GREELEY – Having meetings with corporations with possible land use cases before the county and ignoring the advice of their own attorney has some crying foul about the behavior of the Weld County Board of Commissioners.
Residents in the Johnstown/Milliken area who say commissioners have ignored advice from their attorney where it pertains to conflicts of interest, have been vocal at public meetings about their worry the board held ex-parte meetings against the advice of its attorney with Martin Marietta over a land use decision that is tied up in court.
“We just don’t understand why they wouldn’t listen to their own planning commission on this,” said Ellen De Lorenzo.
In another case, Commissioner Barbara Kirkmeyer arranged a meeting at Xcel Energy’s request over the objection of Commissioner Sean Conway and the advice of County attorney Bruce Barker, emails obtained only by Complete Colorado reveal.
This appears to be ex-parte communications, which is communications between the board and any entity that may come before the board outside of the presence of an opposing party.
For example, even if the board properly noticed a work session with Xcel Energy, if the board were to discuss something that might come before them in five years that may impact another party and that party is not present and the meeting was not recorded, the meeting would be improper.
The emails between county commissioners and Barker reveal Kirkmeyer implied these type of meetings happens all the time.
Complete Colorado initially asked for the email through its open records request. Barker responded that the email requested was privileged. Complete Colorado was able to secure the email chain through one of the recipients who discussed the matter, which waives privilege.
The emails embedded below read backwards from bottom to top.
The concern began with a work session authorized by Commissioner Barbara Kirkmeyer for Sept. 6 that was sent to the board as well as several county employees. It contained an email from Todd Anderson, the area manager for community and local government affairs for Xcel Energy. In the email, Anderson explicitly asks: “Is there any way to meet with you or the other commissioners on a more regular basis besides public meetings. Xcel is going to have a lot of work in Weld County over the next few years …”
On Sept. 6, Commissioner Sean Conway sent an email to Barker asking if that was appropriate.
“Bruce – Xcel is scheduled to meet with us today to discuss projects they are going to be doing in the next year in Weld County that are likely to come before us including a huge power line through the county. Are we ok to hold this meeting?”
“If the meeting is to discuss facts from cases that will be coming before the BOCC in the future, best to say you cannot discuss them. The problem is it may be difficult, if not impossible, to know now which cases will come before the BOCC. Additionally, and I have told the Board this in the past, in my opinion it does not look good to meet with a company who has a land use case scheduled to come before the BOCC, even if everyone who attends says, “nothing about that case was discussed in that meeting.” How can the BOCC prove that if no minutes are taken of the WS?”
Commissioner Julie Cozad then responded:
“So are we suggesting cancelling the meeting that is scheduled in about 30 minutes?”
“That is my recommendation. Not meeting with a company that has cases coming before you protects the company, as well as the County.” Barker went on to make suggestions about what they should do instead.
Kirkmeyer then added this was not out of the ordinary.
“We meet with Noble; PDC; Anadarko DCP; United Power; PVREA prior to land use hearings.”
After another exchange between Kirkmeyer and Barker about the validity of Barker’s advice, Barker reiterated his concerns:
“My advice remains the same, whether it be a utility or a company that has nothing to do with a utility. Meeting with them to discuss “upcoming projects” or “company direction in Weld County” carries with it the risk the BOCC could be accused of ex-parte communications, especially if you know those companies will have the need to present land use cases to you in the future.”
The meeting went on against Barker’s advice; Conway did not attend.
When questioned about Xcel donating to the Breckenridge training and meeting with them, Commission Chairman Mike Freeman said there was nothing wrong with it. His response contradicted Xcel’s position that “Xcel is going to have a lot of work in Weld County over the next few years…”
“That is complete fiction,” Freeman said. “We do not have any Xcel Energy stuff coming before us. Sometime in the next five or six years, Xcel is probably looking at some transmission lines, whatever, but it’s not in a pre (application phase), they have not had any conversations.”
However, when asked if any board member had clarified with Barker whether Barker thought these meetings were proper, Freeman did not respond.
In a previous report, Complete Colorado reported that Barker advised the country not to take donations from companies that come before the board for land use and other quasi-judicial findings.
The donations, which were to help pay for an emergency training exercise that took place in Breckenridge, were said to total $11,500 from companies such as Xcel Energy, BASE Tactical, Waste Management, PDC Energy, TetraTech, Martin Marietta and Felsburg Holt & Ullevig, all companies that at some point have come before the board for quasi-judicial hearings on land use and other issues and are likely to again. Those hearings require commissioners to be judge-like in their fact findings.
Some of the arguments from the county for the donations included close relationships with the companies during an emergency, and the companies donating were taking place in the exercise. However, a list of participants obtained by Complete Colorado in an open records request showed only Waste Management had employees present at the training.
The money was still solicited by the county but passed through the United Way of Weld County instead, causing some to call it money laundering.
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