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That's what she said

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2B or Not 2B—That Is the Question (Along With 1A, 1B, and 2A)


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At a PLAN-Boulder County ballot issues forum on Friday, October 10, 2014, the only debate that occurred concerned the wisdom of Ballot Issue 2B, which would allow the Boulder City Council to hold executive sessions to obtain legal advice related to Boulder’s electrical utility. The other ballot issues that were considered at the forum—1A, which would authorize a 0.185% county sales and use tax for five years to fund flood recovery efforts; 1B, which would authorize a 0.9 million county property tax extension for 15 years to fund health and human services programs; and 2A, which would authorize a 0.3 city sales and use tax for three years for civic, cultural, and safety improvements—encountered no official opposition at the forum and mostly friendly questions from the audience and would appear likely to sail through to easy passage on Election Day.

2B: City Council Executive Sessions Related to Boulder’s Electric Utility

The spirited debate about 2B featured proponent Macon Cowles, a member of the Boulder City Council, and opponent Judd Golden, recent former chair of the Boulder County Chapter of the ACLU. Cowles argued that 2B is needed because the current litigation (which consists of four separate legal actions) with Xcel Energy over Boulder’s plans to establish a municipal electrical utility will have significantly more  monetary impact on the city and operational impact on its citizens than any other lawsuits Boulder has faced. Consequently, he contended that all nine City Council members need to be able to deliberate together candidly and thoroughly so that the city receives the benefit of their individual experience and perspectives and collaborative wisdom. Under the existing system, he asserted, for legally sensitive matters City Council members meet two-by-two (with the ninth meeting by him or herself) with the City Attorney, and receive a briefing from him; but, because of the prohibition on “serial meetings” implied in the city charter, they cannot be informed about the positions or thinking of the other seven (or eight) council members. They then vote on these matters in open council meetings without the advantage of any substantive discussion with their colleagues, crippling the council’s role as a deliberative body and shifting some of its legislative power to the City Attorney.

In order to illustrate the perils of public negotiations on a relatively small scale, Cowles recollected that, when the City Council decided to offer employment to City Manager Jane Brautigam, it had to include in the authorizing motion a range of salaries that it would be willing to pay her. No fool, Brautigam then promptly demanded the top of the range.

Cowles contended that the existing system is inadequately designed for a legal battle as complex and wide-ranging as the one the city is waging with Xcel. He also asserted that Ballot Issue 2B contains significant safe-guards to protect against the abuse of executive sessions:

  1. The power to hold them would expire on December 31, 2017
  2. A two-thirds vote of the council would be required in order to convene an executive session
  3. Two members of council could at any time demand that any executive session be terminated
  4. No action could be taken by council in any executive session
  5. Every executive session would be recorded and recording retained and released by a unanimous vote of council

Golden, in contrast, argued that Boulder has functioned perfectly well since the city charter was first adopted in 1917 without these sorts of executive sessions and that the Xcel litigation is not fundamentally different from many other legal controversies that the city has handled over the decades. In essence, nothing has really changed, he claimed, so why weaken Boulder’s deeply held commitment to open meetings now? He also contended that Xcel’s extensive and expensive legal team would almost certainly anticipate anything council members might say in an open or closed meeting about legal strategy and/or negotiating tactics, and consequently exposing their positions to the public (including Xcel) would not lead to any particular gain for the company in the lawsuits.

Golden also recalled that a proposed Boulder city charter amendment to allow executive sessions in less limited circumstances was overwhelmingly defeated in 2008, and asserted that the Boulder public, as well as the citizens of other Colorado municipalities, strongly favors more, not less, transparency for their elected representatives.

In reactions from the audience, attorney Barry Satlow, the current chair of the Boulder County Chapter of the ACLU, recounted that the local ACLU had voted to remain “officially neutral” about Ballot Issue 2B so long as the City Council pledged to automatically release recordings of executive sessions as soon as the legal matters which the council had discussed had been resolved. He asked Cowles whether he agreed with that position, and Cowles replied that he did.

Audience member Steve Pomerance complained that the power of two council members to terminate executive sessions under 2B would be unenforceable, because the other council members could simply ignore them and proceed with the meeting anyway. Cowles responded that the good faith of council members had to be presumed; and also that, if an executive session happened to continue over the objections of two members, those two could probably obtain a court order to nullify it.

1A: County-wide Flood Recovery Sales and Use Tax

Boulder County Commissioner Elise Jones explained that total county expenditures to recover from the effects of the September, 2013, flood are projected to be $217 million. Of that, $161 million is expected to be reimbursed by the state and federal governments, which leaves $56 million of expenses for the county to absorb.

The 1A tax— 0.185%  county sales and use tax for five years—would raise $49 million. Jones said that it would also help the county cope with reimbursement delays. It has already spent $40 million on flood recovery, she reported, but only been reimbursed for $3 million.

Jones said that about $130 million will be spent on road and bridge re-construction, which will be designed by incorporating the information learned about creek behavior from September 2013.  About $30 million will be spent on creek planning and restoration. Other, smaller sums will be spent on parks and trails repair, housing programs, and other needs.

1B: Human Services Safety Net Mill Levy Extension

This tax is projected to raise about $5 million a year declared Bobbi Watson, executive director of the Early Childhood Council of Boulder County, and a tax proponent. It would be effective for 15 years, starting at the beginning of 2016, at a rate of 0.9 mill, which, Watson asserted, would amount to about $21 on an assessed property value of $300,000 for a home. It would extend an identical tax, which was approved by the voters in November, 2010. Commissioner Jones said that the tax was originally passed to compensate for substantial reductions in federal and state aid for food and housing support and child care subsidies as a result of the “Great Recession” of 2008.  Jones noted that, despite the end of the “Great Recession,” the number of families in need of assistance has increased dramatically, and federal and state cuts have not been restored. Jones disclosed that the County Commissioners had decided not to ask for a permanent tax extension, because they believe that the demand for this aid might decrease over time.

This tax has funded and would fund (if extended past 2015):

  • The Boulder County Child Care Assistance Program, which subsidizes child care for low-income parents
  • The county’s Housing Stabilization Program, which provides rental assistance for families at risk of being homeless
  • The county’s heath and dental clinics that serve low-income families and individuals
  • Food and financial assistance and health insurance for low-income families and individuals

2A: Temporary Tax Increase for Community, Culture, and Safety

Tax advocate Bob Yates, who serves as president of the Museum of Boulder (formerly the Boulder History Museum), explained that this tax—a 0.3 cent tax (3 cents on a $10 purchase) for three years—is expected to raise a total $27 million. No bonds would be issued as a result of the tax. Yates said that the tax money would be spent for a variety of purposes:

  • Up to $4 million to match, on a one-to-one basis, private donations of up to $4 million for the Museum of Boulder, which has moved to the old Masonic Lodge at Broadway and Pine Street and will be expanding to include a science and technology museum and a children’s museum, as well as contain its historical collections
  • $3.85 million for improvements to the Dairy Center for the Arts
  • $8.7 million for improvements to the Civic Center area, including the Farmers Market
  • $5.125 million for Boulder Creek path enhancements, including renovation of Eben G. Fine Park, and lighting along the creek path
  • $3.27 million for improvements to the University Hill Commercial District and better street lighting in the University Hill residential neighborhood to improve safety
  • $1.5 million for better lighting in the north (front) section of Chautauqua and a sidewalk along the south side of Baseline Road in front of Chautauqua
  • $600,000 for public art

In response to questions, Yates assured the audience that the improvements to the Civic Center area would occur in places where buildings will never be constructed. He also said that the expenditures would have no effect one way or the other on future deliberations over a conference center and possible hotel adjacent to the Civic Center. Yates also explained that the city would not seek matching private donations for the projected enhancements to the Dairy Center, because private donors have already poured $3.5 million into the facility, and secondarily, because it is owned by the city.

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