LOVELAND, CO – MARCH 29, 2024: Attorneys John Zakhem, center, and Christopher Gregory, right, listen to public comment Friday, March 29, 2024, during a city council meeting in Loveland. Zakhem was hired to represent some city councilors and former councilors for various city code, city charter and open meeting laws violations. Gregory was hired by the city as special counsel to invesitgate the allegations. (Jenny Sparks/Loveland Reporter-Herald)
After three hours of discussion, tearful comments from the public and threat of further litigation from a new character in the drama, the Loveland City Council voted on Friday to hire a special prosecutor in the case of four members accused of violating the city charter.
“I consider this what we’re doing tonight to be probably the gravest of things that we may be called upon to do, and that’s to police ourselves,” Councilor Troy Krenning said in support of the hire. “And if we don’t police ourselves, who will? And the answer is nobody.”
The five councilors present for the unusual weekday special meeting voted unanimously to hire former city of Boulder attorney Kathy Haddock for the job, but did not put an end date or a dollar amount on her services.
The five also voted to extend the engagement of Longmont attorney Christopher Gregory, who was appointed on March 19 to look into the allegations and reported a week later that there is enough probable cause to support a criminal prosecution in the case.
The allegations involve two letters on City Council letterhead signed by current members Dana Foley, Pat McFall, Steve Olson and Andrea Samson and three former members (John Fogle, Don Overcash and Richard Ball) in the weeks leading up to the council’s decisive vote on the controversial Centerra South urban renewal plan.
The letters were in opposition to Colorado Senate Bill 23-273, which would have amended state urban renewal law regarding agricultural land and left Centerra South without many options for moving forward. The bill passed both chambers, but was then vetoed by Gov. Jared Polis, who referred to Centerra South in his accompanying comments.
Olson told the Reporter-Herald in December that he was the author of the letters, and approached the other members individually about signing them. One was then sent to the governor on April 19 and the other to legislators on April 27, with assistance from the Loveland city manager’s office.
The councilors opposed to Centerra South, Mayor Jacki Marsh and Jon Mallo, were not informed of the letters or shown their contents beforehand, nor were they made public.
The series of meetings for signing the letter constituted an unnoticed public meeting, according to Loveland resident Bill Jensen, who filed suit in 8th Judicial District Court in December to overturn Centerra South. Jensen’s case was later dismissed on procedural grounds, but Krenning found enough merit in his claims of open meeting violations to move for Gregory’s hiring.
Then, Gregory also found enough merit in Jensen’s claims to recommend a criminal process.
The four members at the heart of the case were not present at Friday’s meeting, but did their talking through John Zakhem, a Denver-based attorney who specializes in First Amendment cases.
Zakhem, the son of former Colorado legislator Sam Zakhem, was granted the first 15 minutes of open public comment to address the allegations and delivered a fiery defense on behalf of his clients.
“I find it remarkable that on this important day of mercy and grace, we find ourselves here called before this body for the purpose of political persecution and retaliation,” he said, alluding to the meeting’s occurrence on Good Friday. “Even worse, a vendetta for my clients’ exercise of their First Amendment rights.”
Zakhem then argued vociferously against Gregory’s analysis and conclusions, calling them “ridiculous.” Specifically, he decried Gregory’s reliance on a Douglas County district court case that found serial one-on-one meetings to be a violation, pointing to another case in Teller County that found the opposite.
Zakhem also argued that signing the letters is not equivalent to any of the formal actions that must be held in an open meeting as defined in city charter section 4-4, including passing ordinances, entering into contracts or making final policy decisions, among others.
The attorney wound down his remarks by characterizing further prosecution of the letter-signers as a violation of their First Amendment rights to freedom of expression and redress of grievances.
“The First Amendment to the United States Constitution is an important consideration and is fully absent from Mr. Gregory’s analysis,” Zakhem said. “…And if those letters aren’t petitions to a higher power, I don’t know what they are. And you seek to censure that after the fact.”
Zakhem then threatened further legal action in federal court on behalf of his clients should the five councilors vote to proceed with prosecution.
“This body in the city of Loveland will be forced to pay my clients damages and my attorneys fees in pursuit of that remedy by virtue of this faulty pursuit today,” Zakhem said. “And that would be a shame because there are better things for you to do for Loveland and those who elected you.”
Zakhem’s speech was met with applause from the galley, and he was followed by several commenters who asked the City Council to drop the matter and focus on other pressing issues.
But as many other commenters urged City Council to proceed, so that a court could make a ruling on the matter once and for all.
“If you fail to move this thing forward to court and let the court decide whether or not these actions were legal or not, then this cloud is going to be over his council for a long time,” said resident Bob Massaro.
When it came time for the City Council to discuss the matter, there was broad agreement to move forward with a prosecution, despite Zakhem’s arguments. However, it took some time to sort out the best way to do that.
In fact, it took more than two hours of back-and-forth with acting Loveland City Attorney Junglas and Gregory over what the next steps should be. With the Loveland City Attorney’s Office conflicted on the matter, Gregory recommended handing the case over to a neighboring law enforcement agency for a formal investigation.
However, none of the dozen or so he has contacted has been willing to take it on, Junglas said, mostly due to lack of resources.
Instead, Junglas turned to another attorney in the area, Geoff Wilson of Louisville, who has “spent his entire career representing municipalities,” Juglas said.
Wilson helped compose a list of potential special prosecutors with experience in municipal issues and open meeting law and confirmed they would be willing to take on the case.
The final list numbered four, and after several more minutes of discussion, the council landed on Haddock, a former attorney for the city of Boulder.
Junglas said he would reach out to Haddock right away to discuss a timeline and the next steps. Gregory also agreed to stay with the case as needed.
Junglas expects to have an update on the process for the council at Tuesday’s regular meeting.
If the case goes to trial and the four councilors are found guilty of violating the city charter, they could be penalized with a fine up to $300 or 90 days in jail. They would also become ineligible to hold their seats or run for reelection.
