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WELD COUNTY COUNCIL
October 21, 2013
The Weld County Council met in regular session in full conformity with the Weld County Home
Rule Charter, Monday, October 21000, 2013, at the Weld County Administration Building,
Greeley, CO at 6:30 pm.
ROLL CALL: The meeting was called to order by Councilman Mueller and on roll call
the following members were present, constituting a quorum of members thereof:
Councilman Don Mueller
Councilwoman Marge Klein
Councilman Brett Abernathy
Councilman Bernard C. Kinnick
Councilman Jeffrey Hare
Also present: County Attorney Bruce Barker, Robert Ruyle, Stow Witwer, and Karleen Watson
Council Secretary.
APPROVAL OF AGENDA: Councilwoman Klein made a motion to approve the October
21, 2013 Agenda. The motion was seconded by Councilman Abernathy and carried.
REVIEW PROGRAM: Marge Klein advised that a letter to the County Council was
received from three individuals to investigate the powers of Board of County Commissioners
(BOCC) to advocate for the 51st state initiative on the ballot in the November election.
Stow Witwer, Jr., Robert Ruyle and Chuck Davidson were in attendance. However, Mr. Witwer
and Mr. Ruyle presented. Mr. Witwer advised that the issue was not regarding the merits for
or against the ballot question but whether the BOCC actions were authorized or not. Mr.
Witwer advised that the question he and the others that signed the letter to the Council was
whether the BOCC, was in fact expanding their governmental role without authority by passing
the Resolution that it did on August 19, 2013. Mr. Witwer provided background regarding
actions of Colorado State government and the gap between certain counties and this
government. The language on the ballot that concerns them is it may provide power or
authority not given by the state constitution or by statute. Mr. Witwer cited the case Delores
County v. John Love, Commissioner, in which it was found that "The County is not an
independent government entity rather a political subdivision....carry out will of the state." He
also cited Farnik v. BOCC of Weld County, "The Board of County Commissioners are officers
with only delegated powers and implied powers that are reasonably necessary."
Robert Ruyle provided a brief history of state constitution and stated that the County is a
political subdivision of the state and only gets powers from the state. Mr. Ruyle stated that
there exists a four point test in the statute to determine whether a valid question was presented
to spark the initiative process.
2017-2897
Weld County Council Minutes
October 21, 2013
Page 2 of 4
Weld County Attorney Bruce Barker presented his legal viewpoint. Mr. Barker stated that the
question is whether the BOCC has legal authority to advocate for the initiative. In Famik v.
BOCC of County Weld (1959), it was found that the BOCC only has "delegated powers ...
conferred upon them." Mr. Barker went over how the BOCC acts officially. He advised that
every county that has a home rule charter contains procedures for initiative and referendum of
measures and there is no restrictions in Home Rule Charter or the statutes.
Mr. Barker discussed what would occur if measure on the ballot were to pass. The BOCC has
no legal authority to act on becoming the 51st State of the United States of America because it
will take a vote of the registered electors to amend the Colorado Constitution. Then by
petition, it would require a two-thirds vote by both houses for an initiative to pass. The effect
on Weld County if the measure passed would mean that the BOCC can spend time as part of
their duties, to work to persuade members of the Colorado General Assembly to put the
amendment on the ballot. Mr. Barker stated that the Commissioners do not need legal
authority to allow them to spend time persuading members of the General Assembly because
a Commissioner would be acting alone not as one body jointly and as a majority.
In response to letter of the parties dated October 4, 2013, the BOCC have not advocated or
investigated the secession of the State of Colorado. The BOCC does have authority to
appropriate and budget money for the investigation of an initiative. Because the BOCC's
budget is presumptively valid, the BOCC has a wide degree of discretion in determining
budgetary matters.
Mr. Barker provided that in the past, the Weld County BOCC has advocated for ballot
measures 41 times since 1982 and with no expressed objection. The result would be only that
the BOCC supports the succession of Weld County from the State of Colorado. A ballot
initiative gives the BOCC the okay to pursue the idea.
Stow Witwer responded to Bruce Barker and stated that official acts are considered a
referendum. The BOCC would be pursuing the issue which means they would find or employ
measures to obtain or accomplish a referendum. However, the state constitution in Section 2
of Article II gives the people sole and exclusive right to govern themselves. Robert Ruyle
stated that the County can only address county issues and cannot act individually. The BOCC
can act as a Board.
Bruce Barker responded that these were two separate things. An official act has no resolution
to it. The action is expressly provided for in the Home Rule Charter and gives clear authority
to do it. Mr. Barker advised that he agrees that the BOCC has no authority to do anything
else.
Councilman Hare clarified his understanding that the concern of the individuals is that the
BOCC has the authority to refer a question to ballot and to include the requested power to
continue to obtain and accomplish the initiative and that their understanding of the process of a
referendum grants additional powers to the BOCC that they currently do not have.
Weld County Council Minutes
October 21, 2013
Page 3 of 4
Mr. Witwer responded that it is their belief that the initiative and the language contained therein
are giving powers to the BOCC and that the BOCC cannot act individually but must act as a
Board. The powers would be beyond the powers given to them grated by legislature and
statutory authority.
Councilman Abernathy stated that the constituents that he has heard from are concerned that
the opposition is directly related to whether they have a right to vote on the issue. Robert
Ruyle stated that opinions are not proper matter for referendums. However, if it is an invalid
ballot question, it would be up to the County Clerk and Recorder to determine. He advised that
it is the County time and money being spent on this issue that is the actual problem. Mr.
Barker responded that the ballot issue has come and gone so the question is what will the
effect of the language of the ballot question/issue.
PUBLIC COMMENT:
A member of the public stated that it is his belief that the people have the right to vote. The
BOCC are best he has seen and feels that the BOCC have the best interests of Weld County
at heart.
Ron Brecheisen stated that he would vote no to the State of Colorado seceding but he is in
favor of having a ballot referendum. The BOCC have the resources to pursue the idea of this
issue.
Tom Gilley of the public stated that he was President of the 51st State Initiative. He stated that
the initiative is funded, sponsored and promoted by non-profit volunteer time. He stated that it
is their right as citizens for self -governance.
Carol Burkhart stated that the ballot question seems to ask for the authorization to pursue but it
is being marketed by the proponents as a means to have a public opinion survey on the 51st
state issue. She stated that making sure voters understand the wording is important, not the
idea behind it.
Another member of the public stated that he has lived fourteen years in Greeley, CO. He
thanked the County Council for listening to the issue. He is a volunteer with the 51st State
Initiative. As a citizen he wants the right to vote.
Another member of the public asked who will vote on this for the Council since members have
been outspoken in favor of this initiative. Councilman Mueller stated that the Council are
listeners in this case. Mr. Mueller advised that the Council wanted to take the matter under
advisement and decide the next step.
Another member of the public stated that the people of this state have sole and exclusive right
to govern.
Weld County Council Minutes
October 21, 2013
Page 4 of 4
Jack Minor stated that the People have the right to vote on this issue. He stated that the
question is whether that issue on the ballot gives the BOCC more power and the time to
question the issue is after it has passed.
Councilman Abernathy made a motion for a five minute recess. Councilman Kinnick seconded
and the motion was carried.
Councilman Abernathy made a Motion to return to regular session and was seconded by
Councilman Hare.
CI NEW BUSINESS:
• 2014 Budget Review and Approval - Councilman Mueller advised that Treasurer Don Warden
has advised him that there are no issues with the Council's proposed budget of $47,368.
Councilman Abernathy made a motion to approve the budget for next year as stated.
Councilwoman Klein seconded the motion and it was carried.
' Coordinator Reports — Councilman Mueller attended a meeting on the flood update. He
stated that Roy Rudisill did an outstanding job coordinating the recovery effort.
' Upcoming Meetings/Invitations: Town/County Dinner Oct. 29, 2013. Council Secretary sent
an RSVP for Don Mueller, Marge Klein and Jeffrey Hare. Councilman Abernathy asked the
Secretary to RSVP for him as well.
There was a discussion regarding upcoming meetings. Councilman Kinnick advised that he
will be in Italy for next week. The Council will continue with the scheduled programs until the
end of the year. Council Secretary will email Councilman Mueller to remind him to contact Dr.
Wallace and then a formal letter will be sent out. Councilman Mueller will coordinate with the
BOCC regarding the December meeting.
ID A motion for Executive Session was presented by Councilman Hare and seconded by
Councilman Abernathy and carried.
Councilman Abernathy made a motion that the Weld County Council believes the ballot
initiative does not increase or expand the powers of the Board of County Commissioners
beyond those previously enumerated by the Constitution of the State of Colorado and the Weld
County Home Rule Charter. The motion was seconded by Councilman Hare and carried with
Councilman Kinnick casting a negative vote.
ADJOURNMENT: By acclamation, the meeting was adjourned at
October 21, 2013
Council Secreta
arleen Watson
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