Thread by @shayshinecastle

OK, now the heavy hitter: Discussion of ballot issues. Presentation below. www-static.bouldercolorado.gov/docs/Item_7A_B…

Yates is addressing the threat of a lawsuit from Bedrooms are For People if the measure isn't put on the ballot. HBC is representing (Hutchinson, Black & Cook)

"I find it quite unfortunate that we've come to this," Yates says.

I mean, other community members have been threatening lawsuits for months, so...?

"I'm fearful that that normal exchange of ideas and discussion and persuasion won't happen tonight," Yates says, "because we are now under threat of lawsuit. ... I will be circumspect about what I say tonight."

It's regrettable that a group of ppl feels that the best way to get council to do what it wants is to threaten to sue, Yates says.

Weaver asking Carr for clarification about personal legal exposure of council members expressing opinions.

Carr: There's generally legislative immunity for statements made during course of legislative proceedings.

I would not expect a lawsuit to name you personally; it would be in your official capacity. The lawsuit wouldn't seek damages, probably; just force us to put it on ballot

"This would not be the first time we've been sued" about a ballot measure, Carr says.

But "in many occasions," statements from council and Carr have been quoted in lawsuits, he says.

Nagle: Based on what Yates said, I wanted to ask if everyone who put in a petition initiative, from my understanding they all received something from the city recommending they seek legal counsel to navigate election law.

Glad she brought this up, bc it is true: Campaigns were advised to get legal counsel.

But here's the thing: Even now, lawyers can't agree on the reading of the city's election law. Carr thinks one thing; the lawyer for Bedrooms has another view.

The CU South petition folks (involving PLAN) apparently consulted a lawyer who agreed with Carr, after consulting others who didn't.

So it's not like it's cut and dry here.

And it gets to the heart of the issue: Does state law or city charter govern city's election law?

Because depending on which takes precedence, the petitions have different signature and date requirements, and could leave council as the only path to the ballot.

Anyway, Brockett noted that a lawsuit is unfortunate, but that community members have been threatening to sue throughout the process. (My point above)

Nagle said campaigns had "fair warning" that they need lawyers to navigate election law.

Anyway, now we're going to have the staff presentation. I'm going to try and balance reporting what staff says and adding in my own clarifications. I know this has been pretty thoroughly canvassed, but it can still be confusing.

Carr: I'm responsible for everything that comes out of my office. But Luis Toro, another attorney, is an expert who is presenting.

But anyone who is upset, direct it at Carr, he says.

Toro does civil litigation against the city. He used to head up Ethics Watch, and this is the very sort of topic I would have called him to weigh in on.

Irony.

"The city has been sued before over ballot initiatives, but not over the changes made (by voters) in 2017 and 2018," Toro says.

This is the first time a petition initiative (several, actually) have been filed under those new rules.

Clearly there was confusion over what the dates and signatures should apply.

Some info here: boulderbeat.news/2020/07/07/evi…

So the city's initial guidelines said charter amendments need 4,048 signatures and had a deadline of Aug. 5

State statute only gives 90 days to collect signatures from the filing date, so deadline would have been June 21 for Bedrooms Are For People.

The city's guidelines were to "err on the side of petitioners" and give them more time to collect signatures, Toro says.

City charter requirements would require signatures submitted 150 days before the election: June 5. And they would have only needed 3,336 signatures.

There's another argument that this is a special election, which means TWICE the number of signatures would have been required (8,096) though I don't believe the city ever gave that guidance. A resident raised that, and it's a reading of state statute.

Boulder argues that, as a home rule city, its own rules on elections apply — not state statute.

Carr said of the 15 biggest cities in Colorado, 8 of them allow local rule to supersede state on charter amendments. 6 use state law.

But there's not been a court case to settle that question definitively, Carr said.

Ultimately, council has within its power to interpret the city charter. So it can decide that state law applies, or that Boulder's own charter applies. It doesn't have to accept staff's interpretation of the charter, which is this:

Boulder's election rules are the law, not the state, as Carr said. Staff incorrectly advised campaigns about this, so staff is recommending that council place the measure on the ballot IF THEY GET THE REQUIRED SIGNATURES

BUT that the city clerk can't certify them bc the deadline has already passed. Again, staff advised campaigns wrongly on what the deadlines are.

Anyway, that's staff's interpretation.

Toro on why he believes that is: Colorado Const. Art. XX, § 9(2) "The general assembly shall provide by statute procedures under which the registered electors of any proposed or existing city and county, city, or town may adopt, amend, and repeal a municipal home rule charter"

The "may" was emphasized, in that cities CAN use state statute, Toro says (paraphrasing) but they don't HAVE to.

Now onto special vs. regular election: State law defines regular elections as odd-year ones, even though this is a general election (when turnout is higher). Because it's an even year, this is a special election — which means 2X the number of signatures are required.

That's if state law is what Boulder follows, not its own charter, which sets out its own limits for signatures.

We're mostly talking about Bedrooms Are For People, though there is another active campaign (Our Mayor, Our Choice) but it filed later, so its deadline isn't that much changed no matter what council decides. BUT it might need 2X the number of signatures, so....

There's another petition in the presentation, about CU South and forcing Boulder to do certain things there, but last I heard (from one of the organizers) they withdrew... so I haven't really mentioned it.

Yates: What's the language in our charter about special or general elections? Is it the same as the state?
Toro: Our charter is different. Initiatives are initiatives, and our charter doesn't make a distinction between special or general.

Yates: But Section 22 of our charter defines regular municipal elections as held in odd years. All other municipal elections are special municipal elections. (He's reading)

Toro: But under other provisions of the charter, that distinction isn't made.

Toro: When charter amendments are done by the voters, sometimes you get less than perfect results.

Carr: There used to be a provision of the charter (about signatures in a special election) but it got removed.

Toro: That happens at times, where a piece gets changed or removed and other pieces no longer make sense. It seems to be what happened here.

Joseph: It sounds like we've been doing this, and petitions have been getting on the ballot without considering the charter.

Carr: The charter was changed in 2017 and 2018 and we haven't had a petition since then. This is the first time we're dealing with it.

Joseph: If we move the goalpost on signatures required, what happens to NEWR, which already made the ballot?
Toro: Nothing, bc that's not a charter amendment. This issue about state law only applies to charter amendments.

I know law doesn't work like this, but like why would the state of Colorado give a rip about how Boulder does its petitions? Why is that in the state's interest to control?

Weaver: How did the guideline number come to be what it was? (4,048)
Toro: That was based on the view that this was a general election, and state law applied.
Weaver: If our charter governed it, why wasn't that the signature amount?

I'll answer that one: Staff originally thought state law applied in some places (signatures) but not others (timing) but then Carr came back and said, wait, we were wrong and only the charter applies.

That's why we're here!

Weaver asking again why state law was only applied part of it.
Carr: "The guidelines were an attempt to meld state law and the charter. This was the view of the working group, that state law applied." Guidelines were an attempt to mitigate that somewhat, a "good faith attempt."

"One of the lawyers in our office firmly believes that's the interpretation of the law," Carr says. "I'm not sure I agree anymore."

"The guidelines were a good faith attempt to do the best we could at the time," Carr says. Our views evolved as the process went on. But council ultimately decides what the charter says.

Really getting into the weeds here.

Carr: Our voter rolls started to grow enormously after a federal rule change, which is one of the reasons for the 2018 change to 10% of the avg number of voters in the past two elections as the threshold for petition signatures

Important clarification from Carr: City charter says you have 180 days to gather signatures, state law says you only have 90 days to gather signatures.

City guidelines were an attempt to give petitioners more time, Carr says.

Yates: Isn't everything pointing to the fact that this is a special election?
Carr: That's what state law says
Yates: What about our charter?
Carr: No. We used to think of special elections are ones not in November.

This is a bit confusing, bc apparently our charter isn't consistent (as mentioned above).

Weaver: The election working group report clearly says, three times, that charter amendments are governed by state law. How did we incorporate that intent into the law?

Toro: The ordinance on charter amendments was passed in 2017, and the election working group didn't form until after that. One of the purposes of that group was to clarify that initiatives cover everything. The 2018 amendments didn't change that at all...

...So if the working group wanted to clarify that, there should have been a clarification to that specific ordinance proposed, but it wasn't, Toro says.

Carr: The general rule is you don't look to intent unless the language is ambiguous.

What we tried to fix in 2017 was putting hard deadlines in the charter. The 2018 changes put deadlines into the charter, and we're struggling to interpret those.

I take issue with calling it a cleanup, Carr says. "It was a political dispute in my view."

Carr airing more election working group laundry.

"There were many back-and-forths between David Gehr and that group about what we put in the memos. They wanted to control their memos and what we put in ours."

Friend: Did the guidelines council candidates receive also include a stipulation to consult a lawyer? Just trying to see what the parallels are and how advisable those are.

Carr: I can't say, bc I don't know. We try to give the best advice we can. To my regret, we didn't think of all of this when we issued guidelines to campaigns. I wish I could turn back the clock; we're doing the best we can.

Brockett: The next steps are entirely up to us from a legislative position?
Carr: It's council's prerogative to say what the charter means. If you want to tell us we're wrong in our interpretation, we will honor that and defend it.

Brockett: Your recommendation is that we put those two initiatives on the ballot?
Carr: I believe that is fair. But it's up to you.

Reminder: Council can use whatever criteria it wants to place things on the ballot. So that would remove threat of a lawsuit (as Carr noted in the memo)

Weaver pointing out a contradiction in the charter about petitions
Toro: I don't think that's a contradiction.

I can't go into it bc damn if I understand it.

OH it's about what council can adopt as an ordinance versus putting on the ballot. If it's a charter change, it has to go to voters.

It's fun watching non-lawyers try to lawyer.

Carr: The state constitution always provides limits for what the city charter can do — for instance, you can't require MORE signatures than the state does for petitions — but there's flexibility under that for the city to govern itself — so you could require FEWER signatures

Young: I don't seem to be getting any clarify on this from our city attorneys. If I were a petitioner.... well, if I were on city council.

Reminder: You are.

Anyway, her q is: Where do I go for clarity?
Carr: You have to interpret the state law and city charter. And that's a matter of opinion. "It's open to question and we will prob get sued and a judge will tell us."

Also known as: The law.

Carr: "Legal advice is advice."

Carr: Toro and I both believe that the charter control is the best interpretation of the law. But that doesn't mean it's binding.

Young: That doesn't provide any clarity. ... If I wanted clarity in this moment, in the absence of an ordinance... Would I go to the state law? We can choose which interpretation, right?

Carr: If you choose state law, state law is fairly clear.

Wallach: I commend your good-faith efforts at this, Carr, but "I could not disagree with you more in your conclusions."

He thinks state law applies.

Wallach: "I'm hard-pressed to see why state law should not be controlling charter amendment processes."

Heated exchange between Wallach and Carr.

Wallach: What does Denver do?
Toro: As a lot of you know, their elections are not even in the fall. They're in the spring following the general election; that's by charter. No one has come to Denver and said you're not allowed to have your elections in May.

Weaver to Wallach: You've made your point

Brockett: Fundamentally, we do not have clarity about what the 100% correct legal interpretation is. We have a number of lawyers on city staff and in the community who have different opinions on this. For us to try and resolve the legal answer is not going to work out.

Brockett: We have the authority to place these on the ballot or not. "I look to fundamental fairness and good governance." The city gave guidelines; the petitions did their best to follow. And this happened in the middle of a pandemic.

Brockett: "If they clear the signature thresholds by the data given to them by the city, we should say, well the buck stops here. The city gave you instructions and if you complied ... we as the governing body of the city will take responsibility for that."

Friend: There are 6 attorneys on this phone call. Not being able to agree is pretty telling to me that we as a group cannot agree, so I don't know how we could expect petitioners, even with attorneys, to interpret what we can't.

Yates: Those are great arguments, but we're not there yet. Let's answer the q about which interpretation we think is correct.

Yates: It sounds to me that while you may have initially provided incorrect guidelines to petitioners, as early as May 18, you told them state law might apply and they might want to govern themselves accordingly.

True, as Carr confirms.
Yates: So if we decide the state law interpretation is correct, then you've at least advised them at some point before the deadline that state law might have applied?
Carr confirms again.

Yates also believes state law applies.

"I'm delighted to find out that you told petitioners on April 20 and May 18 ... that state law might apply and they should govern themselves accordingly," Yates says.

Friend: I remember you saying that you still believed Aug. 5 was the correct date and that would be defensible.
Carr: We've certainly involved in our understanding of it.

Carr: I told them June 21 could apply and they should get signatures in if they can. But I *also* said I believe the deadline of Aug. 5 was valid and we would stick by that.

Carr: If we force this on the ballot (by certifying it) after the Aug. 5 deadline, I believe we risk a lawsuit.

Friend: It doesn't seem right to me to say, turns out it was June 5 and you all should have known that. It doesn't meet the spirit of what direct democracy is all about. We want ppl to gather a certain number of signatures; this was very clearly done.

"For us to honor that doesn't seem very risky," Friend says. "It doesn't pass my gut test to have screwed up in this fashion and not try to make it right for people."

If we have a sense the deadline was June 5, we wouldn't have told ppl to gather signatures in a pandemic in late May. So clearly we didn't know what we were talking about.

Friend: If we put measures on the ballot, I don't think we have to or should decide if state law or charter applies. That's not something council would typically do; it's a legal determination.

Carr: It's your ability and duty to interpret the law. That's what legislators do.

Nagle: Supports Yates and Wallach.

Swetlik: I agree that state law is what makes the most sense, but that does not preclude us looking at the situation this year. There were different ideas given as to what was accurate.

Young: It's very helpful to hear that petitioners were told that state law may apply. "I think a prudent person would have said, state law applies, this is my best chance and would have gone with that."

So that's a clear majority that state law applies... which, reminder, sets a HIGHER threshold for petitions seeking to change the city charter .... that's after voters implemented lower ones (I guess for everything else?) in 2018.

Joseph: This is a hard one.

Joseph: Part of our job is community service. That might not be the right word for it, but this is about fairness. It's a governance issue.

"It's only fair we do the right thing."

Joseph: "Whatever communication we put out before, it was wrong. We gave out the wrong idea. So we were wrong, but we can make it right."

Supports putting them on the ballot. "It's not an endorsement of yes or not; they will be voted on by a community."

Swetlik pressing Brockett, Friend, Joseph on what interpretation they think is correct: State law or city charter?

Brockett: I really don't feel like it's clear. It needs to be looked at very carefully and clearly. Lots of lawyers are disagreeing vehemently on this. So I'm not sure.

Friend: We previously said we'd pick this up in September and clarify it. I don't think we have to get into it tonight. I'd rather us clean it up and make it user-friendly going forward.

Weaver: I think we have to defer to state law in this. I don't understand the rationale for the guidelines, bc they seem to be a hybrid. I'm not sure you can operate that way. To me, it seems like either the state controls or the charter controls.

Another reminder: Following state guidelines will give ppl less time to collect petition signatures.

So, regardless of what happens with live petition efforts this year, Boulder is laying out higher hurdles for direct democracy: Less time and more signatures (in even years)

If petitioners want lower signature thresholds, they'll have to collect in odd years — when turnout is lower and the electorate is older.

Moving onto the question of putting these on the ballots. I think Weaver set his views up by clarifying that state law requires over 8,000 signatures... so he might use that as his threshold for referring or not.

Bedrooms is at about 6,500 currently

Wallach suggesting punting the question of referral to another time.

Brockett: From a practical perspective, if council says the state law controls and if you clear that threshold, congratulations, it's not really realistic. That's two weeks. 8,000 signatures.... they were shooting for 4,000.

Weaver: Your argument is that we can go ahead and have that conversation assuming they won't make the state threshold?

Brockett: It's an extremely likely outcome that they won't make it.

Weaver: I agree

Friend: I don't see anybody getting to 8,000 signatures. So let's have that discussion tonight.

But it might be beneficial to delay a week so we can have a public hearing, she says.

Yates: Out of fairness we should indicate whether we're inclined to put these on the ballot or not.

Wallach: I yield, but I request a 3-min break.

Which we will do now.

Brockett starts out: If they hit the signatures threshold the city gave — 4,048 — by Aug. 5, council should place them on the ballot

Weaver summarized for him.
Now, Brockett: "Let's make good on the guidelines we gave them."

Friend: I think the CU South petition, if we're going to look at that one in the same vein, bc deadlines are sort of arbitrary if we're referring to the ballot, I might given them an extra 7 days for us having said don't gather.

But if they get the signatures, let's put it on.

That's an elected official trying to make the rules fair for an issue she 100% disagrees with.

She brings up Polis' recommendation that cities suspend occupancy limits due to COVID and "knowing that ppl are teetering on the edge of homelessness."

What is Boulder going to do with that? she asks. What's the process?

Carr: We're still waiting official guidelines. We can draft an ordinance to suspend them, but we have grandfathered limits in places in Boulder which creates patchwork and makes occupancy limits "kind of crazy" in Boulder.

Friend: I assume the governor made that recommendation for a reason and that the data supports it. But I want more information.

Carr: I'm not sure that's possible. The planning dept plate is pretty full.

Young: I'd like to see the governor's order on that suspension. I'm a little confused about it bc one of the things we hear about the spread of COVID is ppl living in tight situations can't self-isolate.

"To encourage ppl to live in tighter quarters when that seems to be one of the causes of the spread of the disease... I'm confused by it," Young says.

Friend: I did send it in my Hotline post a week or two ago.
And the COVID spread: Is it more dangerous to be living on the streets?

Yates: I'd like more information. It's a little unclear to me whether that was intended for families or for everybody. The extent that there's over-occupancy, it tends to be students. I'm not sure what governor was saying; maybe it was that families could double up.

People always overlook working folks, WHO ALSO NEED TO HAVE ROOMMATES.

Well, housed and/or rich people do.

Yates is not answering question about whether or not to refer the ballot initiatives yet. He's "yielding" to "hear what other council members say."

Wallach: I'd like more information about what our eviction crisis might look like. We've got 1,400 affordable units at BHP, and they are evicting no one, so that should help relieve burden on lower-income ppl.

1,400 units. Colorado unemployment is at 10%; if you extrapolate that to Boulder (90K jobs) that's 9,000 ppl out of work.

Anyway, Wallach says council should look at the content of the petitions if voting to put them on the ballot.

"I'm very concerned about the Bedroom initiative being a charter amendment ... it's basically a zoning ordinance."

"There's a big issue here about occupancy that we ought to turn our attention to. I'm sorry we're not able to do that as part of a workplan," Wallach says.

Sums up his feeling: "Possibly persuadable but disinclined."

Young also wants to "hear more discussion" before weighing in.

Swetlik: Following the original guidance is probably the fairest thing to do here.

"You've got to trust the city when the city tells you something. Otherwise, what's the point of being the city?"

We gave the wrong guidance, Swetlik says, and council never took it upon themselves to correct that.

It's fair to put them on the ballot as a council, if they get the correct signatures.

Also thinks CU South petition should get more time.
Young: Can we do that?
Carr: Yes. You can do whatever you want to put things on the ballot yourself.

Friend responding to Wallach saying it's not fair to put land use things in the charter: If we didn't have land use or zoning things in the charter (blue line, open space, height limit) then we wouldn't have the crunch we have now.

The charter gets into how you can't use land all the time, Friend says. This is about how you can use land, to house humans. It's a human rights issue.

Plus, it's not for me to say because I didn't create the petition. Our rules say you can petition for charter changes.

"Why are we putting up extra barriers when they're doing something that's perfectly legal and valid?" Friend says.

So we're at 3 to put on the ballot; 1 against and 2 sitting out

Yates: On April 20, our city attorneys office told Bedrooms what the alternative date was. That was three months ago. They made a decision to follow guidelines they'd been given a few weeks earlier as opposed to the new information.

They had 2 months after to meet the June 21 deadline, Yates says. (They sat out about a month waiting for council to do something, but OK)

Doesn't want to place on the ballot; wants council to adopt it as a work plan.

Wants a working group of diverse ppl to discuss the pros and cons of occupancy limits.

"I think this is worthy of a more lengthy discussion. It's our prerogative and obligation" to look at the content before we put it on the ballot, Yates says.

Our Mayor, Our Choice is flawed, Yates says. That does have to be a charter amendment, and the Bedrooms one doesn't.

Yates: Council and others are willing to make fixes; I don't know that it can happen for this year's election.

It should be noted that the Mayor initiative is by pretty well-known political names. Old, established folks, some of whom who have been on council or various boards, or run for council.

Bedrooms folks have some familiar political names (Eric Budd, who ran for council) but are mostly new-er folks or housing folks that have not, by and large, held positions of power.

Brockett: Just to clarify, the city told them the June date *might* apply AND that they would still accept signatures through August 5.

Joseph weighed in but I'm not sure what her position was.

Weaver doesn't want to refer without considering content.

"To me, land use and the charter doesn't work."

Weaver: "I could't in good conscious refer either the CU South or the Bedrooms unless they get the signature thresholds that are required of them ... I'd be perfectly happy to launch something as a work effort to talk about ordinance changes."

RE: Our Mayor, Our Choice, that could use some work, too, Weaver says, though ranked-choice voting is "probably a better way to do than winner-take-all."

Young asking qs about signature thresholds.

She agrees with Yates and Weaver. Shocking.

CU South is administrative; Mayor is "trying to accomplish too many things," Young says.

"If you're going to put a petition for a charter amendment out there, you really need to do your homework."

"I like (Yates') idea that it be worked on," Young says. "I like the idea of ranked choice voting. There's different flavors of it."

Bedrooms: "I agree that if we're going to refer it, it has to be something that works, and maybe it's legislative," Young says.

Suggests it be tied to affordability, similar to ADUs.

Nagle: "I'm not personally going to vote that any of them go onto the ballot."

So that's a majority who does not just want to send them to the ballot automatically if they meet signature requirements: Young, Yates, Weaver, Wallach, Nagle

Swetlik, Friend, Brockett were for that
Joesph has yet to weigh in, at least in a way I understand.

Apparently Joseph was on that side, according to Brockett, who says it is "disappointing" that a majority wouldn't support putting them on the ballot.

"I'd hope that at least as a backup, we'd take that seriously" and work on these issues at the council level.

Weaver: "I wouldn't refer any of them the way they are now. ... The mayoral fix could be good enough in time; I'm skeptical."

Weaver, speaking more freely now that he's in the clear majority: I don't think occupancy limits creates affordability. I think there's a reason to work it over and make it a process. Most college towns have occupancy limits.

"It may be a blunt tool, but it's a tool that's used in college towns all over the country," Weaver says. They range from 2-5

Swetlik expressing his "disappointment" that occupancy limits have been punted when HAB (which he was previously on) recommended it.

"It's a failure of public process when we don't tackle the hard issues, bc then we reach these points where the fight gets bigger and bigger."

Use our boards, Swetlik says.

Wallach: It's probably time to look at occupancy limits.

BRO, I ASKED YOU ALL ABOUT THIS BEFORE YOU GOT ELECTED!

Young: "Landlords will want to make more money. They will just raise the rents."

Y are landlords opposing it, tho?

I don't think council ever voted to continue the meeting, which they have to do after 11 p.m.

Brockett suggests that we not enforce evictions due to over-occupancy during the pandemic.

Council will revisit.

Apparently my internet connection is unstable.
Good to know my WiFi and I have something in common.

Joseph asking about deadlines.

Weaver is making a motion to extend the meeting, 55 min late.

That wraps this very long discussion. @threadreaderapp please unroll.