City of Arvada faces lawsuit over ‘secret’ council election

Election of Zenzinger’s successor is subject of suit
The Colorado Statesman

An Arvada resident has sued the city for conducting a secret ballot election in which the City Council elected a successor to Rachel Zenzinger, who stepped down in December to fill a vacancy in the state Senate left by Sen. Evie Hudak.

Russell Weisfield and his attorney claim that the council’s four rounds of secret voting violated state law, particularly a 2012 law backed by the legislature that specifically addresses secret ballots by a public body.

The bipartisan 2012 law states that a public body must record the outcome of the vote for leadership in its minutes. The lawsuit contends that since the Arvada City Council conducted individual votes to replace Zenzinger in secret, there was no recorded vote on the candidates themselves.

The issue arose on Jan. 10 when Mayor Marc Williams called a special meeting of the then-six-member city council to fill the vacancy. Video of the meeting shows that the council was charged with narrowing down a field of five finalists.

The five candidates included Rebecca Anderson, John Crouse, Kathleen Drulard, Jerry Marks and Nancy Murray. Marks was ultimately elected to fill the vacancy.

During the meeting, Mayor Williams outlined the procedure for selecting a replacement. He said if one finalist received four or more initial votes then that would be the new council member in District 1. If there were no votes in that initial round, then the council would eliminate from consideration candidates who did not receive any votes in that initial round.

During his explanation, Williams said most voting would be conducted by secret ballot, adding, “We will each be marking with a checkmark so that no one will ever know which one of us were Xs or Os or some other form of marking, so we will all use a checkmark designation on the ballots.”

The council further discussed how to fold the ballots in an effort to hide the identities of council members.

In the first round, Murray did not receive any votes, thereby eliminating her from consideration. Marks received only one vote in that round.

In the second round, Crouse and Marks received two votes each, and Anderson and Drulard received one vote each, thereby not eliminating any candidates. The council then decided to have a third round of voting, in which Drulard did not receive any votes, thereby eliminating her.

In the fourth round, Marks received five votes, while Crouse received one vote, thereby eliminating Crouse and Anderson.

It was only then that the council moved for Marks to fill the vacancy. The council voted unanimously by a non-secret ballot to approve the motion. But their earlier votes were not recorded.

The lawsuit asks the court to remove Marks from office until another election is held by the city council in which a non-secret ballot is conducted. It contends that because the council was electing a public servant — not an internal leadership position within its own body — then there needed to be recorded public votes on each of the candidates.

Attorney Elliot Fladen filed the case, though he has declined to comment.

But the plaintiff, Weisfield, says the issue is a matter of transparency. As a resident of District 1, Weisfield had grown to admire Zenzinger and wanted an open process to replace her.

“I had a lot of respect for Rachel Zenzinger when she sat on council there, and I wanted to make sure that whoever filled the position was vetted in the best way possible,” explained Weisfield. “What was done was not that. There were a lot of issues… that raised questions of transparency and openness.

“Secret ballots take away the accountability; it takes away the transparency,” he added.

Weisfield believes that had there been a recorded vote at the time of the election, it’s possible that there may have been a change in who was appointed.

“It continues to harbor a distrust between the elected officials and the people with whom they represent,” he said. “It’s important to have a sense of honesty and trust… When they start doing secret ballots… when they want to hide that, it just inherently raises questions and raises mistrust.”

Beyond the vote on the five candidates, Weisfield is also concerned about how the council narrowed down an original list of 16 applicants, though it appears the council was in its legal right to create a list of finalists based on resumes and applications.

Concerns have also been raised as to the notice that was given about the special meeting, though the city points out that it gave at least 24 hours notice, which is all that is required under the law.

Still, Weisfield believes that more than 24 hours notice should have been given, suggesting, “There was a lack of publicity about the meetings in the first place.

“It’s kind of important and vital to understand what the thinking was for the councilors as to why they ended up with the choice they chose,” he added.

Weisfield and others suggest that the city charter should be amended to require a special election when filling vacancies on the council. He acknowledges that that would be costly, but he says it is worth it.

“We have the money to run our representative government efficient, or at least properly, there’s always money to make sure that our government upholds the ideals of representative democracy,” he said.

Mayor Williams and his fellow council members who are named in the lawsuit have declined to comment given the ongoing lawsuit, referring comment to the city attorney’s office. City Attorney Chris Daly told The Colorado Statesman that the city complied with all laws, including providing 24-hour notice of the meeting.

“The meeting can be viewed online by any member of the public and it was properly noticed,” said Daly.

As for the 2012 law passed by the legislature concerning secret ballots by a public body, Daly points out that there was a final motion with a recorded unanimous vote to elect Marks.

“[The law] indicates that you can’t adopt any proposed policy position, resolution, rule, regulation, or take any formal action by secret ballot, and I think the record shows that there was a motion that was public, it was on television, it was attended by members of the public,” explained Daly.

Daly said he is still analyzing whether secret ballots are allowed under law for a public body that elects a leader to serve the public, such as a council member.

“We’re looking at every provision within the open meetings law and looking at our local charter and we’re looking at all the facts and allegations… That’s a very insightful and a very, very good question,” he said.

“It’s just like any other lawsuit that comes in, you take the allegations seriously and we’re in the process of investigating the allegations…” added Daly. “But I think it’s premature to speak to the specific defense that we have at this point in time.”

The city has until Feb. 18 to respond to the lawsuit.

Politics at play?

The issue surrounding the District 1 vacancy election, however, runs deeper than just the legal questions. Zenzinger had offered a unique voice on the council, and District 1 residents had grown to respect her.

Zenzinger was elected by a Jefferson County Democrats’ vacancy committee to replace Hudak after Hudak resigned in November rather than face a likely recall election.

Zenzinger revealed herself as a bit of a maverick on city council when she cast the lone dissenting vote against a new Walmart at West 58th Avenue and Independence Street. The Walmart issue mobilized a grassroots progressive base that continues to call for a change to the status quo. Zenzinger ran unopposed for re-election, easily winning in November before she stepped down.

The grassroots base that has emerged since the Walmart controversy has alleged a culture within the city council that promotes a “good ol’ boy” atmosphere. The council’s makeup is all male.

Citizens fear that there could have been motivations by the council to elect Marks considering his background as the chairman of the Arvada Chamber of Commerce board — a powerful lobbying entity for businesses.

Dave Chandler, a longtime Arvada community activist and a member of Citizens for a Better Arvada who has himself been a candidate for both mayor and city council, is suspicious about the way in which Marks was elected.

“It was a very good ol’ boyish kind of meeting, which is only going to be exaggerated now,” Chandler said of the Jan. 10 meeting in which the council elected a successor. “There was very little discussion about would this be what the voters in District 1 want.

“Clearly the council people were fishing for answers that agree with what they already believe,” he added. “It’s not that Rachel was some sort of dissident on the council, she wasn’t, but that seemed to be their top priority, was getting somebody who would get along with them.”

Chandler said grassroots activists have remained close following the Walmart controversy. He believes there is an outcry for change, which he fears Marks does not represent.

“There’s a more active group of loyal opposition in Arvada right now since the Walmart battle… So, there’s more people involved and talking to each other… There’s more attention right now,” explained Chandler.

But Marks does not believe that he will have issues with his new constituents. He points out that he is a native of Arvada, living in his current house for the past 22 years.

“I know a fair amount of the issues and what goes on in the community. I’ve been involved with the community through economic development for the city on their board; I’ve been involved through the Arvada Chamber — I’m just as qualified and capable as anybody else,” surmised Marks.

He said he is a supporter of the new Walmart, pointing out that the development offers revitalization opportunities for the community. He believes citizens will soon realize that.

Marks joked that his company, Custom Environmental Services, which specializes in environmental emergency response, is currently facing a lawsuit by Walmart, though he would not go into details.

“I’m being sued by Walmart and I still support it,” Marks commented.

“The Walmart issue, regardless of who the tenant is down there who is doing the revitalization, my understanding is that… they’re the only big box store… that took interest in redevelopment… I don’t think you can stereotype a client,” he continued.

“If they’re willing to spend the money, Arvada is going to benefit greatly,” Marks added.

“Not everything I do is going to please everybody and vice versa,” he concluded.