant to Section 6.4 of the Charter, this Ordinance shall take
effect seven days after public notice following final passage.
[The remainder of this page is left intentionally blank]
•
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4
C5
INTRODUCED, READ BY TITLE, APPROVED ON FIRST. READING,
AND ORDERED PUBLISHED IN FULL at a regular meeting of the Town Council of the •
Town of Avon, Colorado, on February 12, 2008.
TOWN OF AVON, COLORADO
(SEAL)
Ronald C. Wolfe, Mayor
ATTEST:
Patty McKenny, Town Clerk
INTRODUCED, FINALLY APPROVED AND ORDERED PUBLISHED BY
TITLE ONLY at a regular meeting of the Town Council of the Town of Avon, Colorado, •
on February 26, 2008.
TOWN OF AVON, COLORADO
(SEAL)
Ronald C. Wolfe, Mayor
ATTEST:
Patty McKenny, Town Clerk
•
5
6
D
Exhibit A
Proposed Amendment
Section 18.3 of the Charter, which currently reads as follows:
Section 18.3 Restrictions on Sale of Municipally-Owned Real Property.
The Town shall not sell or dispose of municipally-owned buildings or real property in use for
public purposes without first obtaining the approval of a majority of the electors voting thereon.
would be replaced in its entirety by the following:
Section 18.3 Municipally-Owned Real Property
(a) The Town may sell, exchange, lease or dispose of any interest in real property or
buildings of the Town to or with any person, firm or corporation, or other public or private
entity. Any such sale, exchange, lease or disposition shall be approved by ordinance after a
public hearing thereon.
(b) Any ordinance adopted pursuant to subsection (a) of this Section shall contain findings
by the Council that:
1. the transaction will be consistent with the stated planning objectives of the Town;
2. the appraised value of the interest in real property or buildings or the value of
other consideration to be received by the Town is substantially equal to or greater than
the appraised value of the interest in real property or buildings or the value of other
• consideration to be given by the Town; and
3. the transaction will provide a long-term economic, cultural or social community
benefit for the Town.
(c) Any legal or equitable action brought with respect to the transaction shall be commenced
within 30 days after adoption of the ordinance.
.7
A-1
STATE OF COLORADO )
COUNTY OF EAGLE ) SS.
TOWN OF AVON )
I, Patty McKenny, the duly elected, qualified and acting Town Clerk of the Town
of Avon, Colorado (the "Town") do hereby certify:
1. That the foregoing pages are a true, correct, and complete copy of an
ordinance (the "Ordinance") concerning the submission of a proposed amendment to the charter
of the Town (the "Charter") to the registered electors of the Town by the Town Council (the
"Council"), duly adopted at a regular meeting of the Council held at the Town Municipal
Building on February 26, 2008.
2. The Ordinance was introduced, read by title, and approved. on first reading
at an open, regular meeting of the Council on Tuesday, February 12, 2008 by an affirmative vote
of the majority of the membership of the entire Council as follows:
Name
"Yes"
"No"
Absent
Brian Sipes
Richard Carroll
Dave Dantas
Kristi Ferraro
Amy Phillips
Tamra Nottingham Underwood
Ronald C. Wolfe
3. The Ordinance was published in full on February , 2008, by posting in
at least three public places within the Town in addition to posting at the office of the Town Clerk
in accordance with Section 6.7 of the Charter. Such notice additionally set forth the day, hour
and place set for a public hearing to be held by the Council on the Ordinance.
4. Following a public hearing thereon, the Ordinance was finally approved
on second reading at an open, regular meeting of the Council on Tuesday, February 26, 2008, by
an affirmative vote of the majority of the membership of the entire Council as follows:
•
•
0
•
Name
"Yes"
"No"
Absent
Brian Sipes
Richard Carroll
Dave Dantas
Kristi Ferraro
Amy Phillips
Tamra Nottingham Underwood
Ronald C. Wolfe
5. After final passage, the Ordinance was published by title on February
2008, by posting in at least three public places within the Town in addition to posting at the
office of the Town Clerk in accordance with Section 6.7 of the Charter.
6. The .Ordinance has been signed by the Mayor, sealed with the corporate
seal of the Town, attested by me as Town Clerk, and duly recorded in the official records of the
Town; and that the same remains of record in the official records of the Town.
7. Notices of the regular meetings of February 12, 2008, and February 26,
2008, in the forms attached hereto as Exhibit 1, were posted in a designated public place within
the boundaries of the Town no less than twenty-four hours prior to such meetings.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of
said Town this day of , 2008.
(SEAL) Town Clerk
•
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1
EXHIBIT 1
001024000\PUBFIN\774670.3
(Attach Notices of Meetings)
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Sherman & Howard.L.L.C.
January 2008
GUIDANCE FOR COLORADO GOVERNMENTS
IN COMPLYING WITH THE FAIR CAMPAIGN PRACTICES ACT
In most situations, the use of government money or resources to influence an election
in Colorado is against the law. The Fair Campaign Practices Act, Colorado Revised Statutes,
Section 1-45-101, et seq. (the "FCPA") and Article XXVIH of the Colorado Constitution govern,
among other things, the use of public moneys in a campaign involving the election of any person to
any public office or involving any election question. The purpose of this memorandum is to help
explain the types of conduct that are allowed and not allowed under the FCPA. This memorandum
does not address every situation that might occur, but it covers many of the questions that arise most
frequently.
The FCPA's restrictions apply to any agency, department, board, division, bureau,
commission, or council of the State of Colorado. The same restrictions also apply to any political
subdivision of the State, including counties, cities, towns, school districts and special districts.
Throughout this memorandum, the term "Government" includes all the governments covered by the
• FCPA.
Prohibited Uses of Government Money and Resources
The FCPA prohibits a Government from (1) making any contribution in a campaign
involving the nomination, retention, or election of any person to any public office; and (2) expending
any public moneys from any source to urge electors to vote for or against any state-wide ballot issue,
local ballot issue, referred measure, or measure for the recall of any officer. See Section 1-45-
117(1)(a)(1). Therefore, in most cases, the employees and officials of a Government must not use
any Government money or resources to support a candidate's campaign or to attempt to convince
voters to vote for or against an election question, including questions that have been placed on the
ballot by the Government itself. For example, after calling for a bond election, a special district may
not use district money to pay for fliers and visual aids that support the bond issue. See Skruch v.
Highlands Ranch Metropolitan Districts Nos. 3 and 4,107 P.3d 1140 (Colo. App. 2004). Likewise,
a school district may not post information on its website advocating the passage of a bond issue that
it has referred to voters. See Wimsatt v. Jefferson County Public Schools, District R-1, Agency
Decision, Case No. OS 2004-018.
It is important to note that a Government may violate this law without specifically
asking voters to "vote for" or "vote against" an election question. See Skruch v. Highlands Ranch
Metropolitan Districts Nos. 3 and 4, 107 P.3d 1140 (Colo. App. 2004). Any communication
•
-1-
discussing an election subject to the FCPA that favors one position will violate the FCPA. See
Brown v. City of Littleton, Agency Decision, Case No. OS 2006-023.
Also, the FCPA restrictions do not apply only to the use of Government money, but
also to other Government resources such as the use of copiers, vehicles, computers, facilities,
telephones or newsletters. In addition, the FCPA restrictions apply to Government employees' time
during work hours. Therefore, if a city creates a flier that improperly urges voters to vote for or
against an election question, it violates the FCPA not only by using city money to pay for postage for
the flier, but also by using city letterhead and the staff time of city employees to prepare the flier.
Brown v. City of Littleton, Agency Decision, Case No. OS 2006-0023. Likewise, if a Government
allows outside groups to use its facilities, it must treat groups that support all candidates or both sides
of an election question equally in all significant respects, including facility scheduling and fees.
Exceptions
The FCPA's prohibition on the use of Government money and resources described
above does not apply in all cases. Some exceptions to the rule are described below.
Time Period
The FCPA only restricts the use of Government money and resources during a certain
time period leading up to an election. The restrictions do not begin with respect to a state or local
ballot issue until the issue has been submitted to have a ballot title fixed or has had a ballot title
fixed, and do not begin with respect to a referred measure until the measure has been referred to the •
voters. Thus, a school district can spend district money on a flier speaking positively about a
potential bond issue before it refers the actual bond question to the voters. See Coan v. Weld County
School District Re-3J, Agency Decision, Case No. OS 1996-006. Likewise, a special district will not
violate the FCPA by distributing materials encouraging citizens to support the construction and
financing of a new recreation center if the district never actually submits a bond or tax question to
the voters. See Serra v. Montrose Recreation District, Agency Decision, Case No. OS 2006-022.
However, it is important to note that once an issue has been submitted to have a ballot title fixed or
has had a title fixed or a referred measure has been referred to the voters, the FCPA restrictions apply
to any expenditure of public money or resources. This includes making payments for materials or
services provided before the Government took official action to submit the question. For this reason,
several metropolitan districts violated the FCPA by paying for materials promoting their bond issues
after the district boards had passed resolutions submitting the bond questions, even though the
materials themselves had been distributed before the resolutions were passed. - See Skruch v.
Highlands Ranch Metropolitan Districts Nos. 1-5, Agency Decision, Case No. OS 2002-019, which
was upheld by the Colorado Court of Appeals in Skruch v. Highlands Ranch Metropolitan Districts
Nos. 3 and 4,107 P.3d 1140 (Colo. App. 2004),
2. Factual Summary
Section 1-45-117(1)(b)(I) of the FCPA permits a Government to use Government
money and resources to discuss an election if the Government is providing "a factual summary,
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which shall include arguments both for and against the proposal." The summary may not include a
• conclusion or opinion in favor of or against any particular issue, and a Government may only prepare
a summary regarding an issue that will appear on the ballot within its jurisdiction.
It is important to note that a communication can fail to qualify for this exception even
if it is called a "factual summary" and has an "arguments for" and "arguments against" section. A
permitted factual summary must not express any opinion on an issue and its description of both sides
of the issue must be balanced and even-handed. However, if a summary is balanced and even-
handed, it will qualify for the exception even if the arguments against the proposal are not the most
persuasive arguments or do not reflect opponents' input. See Bruce v. City of Colorado Springs,
Agency Decision, Case No. OS 2003-005.
3. Personal Opinions
Section 1-45-117 (1)(b)(Il) of the FCPA permits members of the governing body of a
Government, such as a city council or board of directors, and other elected Government officials to
publicly voice their personal opinion about an issue. The FCPA does not limit the right of public
officials and employees to speak out on a matter before the voters. However, in expressing their
personal opinions, officials and employees may not use Government money or resources.
Government employees and officials may urge electors to vote in favor of or against any issue and
may participate in political campaigns, however they must do so during their personal time, not
during work hours. Likewise, Government employees and officials may spend money on materials
that discuss elections covered by the FCPA, so long as that money is their personal money, and not
• Government money. For example, a city council member will not violate the FCPA by publishing a
newsletter discussing a local ballot issue if she pays for the newsletter using her personal funds
instead of using city funds. See Tyler v. Boigon, Agency Decision, Case No. OS 2007-001. Any
Government employee or official who uses his or her personal time or money to participate in a
campaign as described in this section should be sure to keep sufficient records to show that he or she
did not use any Government time or money in the effort.
4. Answering Questions
Section 1-45-117(1)(a)(II) of the FCPA allows a Government employees and officials
to respond to questions about a ballot issue or referred measure, so long as the question was not
solicited by the Government.
5. Fifty-Dollar Exception
If a Government employee or official has policy-making responsibilities, then he or
she may use not more than $50 of Government money in the form of letters, telephone calls or other
activities related to expressing his or her opinion on a ballot question. Section 1-45-117(1)(a)(II). It
is important to note that this exception only applies to ballot issues, not to contributions made to a
candidate campaign. Therefore, a city mayor will violate the FCPA by spending only $2.35 on a
letter supporting a candidate. Muller v. Burkholder, Agency Decision, Case No. OS 2002-012. In
addition, the fifty-dollar exception is an individual exception only. So five members of a city council
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may not combine their $50 exceptions to jointly spend $250 of public moneys incidental to
expressing their opinions on an issue. See Brown v. City ofLittleton, Agency Decision, Case No. OS •
2006-0023.
6. Resolutions.
Section 1-45-117(1)(b)(IR) of the FCPA authorizes the governing body of a
Government to formally take a position with respect to an election question by passing a resolution
urging citizens to vote for or against the question. Passage of such a resolution may be reported or
distributed through the established, customary means that the Government uses to inform the public
of its proceedings. For example, if a Government regularly sends out a newsletter, the passage of the
resolution may be reported in the newsletter. However, extraordinary methods of distribution, such
as paid advertising or a one-time newsletter for this specific purpose, may not be used.
Enforcement
Any person who believes that a violation of the FCPA has occurred may file a written
complaint with the secretary of state no later than one hundred eighty days after the date of the
alleged violation. The secretary of state is required to refer the complaint to an administrative law
judge within 3 days of filing. If the judge determines that a violation has occurred, the judge may
issue an order or sanction as authorized by the FCPA or Article XXVII of the Colorado Constitution.
The judge's decision may be reviewed by the Colorado Court of Appeals.
Penalties
•
The original provision providing penalties for FCPA violations has been repealed;
however judges continue to levy sanctions against those who violate the FCPA. Currently, there is
no clear standard for determining the sanction that will be imposed. In one case, a judge concluded
that it was appropriate to impose a penalty of double the amount spent by the Governnnent, using
guidance from Article XXVIII, Section 10 of the Colorado Constitution. See Tippett v. Town of
Snowmass Village, Agency Decision, Case No. OS 2005-032. Another judge imposed a fine of $500
for a violation involving $157.85. The judge explained that even though the amount of Government
money spent in the case was relatively insignificant, the violation of the FCPA was not. See Brown
v. City of Littleton, Agency Decision, Case No. OS 2006-0023.
Campaig i Permitted Activities for Public Entities
Appended to this Memorandum is a list of permissible activities for Governments,
their officials and their employees based on recent decisions of ALJs.
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CAMPAIGN PERMITTED ACTIVITIES
• A. "Can Do's"
1. The Board may adopt a resolution taking a position of advocacy on a state-
wide ballot issue that has been submitted to the secretary of state for having a title fixed, any local
ballot issue that has been submitted to the legislative body of the municipality for having a title fixed,
a referred measure, or a recall measure. This resolution may include a recitation of the facts and/or
arguments in favor of the Board's position. As a resolution adopted by the Board, it is available for
public inspection and becomes a part of the public minutes of the meeting. Distributing the
resolution or reporting on its passage may be accomplished only through established, customary
means. For example, if your Government regularly sends out a newsletter, the passage of the
resolution may be reported in this newsletter. However, extraordinary methods of distribution or
posting, such as paid advertising or distribution of a newsletter when such was not a prior practice,
may not be used.
2. The Board may authorize the expenditure of public moneys and may make
contributions to disseminate a "factual summary" on such issue, which must include arguments both
for and against the proposal, on any issue of "official concern" before the electorate in the
jurisdiction. The summary shall not contain a conclusion or opinion in favor of or against any
particular issue. An issue of official concern shall be limited to issues that appear on an election
ballot in the jurisdiction.
• 3. A Board member or Government employee may respond to questions about
election issues during working time, so long as the Government has not solicited the question. The
responses should not contain partial conclusions or otherwise tend to urge a favorable or unfavorable
vote on the issue. Accordingly, employees should not volunteer opinions during work time
speculating about the anticipated effects of passage or defeat of the ballot question. A recent ALJ
opinion held that a Government employee could answer questions, posed at a public meeting where
he was invited to speak, about how a proposed issue would affect his department so long as that
employee did not expressly urge electors to vote one way or the other.
4. A Board member or Government employee with policy-making
responsibilities may spend up to $50 of public moneys in the form of letters, telephone calls, or other
activities incidental to expressing his or her opinion on the issue.
5. Elected officials may express a personal opinion on an election issue at any
time and place (so long as the time and place does not indirectly constitute a contribution by the
Government or a use of Government resources).
6. A Government employee may "endorse" an election issue on his or her
personal time. A Board member or Government employee may expend personal fields, make
contributions, or use personal time to urge electors to vote for or against an election issue. All
employees should be asked to keep records substantiating that any time spent campaigning for the
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election issue was on personal or unpaid time, time outside of working hours, compensatory time, or
vacation time.
7. The Board may allow interested groups, including proponents and opponents
of candidates or of issues before the electorate, to rent space in its facilities as long as the opportunity
is provided on an even-handed basis. The method of communicating the invitation, the access given,
and the opportunity to disseminate information must be substantially the same for all interested
groups.
B. "Can't Do's"
1. Public funds, facilities, supplies, equipment or bulk mail permits may not be
expended or used by the public entity to urge a vote in favor of or against the issue, even when the
cost is reimbursed.
2. The Government may not allow others who are advocating a position on any
issue before the electorate to use these resources. Nevertheless, groups that have organized.to
discuss or otherwise to promote or urge defeat of the election issue may be allowed to rent facilities
pursuant to an adopted policy, but all such groups must be treated even-handedly and must be
allowed similar access. Preferential treatment in scheduling and fees charged must not be given.
3. Employees or paid members of the Government cannot work on a campaign
during working hours and may not use public facilities or equipment for a campaign. During work
time, the information that members or employees dispense to the community must be limited to
providing copies of the "factual summary" and to responding to unsolicited questions. Employees •
must restrict their "campaigning" to personal time.
4. The Government may not require employees or other staff members to work
for an election issue (other than on the "factual summary").
5. The Board may not contribute to other organizations and political committees
that maybe organized to raise any funds and make any expenses concerning advocacy of the election
issue.
6. The Government should not accept cash or any other contributions from
citizens for use by the govermnent in connection with any election.
7. The Government must not release the addresses or telephone numbers of
employees, or past or present users of public utilities, public facilities, or recreational or cultural
services which are owned and operated by the state or a political subdivision thereof, regardless of
whether the group seeking the information supports or opposes the election, unless the employee,
user or person has given express consent to the release of such information for purposes of the
election or as part of a directory that is otherwise available to the public.
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