Confidential Memo from Attorney Written for Public

TO: Mayor Brinkman and Members of City Council
FROM: Lena McClelland, Assistant City Attorney
CC: Mark Relph, City Manager
RE: Councilmember Fey’s Amended Motion at the December 19, 2017 City

Council Meeting DATE: January 16, 2018

Issue

On December 19, 2017, at a regular meeting of the city council, a motion was made which directed staff to work with the Mayor and Mayor Pro Tem on an expedited recruitment process for the vacancies of the LIFT Board. Councilmember Fey moved to amend the motion to require that “interviews do not begin until city council has received a recommendation from the LIFT Board on the exact number of vacancies as the LIFT Board understands it, and that the interview process is open to the public.”1 A question arose at the January 9, 2018, study session of the city council as to whether this amendment to the original motion was being followed.

Short Answer

This amendment to the motion is being followed to the extent it is not preempted by and does not conflict with state law. Further, to the extent that the amended motion can be followed without conflicting with state law, there must be a quorum of members in order for the LIFT Board to take any formal action.

Analysis

The Colorado Urban Renewal Law sets out the method in which appointments are to be made to a local urban renewal authority. According to state law, appointments are to be made by the mayor of the municipality and are subject to approval by the governing body of the municipality in which the authority has been established.2 Appointment of a commissioner to the authority is proper when the mayor has filed a certificate of the appointment or reappointment with the clerk.3 The certificate of appointment is conclusive

1 Amended Motion by Councilmember Fey, Littleton City Council Regular Meeting on December 19, 2017, https://littleton.ompnetwork.org/embed/sessions/20889/city-council- regular-meeting-12-19-2017 (found at timestamp 1:11:27).
2 C.R.S. § 31-25-104(2)(a)(I) and (IV).

3 C.R.S. § 31-25-104(2)(b).

evidence of a due and proper appointment of a commissioner.4 A commissioner holds office until a successor has been appointed and qualified. Vacancies for reasons other than expiration of terms must be filled by the mayor for the unexpired term. Therefore, under state law, it is the mayor who is responsible, subject to approval by city council, for the appointment of members to the LIFT Board to fill vacancies, whether due to expiration of term or other reasons.

While the Colorado State Legislature has not expressly or impliedly preempted municipalities in the area of urban renewal through the Colorado Urban Renewal Law by creating a comprehensive scheme for regulation of urban renewal, including the appointment of members to urban renewal authorities, local regulations or actions can be preempted by an operational conflict.5 An operational conflict occurs when the operational effect of the local action or law conflicts with the application of state law.6 Because state law provides the appointment of members, and the filling of vacancies, to the LIFT Board is a responsibility given to the mayor with approval by city council, the LIFT Board itself has no formal or legal role in the appointment of members except for the selection of a chairman and vice-chairman from among its members. Only the mayor, with approval by city council, may be involved in the recommendation for appointment of members to the LIFT Board. Any appointment process that does not originate with the mayor would likely be considered an operation conflict and therefore be preempted by state law.

To the extent that the amended motion made by Councilmember Fey would require action by the LIFT Board before the Mayor could make an appointment, this requirement is likely preempted by state law..

The City Clerk and the City Attorney have compiled and reviewed the records concerning the terms of the LIFT Board and will send a formal letter to the Chairman of the Board with a copy to each member which will indicate the official number of vacancies based on all filed resignations and expired terms. If any LIFT Board member has any

concerns relating to this information, a Board member may, in their individual capacity, advise the city council. However, the LIFT Board must have a quorum7 present at any meeting in order to take any formal action. Therefore, it will be impossible for the LIFT Board to formally make any recommendations as a body to the Mayor and Council at this time. And again, even if the Board did have a quorum and the ability to make a recommendation, we stress that under State law, the Mayor and Council cannot be precluded from proceeding until the LIFT Board were to act.

4 Id.
5 See Longs Peak Metropolitan District v. City of Wheat Ridge, 2017CV30542, Jefferson County District Court (2017).
6 Id.
7 A majority of the board constitutes a quorum. C.R.S. § 31-25-104(2)(b). The LIFT Board is a seven member board and requires four members be present for a quorum.

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