Challenges of Bias Denied by Council
by Gus Jarvis
May 24, 2012 | 966 views | 0 0 comments | 6 6 recommendations | email to a friend | print
Saunders and Myers Will Participate in May 30 Call-Up of HARC Approval

TELLURIDE – Despite a challenge of bias against two members of the Telluride Town Council last week, six out of the seven councilmembers will be participating in the May 30 call-up review of the Historic and Architectural Review Commission’s approval of the so-called Steaming Bean addition project.

In an afternoon that turned council’s chambers into a somewhat of an awkward courtroom drama during council’s regular meeting on May 15, councilmembers Bob Saunders and Chris Myers sat before their fellow members of council amidst allegations that the two have bias against the Steaming Bean project, which was formally called up by Town Council – at the request of Saunders and Myers – after HARC approved the project by a 2-1 vote last January.

The Steaming Bean project, which aims to build an addition on the backside of the historic building at 221 Colorado Avenue, has been in the HARC approval process for more than two years.

After the nearly three-hour hearing, councilmembers Stu Fraser, Ann Brady, Kristen Permakoff and Thom Carnevale unanimously decided that both Myers and Saunders show no bias in the matter and that they can participate in the council call-up of the HARC decision on May 30. Councilmember Brian Werner, who is an owner of the Steaming Bean business, but not the building, was recused from the hearing and will be recused from the call-up hearing as well.

The challenge of bias was presented by 221 Colorado, LLC, the project’s applicant, on May 10 and alleged that the two councilmembers engaged in ex-parte communications with regard to the project and have judged the project in a predetermined way. Both Saunders and Myers were sworn in under oath during the quasi-judicial proceeding and were cross-examined by 221 Colorado’s legal representative, Daniel Gregory, of the Durango-based Gregory, Golden & Landeryou law firm.

Daniels questioned both councilmembers on various allegations including how the two drafted the letter requesting the call-up. Saunders was asked if he talked with known opponents of the project in at Rebekah Hall directly after the HARC approval took place. While nobody knows what was said during those conversations, Gregory made the case that they indicate a bias against the project and argued that both Saunders and Myers should be excused from participating in the call-up hearing.

“Let’s let the four other members of council who are not questioned, who have had no ex-parte communications, who have shown no bias make the decision in the call-up procedure,” Gregory said in his closing statement. “Let’s see how that goes. It will ensure impartiality…. It will ensure a due process.”

During the hearing, defining the 14-day period of time after a HARC approval during which a call-up can be filed was disputed. Gregory argued that the HARC approval was not final until after that 14-day period over. Therefore, during that period, no members of council should have had any communications on the matter.

It was Town Attorney Kevin Geiger’s contention that councilmembers could seek opinions from members of the public during that time period, but that once a call-up is official, no further communications were permissible. The call-up was made just before the 14-day period came to an end.

Myers defended his and Saunders’ actions as public servants in gathering the opinions of members of the public during that 14 days.

“A call-up is an incredibly serious action,” Myers said. “Glider Bob and I took two weeks and waited until the eleventh hour asking if this is important enough to bring back to council for the possibility of a different decision. Maybe it will be the same decision. If council finds that we are biased, we will be down to four members (at the call-up). Glider Bob and I have a lot of experience…. I don’t want to be recused. I don’t think he has bias and he has knowledge to share.”

Following the three-hour-plus hearing, Councilmember Brady made the motion to deny the challenge of bias and it was quickly seconded by Carnevale.

“At this point, right now I am not sure I have heard clear and convincing evidence of a bias,” Brady said before making the motion.

Permakoff eventually agreed to the motion and it was ultimately approved unanimously. And while Saunders and Myers were let off the hook by council, the decision didn’t come without a stern lecture from Fraser.

“What has bothered me the most about this is finding out that there were multiple people involved in preparing emails and letters to various members of council,” Fraser said. “I disagree with the process that took place here. I agree that this whole call-up procedure needs to be revised. I would never do it in the way this one occurred. I would do it in a much more open fashion.

“The bottom line here is that whatever happens here tonight, on May 30, whoever is sitting up here better damn well be dealing with only the issues that come up on May 30 and not anything else that has hung over from any other meeting at any other time,” Fraser continued. “If you are up here, your comments are going to be analyzed beyond belief.”

The May 30 call-up procedure will begin at 9:30 a.m. in Rebekah Hall. or @gusgusj

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