Pleading accuses Aspen-Pitkin County Housing Authority hearing officer of bias
Lawyers are trying to establish that Mick Ireland had a built-in bias as Aspen-Pitkin Housing Authority’s hearing officer when he ordered a couple to sell their employee-housing unit last fall.
In a court motion filed last month, Cameron and Patricia McIntyres’ legal team identified Ireland’s email exchanges with APCHA’s compliance officer, his contractual relationship with APCHA, and his outspoken opinions on housing as a columnist for the Aspen Daily News as evidence that he cannot be neutral as a hearing officer.
“The Hearing Officer, like any human, has opinions to which he is, of course, entitled under the First Amendment to the United States Constitution,” according to the motion filed by lawyer Chris Bryan, who is co-counsel for the McIntyres. “But supposed neutrals do not publicly opine on the very topics they make decisions on. If a Pitkin County judge wrote an op-ed about cases they oversaw, disciplinary hearings would no doubt result. Nevertheless, the Hearing Officer opines about Aspen’s affordable housing one day, and then acts as a purported neutral in compliance hearings the next.”
The motion was filed as part of the McIntyres’ complaint and appeal of Ireland’s finding that they violated housing regulations and the deed restriction on their North 40 unit by also owning a free-market townhome on Park Circle.
“The deed restriction is clear in stating that an owner of property at the North 40 may not own other property along or in conjunction with others,” said Ireland’s ruling, which was delivered Sept. 12 and came after a hearing that was held over three dates in April and July.
The McIntyres’ complaint, which is called a Rule 106 challenge and seeks a judicial review of Ireland’s ruling, was filed Oct. 10 in Pitkin County District Court. They were given 90 days from Ireland’s ruling date to sell the home, meaning the deadline would have loomed next week. Their appeal, however, suspends the order.
In the October complaint, McIntyre co-counsel Michael Hoffman argued the couple did not receive fair treatment from both APCHA when they were under investigation and then brought to a hearing. APCHA, with Ireland acting as its designated hearing officer, also wasn’t authorized to order the sale of the home, said the complaint, which accuses APCHA of exceeding its jurisdiction, and acting arbitrarily and capriciously. The complaint also makes a due process claim under the Colorado Constitution and the 14th Amendment of the U.S. Constitution.
“During the proceeding it was clear that the hearing officer was biased against the Plaintiffs,” Hoffman wrote in the October filing. “He adopted a prosecutorial approach toward Mrs. McIntyre, presumed her ‘guilt’ before documents and other information were offered into evidence and was repeatedly disrespectful to her. Neither the proceeding before the APCHA nor the hearing officer was fair and impartial as required by law.”
The McIntyres’ legal team now is trying to build on that argument of bias before the appeal goes to judicial review. APCHA is not opposing the part of the McIntyres’ motion that seeks to supplement the administrative record with transcripts and evidence from the hearing, for example.
“All we have to do at this juncture is make a threshold showing that there maybe was a lack of impartiality by the hearing officer,” Bryan said Monday. “We have cited case law showing that a hearing officer that has ex parte communications or says or does things that might indicate bias, that that would be grounds for reversal in challenging a quasi-judicial decision as this one.”
APCHA, however, is opposing the motion’s request that it submit into the administrative record some of Ireland’s newspapers columns, Ireland’s employment contract with APCHA, his notes from compliance hearings, and some of his email exchanges with APCHA’s compliance officer, along with other documents. Some of the documents are attached as exhibits but are sealed. APCHA said in a filing made Friday that it is unaware of any notes Ireland took during the hearing.
“This constitutes a fishing expedition, because the Plaintiffs are merely suspicious that the Hearing Officer cannot be impartial in any case that comes before him based upon vague allegations of institutional loyalty,” according to a written objection to the McIntyres’ motion.
The objection was filed by APCHA attorney Tom Smith, who declined to comment when reached last week.
Ireland was instrumental in forwarding affordable-housing initiatives in the past and writes an opinion column that occasionally addresses housing, but that does not disqualify him as a hearing officer who can consider cases on their own merits, the objection said.
“In this case, there is nothing but suspicions and conclusory allegations by the Plaintiffs with respect to the claim that the Hearing Officer was biased against them. There are no factual allegations regarding bias in this specific case to demonstrate any connection between the Hearing Officer’s general support for Aspen’s affordable housing program and the Plaintiffs’ appeal,” according to the objection.
Ireland’s column runs weekly on Mondays, but he has not written about the McIntyre case. He was a columnist when APCHA hired him in June 2020 to be a hearing officer for compliance cases, a role the housing board previously held. Ireland, a former Aspen mayor and Pitkin County commissioner, declined to comment about the McIntyre case when reached last week.
“It was certainly a peculiar decision for APCHA to hire (for $150/hour) a hearing officer who lives in housing subject to APCHA’s regulations and who wrote APCHA’s regulations,” said the December motion from the McIntyres. “Similarly, the Hearing Officer’s notes, which Plaintiffs propose including in the record as item, will tend to show the Hearing Officer’s bias. Given his many conflicts of interest, the Hearing Officer’s notes could show prejudice toward Plaintiffs…”
The McIntyres have said that as a graduation gift to their two sons, they made a downpayment on the free-market townhome. Their appeal also said 1996 APCHA guidelines allowed the McIntyre children to own property in the Roaring Fork Valley. The North 40 project was approved under employee housing guidelines from 1996-97.
Through the creation of a limited liability company called CMTR, the McIntryes bought a three-bedroom, three-bath townhome on Park Circle for $1.2 million in 2017, Ireland’s order concluded. Borrowing $1.025 million against their North 40 home allowed them to buy the Park Circle townhome, according to hearing testimony. CMTR also paid $156,891 toward the McIntyre’s $1,030,000 mortgage from 2018 through 2021, Ireland’s order said.
CMTR deposited the Park Circle townhome’s rental income of $310,298 from 2017-20 into accounts controlled by Tricia McIntyre, according to her own testimony, though Ireland’s report said “corresponding tax returns reported only $220,313 in total ‘gross rents’ … for those years.”
Ireland’s order, which called the “decision is difficult and heart rending,” said that making the McIntyres sell the Park Circle home, rather than their North 40 employee housing, would “reward misbehavior by allowing the consequences to be a mere return to the status quo,” and would set a precedent that employee housing owners could create LLCs to own additional property.
The McIntyres built their North 40 single-family in 2002 after acquiring their North 40 lot in 2000, according to the Pitkin County Assessor’s Office. The 2,710-square-foot home has an assessed value (the amount home’s property tax is based on) of $118,370, and an actual value of $1.7 million.
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