Council postpones special discussion

Although the criminal probe is at an end, the investigation into potential civil action arising from suspected violations of open meetings law by four current and three former Loveland City Council members could still move forward.

But it will be another couple of weeks before the question is answered definitively. On Tuesday, Loveland City Council postponed its planned discussion of the investigations and potential next steps until April 30, when the two independent attorneys involved in the case will be available for questions.

For one of those attorneys, special prosecutor Kathy Haddock, the work is at an end.

On Sunday, she notified acting Loveland City Attorney Vince Junglas that she will not be filing criminal charges against the seven (Richard Ball, John Fogle, Dana Foley, Pat Mcfall, Steve Olson, Don Overcash and Andrea Samson), who are accused of violating the city charter and Colorado open meeting law when they separately signed letters on City Council letterhead that were sent to the governor and state legislators.

At the time, a bill amending urban renewal law was under deliberation that would have impacted the controversial Centerra South development. The bill later passed, but was vetoed by Polis.

Among other reasons, Haddock argued that the letters did not constitute a meeting and no formal action was taken by signing them.

With the statute of limitations in the case due to expire on April 19, Haddock’s decision effectively ends a potential prosecution.

But for the other attorney in the case, Special Counsel Christopher Gregory, the hard work may just be beginning. In the investigative report he submitted to the City Council on March 26, he recommended that the city seek a civil judgment in the case. More specifically, he urged the city to ask the district court to “determine if violations of the (Colorado Open Meetings Law) have occurred and, if so, what the effect of such violations are on formal actions taken and/or being taken by the City Council,” including the resolutions approving Centerra South.

To that end, on Monday, Gregory filed a lengthy Colorado Open Records Act (CORA) request seeking city materials related to Mcwhinney Real Estate Services and its two Centerra urban renewal plans in Loveland, dating as far back as 2004.

In total, the request lists 14 items, starting with “all writings, communications/ statements, meeting notes, presentation materials, recordings, calendar entries, and other documentation of meetings” from January 2020 until present between owners, officers, employees, attorneys and consultants of Mcwhinney and Loveland City Council members and city staff. It also asks for communications between the City Council and “legal entities associated with Mcwhinney,” including the Loveland Chamber of Commerce and the Loveland Business Partnership, among others.

Also among the 14 items are requests for communications between Loveland City Council members and Mcwhinney subsidiaries, former city council members, members of city boards and commissions and Larimer County Democratic Party Chair Gil Barela. The request also seeks additional documentation from the creation of the two City Council letters.

Though the investigation wasn’t a topic of discussion on Tuesday, Gregory’s CORA request was. Samson asked Junglas about fulfilling the request, which had a timelimit of seven days. In response, Junglas estimated that it would take a fulltime employee 14 days just to track down the emails requested.

“The city attorney’s office would need some resources in order to complete this request,” Junglas told the council. “It is pretty substantial in terms of its size and its scope. I don’t believe the city would be able to comply within the statutory timeframe given the breadth of the request.”

Following the meeting, Junglas told the Reporterherald that his office would bring in another outside attorney or legal firm to help with the request, to ensure independence. He estimated that it would likely take hundreds of hours to fulfill, and potentially cost the city hundreds of thousands of dollars.

The request is on hold for now, Junglas said, pending a final decision from the City Council on whether to proceed with the civil case, which should come on April 30.