New state law making trouble for Garfield County
August 11, 2009
Garfield County may face a legal fight with at least one of its contractors thanks to a controversial 2008 amendment to the Colorado Constitution, which was supposedly aimed at preventing campaign contributions from corrupting public officials.
And under certain circumstances, it is possible that the legal fight could end with some county officials losing their jobs.
But, declared attorney Don DeFord, ‘I think it’s very unlikely that anybody in the county would be held culpable.”
Amendment 54, narrowly approved by voters last year, prohibits certain contractors and their families, from making political contributions to that same government for two years afterward. It also contained provisions specifically aimed at limiting campaign contributions from unions.
Opponents worried that the new law violated the free speech rights of a broad array of people, including firemen, police officers, teachers, and others, as well as private contractors.
Denver District Court Judge Catherine Lemon last month agreed with the amendment’s detractors and ruled that most of the amendment’s provisions are unconstitutionally vague or restrictive.
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But because Lemon’s decision may be appealed, and Amendment 54 is still on the books pending that possible appeal, Garfield County has found itself stuck between a gavel and a hard spot, primarily because the law calls for harsh sanctions against public officials who ignore it.
“We are getting some pressure from a few contractors to delete our standard Amendment 54 language from contracts as a result of this decision,” wrote assistant county attorney Patricia Fredrick in a letter to other county attorneys, seeking advice on whether to act as though Amendment 54 is valid or not.
One letter in return, from the Jefferson County Attorney’s Office, suggested that Garfield County add a paragraph to its contracts saying, “These provisions [the Amendment 54 language] shall not apply to the extent they have been enjoined or invalidated by a court of competent jurisdiction,” meaning they will apply until the matter has been conclusively decided.
County attorney Don DeFord told the BOCC on Monday that the commissioners themselves, as well as some county employees, could face being ousted from their posts and being barred from any future public-sector employment if found guilty of “malfeasance” in connection with the amendment.
The county already has rewritten its standard contracts to reflect the language in Amendment 54, but some companies dealing with the county are not happy about it. While DeFord mentioned “contractors,” he showed the commissioners a letter from one in particular, the Mountain Valley Developmental Services nonprofit.
MVDS, which provides services in Garfield, Eagle, Pitkin and Lake counties to developmentally disabled adults, has been left in a kind of legal limbo due to the amendment, which requires a contractor to provide proof that it is in compliance with the new law.
But MVDS, based on legal advice, has concluded that the amendment, and the contract to release the grant, “violates the First and Fourteenth Amendment rights of Mountain Valley, its directors, officers, employees and their immediate families because of the uncertainty it creates.”
According to a letter to the county from MVDS board chairman Bruce Christensen [also the mayor of Glenwood Springs], the non profit has been denied half of its 2009 grant of $65,000, awarded by the county last year, because the company has refused to sign a contract for the grant that reflects the language of Amendment 54.
The letter, which demands that the county pay the $32,500 immediately or face a lawsuit, argues that Judge Lemon’s ruling has rendered the amendment invalid. And should Lemon’s ruling be overturned by the Colorado Supreme Court at some future date, argues MVDS, “retroactive enforcement would not be permissible.”
But DeFord urged the BOCC to stick with his interpretation of the matter. He indicated that the commissioners should assume that the law is valid until all appeals and court actions have been exhausted and the law has either been overturned or validated, but that it could not hurt to add the suggested language to cover all the bases.
“I think it’s unlikely you would be challenged” for signing contracts that do not reflect the Amendment 54 provisions, he said, but he added that he could not guarantee it.
Commission chair John Martin supported DeFord, telling the other two commissioners that because the law was approved by the voters it should be considered valid until proven otherwise.
“I know it’s a hardship,” he said of the unpopular provisions of the law. “But the voters passed it, and we should leave it as it is.”
Martin also criticized the use of campaign contributions, saying, “If you’re willing to run for office, pay for it yourself. This country is in grave danger in terms of the buying of seats, the buying of offices.”
Both Martin and commissioner Mike Samson, on a motion by Samson, voted to leave the contracts as they are, in compliance with Amendment 54 and demanding that contractors do the same.
Commissioner Tresi Houpt, who said little during the discussion, voted against the motion.