HomeMy WebLinkAbout770480.tiff ,eld County Council
January 31, 1977
CONFLICT. OF INTEREST QUESTION OF JACOBUCCI
Information sources contained herein are from material supplied by the
District Attorney's office, Mr. Jacobucci 's written statement to the Council,
minutes of commissioners, summary judgement of Home Rule, and personal
knowledge and memory of statements and other information given.
Weld County has in past years obtained fill dirt from land owners in
Weld County. Although, to our knowledge, this fill dirt has never been paid
for with actual dollars and that in every instance the land owner has
received a form of compensation. To accept the definition of the word
"donation" as a free contribution and the definition of the word "gift" as
something given without compensation indicates that fill dirt has never been
a donation or a gift to Weld County from land owners. In every case known to
us, fill dirt has been arranged for on the basis that the county would receive
the dirt by performing a service for the land owner by either removal of a
hill or knoll, enlargement or digging of a pond, or removal of blow sand from
the land owner's property. Often the work performed by the county to obtain
this fill dirt would cost the land owner many thousands of dollars if it
were performed by a contractor plus another additional cost of disposal or
spreading of the dirt removed from the hill, pond or fence row, Not
only does the land owner realize an immediate savings and benefit, he also
receives improvements to his property which at times greatly increases the
value of his property. We have never heard of a land owner making an outright
gift or donation of fill dirt whereby the land owner received little or no
benefit.
770480
- �oi;: ,,c o;. question
Although agreements between Weld County and private land owners for fill
dirt are verbal, they are probably legal binding contracts to the effect that
the County could probably be sued and held liable for not properly fulfilling
their part of the agreement or for damage done to the land owner's property.
We also believe that this method of obtaining fill dirt is understood and
accepted by the land owners and that they understand and accept the fact that
the county cannot become involved in removal of all the blow sand, digging
all the ponds, or removing all the knolls that the land owners in Weld County
desire, do, and pay for each year. They fully realize that this benefit only
applies to those who have land close to an area where the county needs fill
dirt:
•
Therefore: In regard to fill dirt obtained by the county from Mr.
Jacobucci 's land, it is our opinion and conclusion that the actual cost to the
county for obtaining and spreading this fill dirt on road Number 2 does not
reflect the value received by Mr. Jacobucci nor would it reflect the actual
cost to Mr. Jacobucci had he chosen to hire a private firm to do this work. It
is further our conclusion and opinion that this fill dirt was not a gift or
donation, but that it was a verbal agreement that the county would receive
the dirt in exchange for removal of a fence, the blow sand in and around the
fence, enlargement of a lake, and removal of dirt around the lake.
January 1, 1976 the Weld County Home Rule Charter became effective. The
Charter created five departments with divisions allowed in each department and
further designated that each commissioner would be responsible as a coordinator
-
u: ,.n—rest Question
for one department. The commissioners did establish these five departments
and also designated a commissioner as coordinator of each of these departments
and further designated an alternate commissioner for each of the five depart-
ments. This is recorded in the January 5, 1976 Board minutes. It is our
understanding that Mr. Jacobucci was the coordinator for the department of
communications services and also the alternate for the Department of Engineering
Services. Commissioner Roy Moser was designated the Coordinator of the Depart-
ment of Engineering Services. Road and Bridges is listed as a division of
the Department of Engineering. Generally speaking the commissioners minutes
of proceedings during 1976 indicated that these departments were accepted and
that' the commissioners reported to the board as coordinators for these
respective departments.
We do not recr:11 ever reading in any of the board minutes during 1976 that
Road and Bridge had been removed as a division of Engineering Services or that
any of the commissioners had been designated as supervisors, bosses or "what have
you" over specific road districts which coincided with commissioner districts.
We do recall that at a work session of the commissioners attended by the County
Council there was a discussion regarding Road and Bridge and that the three
district commissioners indicated that they were directly responsible for roads
and bridges in their respective districts and did indicate their intentions to
continue to personally oversee these districts regardless of the protests of the
commissioners at large and the protests of the County Council. Although no
formal action was ever taken by the board to allow these three commissioners
to act as supervisors or bosses in their respective districts, it is our belief
that they did act in this capacity during 1976. Although Civil Action No.
28085 relative to the validity of some provisions of the Home Rule Charter may
have been a valid reason for not following the intent of the Charter in regard
to the operation of road and bridge, the summary judgement signed by Judge
Berhman July 20, 1976, Part III states: "The Home Rule Charter for Weld
County establishes a valid and lawful frame of government for Weld County,etc."
It would seem that this summary judgement should have removed any doubt
existing in the minds of any of the commissioners in regard to the validity
of the charter and that positive action by all should have been taken to
abide by the provisions of the Home Rule Charter. Yet, indications were
that the road and bridge division continued to be bossed as three separate
road districts until January of 1977. Mr. Jacobucci as commissioner from
district two apparently continued to participate in the decision process as
the person in charge of road and bridge in district number two. Material
furnished to the council by the district attorney and also Mr. Jacobucci 's
statement to the council indicates that he was personally involved not only
in deteriining the building of Weld County road number two but also in the
effort to locate fill dirt and the decision as to where to obtain the fill
dirt.
Report on Vic Jacobucci Investigation, October 14, 1976, from the Office
of the District Attorney: "On October 8, 1976, I talked to Frank Smith,
county engineer, about the work on Jacobucci 's farm. He told me that
earlier Vic had talked to him about getting the road paved by his house,
but he didn't want to cause a fuss about it, so Frank said that he would
recommend the construction after consulting with Adams County, who adjoins
part of this road. Adams County recommended the paving and that they would
pay for their part if Weld would do it. Adams sent a letter requesting
Frank to recommend building the road and Frank wrote and said they would
split the cost on building such a road. "
"Frank and Don Morgan talked about how to get the dirt and Don said that
he would look for the dirt. Don found some dirt ten or twelve miles away
and also found some from a neighbor. Vic told Frank that he was going to
do some work on his reservoir and if the county would do it for him, he
would give them the dirt. All parties knew that there was going to be a
fence that had to be taken out."
' rage 5 - Conilict of j• 'crest Question
"Morgan also indicated that he was aware that the new holding
pond was anticipated to be used by Jacobucci in conjunction with a
sprinkling system on his farm. Morgan indicated that they would get
an accounting number for this project, but the work on Jacobucci 's
farm would be done under a "miscellaneous number" and not a regular
road number. Frequently, they do get regular numbers for work on •
people's property. "
Victor Jacobucci 's Statement to Weld County Council, January 19, 1977:
"In July, 1976, our County Engineer, Frank Smith, showed me a letter
from Mr. Ron Meyer, Deputy Director of Public Works of Adams County,
which stated he wished to upgrade and oil Road r2. "
"The area involved was in Adams County, running fiunLochbuie west for
two-and-a-quarter miles -- to the spot where asphalt already existed on
Road 42. The letter asked Weld County to finish its own remaining four
miles of unimproved road from Quebec ,Street to 1-25. Doing this would
result in an overall improvement by eliminating much of the traffic
then traveling through downtown Brighton. It would provide a convenient
and comfortable alternate route. (Downtown Brighton traffic eventually
ends up on Road W2 when it reaches 1-25. ) The letter pointed out that
' if Weld County completed its four miles, then traffic could travel
east-west in a straight line on a completely asphalt road between I-76
and I-25. Because Road W2 is also Baseline Road out of Boulder and
provides access to the mountains, the decision was made to proceed with
the upgrading of the road."
Conclusion and opinion: The decision to rebuild and pave a road past, or
to a commissioner's home when the commissioner has the authority to make such
a decision or have any voice in such a decision would in our opinion be a
conflict of interest. Such decisions should receive full review by the board
and the commissioner whose home is involved should abstain from such review
and final decision process. It is our opinion that the board did adopt on
January 5, 1976 the five departments designated by the Charter and that they
did appoint the coordinators of these departments; therefore, it is our
further opinion that Mr. Jacogucci 's rights, powers, authorities in relation
to road and bridges in Weld County were only that of an alternate to Mr. Roy
Moser, who was coordinator of the Engineering Department and the division
of road and bridge and the subsequent powers, duties authority prescribed by
the Charter, board and statutes.
H - r;ont llct .;f I
L.:m IN)ry: Jt, i , ;ease our opinion LL.it he should have -,,;keal a ni_] 'lanu f ron
the `.nuncil (Charter Section 16-?) anu also asked for a complete retie::
by
the HO:)rd.
It is our belief and opinion that: l ) Mr. Jacobecei 's action: worm
soosibly in Li ?lation of State statute 111-di-•J04 (s.) and (c) -
'rirst degree official. misconduct. (1) A public servant conceits
first degree official :misconduct if, with intent to obtain a ldmiebit
for himself or maliciously to cause harm to another, he know: irdly:
(a) Summits an act relating to his office but constitutirin an
unauthorized exercise of his official function; or. . .
(c) Violates any statute or lawfully adopted rule or regulation
relating to his office. "
and State Statute 1£'.-f?-30S -
"Failing to disclose a conflict of interest. (1) A public servant
commits failing to disclose a conflict of interest if he exorcizes any
substantial discretionary function in connection with a government
contract, purchase, payment, or other pecuniary transaction without
having given seventy-two hours actual, advance written notice to the
attorney general , or to the cgoverning body of the government 'rhich
employs the public servant, of the existence of a known potential
conflicting interest of the public servant in the transaction with
reference to which he is about to act in his official capacity.
(2) A "potential conflicting interest exists when the public
servant is a director, president, general manager, or similar executive
officer or owns or controls directly or indirectly a substantial interest
in any nongovernmental entity participating in the transaction. •
(3) Failing to disclose a conflict of interest is a class 2 mis-
demeanor.
2) Mr. Jacobucci represented the county in an agreement to perform certain
services and also represented himself as a land owner to exchange fill' dirt
for these services. 3) Mr. Jacobucci had a personal interest not only as
a land owner doing business with Weld County but also es .n land owner who
desired a better road past his land and that this personal interest was ouch
that it did interfere with the unbiased discharge of his duty to the maples
and the best interest of the county. Therefore, it is our opinion that a
conflict of interest did exist and that Mr. Jacobucci should immediately
I]:“nc 7 - Conflict of - ire;t (,uestion
',Son coordinator of i.ho 1.. nni moo ri ;lc Lmnnt aril should not HOT
,.,erg,�, coordi no-LOS or aJ. Lorna to coanlinator of the dopartncuiL o ;
hnoinecri fcrvico or divie;ion oC Pc ;id and I+rl (tin for f.ho n naifob,' ul
his term.
<I0 P - Conflict oft cost Question
•
EECOMliti DATlIthd TOllOAll LA' COUNTY CC '"ClSSICiliti'.S
Mr. Jacobncci be immediately replaced as coordinator of the (Engineering
Department and that he shall not serve either as coordinator or alternate
coordinator, for the remainder of his Lens, of the Engineering Department
or division of Road and Bridge.
Full irnplc:nentation of the centralized administration of Road and
bridge IIOW.
Adopt policy concerning all major road construction whereby it shall
be approved by the hoard and whereby the general public shall be notified
and have r,l_.i cortunity to speak regarding all major road construction.
Adopt policy concerning obtaining fill dirt, gravel or rock from
private land owners and open hearings with the land owners in the area of
the construction site so all who wish may have the opportunity to donate
said fill dirt, etc. Develop a simple, written contract which oxplaino
the work or dollars to he exchanged for said fill dirt, gravel or .rock .
Adopt policy of keeping a record of manpower and !machine time used
and material obtained in these typos of transactions.
CC ICL!JSIOII
In investigations performed by the District Attorney 's office, infor-
mation natimorcra. by time Council ,. the Weld Cornett} Audit report, and the aenernl
concern of many of cur citizens indicates a need for a more complete review
of Road and Dridee and the Intergovernmental Agency of Yield County.
! \
DISTRICT ATTORNEY WORKSHEET
�jl ,1,Z. //- »-7GS
1 y4 -i Howl 3 L
ours spent on Jacobucci Farm : i �' /
1 4 L; a.,,, i z
°- ��'- 90 hours @ 9.06 = 815.40 Z I G
• C.'1. ® Fence Work 30 man hours @ 5.30 = 159.00
(�'�`-. - D-8 Operator 90 hours @ 5.30 = 477.00 °Ice,
,C)z)
a:...F 1451 .40 %.,..
If dirt was hauled from our own pit the round trip haul would be '-4
about 55 miles. The rate it cost to run our trucks is about .27 per s
mile. It would further take about 3 man hours per round trip at $5.30
per hour.
An outside contractor would charge about $40.00 an hour for a D-8
Cat without an operator. Operators run about $8.00 an hour.
Over the past 3 years Weld County has paid for gravel and dirt
out of only two pits. These are the Lowell Pit, west of Greeley, and
a farm pit in New Raymer. Total royalties paid over this period amount
to less than $18 ,000. During this period of time Weld County has used
material in more than 80 different locations throughout the county.
These materials would have cost Weld County hundreds of thousand of
Dollars , but were given free of charge for use in building roads in
the County.
In almost every case Weld County has had to cut down hills , dig
out ponds or repair roads in the normal course of removing this ma-
terial . In terms of trade off, if it can be called that, there can
be no comparison. Weld County has received and consumed many times
more in materials than it has given out in services .
Attached you will find a list of pits where materials have been
taken over the past three years.
January 19 , 1977
To the Members of the Weld County Council;
At y it request I am appearing before the Weld County Council at their
regular meeting on this, the 19th day of January, 1977, in order to present
firsthand information concerning my donation of fill dirt to Weld County
in connection with the improvement of County Road No. 2 on a four mile
segment between Interstate 25 east to Weld County Road No. 17, commonly
known as Quebec Street.
As a historical matter, Weld County has rarely found it necessary to
purchase fill dirt in order to upgrade its roads. Many farmers and ranchers
like myself have as a matter of custom donated excess dirt from their
property to the county to be used in connection with road repair and
construction in Weld County. In the 1930's and again in the 1950's and
mid-1960's , large amounts of dirt have shifted on various tracts of land
in Weld County which, if removed, would provide some benefit to the
landowner. Generally this is the type of dirt that is donated by various
landowners to Weld County for the upgrading of roads although in some cases
mounds and hills are reduced in order to provide fill dirt and in these cases
both the Weld County and the donor can receive some benefit.
In 1956 I was requested to donate fill dirt to the county for the purpose
of building up the railroad crossing grade on Road No. 2 and at that time
I donated a rather large amount of fill dirt from my farm. I did not request
any monetary compensation for this donation and the thought of any monetary
compensation on behalf of Weld County did not enter my mind when I
donated additional dirt for Weld County Road No. 2 in 1976.
With regard to the specific information concerning the dirt that I gave to
Weld County for the purpose of upgrading County Road No. 2 between I-25
east to County Road No_ 17, I would submit the following•
In July, 1976, our County Engineer, Frank Smith, showed me a letter from
Mr. Ron Meyer, Deputy Director of Public Works of Adams County, which
stated he wished to upgrade and oil Road #2 .
The area involved was in Adams County, running from Lochbuie west for
two-and-a-quarter miles -- to the spot where asphalt already existed on
Road #2 . The letter asked Weld County to finish its own remaining four
miles of unimproved road from Quebec Street to I-25. Doing this would
result in an overall improvement by eliminating much of the traffic then
traveling through downtown Brighton. It would provide a convenient and
comfortable alternate route. (Downtown Brighton traffic eventually ends up
on Road #2 when it reaches I-25 .) The letter pointed out that if Weld
County completed its four miles, then traffic could travel east-west in a
straight line on a completely asphalt road between I-76 and I-25. Because
Road #2 is also Baseline Road out of Boulder and provides access to the
mountains, the decision was made to proceed with the upgrading of the road.
In order to properly construct County Road No. 2 on this four mile segment,
it was necessary to build up the roadbed preparatory to paving this segment
in 1978. This required a rather substantial amount of fill dirt to be obtained
on this particular segment to be improved.
-2-
My farm is located exactly two miles east of I-25 and two miles west of
County Road No. 17 or at the exact mid-point of the area which was to
be improved. Mr. Don Morgan, Weld County's Road Overseer in District
No. 2 , inquired as to whether or not I had any dirt that I could donate to
the county in 1976 and I advised him that I did have dirt which could be
moved from the west side of my lake which is located in the northwest
portion of the quarter section upon which I live. This dirt was dirt that
had blown in during the 1960's . Mr. Morgan then examined my property
and advised me that I did not have enough dirt to fulfill the needs of the
county on this particular job and I then asked Mr. Alex Miller of Dunton
Real Estate who owns the west half of Section 36 which is adjacent to my
quarter section, and the nature of the inquiry was as to whether or not he
would consider giving any dirt from his farm. His answer was "no, "
I then called Monty Shaffer, the manager for the farm north of me which is
the northeast quarter of Section 36 which is bordered on the east by the
Union Pacific Railroad Company right-of-way, She said "yes" that she
would donate dirt as did Mr. Herb Small, the District Manager for the
Union Pacific Railroad Company in this particular area. Both of them
indicated that they would give dirt which had blown in and at times covered
fences (as some had covered mine) . A total of approximately 9, 000 yards
was received through these two donations. Mr. Albert Sack was also
contacted and advised us that if additional dirt were necessary he would
also contribute.
The initial estimate of blown dirt available from west of the lake site was
about 9, 000 yards. At the request of Don Morgan, I further donated an
additional 7,260 yards from the lake site itself, of which 4,210 yards
came from the lake perimeter, and 3 ,050 yards were enlargement to the
-3-
lake itself. This resulted in an increase in the size of my lake by
approximately 1/2 acre. The lake was not enlarged as an accommodation
to me. The lake ended up being enlarged because the county needed
still more dirt, and my lake site was the logical place to get it.
If the county did not get the additional dirt from my lake site, the county
would have had to go several miles to get the additional dirt.
According to a tabulation by the County District Overseer, plus an estimate
of the West Adams County Soil Conservation District, the total donation
from my quarter section was 16,260 yards of dirt.
For your further information fill dirt is not an inexpensive item. The most
expensive portion of the total cost in obtaining fill dirt is the cost of
transportation. Accordingly, the closer the proximity of the site of the
donated dirt to the area upon which it is to be used, the lower the total
cost to the county. As a matter of fact, it would be cheaper for the county
to pay cash for dirt close at hand, rather than get dirt donated free which
had to be hauled any considerable distance.
The fill dirt that I donated was the closest fill dirt available to County
Road No. 2 and was in fact fill dirt that required the shortest haul of all
of the dirt that was used in building up and improving County Road No. 2
during the period of time in question.
-4-
Quite frankly, at the time I decided to donate fill dirt for this road, it
never crossed my mind that a conflict of interest might exist under
16-9(3) of the county charter. If I had thought there was a conflict of
interest problem, I would have come to you.
I have received legal advice on this, and the lawyers disagree as to whether
there is a conflict of interest when a county commissioner donates fill dirt
to upgrade a county road. So, I am not sure whether this is a conflict of
interest question to be reviewed by you.
Whether 16-9(3) applies, or whether your general review authority applies ,
I have tried to give you a description of just what took place and why I
did what I did.
I believe the facts here speak for themselves -- that in this instance,
as well as in all previous instances when I gave fill dirt to the county,
the county saved money, and the benefit was definitely in favor of the county.
I would like to invite the full Council to arrange to visit my property, view
the road and the lake site, and ascertain for yourselves the situation.
After your visit, if you have questions, I will be happy to meet with you again.
Victor Jacobuypet7Commissioner
Board of Weld County Commissioners
•
-5-
BO RD Pd a
Oll`°vc 0 F
D �um, COUNTY COMMISSIONERS
O
"gr"47
SCOU COMMISSIONERS •
John G. Campbell
Pete M. Mlrelez
SERVICES BUILDING - James M. Covey
4201 EAST 72ND AVENUE
COMMERCE CITY, COLORADO 80022
303-287-0171 COMMUNITY DEVELOPMENT DIVISION
July 26, 1976 DEPARTMENT OF PUBLIC WORKS
D
Mt. Ftank Smith
Weld County Eng.Lneet J
P.U. Box 578 z)8
Greeley, Coloaado 80631 F� wE'
o9/ ID 49/6
„PPr •
DeaA Mt. Smith: n°o�(/N1-y
°a7
Re: 168th Avenue Apptoaehea on Weld County Site
�a�l
Paoject 076-3020
A6 diaewA6ed in oun meetiny laa.t Fhiday, July 19, 1976,
we ate ptesenily con4t'tucting 168th Avenue Sot apptawimate2y
2 mLtea Saom Himalaya .to Inteaatate 76 (Hwy. 6) . We would
like to oak Weld Cotul.ty'e paaticipation in th- 4 project Sao
-the constjturticn oS .the Sowt apptoacltea and culveAta on
Weld County'4 6Lde US ,the -section line by ei.thet having gout
Sotees conattuc1 thee appaoachea of tetmbuius ing Adcun6 County
Sot -the woah. Quit eoe,t6 Sot doing .thL5 woth Laing 1975
ave'ucge bid pa,ieea would be as SoUUow6:
96' coatilga ted metal pipe @ $11 .00/St. = $1,056.00
8 Slaked end 6ectiona @ $50.00/each = 400.00
72 -tona aggregate bane coaaze @ $ 8.62/ton = . 620.64
TOTAL - $2,076.64
We would also like .to get yowl apptoxunate timretabte Sot
can6ttucti.on oS yowt6ection os roadway between Inteazta.te
25 and Quebec S.t'teet Sot approximately 4 rni.Cea . Completion
06 theoe .two 6eetion4 would paov.ide ano.thet .tie Saorn In-teaatate
25 to I nteaa torte 76.
We would appkeci.ate an early kehpanse on .th,ie matte and
we Cook 6onwaxd to wonhi.ng with you .in the 6utune.
Should you have any que4Zi-onb, please give me a calf at
287-0171 .
Si.nce/cely,
on Meyers
Deputy DiAectox o 6 Pubf i c Wokk6
Highway Division
RM:ca
cc: Bud Coleman
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