THE SECRET ELECTION:

FOOTHILLS FIRE PROTECTION DISTRICT

By Dennis Polhill

July 9, 2006

The Foothills Fire Protection District (FFPD) has long been the pride of Lookout Mountain.  Hundreds of people support the district both financially and by volunteering. In 1996 three small fire districts merged into a single district to share resources and capture economies of scale.  Its 85 volunteer firefighters would serve about 3000 resides scattered over the 25 square miles that surround Genesee in Jefferson County.  In retrospect those benefits seem fleeting as costs have escalated, the number of volunteer firefighters has shrunken by half and communications with the community have become strained.

No PrideNo one thought much of occasional assertions of malfeasance or impropriety, until last year.  The very next day after the June 2005 Annual Pancake Breakfast a sign went up proposing the construction of a “Taj Mahal” station addition.  If FFPD had had pride in what was being considered and confidence that it was defensible, they would have been more open and above board.  There is no better forum than the annual breakfast to share plans and ideas with the community.  That they chose otherwise suggests a hidden agenda.

Jeffco Planning – The next event was a Site Approval Hearing with the Jefferson County Planning Commission on June 22, 2005.  County staff incorrectly advised neighbors that the hearing was of no consequence.  Mostly hoping to learn what was in the works 30 to 40 people showed up at the hearing.  FFPD lied to Planning Commission when they asked whether there had been community meetings and outreach efforts.  The Planning Department staff recommendation to the Planning Commission was “minimal impact” and “recommend approval.”  However, when several citizens offered questions in testimony, three of the six members of the Planning Commission voted against the “minimal impact” conclusion.  A tie vote equals no action by the Planning Commission.  Evidently there is a proviso deeply hidden and generally unknown in county regulations that no action by the Planning Commission within 30 days is considered approval.  The Jeffco attorney alerted FFPD to this, but did not offer equal treatment to citizens.  Rather than inform the community or otherwise address the growing community concerns, FFPD eagerly grabbed at this loophole falsely claiming Jefferson County approval.

Minute-Readers – Seeking answers as to how and why things had gotten to this point, individuals read all of the Board of Directors meetings minutes over the prior 5 years.  Because FFPD insisted on $1.50 per copy, the readers made copies by taking photographs.  There was no record in the minutes of any decisions to build an addition.  Nor was there evidence of any of the appurtenant decisions, such as a decision to hire or pay an architect, or to allocate funds, conduct a property line survey, etc.  Neither was there a record of the “gift” from the tower companies or any record of discussions thereof.  The minute-readers did notice that the Board started adjourning into executive session at every Board Meeting beginning in October of 2004 without announcing an executive session agenda any more than to say “attorney client privilege.”  Interestingly, the minutes decreased in volume by about 25% starting at the same time as estimated by number of pages.  Is it possible that FFPD was violating open meeting rules and conducting business secretly?

Budget Off Limits – Other citizens with financial expertise began looking at the budget.  Of the $1 million budget, half was going to “administration.”  The accounting method used makes it difficult to ascertain specifics.  When specifics were asked at board meetings, citizens were stalled with the reply, “You must bring these concerns to the annual budget hearing meeting in November.”  When November finally arrived and the questions were being presented, the board (probably illegally) shut off public comment with, “We don’t have time for this” and quickly approved the budget.  They did promise to reply by letter which finally arrived in March (4 months after the fact … and many more months after various concerns were initially raised) with a statement that there would be a fee charged for further information requests and such requests must be filed under Colorado’s Freedom Of Information Act.  In 2003 the mill levy was increased from 8.0 to 9.196 without the knowledge or consent of taxpayers.

Gift, Bribe or Pay-Off – Along the way it was discovered that FFPD had received a “gift” of $280,000 from “local businesses” which turned out to be the broadcasters who wish to expand towers on Lookout Mountain.  The size of the building for the new tower required enhanced fire protection and it was claimed that donating the money to FFPD was the least expensive of three options.  FFPD was obliged to spend half on a new tanker truck and the remainder was extra cash.  When citizens asked to see a copy of the “gift” agreement, they were told “There is no agreement. The money is a gift.  There are no conditions on its use.”  It is unknown whether the “gift” was solicited by FFPD or offered first by the property owner.  Either way the objective judgment of FFPD became predictably impaired.  Some believe the “gift” from the beginning was a grand plan contrived by the tower owners to cause infighting within the community and to distract people from the tower issue.

Ineligible Director – Two of the five Board seats were due to be elected on May 2, 2006.  In January it became widely known that another Board member, Richard Kunter, who was elected to a 4 year term on the board in 2004, had sold his home in December 2003 and moved out of the district.  By law one ceases to be eligible to serve on a district board when one ceases to be eligible to vote in that district.  When Mr. Kunter was confronted about this, he requested the face-saving dignity of the opportunity to draft a formal letter of resignation and he agreed to act immediately in order that his successor could be determined via the May election.  When the resignation did not come, he was again contacted and he restated his prior intention.  This happened a third time.  Mr. Kunter indicated that he was being pressured by FFPD to stay on the Board.  See Appendix below for expanded details of events and facts that illustrate inconsistencies and prove the actions of the FFPD Board were intended to be manipulative and deceptive.

Vacating the Ineligible Director – The cut off date for candidates to declare for the May election was February 24.  Dennis Polhill contacted DOLA (Colorado Department of Local Affairs) in early February.  The DOLA person was extremely adamant that the Board member had ceased to be on the board the moment he moved out of the district, he was not entitled to the privilege of resigning, and that the third vacant seat must be immediately announced to the community and elected in May.  Since neither the FFPD Board nor Kunter were moving, Mr. Polhill crafted a letter repeating the DOLA comments, presenting it at the February 21 Board meeting.  One Board member said “The personnel committee was aware of the situation, had been looking into it for some time, and they would adjourn to executive session to consider it.”  FFPD issued a letter dated February 23 stating “the issue of Mr. Kunter’s qualification was brought to the attention of the Board of Directors for the first time.”  Evidently FFPD meant to say “for the first time in writing and any less notification does not count as notification.” Director Kunter knew and had discussed the situation numerous times with numerous people, including the Board.  And John Findling, another Board member, discussed this with at least one member of the community.  And Miller knew, because he was the chairman of the Board’s personnel committee and was the one who made the comment at the Board meeting.  It is very likely that all of the Board members knew.  That they failed to act in a timely manner is, at least, a clear dereliction of duty, if not a subversion of election laws and a conspiracy against voters.

More Deception – The February 23 letter also deferred to an impending review by the attorney of the Lookout Mountain Water District, that Mr. Kunter also served on, stating “qualifications … would have the same applicability.”  (Isn’t this interesting? This is the first time they know of the eligibility issue. Yet, they know the water district is reviewing the same matter.)  But when the water board met on March 13 and removed Mr. Kunter from the Board as ineligible, the FFPD no longer wished to conform.  Mr. Miller asserted in a newspaper column published on March 8, “He rents a room and maintains a voting address in the district.”  Not quite true: the voting address is his former residence (It is absurd to claim that because one fails to update one’s voter registration record that one is eligible to vote where one no longer lives).  As for the room, someone bumped into the wife from whom the room was supposedly being “rented” and when asked she stated unequivocally that Mr. Kunter was “neither renting a room nor residing with them.”

Denying The Right to Vote – This sequence of deceptions became publicly disclosed as a product of a face-to-face confrontation at the March 21 Board meeting.  Mr. Kunter stated “I do not want to cause any more problems.”  The FFPD attorney suggested that they would look into it (inferring that there might be a way for Kunter to continue on the Board).  The very incriminating exchange was captured on the FFPD tape of the meeting (Whether the tape still exists is unknown.  The minute-readers had asked for tapes when they discovered the minutes lacked critical information.  They were told tapes are destroyed after the written minutes are approved.  This seems like an odd practice (if legal), but it might be true).  Mr. Kunter resigned prior to the April 18 Board meeting.  But the damage had been done.  It was too late to announce the third seat for the May election.  Voters would not have an opportunity to vote to fill the third seat.  Special District Board vacancies that occur between elections are filled by appointment by the Board.  The practical result of these actions, whether intentional or not, was to deny citizens the right to vote; exactly opposite of the repeatedly stated intention of Mr. Kunter.  Was it Mr. Kunter or FFPD who contrived this result?  If the May election does not go to their liking, FFPD is empowered by their foot dragging and obfuscation to deadlock any reform actions by the new Board with a 2-2 vote, including appointment to fill the vacant seat.

Election Decisions – FFPD made a series of questionable, to say the least, decisions relative to the May election.  Every FFPD election in recent history (longer than a decade) has been by mail ballot.  Some voters who knew of the election expected to receive a ballot in the mail.  This would be a polling place election.  The pancake breakfast is held at the Lookout Mountain Station because it is most central to the population.  The single polling place in May would be at the Grapevine Substation.  Grapevine is a mere two truck garage that houses backup fire equipment that is rarely called out and virtually no ordinary citizen is aware of its existence or whereabouts.  It does not even have plumbing or a restroom.  The address of Grapevine on the FFPD web site was incorrect.  The only announcement of the election was a single legal notice in the Canyon Courier.  Normally there is at least a post card notice that an election is being held.  The Courier may be the closest there is to a publication of general circulation, but a small minority of citizens read it regularly.  When asked about the Grapevine polling place decision, a Board member said “The Lookout Mountain Station has to be ready to respond to a call.”  Yet, the same concern does not apply for other events, such as the Pancake Breakfast.  Is it possible FFPD was trying to make voting difficult?

Citizen Committee – Citizens had grown increasingly alarmed and an election committee was formed, Committee to Reform Foothills Fire Protection District.  The CRFFPD made two mailings to all voters in the district.  The second mailing merely restated the names of the reform candidates and when/where to find the polling place.  The first mailing included some background on the nefarious actions of FFPD, numbers to call to ask election questions, a map to the polling place and a copy of the application for an absentee ballot.  To insure that absentee ballot applications were not “lost in the mail,” the committee encouraged applicants to keep a copy of their application for their records and call the CRFFPD if they did not receive a ballot.  FFPD took offense to this precaution and rather than send absentee ballots to applicants, they sent a letter calling the precaution “an unlawful and unauthorized alteration,” clearly a tactic designed to intimidate voters and to suppress voting.  After a confrontation at the April 18 Board meeting, FFPD agreed to mail absentee ballots to all citizens who requested them.  Some damage was irreparable, because at least one person had to leave the country on business before finally receiving her ballot.  It was also discovered on April 18 that the DEO intended to be out of state for 5 consecutive days between April 18 and April 28 (the last day to request an absentee ballot) with no plan to distribute ballots.  Again due to confrontation by citizens at the April 18 Board meeting, FFPD finally agreed to make ballots available.

Election Day – On Election Day CRFFPD stationed several people at the I-70 exit nearest the Grapevine Substation with signs.  Numerous individuals indicated that they were unaware of the election.   The unofficial election results were Bartlett (414), Carney (412), and Wittrock (183).  The two reform candidates captured the two seats overwhelmingly with close to 75% of the vote.  In spite of FFPD efforts to obfuscate the election and suppress voting, voter turn out was nearly 20%.  In early March, when it was learned that voters would not be allowed to vote for the third seat, the third reform candidate (Steve Close) withdrew as a candidate to avoid diluting the reform vote.

Term Limits – Voters count on honest management of their elections.   When an individual is not eligible to run for office, the election official (typically the Secretary of State or a County Clerk) respectfully notifies the individual and declines to allow the name to appear on the ballot.  In 2004 FFPD appointed the district administrator as the DEO (Designated Election Official).  Thus, the district administrator, the employee of the Board, was put in a position to potentially deny ballot access to his bosses.  It was in 2004 that Mr. Kunter declared himself eligible to run for the Board after having sold his home in the district.  It was also in 2004 when Mr. Miller was permitted to run for another term.  Mr. Miller would not have been eligible to serve due to term limits.  FFPD has term limits of two four-year terms.  Mr. Miller served on the Lookout Mountain Fire District Board prior to consolidation in 1996.  As of the 2004 election he would have served over 8 years already.  Declaring one’s boss ineligible to run is not a good formula for long term job security.  Mr. Kunter also became a FFPD Board member as a byproduct of the 1996 consolidation and had served continuously, also exceeded his eligibility to serve under term limits.  Board Chairman, Jack McKenry, served on the Idledale Board for 15 years prior to consolidation and from 1996 to 2006 after consolidation.  The term limits clock for special districts started in 1994.  It is likely that McKenry was ineligible to serve after 2002, in which case a majority of those on the Board were not eligible to serve on the Board, raising questions about the legality of all Board actions over the period of time in question or even the ability to achieve a quorum to convene a legal Board meeting.

Attempted Cover Up – When the minute-readers announced at one of the Board meetings (probably September or October) that none of the actions relevant to the station addition were recorded in the minutes, FFPD attorney Scheurer recognized the difficulty and immediately attempted to cure the situation by proposing that the Board then pass seven retroactively effective motions.  The first was discussed but not voted on.  Evidently the Board did not comprehend the attorney’s efforts at damage control for failure to formally act on these important items of business.  Is it possible that these items were discussed and decided in the numerous “attorney client privilege executive sessions?”  Had the Board been conducting a series of “secret meetings?”

Filling the Vacancy – All three May election candidates attended the April 18 Board meeting and agreed to expedite filling the Board vacancy by advertising immediately for parties interested in being appointed.  With the election outcome so overwhelming, the rightful choice should be an easy one.  Three individuals applied and were interviewed by the full “new” Board prior to the June 20 Board meeting: Donna Wittrock the non-reform candidate who was overwhelmingly defeated in the May election; Steve Close, the reform candidate who withdrew when the third seat turned out to be unavailable for election; and Paul Wells.  In the interview Paul Wells was asked why he did not run in May.  Wells replied, “I did not know there was an election.”  He wasn’t the only one.  On June 20 the Board decided to vote on each candidate individually.  This decision about process doomed it to deadlock, notwithstanding a revelation by one of the carry over Board members that the May election actually expressed a message of concern-about-the-current-direction-of-FFPD from the community of some merit.  There was no such revelation, so the vote on all three candidates was deadlocked at 2-2.  Director Medved argued with backwards logic in favor of Wittrock, “She should be selected because she was on the May ballot and Steve Close dropped out.”  A motion was passed to send a letter to the County Commissioners requesting that they immediately intervene to break the deadlock.

CONCLUSION

More Scandals in the making – When people hear the FFPD story, they often react with, “FFPD is on the take.”  Until the truth is known, this remains a possible explanation.  Some suggest the motive is ego or political power.  FFPD is a tiny volunteer fire district. Why would Board members serving so many years jeopardize their service and risk their personal reputations over a petty power struggle?  The big picture is scary.  With over 2300 special districts statewide, there must be others that are as out-of-touch and out-of-control or self-serving as FFPD.  It is quite possible that multiple scandals of enormous proportions will one day explode into the limelight.  Worse yet, the citizens of Lookout Mountain are educated, successful, informed, engaged and affluent.  Thus, citizens elsewhere might find it more difficult to successfully confront similar situations.

Consolidated Elections – The County Clerks attempted to pass a “Consolidated Election” bill about ten years ago.  It would have moved all regular elections to November.  This would have reduced election costs and increased voter turn out.  Not everyone likes these two benefits. The Colorado Municipal League and the Special Districts Association are among Colorado’s most powerful lobby forces (read: taxpayer funded lobbying) and succeeded in deleting cities and special districts from the bill.  Outlawing obscure election dates (calling them “secret elections” is a minor exaggeration) is pro-democratic, pro-citizen participation, and pro-open government.  Some European countries require a voter turn out of 50% for an election to be valid.  Such a rule would end “secret elections.”  By manipulating election dates and election notices it is fairly common to see special district elections with single-digit voter turn outs.

When to Start – As for FFPD, the new Board has a lot of work to do.  Potentially every Board action over the last few years needs to be reviewed and validated or reconsidered.  They have to get a handle on the finances and extract FFPD from the perceived or real conflict of interest caused by accepting the tower money.  Until the vacant Board position is filled, FFPD will remain deadlocked and the large backlog of difficult work will continue to grow.  Lookout Mountain is fortunate and thankful that highly qualified and competent individuals continue to step forward and offer their time and talents in public service.

APPENDIX

Supplemental information to paragraph above entitled:

“Ineligible Director”

Mr. Kunter indicated that he was in discussions with other FFPD Board members, its administrator and counsel, and was being urged to stay on the Board.  Mr. Kunter did not tender his resignation prior to the cutoff date.  A closer look at dates and information indicate members of the Board have not been telling the truth and were obviously attempting to frustrate the election process in an effort to control or at minimum deadlock the future Board.

January 26, the Paradise Hills Homeowners Association held its annual meeting at which a signed letter was read and called to the HOA’s attention, noting that Mr. Kunter, a former resident and member of the FFPD and Lookout Mountain Water Boards, had moved out of the district and raising issue with his continued service on both Boards.  At least two members of the FFPD Board (Findling and Miller) were immediately contacted regarding the issues raised in that letter, including Mr. Kunter’s seat.  One of the other Board members (Findling) immediately indicated he was not seeking a second term and that another member of the Board (McKenry) was term limited.

February 8, Mr. Kunter was contacted directly and was aware of those conversations and acknowledged that information about his seat on the Board had been circulated by those Board members initially contacted.  Mr. Kunter indicated he was inclined to resign but requested a few days to consider and discuss it with other members of the Board, its administrator and FFPD counsel.  In follow-up discussions, he reaffirmed his intention to resign.
February 20 (Monday), Mr. Kunter was again contacted and specifically noted that he intended to resign and was having discussions with other FFPD Board members, Administrator and counsel regarding this matter.  In the course of the conversation, he noted that he was being encouraged not to resign but that he was inclined to resign from the FFPD Board and let the community fill the seat in the May election.

February 21, the FFPD had held its monthly meeting where it was anticipated the Board would announce the resignation and third vacant seat for the May election.  However, to the public’s surprise neither occurred and the matter was for that meeting killed.  When a member of the community specifically asked about the Board’s determination and the status of the seat, Mr. Miller dismissed the question stating that the Personnel Committee is looking into it.

Unbeknownst to the public, Mr. Miller had already the day before (February 20), purportedly on behalf of the Board, submitted a letter to the Canyon Courier that was published March 8 in which he said “There is also some misunderstanding about a board member moving out of the district.  He rents a room and maintains a voting address in the district.  He is also in the process of buying property again in the district.  The separate attorneys for the two boards he serves (FFPD & the Lookout Water Board) consider that he meets the requirements for service to those boards and the community.”  Canyon Courier, Wednesday, March 8.  That however was false.

February 24 (cutoff date for May 2 election) Mr. Kunter was again contacted and again indicated he was inclined to resign and let the public fill his seat, but didn’t know if they would get it done yet that day, had been in multiple discussions with FFPD counsel (Scheurer) and other members of the Board about this matter, that he was being urged not to resign, and that he was told that there was no point in resigning yet anyway since the Board could not act on it before March.

March 13, only 3 business days after Mr. Miller’s letter appeared in the Courier, at the Lookout Mountain Water Board (LMWB) regular Board meeting was held.  Their attorney reported that he had determined that Kunter was NOT eligible.  The Water Board determined Kunter’s seat to be vacant.

March 22, via email and fax Mr. Miller and Mr. Scheurer were specifically challenged with respect to the contradiction.  Mr. Miller responded prior to the FFPD Board meeting later that evening saying “I had sent the published letter the Monday before the February board meeting shortly after hearing of the anonymous letter to the Paradise Hills Homeowners meeting.” And went on to say Kunter had said he was renting a room and that he had contacted Mr. Scheurer “and he concurred that the legal residence would be qualified.”

Later that evening, at FFPD Board meeting March 22, Mr. Scheurer first, and then Mr. Kunter presented a bit of a dog and pony show.  Mr. Scheurer opened to specifically state that he had not made a determination and did not have enough facts to do so.  Mr. Kunter further elaborated and reiterated an unbelievable story about renting a room on Lookout Mountain.   Community members took issue with the inconsistencies and the story, asking Mr. Scheurer to explain how he could advise Mr. Kunter (ethically or practically) prior to the February cutoff if now he did not have sufficient facts to do so.  Mr. Kunter was specifically asked how the spouse of the house in which Mr. Kunter was purportedly renting a room had no knowledge of such an arrangement.

March 22, Mr. Miller and Mr. Scheurer were asked to explain the contradictions between the Courier article, what had been announced by LMWB, what was known about the Lookout Mountain house story and what had been said at the FFPD Board meeting.

March 28, Mr. Miller responded indicating that he had sent his article in to the Courier February 20, the day before the February 21 FFPD Board meeting.  He did not respond to the inconsistencies.

March 29, Mr. Miller responded again that he only had the information he had “3 or 4 days” prior to the February 21 meeting (still unresponsive, but now clearly raising the question of why it hadn’t been properly and definitively addressed Kunter’s seat at the February meeting) – he then closed saying “And now it must be a moot point!!” (referring presumably to the fact Kunter was going to then resign…Mr. Kunter purportedly then resigned a few days later although he did not at the time circulate copies to others in the community).

April 18, Mr. Scheurer replied by fax basically acknowledging that he hadn’t made any independent determination but claimed to have been justified in deferring to and waiting for a decision from the LMWB (albeit a separate entity, separate district, and separately represented).

Basically, Messrs Miller and Scheurer had changed their story from that of promoting the rental argument, to now purportedly waiting for the LMWB.  Nobody was explaining why they hadn’t made the determination themselves in the first place, or how the Courier article and the later correspondence were so contradictory themselves, and with what LMWB did do March 13.

April 29, FFPD sent out a mailing just three days before the election, in which they inserted a specially framed “Editor’s note” stating “At the March FFPD Board Meeting, the Board heard that Director Richard Kunter’s qualifications as a director had been challenged because it was believed he was no longer a resident of the District…” and attempting to justify failure to act earlier on this matter or allow the public the ability to vote to fill the seat.   If the contradiction of that opening line was not enough, the balance of the piece was at least as significant for what it said had not happened as what it said had – it essentially said they had not themselves made any special investigation despite repeated contacts and information regarding the same since January, but instead drug their feet as long as they could.  And finally they had to acknowledge the situation by virtue of the fact that the LMWB, despite much later notice, took action and declared the seat vacant. The above quoted opening sentence itself misrepresented and fails to disclose that this matter had come to their attention already in January (if not earlier).  The above quoted opening sentence and the entire discussion is contrary to the so certain and strongly worded Courier article Mr. Miller acknowledged submitting already February 20.

Corroborating Proof – All of the above referenced specifics can be backed up with copies of letters, faxes, newspaper articles, meeting tapes, emails, and testimony of the various citizen-witnesses.

This sequence-of-events, outlined in this appendix begs the relevant question that Kunter was not entitled to a resignation nor was the Board entitled to procrastinate about critical election decisions per the DOLA comments in the paragraph above titled “Vacating the Ineligible Director.”  At some point this clearly dishonest, inconsistent and unethical behavior crosses the line into the realm of criminal.  The right to vote is a fundamental right and these people have not just denied it to 3000 FFPD voters, but put a lot of effort into the task.