No end in sight in war with Aspen City Hall
December 6, 2011
ASPEN – A meeting a month ago between Aspen Councilman Torre and election activist Marilyn Marks illustrates the continued tension between City Hall and its longtime critics.
Torre agreed to meet with Marks in the council’s meeting room to discuss the decision to challenge a state appellate court ruling that favored Marks’ lawsuit over the city’s denial of her request to view 2009 election ballot images. As the meeting got under way, Torre noted something unusual about Marks’ pen as she prepared to take notes.
He asked Marks if she was recording the meeting with her pen. When she said yes, but denied she was being secretive, he abruptly ended the meeting.
“I can’t remember exactly, but he said something about me needing to learn how to behave,” Marks recalled. “He made a big deal out of absolutely nothing.”
Torre, who is on vacation out of the country, could not be reached for comment late last week. But the anecdote has made the rounds throughout City Hall and among its observers.
Marks said she wasn’t trying to be sneaky. She said she often uses her pen-recorder during meetings involving city officials and in other situations. In the wake of the 2009 city election in which she was bested by incumbent Mayor Mick Ireland, she and others have been active around the state in an effort to promote election and ballot transparency.
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“If I had wanted to record him surreptitiously, I would have put the pen in my pocket,” Marks said. She said the pen records audio and also creates computer images of her handwritten notes.
She said she has never attempted to hide the fact that she records her meetings. “I have it on all the time,” she said of her pen.
But city officials – elected and otherwise – are openly wary of Marks’ intentions. Aspen City Hall always has had its fair share of gadflies, but Marks and her occasional cohort Elizabeth Milias, who took over the Red Ant political blogsite a few years ago when Marks was running for mayor, represent the loyal opposition in quite a different way.
Extremely persistent in their efforts, they aren’t afraid to hire lawyers to advance their various causes, or subject themselves to scrutiny at public meetings. In some cases, they have been accused of getting personal in their attacks, such as during the spring 2011 mayoral campaign when Milias started a political action committee called “Sick of Mick” and flooded the town with signs that carried the same message.
Most council members and many others in City Hall have said they are “sick” as well: of the continual acrimony whenever Marks and Milias get involved in an issue; the bombardment of late-night emails that aim to point out their deficiencies; of accusations of ineptitude and complacency among local elected officials, city managers and department heads.
During council meetings when the critics are there to make a point, the tension is palpable and can be uncomfortable for those in attendance.
Following the citizen comments portion of a late-October meeting, Councilman Steve Skadron took issue with what he felt was a barrage of unfair attacks.
“I feel like it’s the Nixon administration, 1972, here,” Skadron said in reference to how the opposition views city government. “We’re just a bunch of local guys, we’re sitting here at these meetings, and trying to make really good decisions. And the rest of the time we’re out there, we’re just one of you, Marilyn. … Not necessarily you, Marilyn.”
With the city battling the Marks lawsuit – recently filing a motion to appeal the appellate court ruling to the state Supreme Court – as well as fighting litigation from local landowners who want to stop the Castle Creek hydroelectric project, the acrimony is expected to continue into the foreseeable future.
“I’ll let go when the government is transparent and honors the law,” Marks said. “That is within the control of government, not Marilyn Marks.”
“In America, the public’s oversight of government is a basic right,” said Milias in an email interview. “Simply because the local media has stopped its monitoring of the local government doesn’t mean the public must also. At every turn, there’s another mess. As a result, the watch-dogging should never end. … The community should never just sit back and let City Hall run amok with no oversight.”
By all appearances, Ward Hauenstein, a member of the city Election Commission, seems like a man stuck in the middle of a war he’d rather not wage.
Hauenstein recently sought legal opinions on questions surrounding the role of the commission and whether it had the right to hire independent counsel. His requests have not been embraced by City Attorney John Worcester, council members or Mayor Ireland.
Specifically, Hauenstein wanted to know if the commission could rule on Colorado Open Records Act requests to view ballots cast in the 2011 municipal election. Three people filed the query last month: Marks, Milias and Harvie Branscomb, a Democrat from El Jebel. Milias has since withdrawn the request.
Citing the ongoing litigation with Marks over the city’s belief that neither ballot images nor actual ballots are a public record, the City Attorney’s Office has stated that City Clerk Kathryn Koch, not the commission, is the custodian of municipal records, including ballots. Koch, whose denial of Marks’ request to view ballots is at the heart of Marks’ lawsuit, also sits on the commission.
Believing that the City Attorney’s Office may have a conflict of interest in the matter, Hauenstein hired an outside attorney to answer his handful of questions in addition to asking Worcester for his opinions.
The city attorney at times has expressed disdain for Hauenstein’s questions with terse responses, but delivered a confidential memo to commissioners and council members. Ireland and council members have said that nothing in the memo would harm the city’s case against Marks, but the memo remains confidential nonetheless.
Hauenstein said he doesn’t understand the need for all of the secrecy, whether it’s in the form of a confidential memo or an executive session. There have been quite a few closed-door sessions in City Hall recently, a reflection of the litigious atmosphere surrounding the building. Marks has questioned whether the decision to appeal the ruling on her lawsuit was legal, given that it was done in executive session without a roll-call vote or public hearing.
Hauenstein, an election commissioner for nearly two years who also has been active on other community boards, said he has been acting in the interest of a transparent government and isn’t working on behalf of Marks, Milias or anyone else.
“My frustration is about the city not being able to release the memo. It just seems like everything the city is doing is kind of in the shadows,” Hauenstein said. “I think it shows a lack of respect for the citizens of Aspen that they have to hide behind executive sessions and privileged communications. I don’t know why they can’t be out in the open, discussing the issues.”
Hauenstein’s “independent counsel” came up with the same opinion at the City Attorney’s Office: that the city clerk is the custodian of municipal records such as election ballots.
Still, he plans to ask the council to reimburse him and Bob Leatherman, the third member of the election commission, for their payments to the Denver attorney for an outside opinion. But if the initial reaction to the reimbursement request from most council members at the last regular council meeting on Nov. 28 is any indication, they may not see a dime.
“They did the same thing with my request for legal fees that they did with my request for releasing the memo from Worcester. They hemmed and hawed and said they needed more time and wanted to address it on a future date, but then they didn’t set a future date. Their official answer is to put it into limbo,” Hauenstein said.
Councilman Adam Frisch was elected in the most recent city election in May and hasn’t been involved in the city’s disputes with Marks and Milias over the last few years.
“I think there’s a growing accusation of a ‘government behind closed doors,'” Frisch said. “Open government seems to be the focus of late and overall I think that it’s a good focus.”
Frisch noted that the city’s initial plan for the Castle Creek hydroplant was to seek a “conduit exemption” with the Federal Energy Regulatory Commission, which would have meant less federal oversight over the proposed electricity facility. Following a fair amount of public outcry, the city has since changed course, and will seek a license that would result in more stringent environmental review.
But that initial plan raised a lot of eyebrows in the community, Frisch said, leading to accusations that the city wasn’t acting above board.
“I think it’s important for us to follow the rules that the city sets for its constituents and live up to our own high standards,” he said. “The city of Aspen has a bucket of trust. I want to make sure that I’m spending more time adding water to the bucket of trust than taking water out. I’m sometimes not sure we’re adding water as efficiently as we should be, and sometimes I think we’re poking holes in the trust bucket and causing leaks.”
Frisch said it appears to him that the city, in its drive to move forward with projects in a quicker manner, ends up creating problems, and the work involved in finding solutions to those problems becomes more time-consuming.
“The council and staff try to do the right thing but sometimes we stumble with some of the perceptions of what’s going on,” he said. “Some things that should take six months, the city tries to do in three months, and it ends up taking a year because we try to rush things and then all of a sudden we have to go back a couple of steps before moving forward. I think I’d rather see a slower, more deliberate process with less backtracking.”
Frisch said he doesn’t always agree with the styles of the critics, but believes that many of their questions have merit. He referred to a recent newspaper ad taken out by Milias that raises numerous concerns about the process, costs and environmental impacts surrounding the proposed hydroplant.
“Everyone has their own style,” he said. “This town is made up of 6,000 different personalities. In my mind, some of them are more creative in effecting change than others.”
Marks said her efforts are aimed at making city government more accountable for its actions and more transparent, something for which residents and voters also should be clamoring.
She said that while some people in city government have labeled her as a “bully,” she’s been the target of numerous tirades and attacks.
“‘Bully’ seems to be the current, rather humorous meme coming out of City Hall to describe me,” Marks said. “Apparently ‘gadfly’ wasn’t strong enough.”
Marks said she has been threatened physically, “and experienced some vandalism of property because of my work.” But she declined to offer specifics, “as it will only encourage more unacceptable tactics.”
She denies that her efforts on behalf of election and ballot transparency are a case of “sour grapes” stemming from her loss to Ireland in 2009.
“To spin my activities as a ‘Marilyn vs. Mick feud’ is to trivialize the fundamental public policy issues in play,” Marks said. “I have no feud with Mick. Mick has merely taken advantage of a dysfunctional local government. We citizens allow him to do it.
“My issue is with the basic culture in City Hall,” she continued. “Mick is only one official, with very limited actual authority. We citizens are allowing him to greatly exceed his authority. It’s natural for a leader to take all the power the system will allow him. We are as much to blame as Mick for the present situation.”
Milias, who worked with Marks on the Red Ant blog and took over when Marks ran for mayor, said she first got involved in city politics a few years ago during controversies over historic preservation and the Burlingame affordable-housing development.
“It was clear to me that there was something rotten in Denmark,” Milias said. “And nobody was connecting the dots. Enormous parts of the stories were not being told. Worst of all, people were mad, but they were afraid to get involved.”
She said she doesn’t see herself in the role of a fighter, and is fulfilling a need.
“The media is supposed to be the conscience of a community, but in our case, we have two daily papers who serve as mouthpieces for Mick Ireland and City Hall,” Milias said.
City Hall may not be rife with paranoia, she said, but many of its officials are scared.
“Litigation is all they understand at City Hall, and because of this, they are facing more and more every day,” Milias said. “The four city councilmen are definitely scared; scared to death of Mick’s wrath. They sit there during his diatribes nodding in agreement. I know these guys and they are horrified.
“They’re just scared sh**less to speak up,” Milias added. “Executive sessions – and the unlawful use of them – keep these weaklings from taking a public stance on any issues.”
Milias took aim not only at Ireland and the council, but Worcester and City Manager Steve Barwick.
“City officials like Barwick and Worcester aren’t paranoid either,” she said. “They are scared to death. Their jobs are on the line and they’re in way over their heads. It’s an animal instinct to panic like they are when cornered and completely outmaneuvered.”
Milias said she also has been “harassed” by people who take issue with her criticisms and her approach to the issues. She claimed she has regularly found dead animals left behind on her doorstep and has recently seen an escalation beyond such mischief, including vandalism of her personal property.
“If reporting the facts in Aspen is the new definition of ‘bullying,’ then fine, call me a bully,” she said. “Sometimes the facts are hard to take and it’s easier for my detractors to use inflammatory language than address the issues.”
In a wide-ranging interview last week, Ireland sought to strike a conciliatory note toward his and the city’s critics.
He said he prefers to take a big-picture approach, and that despite the smaller controversies, he sees the city as making progress for future generations.
The continual criticisms do not hamper the city’s operations, Ireland said.
“I would say that in the short term, this constant attack mode, this highly partisan behavior, does not affect the city’s ability to do business,” he said. “I would say the long-term effect is to alienate people, especially younger people, from participating in the political process.”
He noted that it’s difficult for city officials to work with people who are suing the city or asking the district attorney to indict some of them, as Marks did after the 2009 mayor’s race when she alleged various election irregularities.
Ireland said Aspen is a microcosm of the national political scene in which a state is solidly blue or red and moderates have been left to wither in the dust. “It’s a highly charged political atmosphere,” he said.
Like Marks and Milias, Ireland believes that the media isn’t doing all it can to seek the truth. His case in point: the hydroplant issue.
He wonders why reporters have focused so heavily on the city’s application process and the alleged environmental harm that a plant would cause without asking the landowners who are suing the city about their personal usage of Castle and Maroon creeks and how much water they are drawing from the streams.
“We’re up against some heavy money interests, people who have been attacking the city’s water rights for years,” Ireland said. “It’s about delay and driving up the expense, and then coming back and saying the project is too expensive.”
Ireland is term-limited from running for mayor in 2013 – he is currently serving his third consecutive two-year term. But the local political veteran and former Pitkin County commissioner said he doubts the acrimony will end when he leaves office.
He admitted that the attacks have been more personal, comparing his time in office to the atmosphere before he became mayor in 2007 when the debate was more heavily centered around growth and development issues.
Some of the criticisms border on the ridiculous, such as allegations that the city isn’t promoting energy conservation, Ireland said.
“We’re not just about building a plant, we’re trying to curtail energy use with all the means we have at our disposal,” he said, referring to increases in water and electricity utility rates, an ordinance that will prevent grocery stores from giving out plastic bags at checkout and other measures.
Ireland recalled that in the May election, he maintained a positive campaign without referring to his opponents or his detractors while many of his critics joined the “Sick of Mick” bandwagon.
“There always has been a certain amount of division in Aspen,” Ireland said. “We attract highly intelligent people, ‘alpha dogs,’ who want to tell you their way is best.”
It’s untrue that the Aspen community cannot band together for a united cause, Ireland said, pointing to efforts to host the USA Pro Cycling Challenge, the ESPN Winter X Games and other endeavors.
“We share a lot of values, but politically it’s become more intense,” he said.
If the city’s officials and many of its residents are weary of the constant battles, Milias suggested that the city is to blame.
“… The community is sick of the lying, cheating and misrepresentation by the city,” she said. “The good news is that a different group of citizens is fighting the city over each of the various issues, and those issues keep growing.
“This is a democracy. ‘Big brother’ does not have all the answers and cannot unilaterally control the public coffers. I think it’s wonderful,” Milias concluded.