Aspen Councilman asked to stop but continues to email plaintiffs suing city over office building
August 18, 2018
Despite being asked to not contact two Aspen residents who are suing the city over their right to vote on municipal offices, Councilman Ward Hauenstein continues to email the plaintiffs in an attempt to convince them to drop the case.
Earlier this month, Hauenstein warned one of the plaintiffs that he could be liable for as much as $4 million if they appeal the case and lose, according to emails obtained by The Aspen Times through an open records request.
Marcia Goshorn and Steve Goldenberg sued the city in May 2017 after Aspen City Council approved Ordinance 4, which allows as much as a 37,500-square-foot building to be constructed between Rio Grande Park and Galena Plaza. It would be used for municipal office space in conjunction with the current City Hall on Galena Street.
Goshorn and Goldenberg, with the help of Snowmass Canyon resident Toni Kronberg, are seeking the right to put the municipal office building to a referendum vote.
A judge earlier this month ruled in the city's favor, dismissing the case. Denver-based attorney Jordan Porter, who represents Goshorn and Goldenberg, filed a motion to reconsider Thursday.
Work was supposed to commence on the new building this spring but has been put on hold indefinitely as the lawsuit plays out, resulting in what could be millions of dollars in construction escalation costs.
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And that's what is concerning to Hauenstein, which is why he said he continues to email Goshorn and Goldenberg even though Porter has requested that he not communicate directly with his clients.
"I think the goal is to settle the lawsuit and open the way to build city offices by way of Ordinance 4," Hauenstein said last week.
Inside the email chain
Hauenstein's latest emails were Aug. 3 and Aug. 4 to Goldenberg and Goshorn — just a day or two after the judge dismissed the case, the Colorado Open Records Request found.
The email to Goldenberg suggested he could be on the hook for millions of dollars if they take the case to the Colorado Court of Appeals.
"If you are to proceed with an appeal to a higher court it probably will require you posting a bond of perhaps $4 million for the cost of construction inflation. Are you prepared to do that?" Hauenstein wrote. "I personally would not trust Toni's advice at this point. If you allow her to continue to control the case you could be out of a lot of money."
Goldenberg, who has been friends with Hauenstein for decades, said he was taken aback by the email.
"I wasn't comfortable with it," he said last week. "He was warning me of something that is a year or two away."
Goshorn received an email the day after Goldenberg did with the subject line reading, "Please drop case."
"Please let Aspen continue with building the offices our employees need," Hauenstein wrote. "We are losing employees in part because of the abysmal spaces some have to work in.
"It is time for you two to take control of the suits in your names. Toni is dragging you down," he continued. "You two can end it now. Don't continue to feed Toni and your Denver attorney's egos."
Hauenstein told the Times he was advised by city attorney Jim True that Porter had requested all communication by city officials to his clients go through him, although he wasn't required to.
There is no ethics rule or law that prevents an elected official or any client involved in a civil lawsuit to talk to the other side, said Steve Zansberg, a Denver-based attorney who specializes in media, governance and the Colorado Freedom of Information Act, among other things.
"There's nothing that says parties can't communicate with each other," he said. "But it's common courtesy to abide by the request."
True confirmed last week that Porter had made the request but stopped short of saying what he advised the council on, citing attorney-client privilege.
"It's not inappropriate for clients to talk to clients," True said. "But it's not appropriate for an attorney to talk to a client, and I haven't."
Porter characterized his notification to True a bit differently.
"At this point, and having been warned twice, the city's attempts to improperly pressure the two residents fighting for their right to vote on the proposed city offices has become repeated and habitual," Porter wrote in an email to the Times. "The city representative's communications are improper, are a clear attempt to influence the litigation outside of the court process."
True took exception to that statement.
"To suggest that it's improper that my client's communication was unethical is wrong," he said. "Clients can talk to each other to resolve litigation and, in some instances, it's encouraged."
True added that Goshorn and Goldenberg were the ones who initiated the communication with Hauenstein earlier this year.
Hauenstein confirmed that and cited a conversation he had with Goshorn at City Market in April. That conversation led to a meeting a few weeks later with Goshorn, Hauenstein and city representatives to explain the project in detail.
The June 1 gathering was unbeknownst to Porter, and he objected to it after the fact.
Three days later, Goshorn sent a letter to Porter stating, "I do not wish to be contacted either verbally or in writing by any member of the City of Aspen regarding the pending lawsuits dealing with the referendum petition," she wrote. "Please notify Jim True (Aspen City Attorney) that any and all correspondence either verbal or written — must be addressed to my Denver attorney J.D. Porter."
Porter's position about his clients meeting with city officials was made known as early as February. On Feb. 28, Goldenberg emailed True, Hauenstein, Mayor Steve Skadron and City Manager Steve Barwick about a possible meeting to discuss the case.
"I spoke to Jordan Esq. about my meeting privately with the mayor and Ward," Goldenberg wrote. "He felt pretty strongly that such a meeting would be an 'ethics issue' unless both lawyers had cleared it in advance."
Other emails obtained by the Times show that Hauenstein tried to meet with the plaintiffs a few months after the lawsuit was filed.
In a July 12, 2017 email, Hauenstein gave some indication on where his fellow councilman Adam Frisch stood in the deliberations and whether to allow a public vote on the municipal office building.
"Can we meet to debrief?" Hauenstein wrote to Kronberg and Goshorn. "I think Adam was ready to allow a vote but it went south when it turned into a war on the building instead of a discussion on funding."
Hauenstein told the Times he considers Goldenberg and Goshorn friends and he has no "beef" with Kronberg.
He said he hasn't been asked by Goshorn or Goldenberg to stop communication with them about the city offices case.
"If I was told not to, I wouldn't," he said, adding his goal is to end the saga and move on. "I don't think anyone thinks I'm threatening. … I want to be open, honest and transparent."
Clock ticking on council decision
Hauenstein prefers the project that council approved in 2017 via ordinance. But if that's not possible because of the lawsuit, he said he wants voters to choose between that, a larger building in the same area, or the proposal that developer Mark Hunt has given the city, which is to buy a turnkey office space at 517 E. Hopkins Ave. and 204 Galena St.
Hunt's offer gives the city almost 27,000 square feet for $32 million adjacent to City Hall. Hunt also has offered to remodel that building for $15 million as a cost-savings measure for the city because he can do it for less as a private developer.
Under that scenario, the city would use all three properties, along with the Rio Grande building, where the parking department and Taster's Pizza are located.
City officials are negotiating with Hunt on a real estate contract. The due diligence period ends Sept. 1.
"In the next few weeks we'll have to make a decision," Hauenstein said. "I'm basing my decision on what's best for Aspen in 50 years."