City attorney: ACRA has done no wrong

Karl Herchenroeder
The Aspen Times

Aspen’s city attorney argued Monday that there’s no evidence the Aspen Chamber Resort Association is guilty of impropriety, despite a local group’s claims that the destination-marketing organization is improperly using public funds to influence an election issue.

A group led by petitioners for Referendum 1 has argued that because the chamber is a “quasi-government entity” receiving the majority of its revenue from tax dollars, it should remove itself from the campaign issue. Attorney Cavanaugh O’Leary said the chamber’s business should be to promote the city and its tourism industry, not “to fight its own citizens,” citing the estimated $2 million in annual tax revenue the organization receives from the city’s lodging tax.

“I am, for one, livid that my money is being used to fight against me,” O’Leary said.

Slow-growth advocates such as O’Leary garnered around 1,000 signatures in successfully advancing Referendum 1 to the May 5 ballot. If approved, the referendum would strip the Aspen City Council of its ability to grant development variances on height, mass, affordable housing and parking without a public vote. On Sunday, the group, which included O’Leary, Bert Myrin, Michael Behrendt and Kallen van Renkl, sent an email to City Attorney Jim True and the council asking that the chamber cease its campaign against Referendum 1.

Members of the chamber board, along with Aspen Skiing Co. executives, have launched the website http://www.aspenvote in an effort to organize opposition against Referendum 1. Representing the chamber Monday, attorney Maria Morrow claimed the nonprofit group has spent $47 to register the website. She also said the lodging tax dollars are kept separate from the chamber’s budget, and as an organization serving about 800 local businesses, one of its purposes is to advocate for those entities. She urged Aspen residents who are tired of “pithy slogans, misinformation and local shenanigans” to vote “no” on the proposed Home Rule Charter amendment.

“The proponents say they want to increase community participation in local decisions, but as soon as community members speak up about Referendum 1, the proponents demand that their viewpoints be silenced,” Morrow said.

Councilman Adam Frisch pointed out that the chamber has taken stances on other advocacy issues, including immigration reform, as well as promotion of the lodging tax itself.

“It’s absolutely appropriate for the chamber to do that,” said chamber board member Warren Klug, who also is general manager at the Aspen Square Hotel.

Arguing for the other side, land-use attorney Marcella Larsen said that while it’s great Morrow cited the separation of funds, she claimed the reality is that the chamber is paying for staff time. She argued that some of that staff time must have been spent preparing “a pretty slick website.”

“There’s no problem if any member of (the chamber) wants to go out and start their own opposition group and raise money,” Larsen said. “I guess what the issue here is that it’s under the auspice of an entity that, like it or not, has a presence in this town that is quasi-governmental.”

True said he considered two issues in reviewing the matter: the chamber’s status as a government entity and whether it improperly used public funds for political purposes. Citing the Colorado Fair Campaign Practices Act, he said it’s hard to accept the chamber as a government entity, as it’s organized under the Colorado Corporation Code and the city has no control over the group aside from contractual details. Furthermore, he said there’s no evidence to suggest the chamber is using lodging tax revenue for political purposes.

As far as the Internal Revenue Service is concerned, True said the chamber, as a nonprofit, is within its right to participate in political activity. He also cautioned the council against asserting conditions on the chamber’s use of funds.

“It would have its own appearances of impropriety if based on the fact that we are funding an entity, we are directing political activities of that entity and I do believe that could run us afoul of the Fair Campaign Practices Act,” True said.

The council accepted True’s assessment and did not take any action to advise the chamber on use of its funds.

In other business

In a 4-0 vote, the council approved a two-year, vested-rights extension for the developers behind the Lift One Lodge proposal. Rights for the 84-room lodge are now set to expire in 2018.