Vail Daily column: Lawsuit spawns dispute
March 7, 2014
Editor's note: The following is an excerpt from the Vail Homeowners Association monthly report. We publish weekly excerpts from the association, which keeps a close eye on economic and political trends in and outside of the town. The newsletter electronic version with links to supporting documents is available at http://www.vailhomeowners.com.
A ruling on the Vail Golf Club clubhouse lawsuit is expected soon. A new judge, the fourth, has been assigned to decide the ongoing legal dispute between the town of Vail and a group of neighborhood property owners over the redevelopment of the Vail golf clubhouse and its environs that has been ongoing since October 2012. In general, the neighborhood group opposes the design and proposed uses in the town's redevelopment plan claiming that they are incompatible with their adjacent residential properties and the protective covenants providing for the operations of the golf course. The judge's ruling is expected within the next several weeks. It is by no means the final decision as further appeals are possible.
In the meantime, in recent months, the lawsuit seems to have spawned a new dispute between the parties. This new dispute involved town charges over electioneering associated with November's regular election for vacancies on the Vail Town Council. This has not been one of Vail's proudest moments and could have a chilling effect on those who attempt to exercise their legitimate rights to participate in local elections.
By way of background, some Golf Course neighborhood property owners formed a committee under the name of the Citizens for Responsible Government. The purpose of the committee was to place political advertisements in the local newspaper (Vail Daily) recommending a slate of candidates for open seats on the Town Council. Colorado election laws require that when such a committee is formed, it must be registered with the "appropriate officer."
At the time, the town of Vail person serving as the "appropriate officer" and designated election official was in an "acting" capacity, as the town was involved in a personnel change due to health related matters. According to a complaint filed by the Citizens for Responsible Government committee, its representative sought to fulfill the requirement to register their intent to fund advertised endorsement of a group of council candidates with the town of Vail and asked for any additional requirements to be made known, but due to an apparent misunderstanding on the part of the town's designated election official resulting in a lack of communicating clear procedures, the Citizens for Responsible Government allegedly missed a filing deadline.
Without considering whether the missed deadline was due, at least in part, to the town's own conduct and without written notice to the Citizens for Responsible Government, the town levied a $50 per day late filing penalty. This was done notwithstanding that the town's designated election official has the latitude to weigh the circumstance of the deadline violation as to whether a penalty is warranted. The Citizens for Responsible Government saw this as a retaliatory action by the town in response to the ongoing litigation over the golf course clubhouse. If so, this may be the first instance of the town of Vail responding so aggressively to an alleged noncompliant election filing procedure. It is emblematic of the intensely adversarial nature of the redevelopment issues that involve the town's own financial investment in the clubhouse and calls into question the appropriateness of the exercise of its regulatory/enforcement powers.
The local newspaper was made aware of the missed deadline by town officials. The path of communications among town officials that led to this disclosure to the press is not currently known. The disclosure caused the matter to become a campaign issue, when a day prior to the election, the newspaper printed an article detailing the Citizens for Responsible Government's alleged late filing and also listing campaign finance contribution information on all the candidates, including unrelated contributions by individuals on the Citizens for Responsible Government committee. The Citizens for Responsible Government electioneering activities were prominently featured in the newspaper article along with the names of their committee's favored council candidates.
The Citizens for Responsible Government referred the matter of the alleged late filing fee to the committee's attorney. The town's designated election official, without first providing written notice of the violation to the Citizens for Responsible Government committee, referred the matter to the office of the Vail town attorney. The conflict escalated between attorneys representing the Citizens for Responsible Government and the town of Vail over procedural matters, resulting in the Citizens for Responsible Government filing the aforementioned election complaint with the Colorado Secretary of State.
Contained in the Citizens for Responsible Government complaint was an allegation that the town of Vail's administration of the procedures for the filing of the paperwork establishing them as an Independent Expenditure Committee was manipulated in retaliation for the ongoing dispute involving neighborhood property owners over the town's redevelopment of the golf clubhouse. The attorney representing the town in the Independent Expenditure Committee filing dispute is also involved on the town's behalf in the ongoing litigation over the proposed redevelopment of the golf clubhouse.
The Citizens for Responsible Government's registration as an Independent Expenditure Committee, as is alleged in its complaint, was in part frustrated by the town's "acting" Designated Election Official, causing the committee to miss the filing deadline, and the issues were further exacerbated when the matter was referred to the town's attorney for a decision, contrary to procedure prescribed by state election law. State election law requires that decisions over filing disputes are to be made by the town's appropriate officer, not to be delegated to others, including the town's attorney.
The dispute was heard by an administrative law judge for the state who ruled that the town of Vail did not comply with the applicable procedures because the appropriate officer, the acting designated election official, rather than deciding the issue by giving written notice, referred it onto the town's attorney. While the administrative law judge found no evidence that the town's appropriate officer acted with intent to harass, he did find that she failed to properly give notice to the Citizens for Responsible Government's for its alleged failure to comply with committee registration requirements.
Perhaps some of the lessons learned are that the town should first officially notify the appropriate parties that they have run afoul of election procedures before they unofficially inform the press of oversights and risk affecting election outcomes. The benefit of the doubt should be given to those who have taken the initiative to engage in the political process. Many people who become involved in political activism are novices; the governing authorities should not discourage their participation by using legal technicalities of the election process to intimidate their opponents. More importantly, the authorities need to resist demonizing anyone who does not agree with them, so much so that they fear retribution for making their required filings, or from being involved in the political process.