A primary duty of a city attorney in a council hearing is to guard against improper encroachments on a city council’s collective decision-making process, sometimes at the risk of retaliation. Preventing procedural defects helps guard municipal decisions from being overturned by a court. City attorneys must be permitted to fulfill this duty even during high-stakes public hearings, like the one that occurred in Thornton on November 17, 2020, as I was finishing my fourth (and last) year as the Thornton City Attorney.

That night, a developer (“Developer”) sought land use approvals for an approximately $200 million development project for 4,100 new residential units, the biggest residential development in Thornton’s history. Throughout the public hearing, the lack of water for residential development was a central issue. After the public hearing closed, Councilmember Bedolla (“Bedolla”) moved for approval, Mayor Pro Tem Sandgren (“Sandgren”) seconded, and Councilmember Acunto (“Acunto”) expressed support. In the proposed ordinance, the City stated that it did not guarantee available water for the residential development. Councilmember Matkowsky (“Matkowsky”) said he would vote “no” as he found “a lack of respect for Thornton history” and was “not comfortable with staff’s decision on water.” Councilmember Nizam (“Nizam”) also said he was a “no” vote. Councilmember Marvin (“Marvin”) stated that the “water thing was a huge issue,” and she would vote “no.” Councilmember Phillips (“Phillips) said she would vote no because of the water issue. Four “no” votes that night would mean denial of the land use application.

During the Council discussion, the city manager jumped in to “remind” Council what it was voting on. Councilmember Phillips objected that this was “out of order” and Matkowsky “concur[red].” Mayor Kulmann (“Kulmann”) asked for city attorney guidance. Given that no Councilmember asked for information from the city manager and that the public hearing for testimony had closed, I advised Council that Phillips’ “point of order” was well taken, as post-hearing testimony can jeopardize the final decision. To help, I added that Council can ask for clarification of the motion during the discussion. Displeased and missing the hint, Sandgren lamented that it was “unfortunate” that staff could not finish its post-hearing comments and said, “we are not voting on whether they have water, I heard that I don’t know how many times,” and “there is no safety issue because nobody is building without water.” I explained publicly that Councilmembers connected their concerns about water to a criterion listed in the city code about public health, safety, and welfare, and this was a lawful basis to vote against the land use application for lack of a water. Quasi-judicial decisions must rest on established criteria. The Developer then asked for a postponement. Councilmember Matkowsky immediately said, “no, not going to happen.” Sandgren moved for a postponement, and Bedolla seconded. Nizam said, “I am not going to change my mind” and “there are so many issues.” The motion failed on a 4-to-4 vote (Kulmann, Sandgren, Bedolla, and Acunto voting for the developer). Upon my suggestion, Council moved to an executive session on a 6-2 vote (Matkowsky and Nizam voting “no”). The applicant ultimately withdrew its application.

Dramatic Change after January 19, 2021 (Round Two)

The dramatic twists and turns over the water issue and its effect on residential development projects continued on January 19, 2021. An executive session was on the agenda for Council to receive legal advice about “water availability.” But as the first order of business that night, Kulmann’s block of 5 councilmembers initiated a secretly orchestrated motion (made by Sandgren and Bedolla) and approved by a thin 5-4 vote, ending my city attorney contract and thereby excluding me from the executive session. The other three council “yes” votes (Kulmann, Matkowsky, Acunto) came from the two city wards with very active residential development. This motion by the block of 5 sparked my 1/26/21 public statement and 1/31/21 email, and Council negotiations in February to pay me an additional $125,730 in severance pay for a total payout of $215,552, plus accrued leave and other benefits. In an ironic twist of fate, when Kulmann lost her controlling grip on Council in the November 2023 elections, the city manager curiously “resigned” in January 2024. Meanwhile, back to January 2021, removing me effectively guaranteed that no city attorney would risk providing any “unpopular” advice on water issues in residential development projects. Sandgren made clear that night that she was very concerned about discussing “water issues” in executive session that night.

After January 19, 2021, and the lack of water still a problem, the vote and discussion on the $200 million/4100 residential unit project easily sailed towards approval. On February 9, 2021, Council approved the Developer’s land use application by a unanimous 8-0 vote. Councilmember Nizam switched his vote and made the motion to approve the land use application. Similarly, Councilmember Matkowsky also switched his vote, after publicly voicing strong opposition toward the development application, voting against postponing the vote or holding an executive session on November 17, 2020. Councilmember Phillips was absent. On February 23, 2021, the second reading of the ordinance approving the land use application passed by simple “consent.” That same night, Council unanimously approved a resolution increasing by $104,000,000 the debt limit for the metro districts financing the residential development project, allowing the metro districts to borrow more than $189,000,000 for the development.

Lastly, another issue may have been secretly lingering in the background of the Council’s vote, a fundamental issue in quasi-judicial proceedings: conflicts of interest. According to their campaign contributions disclosures, Sandgren and Bedolla each received (a) a $1,000 campaign contribution on April 19, 2021, from a land planner that worked and testified for the Developer; and (b) a $1,000 campaign contribution from the Developer on May 19, 2021 and June 1, 2021, respectively. Pursuant to Thornton City Code 2-197, these facts could have sparked a reasonable inference of a disqualifying conflict of interest for Sandgren and Bedolla when they participated in the quasi-judicial process in February 2021 approving the Developer’s land use application and increasing the metro districts’ debt limit. Subsequent events suggest that these particular $2,000 campaign contributions would have been ignored. In a high-profile, quasi-judicial proceeding spearheaded by Kulmann and Sandgren, more obvious conflicts of interest arose under Section 2-197 when Kulmann and Sandgren voted to oust a fellow Councilmember on a residency question. Kulmann was the president of the Stargate charter school board when it was named in several federal civil rights complaints, some of which were filed by the Councilmember targeted in the Council’s removal process. Sandgren served as the lead witness in the Council’s quasi-judicial removal process, and then she voted on the final question of removal. Quasi-judicial officers cannot testify and then vote on the final decision, but this is a topic for another day. If municipalities want to best protect the integrity of quasi-judicial hearings to serve the city as a whole, they must ensure that their city attorneys feel free (protected) to fully advise on high-profile process questions, by protecting them from retaliation that can occur in many ways, such as budget cuts, manufactured allegations, and other backdoor efforts to undermine city attorney efforts.