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Archive for the 'City Attorney’s Office' Tag

McMillion, FREX and Live it Up! on council agenda

May 21st, 2012, 9:53 am by

After canceling the last two regularly scheduled meetings, the City Council is back in full swing this week.

Among the items on Monday’s agenda:

Doug Price, president and CEO of the Colorado Springs Convention and Visitors Bureau, will present an update on the city’s branding strategy. That’s right, Colorado Springs, we’re still Living it Up!

The new human resources director, Mike Sullivan, will go over proposed changes to the Civilian and Sworn Personnel Policies and Procedures Manuals.

They include reducing workers’ compensation benefits for police and firefighters from 2,080 hours of injury leave at 100 percent to 1,220 hours at 85 percent. For civilian employees, the proposed change would reduce workers’ compensation benefits from 2,080 hours of injury leave at 100 percent to 960 hours at 85 percent.

The Transit Services Division will sum up the public comments that it received on a proposal to discontinue local funding for the FrontRange Express, or FREX, and raise the Metro Mobility ADA Paratransit fare from $3.00 to $3.50.

The Oil and Gas Committee, which included Councilman Val Snider, the chairman, and Councilwomen Angela Dougan and Brandy Williams, will bring the rest of council up to speed on its work. The committee was formed to provide recommendations to council for oil and gas exploration and operations.

Finally, the council plans to meet behind closed doors to discuss the $1.15 million separation agreement for former Memorial Health System CEO Dr. Larry McEvoy. According to the agenda, the council will receive “advice and negotiation consultation with the City Attorney regarding Memorial Health System” and “advice and consultation with the City Attorney regarding potential litigation matters that are subject to negotiations, developing strategy for negotiations and instructing negotiators.

Melcher: $1.15M severance package still under review

May 15th, 2012, 1:47 pm by

Photo by Daniel J. Chacón

Two weeks ago today, the City Council asked the City Attorney’s Office to review a $1.15 million severance package for Memorial Health System’s former CEO to determine whether it was legally binding.

The council gave the office two weeks to come up with the answer.

City Attorney Chris Melcher said he will be discussing his findings with the council in closed executive session Wednesday.

“The City Attorney’s Office is still reviewing the facts and documents relating to the recent proposed separation agreement between Dr. (Larry) McEvoy and the former Board of Trustees of Memorial,” Melcher said in an email.

“I will be discussing this review and providing attorney client advice to Council tomorrow, at closed legal session, during the scheduled Special Meeting of Counsel (sic) that immediately follows the CSU Board Meeting,” he said.

McEvoy’s separation package, which includes $1 million in severance pay, a 2007 Toyota Camry Hybrid and $20,000 to help him find a new job, sparked a firestorm of controversy.

When Memorial board trustees refused to rescind the agreement, the council gave them an ultimatum: resign or be removed from the board.

Only one of the trustees resigned, prompting the council to remove the others from their seats. Another trustee resigned the day before the council gave the board the ultimatum.

 

Bach questions inspection process of tall townhomes

May 8th, 2012, 1:04 pm by

Mayor Steve Bach said a developer who built townhouses too tall has an ethical — and, he believes, legal — obligation to move them or modify them.

“Our Planning Department is conferring with our City Attorney’s Office,” the mayor said during his monthly press briefing Tuesday.

“I know that they’ll be a meeting very soon between our city and Regional Building Department,” he said.

“We hope the parent company in Canada will step up and meet the obligations of Todays Homes to move those townhomes.”

Does the city of Colorado Springs bear some responsibility in this mess?

Did city planners drop the ball?

Here’s what the mayor said:

YouTube Preview Image

Melcher clarifies role in $1.15M separation package

April 30th, 2012, 11:28 am by

Chris Melcher

Last week, Memorial Health System Board of Trustees Chairman Jim Moore said that Colorado Springs City Attorney Chris Melcher had “accepted” the $1.15 million separation agreement offered to Memorial CEO Larry McEvoy.

“We’ve consulted with the City Attorney’s Office. I don’t want to characterize him as happy, but I don’t want to characterize him as unhappy. He accepted this,” Moore said.

“He seemed to be satisfied with the various conditions,” he added.

At the request of The Gazette, Melcher on Monday clarified his role in the separation agreement.

“The City Attorney’s role under the Charter is to provide legal advice to the Memorial Health System Board and Council when they consider significant decisions regarding MHS.  The City Attorney’s Office does not make those decision,” Melcher said in an email.

“I was asked by the MHS Board to provide legal advice as to the form of a proposed separation agreement for Dr. McEvoy, and the appropriate legal conditions in separation agreements,” he said.

“I provided that advice, which is an attorney client communication.  I was not asked, and did not, provide advice to the Board on the monetary or substantive terms of the agreement, and did not advise the Board whether they should proceed with such an agreement,” he said.

 

City contributed millions to Southeast YMCA

March 12th, 2012, 9:50 am by

As Colorado Springs considers a five-year contract for the YMCA of the Pikes Peak Region to operate six city-owned aquatics facilities, City Council members are asking a lot of questions.

Who better to answer them than Councilman Merv Bennett, who served as CEO of the Y until his retirement last year.

Bennett, who plans to participate in the discussion and vote of the proposed contract after checking with the City Attorney’s Office, which said he didn’t have any conflicts of interests, answered questions from his colleagues in a long email this weekend.

Bennett cc’d Mayor Steve Bach, Chief of Staff Laura Neumann and Dan Dummermuth, the current CEO of the Y, in the email.

The city will subsidize the Y for any year-end shortfall “to the point of a break-even status” under the proposed contract.

For 2012, the subsidy is estimated at no more than $632,350.

Here is Bennett’s email:

I am doing this from memory so I will do my best.  Since I lived and breathed this every day for three years I am comfortable I am including all the data.  Lisa and Bernie, the information related to the USO was a part of the Southeast project so the answer to that question will be included within.

Since the early 1970s the YMCA recognized that the Southeast part of Colorado Springs was a community with many service needs and very little access.  This was primarily because the hard working folks in this part of our community could not afford to pay for the actual cost of providing the services.  For this reason, the YMCA built the Garden Ranch and Briargate facilities first to generate income (along with income generated at the Downtown Y) that could subsidize a facility in the Southeast part of Colorado Springs.  The folks in the Southeast did not want anything given to them, they just wanted it to be affordable according to their lower level of income. (At the time the Southeast Y was constructed the average household income in Briargate was around $72,000 but the average household income in the Southeast was $38,000)  When cost studies were done prior to construction it indicated about $450,000 in subsidy would be required annually.  This was based on a $3,000,000 annual budget.  Also, at that time the City parks department was using a national formula that said that nationally city recreations centers only generated revenue to cover 55-60% of their expenses as a national average. (To my knowledge this is still the high end of the average subsidy) This was a time when the City of Denver Recreation Centers were only generating enough income to cover 18% of  their expenses. This would mean that the City of Colorado would need to subsidize annually at a rate of 40-45% of expense.  This translates to annual subsidy of $1.2 – $1.35 Million per year.  The reason is due to operational styles and philosophies.  The Y generates most of its income (about 85%) from program fees and membership income with the remaining 15% from donations, gifts and grants.  The majority of the philanthropic support is provided in the Southeast, Fountain and  YMCA Camp Shady Brook (children’s resident camp).  However all YMCA branches utilize an income based rate scale and provide scholarships where needed for membership and programs.  Their philosophy is that “no one is turned away due to inability to pay”.  It has been for 134 years. The majority of this is provided to families, youth and seniors.  The Y raises in excess of $1 Million for this purpose each year in its own fundraising activities here in Colorado Spring and El Paso County.  The Y believes this is an indicator of a strong community and embraces social responsibility.  Financial records are required to assure that subsidy is provided where it is most needed to be accountable and responsible to the donors.  However, special circumstances are given careful consideration.

The Briargate YMCA was opened in December of 1998. (this also had a small but significant partnership with the City)  We had just conducted the largest capital campaign in Colorado Springs raising $7.6 Million.  The cost of construction was $7.8 million.  Our plan was to start of a project southeast in about 5 years. ( I was eager for a rest, capital campaigns are exhausting)  However, three months later the City, through Parks Director Paul Butcher, called and asked if we could work together on a project Southeast.  The City was working on what became the Springs Community Improvement Program (SCIP). The City believed a recreational facility in the Southeast part of the City was critical but they knew they would not be able to financially operate it. The concept was that the City would capitalize the construction and the YMCA would assume operational responsibility.  It was anticipate SCIP would provide $5.5 million which we calculated would construct a facility of approximately 35,000 – 40,000 sq. ft.  Since the YMCA did not have land in the southeast part of Colorado Springs, the City offered the present 5 acre site that was a dedicated park site that they had decided to not develop.  The YMCA agreed to do this since it would allow services to this area much quicker and meet a priority need of the City and the YMCA.

A couple of things occurred immediately after the YMCA agreed in principle to the partnership.  The Briargate YMCA (with 50,000 people within a 3 mile radius of the building) filled to capacity and exceeded its 3 year projection within three months of opening.  Second, when doing the demographic study of the 3 mile radius of the Southeast site, we found there were already over 90,000 people in this area with specific and dramatic recreational, social and family needs.  i.e. 29% of that community were single parent households and 48% of the community were military family households who behave a single parent households during deployments.  This totals over 75% of this community.  This resulted in the YMCA recognizing that building a facility half the size of Briargate to serve twice the population would be inadequate.  As a result another exhaustive capital campaign was approved and executed.  To shorten this slightly, the final amount from SCIP was $4.6 million and the YMCA raised $7.2 million.  The final cost was $11.8 million.  Because of the operational support that would be needed, it was important that all the money be raised to eliminate or minimize any debt service.

During the capital campaign and while SCIP was going through an extensive community process, the USO Board of Directors (The US0 was a separate 501c3 corporation operating as a subsidiary of the YMCA) conducted an extensive strategic planning process.  The result was that the local USO Board decided to amiably disaffiliate with the National USO organization and affiliate with the National Armed Services YMCA.  This was done for one major reason and a minor issue.  The minor issue related to confusion in fundraising, the National USO was conducting (and still does) extensive fundraising within our area.  This made it more difficult for the local USO to be successful with the fundraising that would meet the specific needs of our local military community.  However the more significant reason was a recognition of conflicting missions. (both missions are valid and important)  The National USO had a primary focus on serving military personnel  traveling or overseas while the local Board of Directors felt their mission should be focused on serving military families at home. This is the mission of the Armed Services YMCA.   As a result, the National USO, the Armed Services YMCA, the local USO Board and the local YMCA Board all agreed to the new affiliation plan.

I tell you the above to answer the USO question but to also help explain that the new Armed Services YMCA Board agreed to become the advisory board for the Southeast Armed Services YMCA (Southeast Y)  That structure continues very successfully to this day.

Now the agreement information between the YMCA and the City as it relates to the Southeast Y.  The City has leased the land to the YMCA for $1 per year.  Because it is a dedicated park site it could not be gifted or sold.  The City could not gift bonded money, so the agreement is as follows:

  • The aquatics portion of the building would be under the ownership of the City of Colorado Springs with the YMCA as the exclusive operator.
  • The City would depreciate the aquatics portion of the building over their normal 25 year depreciation schedule.
  • When the depreciation is completed and it is no longer on the City’s books as an asset, it would be given to the YMCA for $1.
  • During this time the YMCA would be responsible for all staffing, operation, deferred maintenance and additional capital development that might be needed.
  • The YMCA would provide daily usage at the same or comparable rate as provided by the City at the Memorial Park and Cottonwood Facilities.
  • The City would not be responsible for any operating subsidy although the YMCA was not prohibited from asking.  (to my knowledge, not operational funds from the City have be requested or provided)
  • The City could have a program office in the building.  (to my knowledge this has never been requested by the City)
  • The Harrison School District was also our partner during the project and provided communication to the local community, the School District also requested the building be moved to the West end of the site to give a campus atmosphere to Sierra HS and to allow them to provide additional parking for the facility on the West side(after 3pm).  This has proven to be a great aspects of this collaborative venture.
  • The Southeast YMCA opened in April of 2002 and has required annual subsidy each year averaging between $250,000-$450,000.
  • Each year YMCAs and City’s from around our country come and visit this model.  In my last year as CEO the City of Syracuse NY and Ventura County California, along with their YMCA counterparts visited.

Believe it or not I could make this several pages longer but I think I have provided an overview of a change in operational philosophy where our City and YMCA recognized they could do much more together than they could ever do separately.  It resulted in the City recognizing they could cause great services to be provided to the community without being responsible for delivering them.

One other thing, when we did the planning for the Southeast YMCA, I insisted on have the responsibility for the engineering, architect design and hiring of the contractor (GE Johnson).  If we were going to take responsibility for the operation and maintenance of the City owned pools, I wanted to be assured that they were developed and constructed in a manner that could be successfully and sustainably operated.  Also, all contractors were from Colorado Springs and 60% of the work force that built the building lived in the 80910 zip code. (but that is another story)

Sorry for the epistle but inquiring minds ought to know!

Merv

PS  Because our City legal department has indicated I do not have any conflict of interest, I will be participating in the discussion and vote.

 

Council calls for private meeting with city attorney

November 18th, 2011, 5:16 pm by

The Colorado Springs City Council is going to have a long, private chat with City Attorney Chris Melcher on Monday.

The council has scheduled a closed executive session after its Utilities Board orientation.

“The issues to be discussed involve City Attorney legal opinions, the receipt of general legal advice, and legal advice regarding advisory boards and commissions,” according to the agenda.

The agenda doesn’t provide any specifics.

But the “legal advice regarding advisory boards and commissions” could — again, could — involve the Memorial Health System task force.

Some council members have raised a ruckus over three task force members who will be reviewing proposals to lease the city-owned enterprise.

The three members have direct or indirect ties to Memorial, generating complaints about a conflict of interest.

Quote of the Day

October 19th, 2011, 4:17 pm by

“The City initially denied fulfilling the (Colorado Open Records Act) request on the basis that the email communications were protected communications that involved attorney work product, and might reveal legal strategies and tactics used in similar prosecutions.  Because the emails were later required to be provided by the City Attorney’s Office to opposing counsel in a different prosecution, the protection on those two emails was waived and they are now being released pursuant to CORA.”

— Chief Communications Officer Cindy Aubrey said today about the city’s decision to release the emails in the botched Hooters case despite the city’s initial refusal.


City plans to dismiss case against Hooters waitress at hearing today

September 21st, 2011, 9:45 am by

A hearing to dismiss a Municipal Court case against a Hooters waitress accused of serving alcohol to a visibly intoxicated patron June 23 is scheduled for 2:30 p.m. today.

The Gazette will be at the hearing and report what happened on gazette.com.

In addition, The Gazette plans to film the hearing.

Municipal Court Judge Spottswood “Skip” Williams signed an order today granting the newspaper’s request for “extended media coverage.”

The misdemeanor case against the waitress, Illysa Medina of Pueblo, was scheduled to go to trial in October.

But after Hooters at The Citadel mall produced a surveillance videotape that cast doubt on the allegations made by Colorado Springs police detectives, the City Attorney’s Office told Medina’s attorney that it plans to drop the charge.

“On Sept. 13, Jarrett Benson of the City Attorney’s Office advised defense counsel that he was moving to dismiss the case against Ms. Medina,” Springs attorney Pat Mika, who is representing Medina, wrote in court documents.

“The prosecution will either submit a written notice to dismiss or orally move to dismiss the case on the scheduled date,” he wrote.

Last week, the City Attorney’s Office dismissed a complaint against the restaurant because of the videotape, which an attorney for Hooters said disputed the detectives’ allegations.

For example, police reported seeing the patron “stagger and use table chairs for balance.”

But attorney Vince Linden, who represented Hooters, said the videotape revealed that the patron “never staggered, never used tables and chairs for assistance.”

“What if I didn’t have that tape? How in the world would you even defend yourself from these allegations?” Linden asked last week.

The restaurant was up for a suspension and revocation hearing of its liquor license, which could have potentially put it out of business.

City dismisses alleged liquor code violation against Hooters

September 16th, 2011, 12:46 pm by

Hooters didn’t get busted.

The Hooters at Citadel Mall, part of an international chain that bills itself as “delightfully tacky yet unrefined,” was up for a suspension and revocation hearing of its liquor license this morning.

But the City Attorney’s Office withdrew the charge of serving alcohol to a visibly intoxicated person June 23 for lack of evidence, and the city’s liquor board dismissed the case.

Attorney Vince Linenden, who represented Hooters, said the case was dismissed because the restaurant produced a videotape to dispute the allegations.

“Hooters had a videotape showing the arrival, the duration and these guys leaving, so you’re able to see the entire visit to the premises,” he said. “Just viewing the tape would not have indicated that the person was visibly intoxicated. Unlike the police report, the person never staggered, never used tables and chairs for assistance.”

Linden said the detectives said the customer appeared visibly intoxicated from their perspective.

But “they never had any interaction with him. They never did any field testing,” he said.

“What if I didn’t have that tape? How in the world would you even defend yourself from these allegations?”

The charge could have landed Hooters in a mountain of trouble.

Last year, Hooters’ liquor license was suspended for 15 days for allegedly serving alcohol to an underage confidential informant and selling alcohol to a visibly intoxicated person.

Under an agreement with the city, Hooters pleaded guilty to selling alcohol to a minor and no contest to selling alcohol to a visibly intoxicated person.

As part of the deal, 12 days were held in abeyance for a year and the city agreed to let Hooters pay a $533 fine in lieu of serving a suspension for the other three days.

When a suspension is held in abeyance, that meant that Hooters couldn’t violate the liquor code in the next 12 months or its liquor license will be suspended for those 12 days.

Hooters’ attorney, Paul Lumbye, did not immediately return a call for comment.

Bach: ‘Our expenses will soon exceed our revenue’

August 15th, 2011, 9:12 am by

Mayor Steve Bach says Colorado Springs will be in a world of trouble in a few years if sales and use taxes don’t increase substantially or the city doesn’t rein in expenses.

“Our expenses will exceed revenue, our reserves will be depleted or worse, we’ll have substantial negative cash flow, and we’ll be faced with further reductions in services and/or painful HR decisions,” Bach said in an email sent from his personal account.

The subject line of the Aug. 10 email was: “Update to Steve Bach’s Friends.”

Here is the full text of the email:

Ladies and Gentlemen,

This is to share with you an early personal observation of great importance to our City.

If over the next few years our sales and use tax collections do not grow substantially based on a resurging economy and/or we do not reign (sic) in our expenses for general City government (police, fire, planning, engineering, city attorney, city clerk, finance, budget, human resources, other general staff), our expenses will exceed revenue,  our reserves will be depleted or worse we’ll have substantial negative cash flow, and we’ll be faced with further reductions in services and/or painful HR decisions.

The City budgeting process focuses on a plan for one year. Using this very near term horizon means that the City usually arrives at a solution for next year, one year at a time.  What we must do going forward is to look at the longer term – the risks and opportunities before us – and shape our operating plan to be fiscally sustainable while delivering consistent, quality core functions and retaining valued employees.  In other words, we must change the culture of City government, transform it to be smarter and leaner, all with a proactive, customer-focused orientation.

Below is a link to three current forecasts for our general City government revenue and expenses (excluding enterprises such as CSU, MHS, the Airport) over the next eight years if our current revenue and expense trends continue.   The first forecast  is by City staff, the second by Kurt Kofford, CPA, and the third by The City Committee.   The forecasts are similar with this message:  Our expenses will soon exceed our revenue.

Link to forecasts

These forecasts assume no increase in personnel or additional services in the future, do not take into account the $50+/- million per year we must spend over the next 20 years on deferred infrastructure replacements,  increased cost of defined benefit (guaranteed) pensions if the retirement plans’ projection of 8% annual growth in their assets proves wrong or a range of external downside influences impact our finances (e.g., the Federal government downsizing of military budgets here or a next recession in perhaps 2014 or sooner).

We all want our City to be successful.  That depends greatly on responsible fiscal leadership by our elected leaders.  Now is the time for us to move to priorities-based budgeting and over the horizon planning to help achieve our full potential as a community.   Please pass along this email to your colleagues and friends, and invite them to send me their email addresses for a direct copy of future emails.  I’ll be in touch with you again soon.