As 2020 came to a close, the Colorado Springs City Council met for a special meeting on December 29th. A vote loomed. City Councilman Tom Strand had been accused by citizen Sam Bryant of an ethics violation through the Independent Ethics Commission (IEC.) The moment had arrived for Strand’s fellow council members to decide guilt or innocence. Let’s take a look at the backstory.
What started the ball rolling on an ethics complaint?
Let’s flash back about 6 months. During the June 23, 2020 regular council meeting, Colorado Springs City Council considered re-zoning for the Kettle Creek North project. Kettle Creek North is a proposed 61.71-acre development in the area of Powers and Highway 83.
In order for the developer to add 339 homes to the area north of Pine Creek High School, City Council would have the final say about a zoning change to the land —a change from agricultural zoning to Planned Unit Development (PUD). If passed, that change would allow for the building of single-family homes.
During previous planning commission and City Council meetings about this proposed development, Colorado Springs Fire Marshal Brett Lacey had spoken, and reported that he felt the addition of 339 homes north of the existing North Fork neighborhood, which only had a single entry and exit 2-lane road through the existing North Fork neighborhood, was “not ideal” during an emergency evacuation scenario, but was “acceptable.”
The land backs up to Black Forest, not far from where the 2013 Black Forest fire started. All of the traffic into and out of the proposed neighborhood goes past the Encompass Heights Elementary School and the Pine Creek High School entrance, and feeds into 2-lane Thunder Mountain Road. There are no other entrances or exits proposed. Fire evacuations were a concern for Lacey, but not a big enough worry that he was going to prevent the development from proceeding.
Thunder Mountain Road was originally supposed to be a 4-lane road, but was never expanded as intended. The developer-funded traffic analysis of the road had been done in July 2019, when nearby Pine Creek High School was out of session and the new Encompass Heights Elementary School hadn’t been built yet. The developer’s analysis found that 2 lanes were adequate to keep up with an increased capacity on that road. And that may be the case when Pine Creek High School is out of session, and without the addition of an elementary school.
In opposition to the project, Sam Bryant and his neighbors spoke at the City Council meeting about safe growth being a priority. They pointed out that a new elementary school was being planned, and would add the transportation for 600 students to the road traffic. Also, they noted the flaws with the traffic analysis, as well as the concerns about fire evacuations.
When it came time to vote, several City Council members offered comments about the proposed zoning change. Councilman Strand, specifically, commented that he had considered Fire Marshal Lacey’s comments. Strand joined with Councilman Don Knight and Councilman Bill Murray in their concerns about safety and said he would vote no on the matter.
The zoning change failed on a 5-4 vote with council members Avila, Skorman, Knight, Murray, and Strand voting against it. This meant the zoning change would not go forward; there would not be 339 new homes built. Mr. Bryant and his neighbors won.
Or, so they thought.
Seconds after that 5-4 vote, Peter Wysocki, Colorado Springs Director of Planning and Development, immediately approached the council dais to make sure the council members were clear about their vote, that it meant the development would not go forward. City Council President Richard Skorman asked fellow council members if that was everyone’s impression. Strand chimed in, “yes, by me.” A short time later, council members broke for lunch. What happened over the lunch hour and the afternoon council breaks is where the drama begins.
The Lunch Break
We gathered details about what happened over the lunch break and subsequent breaks through a January Colorado Open Records Act (CORA) request, asking for a full report of the investigation that would follow. Some details about what happened during the breaks were revealed by Councilman Strand later in the June 23rd council meeting.
Councilwoman Jill Gaebler approached Chief of Staff Jeff Greene and Planning and Development Director Peter Wysocki. Wysocki said Gaebler expressed the opinion that Strand may have confused the Kettle Creek North project with another project Council considered on the same day —the Palermo project. The earlier Palermo project vote pertained to a 59.52-acre rezoning project at Flying Horse at Voyager Parkway and Ridgeline Drive —from agriculture to Planned Unit Development for single family homes. At an earlier planning commission meeting, the biggest complaint voiced by those neighbors was the worry about increased traffic congestion. Fire Marshal Lacey offered no comments on that project that we are aware of. Strand voted “yes” on the Palermo project that day and had no comments prior to his vote.
Greene then consulted with City Attorney Wynetta Massey. Massey gave the okay for Greene to contact Councilman Strand. Their phone conversation lasted for 5-10 minutes. During their conversation, Strand reported to Greene that he had driven out to the Kettle Creek North site the previous weekend. Greene later reported to the IEC that he felt Strand had been confused at the June meeting, as he had switched his vote from how he had voted on the project on the first reading at a previous council meeting.
Next, Strand received a text and a call from Wysocki. Strand reported to Wysocki he had made a mistake. He said that he intended to ask for a vote of reconsideration. Strand returned to the council meeting.
Makes a person wonder about the content of the conversation Strand had with Greene.
Hours later, as the meeting was winding down, Strand brought up his request for a reconsideration of the vote. During the discussion, Strand admitted he had previously discussed the rezoning matter with some of the School District 20 staff. Strand said he was changing his mind on the matter after reviewing his notes. He acknowledged the fire danger, but said he had a “change of heart,” in the hours since his first vote. In contrast to what Greene eventually reported to the IEC, Councilman Strand did not report any confusion in his reconsideration request.
After the request for reconsideration, Councilman Bill Murray pressed Strand, and asked if he had spoken to anyone about his vote reconsideration request. Strand admitted he had spoken to Greene and Wysocki about the matter, as well as visiting the site and speaking to District 20 staff members. Councilman Don Knight pointed out the ex-parte communications with school staff, Greene, and Wysocki are violations of council rules. Knight even pointed out that Massey had scolded him and, “took him out to the woodshed”, for admitting to ex-parte discussions on a different issue, years earlier. Knight respectfully asked Strand to recuse himself from the reconsideration vote. Strand said his conversations with school staff were to ask about what traffic was like and what school staff concerns were. He refused to recuse himself from the vote. In our review of this 7-minute video, Councilman Strand shed no light on why he had a change of heart. Instead, he seemed to reinforce the security concerns that led to his no vote in the first place.
City Attorney Massey, in spite of presumably understanding Strand’s possible violations of council rules better than anyone, allowed the vote for reconsideration to proceed. A reconsideration vote was held and the rezoning plan was passed on a 5-4 vote —with Strand voting “yes.”
Because the initial Council vote was to decline the project, Bryant and his neighbors thought they had won after the first vote. It was hours later when he heard the news about the reconsideration vote. No public comment was allowed prior to the reconsideration vote and no one attempted to contact Mr. Bryant or his neighbors for further comment.
Bryant read the City Council rules and believed Strand to be in violation of those rules. Bryant filed an ethics complaint with the Independent Ethic Commission (IEC) against Strand on July 6, 2020.
The rules discussed below are found here, on page 53, section 10-2.
The Accusations and the IEC Decisions
So, what was in Mr. Bryant’s ethics complaint, and what happened with it? The following is from the ethics complaint.
- Did Council Member Strand’s Conversations with Two City Officials Violate the City’s Code of Ethics?
Rules and Procedures for City Council States: “Ex Parte Contacts/Fair Hearings. The Council shall refrain from receiving information and evidence on any quasi-judicial matter while such matter is pending before the City Council or any agency, board or commission thereof, except at the public hearing.”
IEC Ruling: As for Council Member Strand’s discussing a quasi-judicial matter within 40 days from the date of the decision of the quasi-judicial matter with two city administrators after Council had voted to deny the Applicant’s request for rezoning, IEC member Louie Larimer voted in favor of finding an ethical violation and the other three members, Steven Helling, William Schmidt, and Dolores Grady, voted against.” The IEC had difficulty with the word “should” in the rule and said that was open to interpretation, as the word “shall” was not used.
- Did Council Member Strand violate the City’s Code of Ethics by visiting the Applicant’s project site and discussing traffic volumes in the vicinity with a private citizen who lived in the area prior to the final vote?
Rules and Procedures for City Council state: “Ex Parte Contacts/Fair Hearings. The Council shall refrain from receiving information and evidence on any quasi-judicial matter while such matter is pending before the City Council or any agency, board or commission thereof, except at the public hearing.”
IEC Ruling: The majority voted, 3 to 1, to find Council Member Strand violated the City’s Code of Ethics by visiting the Applicant’s project site and discussing traffic volumes in the vicinity with a private citizen who lived in the area prior to the final vote and without disclosure of the same until the afternoon session, after the morning vote was taken.
- Did Council Member Strand violate the City’s Code of Ethics by submitting an email statement to the City’s legal counsel to the IEC in which he falsely stated that he did not have any ex-parte communications with anyone prior to the final vote?
Article 1.3.113 (F) of the City Code of Ethics provides that: “No covered person shall engage in activities that conflict with his or her official duties and responsibilities or his or her fiduciary duty to the City.” During the investigation of the complaint, Council Member Strand submitted an email to the IEC’s legal counsel in which he represented that he did not have any ex-parte communications with anyone with respect to the quasi-judicial matter at issue in this case.”
IEC Ruling: There was a 2 to 2 split, with IEC members Steven Helling and Louie Larimer voting in favor of finding an ethical violation, with IEC members William Schmidt and Dolores Grady voting against, on Council Member Strand’s submission of an email statement to the City’s legal counsel to the IEC in which he falsely stated that he did not have any ex-parte communications with anyone and never travelled to the project site outside of the two Regular Council meetings.
- Did Council Member Strand Violate the City’s Code of Ethics by Discussing a Quasi-Judicial Matter with City Officials Within 40 days of the Date of the Decision?
Rules and Procedure for City Council states: “Council should refrain from discussing quasi-judicial actions with any person for forty (40) days after the date of the quasi-judicial decision.”
IEC Ruling: As for Council Member Strand’s discussing a quasi-judicial matter within 40 days from the date of the decision of the quasi-judicial matter with two city administrators after Council had voted to deny the Applicant’s request for rezoning, IEC member Louie Larimer voted in favor of finding an ethical violation and the other three members, Steven Helling, William Schmidt, and Dolores Grady, voted against.
The Ethics Investigation
The IEC is overseen by City Attorney Wynetta Massey. The members are appointed by Mayor John Suthers. As a result of Mr. Bryant’s ethics complaint filing, the commission members interviewed four people: Wysocki, Strand, Greene, and citizen Sam Bryant.
Council met for a special session for the purpose of reviewing the findings of the IEC, and issuing their ruling on the investigation on December 29, 2020.
During that special session, the Council first discussed whether they should go into a secret executive session to discuss the findings. They did.
After coming out of executive session, Council members Murray and Knight commented about the quality of the ethics investigation, calling the quality much lower than the council had seen in previous ethics investigations. Murray hinted at the evidence from June, including the conversations between Strand, Greene, and Wysocki, as amounting to influence peddling.
We agree that this investigation lacked some of the quality we have previously seen. Our CORA request response from the City initially provided us with audio recorded interviews that were unintelligible. When we asked the City staff to provide better audio, we were told there was none available. Sam Bryant submitted a request and reminded City staff there were better audio recordings available elsewhere and where to find them.
We are puzzled as to why Wynetta Massey and Jill Gaebler weren’t interviewed by the IEC concerning their parts in the reconsideration vote. They were both a part of the conversations. It was clear to us that this IEC investigation was haphazard and disorganized. The public deserves better.
Council members discussed the matter. They decided that Strand was innocent even though he had broken council rules, as indicated by the ethics commission. The only dissenting vote was Bill Murray. Gaebler and Strand were both excused from the meeting. Because there was no evidence of personal gain for Strand, a majority of council members said they were unwilling to find him guilty of a violation. Here is their written decision:
Ethics Complaint 2020-01 – City Council Decision:
Pursuant to City Code § 1.3.106(C)(4), City Council shall provide written notice of its decision in Ethics Complaint 2020-01. City Council has determined to issue a finding of no violation of the City Code of Ethics under City Code § 1.3.106(C)(4)(a). It is the opinion of City Council that, considering the facts that are specific to this complaint when there is no evidence of personal interest or gain, compliance with the procedural guidelines related to quasi-judicial matters before City Council are not within the scope of the City Code of Ethics. The Colorado Rules of Civil Procedure Rule 106(a)(4) is the appropriate remedy to contest final agency action on quasi-judicial matters brought before City Council.
Why bother with the Process?
This is the second ethics violation we have followed over the past couple of years. Remember our reporting on Council President Richard Skorman’s intimidation of a citizen following a traffic accident? We have come to the conclusion that these investigations are merely a formality to appease citizens who register the complaints. After the investigations conclude, no matter if the IEC has found the council member guilty or not, Council members have voted twice that their peer is not guilty.
In this case, they cited a lack of proof that the accused had personal gain from the violation. In the rest of the world, employees who break the rules suffer consequences. The only thing that happens when Colorado Springs City Council members break rules is that they are let off the hook by their fellow council members.
We are disappointed. Councilman Strand violated rules put in place specifically for the city council with no consequence. Why have rules if they never need to be followed?
We will continue to report on ethics complaints, and the investigations that follow. The public needs to be aware of them, and their results.
In this case, as in the case of the Skorman investigation, the citizens of Colorado Springs deserve better.