December 23, 2010

Lawsuit filed over county's plans on new communications building
Former county commissioner candidates seek injunction on loan agreement

Mike Potter
Staff Writer

Christopher Hopkins

Bailey resident and business owner Christopher Hopins is a co-plaintiff in a lawsuit seeking an injunction to stop the County from pursuing the construction of a communications building in Fairplay (Photo by Mike Potter/ The Flume)

Ronald Spunt

Bailey resident Ronald Spunt is a co-plaintiff in the lawsuit with Christopher Hopkins (Photo by Mike Potter/ The Flume)

A lawsuit was filed on Dec. 15 in Park County seeking an injunction to keep the county commissioners from obtaining a $700,000 loan and taking other financial steps that would help cover the costs of the county's proposed new communications building in Fairplay.

The lawsuit was filed by Christopher Hopkins, the owner of Bailey-based Mountain Wealth Management Group, and Pine Junction resident Ronald Spunt, both former Park County commissioner candidates. Through the lawsuit, they seek to halt the county's progress on the proposed funding, and they ask the county commissioners to reconsider the new building.

The estimated cost of the communications building is $2.1 to $2.4 million. It would replace the condemned McNamara Building at 824 Castello St. in downtown Fairplay,

"The Petitioners [Hopkins and Spunt], acting on behalf of the citizens, business owners and taxpayers of Park County do hereby pray for the granting of Temporary Injunctive Relief to bring a moment of pause so that the Taxpayers of Park County can work with the leadership of Park County in reaching a sensible sound decision," said the motion for a preliminary injunction.

According to the filing, the men filed the lawsuit without an attorney.

The lawsuit comes on the heels of a 2-1 decision by the Board of County Commissioners on Dec. 15 to move forward with a letter of intent to secure the loan from the Evergreen branch of Chase Bank.

The county's response to the Hopkins-Spunt lawsuit was a motion to dismiss the case, filed by Park County Attorney Lee Phillips. That motion, filed on Dec. 17, argues for dismissal because of both procedural reasons and substantive issues tied to the designated roles of different branches of government. It calls the communications center issue a political question not appropriately handled by a court.

Phillips said he spent six hours on preparing the motion, and he bills Park County $175 an hour. That totals $1,050.

Hopkins wrote in an e-mailed statement to The Flume that he was disappointed that the commissioners had chosen to "willfully neglect what the citizens want of its leadership."

"The commissioners continue to display their [wanton] neglect by continuing to force down the throats of the taxpayers, acts of malfeasance that go against not only the intelligence of sound fiscal policy, but that of common sense," Hopkins wrote in the e-mail.

The lawsuit

According to Spunt and Hopkins, who informed The Flume of their lawsuit the day it was filed, they are not against the county's operation of a communications center, but they feel there are better options for the county than building a brand new building.

"We're opposed to building a new building in an economy like this," said Spunt.

Spunt told The Flume that he counted at least 30 empty buildings from Bailey to Fairplay, and he suggested that the county look at using one of those buildings to house the Communications and Information Technology departments.

The communications center was housed in the McNamara Building in Fairplay. It was moved in the fall of 2009 after the building was deemed unsafe.

The lawsuit states that the money for the construction of the communications center will come from $400,000 from Federal Payment in Lieu of Taxes (PILT) money (which helps offset losses in property taxes on non-taxable federal lands), $1.3 million from "re-appropriation of the county's Emergency Fund," and the $700,000 loan.

According to Park County Budget and Finance Director Kathy Boyce, the loan would be repaid by the E-911 surcharges on telephone bills inside Park County. Those fees were raised from 70 cents per phone line per month in the county to $1.25 per phone line per month in Park County in December 2009.

Spunt and Hopkins noted that the commissioners had previously expressed concern over the possibility of not receiving PILT money, and that if the federal government doesn't provide PILT money in 2011, taxpayers could be on the hook to make up that $400,000 shortfall to pay for the communications building.

"Additionally, in the event that sources of funding are insufficient to satisfy any debt service, the county would need to potentially create some form of 'emergency' tax issue," said the lawsuit. "This future and potential emergency tax issue would appear to violate the spirit of the law with respect to Taxpayer's Bill Of Rights."

The Taxpayer's Bill of Rights, or TABOR, is a state constitutional amendment passed in 1992 to limit the rate of growth of state revenue and spending.

Motion to Dismiss

Park County Lee Phillips filed a motion to dismiss the lawsuit filed by area residents Christopher Hopkins and Ronald Spunt on December 17th (Flume file photo)

Motion to dismiss

Park County's motion to dismiss the case cites procedural problems such as the failure to file the required complaint or summons to start a civil action.

The motion states that Spunt and Hopkins "violated most of the rules governing the commencement of civil action in Colorado Courts."

But the motion asks that the court address the substantive issues, and if those don't merit dismissal, that the court then turn to the procedural issues. The Hopkins-Spunt lawsuit has an "obvious lack of substantive merit," according to the county's motion to dismiss.

"Reduced to its essence, the Pleading alleges that the Plaintiffs disagree with a possible decision by the Board of County Commissioners of the County of Park and requests that the Court intervene and substitute its judgment for that of the elected Commissioners," Phillips wrote in the motion. "This suggestion runs afoul of the basic American precept of separation of powers and the traditional refusal of the courts to intervene in political questions."

Spunt and Hopkins have until Jan. 3 to respond to the motion to dismiss.

The communications center and the loan

The communications center cost of $2.1 million to $2.4 million would be funded from the bank loan, money in a capital improvement fund, and PILT money the county expects to get in 2011, said Park County Commissioner John Tighe.

He said he couldn't comment on the lawsuit, but he said the proposed communications building, to be constructed near the McNamara Building, would cost about $1.3 million, and another $800,000 to $1.1 million would be spent on a new radio tower and on equipment that would go inside the building.

According to Tighe, the county needs a new communications building to permanently house the 911 call center.

"I've always contended that this is an emergency," he said. "There's been some nights where I haven't been able to sleep because I'm worried about the situation when it comes to communications."

He said the county looked at other options besides constructing a new building, but he felt that none of those options offered the same benefits as a new building.

He said there are a couple of issues with moving to a different area.

One is the location of the tower that picks up transmissions from around the county.

"You have the tower right where the McNamara Building is," he said.

He said the tower in its present location is able to pick up broadcasts from other towers in the county. If it were moved, it might not.

The tower would also need to be replaced, which is scheduled to happen during the new building construction, he said.

Tight said it was possible to run cable from the tower location to another site, but there are problems with moving the equipment.

The communications equipment used in the 911 call center is sensitive, he said, and it could be damaged in a move.

The county kept the call center equipment in the McNamara Building because it didn't want to risk damaging it in a move to a new location, and then in a move to another location again.

A modular building was constructed next to the McNamara Building where the communications staff works. A cable connects them to the equipment in the McNamara building.

Dec. 15 divided vote

The Park County commissioners voted on Dec. 15 to sign a letter of intent for the loan. The board of county commissioners met on Dec. 15 instead of Dec. 16, which would have been their regular meeting day, because Tighe and Commissioner Dick Hodges were not going to be available on Dec. 16. That's because they wanted to speak on behalf of a new Pine Junction park-n-Ride on Dec. 16 at a transportation meeting in Denver.

On Dec. 15, Tighe and Hodges voted in favor of moving ahead with the letter of intent on the loan. Commissioner Mark Dowaliby voted against it.

Dowaliby told The Flume that he felt the county needed to wait for a year or two to see if the state is going to pay out Mineral Impact Assistant Fees to rural counties.

He said that the county could wait and use some of that money to fund the construction of the building, but he understands the other commissioners' viewpoint on not wanting to wait, citing reasons of public safety.

"I understand the other commissioners' reasons," he said. "The building is not up to par where [it is.]"

He said he thought the county could make do with the modular building for a while longer, even though it's been in use longer than originally planned.

New building

The new building would be about 8,000 square feet and house the communications center and the IT offices.

Dowaliby said it wasn't likely anything else would go in there that would need easy access by the public.

The reason for that is the security that goes into keeping the expensive communications and technology equipment safe.

The building would also have a room that could be used as an emergency command center in the event of a county emergency, such as a winter-weather emergency or a fire.

Right now, when that happens, the BOCC meeting room is converted into the emergency command center.

Dowaliby said he would be glad to get that use out of the main county building on Front Street in Fairplay.

"It just brings total calamity when it comes to our building," he said.

Other dissent

Lillian Wissel, a former Park County commissioner, is also critical of the county's plan for the new building.

During her campaign, she called for a portion of the jail to be converted to a communications center.

She also suggested looking at how much it would cost to refurbish the McNamara Building instead of tearing it down.

Her plan for the jail would convert cell space into the communications center.

Opponents to that idea said it would take away inmate bed space, and the county wouldn't be able to make as much money by housing contract prisoners if there were fewer beds.

But Wissel said the jail has never been a revenue-generating asset.

"I don't believe our jail is a functioning asset," she said. "I believe it's an asset that's taking money away from this county."

Paying for the building

The letter of intent that the commissioners agreed to on Dec. 15 doesn't secure the loan for the county, said Boyce. Instead, it locks the county into a 2.9 percent interest rate for the $700,000 loan.

She said the county is expected to close on the loan on Jan. 13.

The interest on the five-year loan would be $47,000, she said.

Boyce said that the $1.3 million for the construction of the building is not coming from an "emergency fund," as claimed in the lawsuit by Hopkins and Spunt, but instead from the county's Capital Construction Fund.

"It was specifically earmarked for projects; either it was the library or the communications building," she said.

When asked about the "emergency fund" language in his lawsuit, Hopkins replied in an e-mail that it was the terminology used at a Dec. 9 commissioners meeting.

Funding questions linger

Hopkins said in an e-mail that he feels that the county shouldn't be counting on PILT money, or money from the E911 surcharge for the construction of the communications building.

"What happens if there is a significant downturn in the number of residents and business owners living in Park County that pay the monthly PUC [Public Utilities Commission] taxes," he said.

Although Tighe acknowledged that the PILT money wasn't a sure thing, he said it was as close to that as possible.

He said Park County was guaranteed four years of PILT funding four years ago, and the county is on the fourth year of that agreement.

And about the 911 surcharge? Tighe said he hasn't seen any evidence to suggest that county residents are going to be leaving in large numbers in the next five years.

"Has he done any studies in regards to what the state is looking at for the decrease in population," Tighe said.

He cited the Housing Needs Assessment that was conducted in early 2010 that predicted an increase in population in the county.

Tighe said he'd be glad to look at any facts Hopkins wanted to bring to him.

Tighe said that he sees the lack of facts presented by Hopkins as similar to Hopkins' statement to the Platte Canyon School District board in August calling for the firing of Platte Canyon Superintendent Jim Walpole because of an alleged affair between a school resource officer and a student.

The Flume published a story on Aug. 20 in which the woman at the center of the rumors refuted the rumors that led both Hopkins and Spunt to appear before the school board.

There weren't "any facts to back up the claims that he's made," said Tighe about the issue then.

Hopkins ran as a write-in candidate against Tighe in the 2008 general election.

Spunt ran as a Republican candidate in the Republican primary election for a spot on the 2008 general ballot.

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