City’s free advice warrants concern

Dear Editor:

Last year, the Aspen City Council considered what to do in response to the successful petition repealing rezoning for the Castle Creek Energy Center. Some members of the council took the opportunity to pontificate on how they would like to change the campaign-finance laws. They should spend more time reading and following the existing laws on personal use of city attorney and city property and less time dreaming about changing laws they don’t like.

Section 7.1 of the Aspen City Charter describes the appropriate function of the city attorney. It says, “The city attorney shall be the legal representative of the City and he shall advise the council and city officials in matters relating to their official powers and duties and perform such other duties as council may prescribe by ordinance or resolution.”

Section 2.02.030 of the Aspen Municipal Code (regarding ethical conduct) says, “A City Council member … shall not … request, use or permit the unauthorized use of City-owned vehicles, equipment, materials or property for personal convenience or profit.”

Recently a question surfaced about whether our mayor is term limited from continuing to serve on City Council because he is term limited from continuing to serve as mayor. Suddenly a memorandum appeared from the city attorney claiming the mayor is not term limited from continuing his City Council service.

I asked the city for the written instructions to the city attorney from members of council to prepare such a memorandum. The city said there were no written instructions. That means there was no ordinance or resolution of City Council requesting the memorandum, as required by the city charter. Did the mayor request it? He is, after all, the person with the most direct interest in the matter. There was no issue before any city official or City Council that required the memo. Its only relevance was to support the mayor’s ambition to remain on council. That made it a personal service to the mayor in his private capacity as a potential political candidate.

If a member of council commandeered a city employee to mow the lawn at his house using a city lawn mower, that would be an ethical violation worthy of censure by council. There is no difference if a member of council (in this case the mayor) asked the city attorney to perform legal services for his personal benefit.

Yet no member of council has, to my knowledge, investigated how the memorandum came about and who requested it. I know it is uncomfortable. It must have been uncomfortable for the city attorney, who is paid to know the rules. It is difficult for him to refuse if our assertive and demanding mayor requests such a service. It is uncomfortable for council members. They have worked with the mayor for years addressing important city business, establishing camaraderie. Not to mention the desire of some to curry the mayor’s support in the May election. But is it now a qualification for mayor to ignore rules on personal use of city resources?

And there is a greater concern with this incident. Is there a pattern of the mayor’s treating the city attorney as “his” attorney, an attorney he can instruct without going through the prescribed process of obtaining concurrence of council? The rules exist so the city’s considerable legal power, a public resource, is not wielded by one autocrat, but is managed by the full council.

A friend suggested no one cares about this because no one understands it. I have more faith than that in the good people of Aspen.

Maurice Emmer

Aspen