School board mum on Brotman letter
Eagle County school board members have closed ranks and are refusing to comment about a letter they’ve received outtlining the long-term effects they could face<individually<from a protracted legal battle over public land.”I wanted the new board to know something of the history of the (previous) lawsuit,” former Beaver Creek resident Robert Brotman said Wednesday of his letter.Brotman, who now lives in Florida, had been sued by the previous school board over plans to develop 640-acre parcel near Arrowhead he is attempting to buy from the Colorado State Land Board.The school board considers the letter threatening enough that they have handed it over to District Attorney Mike Goodbee. School district attorney Dan Bernard has advised school board members not to comment.Brotman said he was just laying out the historical facts of the matter for the new school board members.Eagle County officials, meanwhile, express “outrage,” calling the letter “bullying” and “intimidation.””It’s an outrage people who are stepping up to serve the community<in this case children and education<are subject to this kind of intimidation,” said Eagle County Commissioner Arn Menconi. “It should be the right and the duty of the school board to protect us and not have to be under the threat of being sued. The concern I have is what kind of person would put our school board members through this?””This guy is a bully, and I’m not going to let him do this,” added Eagle County Commissioner Tom Stone. “My ethics will not allow me to let a bully like this have his life enriched on the backs of the taxpayers of Colorado. It’s not right.”Brotman asserted in his letter that “there is no basis for a lawsuit.” His letter comes on the heels of school board President Barb Schierkolk saying this week the school board would consider refiling its lawsuit to stop a deal for Brotman to buy 1,280 acres of public land from the State Land Board. Speculation on legal action by the school board comes on the heels of the Colorado House of Representatives killing a bill that would have enabled Eagle County to put the 1,280 acres in Edwards under a conservation easement.”This thing is a scandal. The local school district should not be in this fight, and I commend them for having the courage to do this,” said Stone. “Brotman means to win at all costs, and he intends to do it through intimidating these citizens.”In his letter, Brotman reminded school board members that he had sued five of the previous seven members of the previous board individually.six of the seven members changed since then. Only Schierkolk remains.HBrotman also cited Colorado law that he says allows him to ask for punitive damages, saying that legal action could take years to untangle and that being the defendant in a lawsuit could make it difficult to secure credit<including credit cards and home mortgages.”I suggested to the board members that they check with their personal attorneys to evaluate their personal liability,” Brotman wrote in his letter. “I further advised them not to rely solely on Mr. (John) Dunn (who handled the case for Scudder, and would for the school district) or Mr. Bernard to advise them personally since both of these men stand to benefit financially from a lawsuit.”Menconi refuted Brotman’s claims.”There are plenty of facts, through the various courts and state offices, that this contract was not made in good faith but at arms length,” said Menconi.How they got hereLast September, the school board voted to team with Lake Creek rancher/Denver Post owner Dick Scudder in suing to stop Brotman from closing his deal with the State Land Board to purchase 640 acres of public land beside Arrowhead for $1.8 million. Scudder said he would pay all the school district’s legal expenses in the matter, and said last week he is also ready to do that this time around.Brotman asserted in his letter that the IRS would consider any payments from Scudder or any other third party as taxable income.Three days after Brotman’s 1996 agreement with the land board, Scudder offered $3 million for the land and pledged that it would remain open space if his offer was accepted. When the State Land Board rejected Scudder’s offer, he filed a lawsuit to halt the Brotman sale.The Denver District Court and the Colorado Court of Appeals both ruled the contract between Brotman and the State Land Board was not valid.The school board got involved in the six-year old legal battle after it had apparently been dealt a death blow on Sept. 24, when the Colorado Supreme Court dismissed Scudder’s suit, saying he did not have legal standing to challenge the Arrowhead sale. The court ruled only someone who is “part of the public school system” could bring a lawsuit in the matter. The court did not rule on the merits of the case itself.The school district filed its lawsuit against Brotman in Denver District Court. Brotman filed a countersuit, naming five school board members individually. The school district dropped its lawsuit when the state Legislature took up the matter.Editor’s note: Here is Robert Brotman’s letter to each Eagle County School Board member, dated April 9:Dear (School board member):When you were running for the school board I sent all the potential board members a packet of information regarding my past six year litigation with Mr. Scudder. The litigation ended when the Colorado Supreme Court dismissed his claims.The Eagle County School District Board of Education then began litigation against me and the State of Colorado, and the State Land Board.I countersued the Eagle County School Board.I also sued five members of the school board as individuals. I asked for actual and punitive damages under 42 U.S.C. 1983 which, if granted, the board members would be liable for out of their own pockets.I did not sue two members of the school board because they were absent from the meeting and they did not vote to sue me and the State of Colorado and the State Land Board.If a third party were to pay any legal fees for, or pay for any judgments against the individual board members, this amount would be considered by the IRS as personal income, and the board members would have to pay personal income tax on the amount paid.The Vail Daily quoted Mr. Dunn as saying that Mr. Scudder would pay all expenses of the lawsuit and indemnify the School Board members individually. Mr. Dunn was further quoted as saying that Mr. Scudder would sign any agreement to that effect that was put before him. To the best of my knowledge, Mr. Scudder never signed such an agreement.I suggested to the board members that they check with their personal attorneys to evaluate their personal liability. I further advised them not to rely solely on Mr. Dunn or Mr. Bernard to advise them personally since both of these men stand to benefit financially from a lawsuit.I advised the board that there are ramifications to individuals who have lawsuits pending against them that are not readily apparent. Only one’s attorney, who is only looking out for his client, can advise of these potential problems. An example would be that people who have suits pending against them must reveal it when applying for credit cards or car loans or mortgages.I advised the board members that the original Scudder suit took over five years to process. The School Board’s last suit, and the personal countersuits, and the suit against the board as a whole would probably also be in the courts for years. I told the board that their time could be better spent working for the children of Eagle County than by traveling to Denver for depositions and trials that could go on for years and could extend beyond their terms on the board.I asked the old board for an opportunity to meet with them to explain my side of the controversy. They never met with me. There are two sides to every story, but the old board never let me tell them my side. They met with Scudder’s people and rushed into a lawsuit. Can you imagine how disheartening it is to be suddenly sued by people you have never met and never harmed?You need to understand that I entered into two Exchange Agreements with the State Land Board in 1996, after public notice and hearing, which required me to pay into an escrow account the fair market value of the real property I was acquiring based on appraisals prepared by certified real estate appraisers. The transactions were non-simultaneous exchanges, a common real estate transaction permitted by the Internal Revenue Service (Section 1031) and validated by a legal memorandum prepared by the Colorado Attorney General’s Office in 1991. The State Land Board was required by the agreements to use the escrow funds to purchase replacement property for the school trust, which would have generated significant income for Eagle County taxpayers and Colorado schoolchildren over the last five years if Mr. Scudder had not interrupted the transaction with his lawsuit. After five years of litigation, the Colorado Supreme Court dismissed the lawsuit. The bottom line is: these were exchanges, not sales, and the exchange value was determined by fair market value appraisals. They were good deals in 1996 and, therefore, they are good deals today, because a contract is a contract. There is no basis for a lawsuit.Bob Brotman
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A Nov. 30 to Governor Polis and the Eagle County Commissioners from Beaver Creek Resorts Company – as well as the towns of Vail, Avon, Eagle and Minturn – requests a variance program which would allow businesses to remain open.