HomeMy WebLinkAbout770654.tiff RESOLUTION
RE: ACCEPTANCE OF WELD COUNTY ATTORNEY'S LEGAL OPINION INVOLVING
THE MATTER OF SUSPENSION OF COMMISSIONER JACOBUCCI , AND
DIRECTING THE WELD COUNTY ATTORNEY TO INTERVENE IN CIVIL
ACTION NO. 29498, PEOPLE VS. JACOBUCCI, ON BEHALF OF THE
BOARD OF COUNTY COMMISSIONERS.
WHEREAS, the Board of County Commissioners of Weld County,
Colorado, pursuant to Colorado statute and the Weld County Home
Rule Charter, is vested with the authority of administering the
affairs of Weld County, Colorado, and
WHEREAS, on October 14, 1977, a civil action was filed in
the District Court of Weld County, Colorado regarding the matter
of suspension and request for preliminary injunction against
Victor L. Jacobucci, Weld County Commissioners , said Civil Action
Number being 29498 , and
WHEREAS, upon request from the Board of County Commissioners ,
by Chairman June K. Steinmark in a letter dated October 14 , 1977 ,
the Weld County Attorney provided said Commissioners with a legal
opinion in regard to the above-mentioned civil action number, by
his letter to the Commissioners of October 17, 1977 , and said
letter was read into the record of the Board of County Commis-
sioners on the same date, a copy being attached hereto for reference, and
WHEREAS, it has been agreed by the Board of County Commis-
sioners that it would be advisable to accept the Weld County
Attorney' s legal opinion and to direct him to prepare an Appli-
cation to Intervene on behalf of the Board of County Commissioners,
and that said intervention should be instituted immediately.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Com-
missioners of Weld County, Colorado, that the legal opinion written
by the Weld County Attorney regarding Civil Action No. 29498 ,
People of the State of Colorado vs. Victor L. Jacobucci, County
Commissioner of Weld County, Colorado, be, and hereby is accepted,
and further that the Weld County Attorney be, and hereby is, direc-
ted to prepare an Application for Intervention into said civil
action, for, and on behalf of the Board of County Commissioners
immediately.
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770654
11 �e71 �� ,', . l 7 /
The above and foregoing Resolution was , on motion duly made
and seconded, adopted by the following vote on the 17th day of
October, A.D. , 1977.
BOARD OF COUNTY COMMISSIONERS
WE7 COUNTY, COLD DO
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ATTEST: 11
Weld County Clerk and Recorder
and Clerk to the Boa
Deputy County Cle
APPROVED AS TO FORM:
Asst. County Attorney
Date Presented: October 24 , 1977
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mEmoRAnDum
wiikTo June K Si-elm-lSi-elm-lark,aiark, Chairman Date October 17, 1977
Thomas O. David, of
the
Attorneys Commissioners
COLORADO From
Subject: Court Action involving matter of Jacobucci suspension
On October 14, 1977, you forwarded to my office, a memorandum
asking whether or not Civil Action No. 29498 was filed in
reference to Victor L. Jacobucci' s position as a County Commis-
sioner, and further requested advice as to whether or not the
Weld County Commissioners have a responsibility to enter as a
party to the action. You further requested whether or not the
Board of County Commissioners had a responsibility to provide
legal representation for Commissioner Jacobucci in this matter.
In answer to the first question posed, the defendant is de-
nominated, "Victor Jacobucci, County Commissioner of Weld
County, State of Colorado" It is, therefore, obvious that this
action is being brought against Mr. Jacobucci as Commissioner
of Weld County, Colorado.
With reference to your second question, Rule 24 of the Colorado
Rules of Civil Procedure provide for intervention when any party
or parties have an interest in the subject matter of the action.
In as much as the removal by Preliminary Injunction or suspension
pending prosecution of the criminal action, lodged against
Commissioner Jacobucci, would affect the integrity of the Board
of County Commissioners , causing applicants for zoning matters
and applicants for licenses under the Colorado Beer and Liquor
Code and other such matters, to bring their application before a
Board of four, and in as much as a two-to-two vote would certainly
deny said applicants of relief which might otherwise be granted
should Commissioner Jacobucci set on the Board, it logically
follows that the Board of County Commissioners has a vital
interest in the outcome of this Civil Action, and it would be my
recommendation that an Application to Intervene under Rule 24
of the Colorado Rules of Civil Procedure, by the Board of County
Commissioners of Weld County, Colorado, be instituted immediately.
With regard to the third question posed, it is my opinion that
legal representation of the Board of County Commissioners and
of Victor L. Jacobucci as Commissioner in this action, is
authorized by Article V, Section 5-3 (4) of the Weld County Home
Rule Charter.
Dated this 17th day of October, 1977 .
S O.
e
Weld County A orney
TOD:cc
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mEm®RAAnDun
WIDCTo Tom David, 'aunty Attorney_ Dale—10/14/77
COLORADO From June Steinmark, Chairman, et al
Subject Filing of Court Action in Matter of Jacobucci Suspension and
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request for preliminary injunction -- Commissioner request
for legal opinion.
We have been advised that on this date, October 14, 1977, a court action
has been filed in the above referenced matter. We are requesting that
you provide a written legal opinion to the Board of Weld County
Commissioners on the above matter, in regard to the following:
1. Whether or not the above action is an action filed in reference to
Victor Jacobucci ' s position as a County Commissioner.
2. The Board of Weld County Commissioners' responsibilities to enter as
a party to the action.
3. The Board of Weld County Commissioners' responsibility to provide
legal representation, by the County Attorney, for Commissioner Jacobucci
in the above referenced matter.
4. Any further information concerning the legal aspects of this matter ,
which in your opinion the Board would need to arrive at a decision
concerning any action the Board might wish to take in the above matter.
We wish to have the opinion available for Board review on Monday,
October 17.
//June K. Steinmark, Chairperson Edward L. Dunbar, Commissioner
Leonard L. Roe, Commissioner Norman Carlson, Commissioner
JKS/clb
' / 92—tedsed summoa,In Civil Action.
IN THE .. ..__DISTRICT . .. .. . COURT.
STATE OF COLORADO,
168. DIV
County of.. . ._ . WELD "7 e-% el
CIVIL ACTION No. ,....1 /...y./4
THE PEOPLE OF THE STATE OF COLORADO
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PLAINTIFF
VS.
VICTOR JACOBUCCI, County Commissioner
of Weld County, State of Colorado, SUMMONS
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DEFENDANT '
THE PEOPLE OF THE STATE OF COLORADO,
TO THE DEFENDANT ABOVE NAMED—GREETING: r
You are hereby summoned and required to file with the Clerk an answer to the complaint within 20
days after service of this summons upon you. If you fail so to do, judgment by default will be taken against
you for the relief demanded in the complaint.
If service upon you is made outside the State of Colorado,or by publication, or if a copy of the corn-
plaint be not served upon you with this summons, you are required to file your answer to the complaint
within 30 days after service of this summons upon you.
This is an action'
for relief pursuant to C.R.C.P. 106(3) and for Preliminary Injunction pursuant
1 to C.R.C.P. 65(a) and (c)
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I, You are further advised that• hearing on Preliminary Injunction will be held
ion Friday, October 21, 1977 at 10:00 A.M. in Division 1 Courtroom.
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,; Dated vt...,. 0,f) T 6R,,14 , 1977
.__. ..
BROOKE WUNNICKE, Supreme Ct. Regis.4854
I4ary...td f�onne.l.l.l. -1. ATTORNEY FOR PLAINTIFF.
—I {t '`- LEEK' F,SAID COURT. •
c %
924 W. Colfax
4 B . Ze ;`. /� �f4fzGGtj ....Cotiara o..802Q4.;.>'h .one 575-.5933
/ l r ;DEIIUTY CLERK. ADDRESS OF ATTORNEY.
Illi ..G N. .,.// /
• 6.16Lid 111/." "
(SEAL OF COURT)
NOTE.—This summons is issued pursuant to Rule 4, Colorado Rules Civil
Procedure.
Warning: If this summons does not contain the docket number of the civil action, then
the complaint may not now be on file with the clerk of the court. The complaint must be filed
within ten days after the summons is served, or the action may be dismissed without notice
upon your proper request to the court. Information from the court concerning this civil action
may not be available until ten [lays after the summons is served.
1_ Note — This summons is issued pursuant to Rule 4, Colorado Rules Civil Procedure.
* •If the eummone is published or served without a copy of the complaint,after the word "action"state the relief demanded.
If body ekeeu Lion is sought the surnmuns must state"founded upon tort."
IN TUE DISTRLC'i' COURT IN AND FOR THE
COUNTY OF WELD
STATE OF COLORADO
Civ.i.l. Action No . _
THE PEOPLE OF THE STATE. OF )
COLORADO , )
Petitioner, ) COMPLAINT FOR RHLIFF
I'URSIIAN'I' TO C . R . C . i' . 106( 3)
vs . ) AND
' VON PRELIMINARY INJUNCTION
VICTOR JACOHUCCI , County ) PURSUANT TO C . R . C .1' . 65( a) and ( c )
• Commissioner of Weld County , )
State of Colorado , )
)
Respondent . )
1 . On August 17, 1977 , the Weld County Grand Jury indicted
respondent on three counts : one count or Failing to Disclose a Conr
flict of Interest , in violation of Section 18-8-308 , C . R . S . 1973 , and
two counts of First Degree Official Misconduct , in violation of Section
18-8-404 , C . R . S . 1973 , the statutory classification . of each offense
being a class 2 misdemeanor . A true copy or the Indictment is attached
to this Complaint as Exhibit A and incorporated here by this reference .
2 . Weld County is a home rule county , and the county electors
adopted a charter pursuant to Article XIV , Section 16 , Colorado Con-
stitution ; and , Article XIII , Section 13-8( 5 ) or that charter reads :
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" ( 5 ) In the event an elected orriiciai is
formally charged or indicted for the commission
of a crime , the Council may suspend such officer ,
with or without pay , pending prosecution of the
ofrense . Jr an elected officer is found guilty
of any crime by a court or jury , the Council
shall immediately suspend such orricer without
pay until his conviction shall become Final and
he has exhausted., or by Failure to assert than ,
has waived all rights to ,new trial and ali rights
of appeal . At the time such officer ' s conviction
is final , the office shall be vacant and the
vacancy filled as herein provided . " I Emphasis
supplied . I
1 . On August 21 , I977 , the Couh Ly Council adopted a resolution
of partial suspension or Commissioner Jacohuccis
a. The resolution included inter alia ( i) findings , and
( ii ) immediate suspension of the Commissioner , with full. pay ,
from his position as Coordinator or the Department or Engineering
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Services or the office of Weld County Commissioners .
b . A copy of the resolution of partial suspension is
attached as Exhibit B .
4 . On September 6 , 1977 , the Weld County Council adopted a
resolution of "full " suspension, with full pay , of Commissioner
Jacobucci ; and , a copy of that resolution :is attached as Exhibit C .
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5 . After the Weld County Council adopted Lhe resolution of
September 6 , 1977 ( Exhibit C ) suspending respondent as a' County •
Commissioner and despite respondent ' s knowledge of said suspension,
respondent has unlawfully continued purportedly to perform the functions
of a county commissioner, including attendance at meetings of the• Veld
County Commissioners where he has purportedly acted and participated
as a county commissioner involving , without limitation , his making
motions and voting thereon , all contrary to said resolution adopted
pursuant to the Weld County Home Rule Charter and to the constitution
and statutes of Colorado .
6 . As a result of respondent ' s wrongfully continuing to act as
a county commissioner , petitioner has ;offered arui will continue Co 1
suffer irreparable damage and injury consisting of , but not limited
to , respondent ' s unlawful participation in Weld County Commissioners '
meetings whereat certain actions have been approved by a 3-2 vote with
respondent ' s casting a void majority vote ; actions So approved by the
unlawful vote of respondent are not valid actions of the Weld County
Commissioners , and the same invalidity would result from respondent ' s
casting the defeating vote ; and , any pact taken by petitioner in reli •
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ance upon said actions thus unlawfully approved Or defeated by res-
...
pondent ' s void vote is and will be at petitioner ' s peril , thereby
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depriving petitioner of the People ' s. riot and need to rely upon the
validity of the Weld County Cormn:i:,s] onei's , nilapt]. ,n , i•open I or amend-
ment of any resolution or ordinance .
7 . Petitioner has no plain , adequate , or speedy remedy at law •
other than n preliminary :i_njuncLi_On to enforce thy :; Latuc quo or
respondent ' s suspension pursuant to the Weld County. Council ' s rcn;olu-
tion duly adopted on September 6 , 1977 .
8. Petitioner alleges that ro::pondenl: in unlawfully exercising
the public office of a county commissioner, and C . R .C .P. 106 provides
in pertinent part :
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"When such an action is brought against a
defendant alleged to have usurped, intruded •
into , or who allegedly unlawfully holds or
exercises any public office , civil or military ,
or any franchise it shall be given precedence
over other civil actions except similar actions
previously commenced . "
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WHEREFORE , upon the basis of the allegations in the foregoing
petition , petitioner asks this court to :
( 1 ) Declare that respondent Victor Jacobucci is unlawfully
exercising the public office of Weld County Commissioner until and
unless he shall become eligible for reinstatement as provided for in
Article XIII , Section 13-8( 5) of .the Weld County Home Rule Charter;
(2) Enjoin respondent Victor Jacobucci from exercising in any
manner whatsoever the public office of Weld County Commissioner until
and unless he shall become eligible for reinstatement as provided for
in Article XIII , Section 13-8( 5) of the Weld County Home Rule Charter;
(3 ) Give. this action precedence over other civil actions ; and ,
(4 ) Grant such other and further relief as this court shall
.deem proper.
Dated October , 1977.
THE PEOPLE OF THE STATE OF COLORADO
By : .
BROOKE WUNNICKE , Supreme Court
Regis . No . 4854
Duly appointed and Acting Special
Deputy D.i.ntr•ict Attorney, Nineteenth
Judicial District.
924 West Colfax
Denver, Colorado 80204
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Telephone : 'i7h-!i9:.13
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STATE OF COLORADO
CITY AND COUNTY OF DENVER ) SS
' Brooke Wunnickc , being first duly sworn , deposes and says :
I am a duly appointed and acting Special Deputy District Attorney
in and for the Nineteenth Judicial District , State of Colorado ;
1 make this affidavit for and on behalf of the People of the State
of Colorado , petitioner herein, as attorney for the petitioner
• whom I represent as authorized by C . H . C . I' . iU6( a) (3) ; I have read
the foregoing Petition , including attached Exhibits A, il , and . C
incorporated therein by reference , and the allegations thereof
are true to the best of my information and belief.
\
(BROOKE WUNI'JICKE
Special Deputy District Attorney
in and for the Nineteenth Judicial
District, State, of Colorado
/
Subscribed and sworn to before me this "'—day or October, 1977.
7
In r r C.,� FK
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NOTARY I'UIitic u• U
r
My commission expires :
/ Q #779
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indicir„•nl, tel.:: ,: dill
1 Lo Commissioner Jacnlnicci 's nisi Lion a:; cool diu•Itor If Lilo hewn linen t of
Engineering 5'ivir,es of rite Office of the Yield Uoun1y I;n'vni:•„inner,, ,
1 CQ',V, l llL ilalfli BE
1'f Hl;iCll_l lair Lim l: I'; ,Id County C:u: m iL'•ioner,
,
Victor JncUbucci , he, and he hereby is suspended (rum his nisi Lion as
Coordinator of the Ueparlmen; of Engineering :iorvir.cs ul the Office. of
1
the Weld. Cot inty Comnissinnnrs. .
I This suspension thaII take offect immediately (his :!11th slay of Augur;f ,
1
1977, and Ilia( I r,:n•lin in effect unl.il such time as Victor .I lcebticl i
has been argil' tied of the r<cln< Ier rendered aglinsI Ili:n in the i nil' , lnolil
handed down by the ,e1d County Grand Jury on Augural 17, I')'/'i,
Commissioner ..lar.nbncci Shall continue to receive lull c; umi :•' inner 'n
.
hay tlurinti Lie' I;eriod of Ste ',:nsion and shall continue I. I I,I•rll.rnn all `�
of his Crmtmi ;sinnrr '_ 'l ;Lir., oth,:r than those 11,,,, r.hir.h he fin: been
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suspended as t,La Led ab„ n v_.
The nbOue and foregoing Resolution was , on viol ien -.filly .. ;
and seconded, adnpled by the following vote:
slay:
oyes
f .
�. .
Dated: August ?,t, 1977
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RESOLOiloN
RE : ACCEPTANCE OF COUNTY COL6L'1. 1; RESOLUTION CONCERNING PARTIAL
SUSPENSION OE COMMISSIONER JACORUC:CI .
WHEREAS , the Board of County Commissioners of Weld County,
Colorado, pursuant to Colorado statute and the Weld County Home
Rule Charter, is vested with the authority of administering the
affairs of Weld County, Colorado, and -
WHEREAS , the Weld County Council on the 24th day of August,
1977 , did pass a Resolution suspending Commissioner Victor
Jacobucci from his duties as Coordinator of Engineering f Servi.c,-. ,
and
WHEREAS , the Board of County Commissioners desires to acc'4'C
said Resolution and make the same a part: of the offie.i,,l: record:;
c
of the Board of County Commissioners or weld County, Colorado.
NOW, 'PIIEREt•'ORll , BE I'1' RESOL.VED by ' nu Ito,i rd o f County
missioners of Weld County, Colorado, that said Rc'sr'I i' i ' n o;
Weld County Council dated August 24 , 1977 , Suspending L.emmissioncr
Victor Jacobucci from his duties as Coordinator of Engineering
Services , be accepted for the purpose of mal:i.ncl the sam,., -,r. part
of the permanent records of the Board of County Commissioners of
Weld County, Colorado.
The above and foregoing Resolution was , on motion duly .•
and seconded, adopted by the following vote on the 29 L clay of
August , A. D. , 1977 .
{
BOARD or c
cc)tJrry' r�J,nls.;l.c',:r,R.•
WELD_COUNTY , COLORADO
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ATTEST: i ,. '.:, • '
f1
WeId County Welk nndl Recorder
and Clerk Lo the 1;,,,7rd
1 I
Depul ,' County Clerk
APPROVED AS 9'O FORM: \. 1
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V U-1 I1., /L) =-
Counl.y ALLornt:y
hale I'reseet+.,l: September i.
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lilt: Sus1,en:; I'm 1,1 ICe hi C(Inh (l.:d C ,cani • inn.:r , V nLor .Ia.!:o!nu:." i
1VIIJiNI:A:i , n. :win: i :. I Inc:t:Li.nt: of the ¶ i: Id Fount comic iI was caIII,d
for 9 : 00 A . H . on Se:Jitc:nlher 2 , 16)77 , In cow:. kick* the Ju,Hr;il' Ic lull s :;-
!,rrn� inn of IVelcl Comity Conuni :a:; i (mei. , icLnl .larl,l.ucni ; and ,
.;aid s:J,c :i ;1I Inur:tiu : the I i I l limy inn I'ar. Lor:: I•:IrI'c
Laken into eon:: icleraI. Ion by numbers of 1-hr I;n1 (i Colin Iv l:onnt: i I. :
. In I)r:c•t•mber of I !)'i(i [II(: „eld ('mint c (],lair. ' I ,,:e; p riisen I I'd
with Lhl' (Ines oil of a ln,:;s;.i.I) It' court ic• I. ., f inll•rr::l. for IV', Lr1 ('onnl
Cnllnni :,tii.nm•r; 1'icl:nr .Iacollurci, aonl:rrnin!' hi :, Ilse of rrrnnl ' '''111 i1 I' . 1I
and I ;lbor on his farm in exnhanrrc for (lirl. IA) In' (n:11(1 on ('ouuly
As rellitlrcd by Ar1, ic.lr• XVI , Sec 1.11)11 ;) of Lii'' Wald t:rnulI ' Homo Cott'
Chi;t Ier , the IV(' Id (:nuul.y counc. i I 1:1(11 ;t 11111 iu-•i .•s1. ir:;, l. ic,n info : nitd
question . Al, the c:nncIus inn of Ilinl. iiivi'KI ilt:, I in the 1,:•• ,(''•cni ;
Counc:i..7 mach' a I' i.nd i ng Clia.L Y.i.clnr Jacnhnce i had a r. 'n.! I ' r • ,• 1 ,
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and rec:onunona''d In Hie \tc I d. C:ouli Ly Itonrd n f (:oun Ct t'r,„cn i I .'In. (.h:; I
Ito he renwvnd !Tool ally pot: t on hu.viIli: a c:cinner• I. ir•n with I Ik:J)arl -.
men () I' :Kin:, hta t' inl: Scrvieel: of the Of Lit of I:hr P;;` Id I:nun1.y ropti, l : . Ioller:- .
2 , Ar ( icic• Sl' 1 , I. Ion 0•..( 3 ) of Hie IV.: Id Finn) Iy Iloblr I' Ii' (:ha : : lr
I)rnvi.dos as Inl1ov::;•
111 Liu' •'vnlll'. ;1 tine:-:t:(.,II :11' 1 se:: as Ili 1ni.::F: l lilt`
c•nnl' l icl. of iI11.r•r':.-.I. hr`Llc1 en :illy r. unlI •, If ii'.'r
91U`Inhr`1' 'II Inn' 1 lll.r`fl In,a 1•d , •`I• •`I'll` 1 .,','.•r• ;I III
;1111' r•II L.'1'n I- If;r` nr .u !�•r ul i z;11 it'll 'Ir.
11H H, Itol ,I ( .nnlJc , I.hr gnus; l: len Wi 1 l f..• pH-Awl
In iii ' 1:n1ulf ('nnnci III I.i !:aI. Hill :
ion ;Ind )'e);ol tit ioll . 1711• ,Ind!,cr`nl :Ind
• e is ion ul I.he online i S
11:1 I I he I In : i rlr`1 yeti I`i 11a I
I i(t f:h 11 I (u• mad, -a nl t 1, Lc`t c,I plo I i r rc r i)r(I •
The ICe.td Connty hoard of Grimm i st; (me , in iii r.`c• L roil flief. II 1 '•
c':tit'd (Thar( rr J)t•nvi :: hill anrd iv IA-lion I ;illy ;1111 ho'. i I :'.ha•I o.`tl•1' , (iu r, :1 ' ; r I
niilclo their own iht'us:t. i t:;l.l: ion into Inn: tan l. lor , u;nclr a. fi nil inhr Ih;il :.Ir .
' J;tcnlxtcc:i had 11(1 mold ! ltd. of inLn rest , and , I lit'rr` fo r
Ploy(' II lip from any cornier I. i(In ho play havl: Marl I ' II1 Ihl' 1)„I,arIthrill. .,(
I;nl;in.'c:rin!; ;h`rvlcl of Ih.` (If fir.c: el' IIn' ('onuly ('nnuiii :.•: ion,'i'
On Ihc' Lilh do f A Iv7 , the 1tr' lll ('onnl ; c r;.I: ' .
indielect ‘ti r.Iel' Any,•hnr•ci fnr one cowl I. o Nli I in': L.1 1)ir.(' Ins:u :I
lonfli.rt. of InLI•rr';;L . a c: lns : :; mi ::ILmlonn..r . :1nel II:,. t•ounl :. .. I
I)t'greo ()I I. Irial )Ii :,c 'nitiu• I 'ac'h Ili! 111'. a rIas::
1Scld Connty ('ounci I I.iu:n mu Lo cons' idur Ih., I) i• sit:;ln•n:; k1ll I ' '
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* Viol ill' •t it l'1111111'I' I :I:. rein' I•„d by A , licit, XI II , .I , :„ , Mal }
- ( :I ) n1 I H.
Weld County Ilunl'' . lhili ('hartor . n ' r lull inv''•ll is , Linn ant! Ili ::._
woniicln ;I I. :,:IIr1 mrr' I. ing , the C't: lrl ('ollll1.y ( 'utori i I mill III :al:.'I"
nd
Victor .J;u:ohm:iti Iruin his pouii; ion a:; ('nordinaI ''I' rll' the I'cr:ti• I mon 1.
of Engineering Sorvicos hosed upon the foll(n':in;: factors :
A . 'J'hre three r, la.r,:; 2 Ini ::deml::lnor Ir•r ":high ht' had I,I,c'n in'lict,d
arose directly out of his connection with activil. il's of a subdivision
of - the Department. iiU Engineering Scrv.icor: , •
D. II' Mr . ,Jar.oln;c•c: i wort.) to rrmain in his Ir,:: il ion eV Coordinator
of the Ih'ial'Lmcnl. of Engineering Service:: , I. semi pul. llul.h 'ir.
,Jarubucc:i anti employees of the . Department of ICn;; inoorinr: RI•rvlrl .: kn
a most diffi.inIt pn:: iLion, r:.incu cmlployeos of ( hat rlp;_Irtun•nl in all
likelihood would In' rolled as u•JLiii'::cer; , c' ithlcr lllr or it;;ai isI. MI'.
•Jaoobncci , in the pending criminal prosecution,
C . In order to maintain I.hl• Icil. izccll:: ' Lrn:;1 in their f• Irin •' I
government, and lift:lie. the po:•;sihi of ;Inv' 1 I n':r•anl. ,• ' ;, i ,
I I ir,li, ,.� ,
.1t would he in the lieu L interest of both the citi ;:c:n:-: of 1:,' ; II ( uunit'
and H;'. Jacohucci kir him to. either :;Lull chum or ' he removed from hi ).
position as Coordinator of the I)c:parLmril. of Engineering Service:-. .
•I . 'I'll'•rl•al' LI'I' , the Hoard of County ('onuni :<:: ionc'I':: non)) l'ecc ip1.
of said Ifes', h ition , :Ind n Jc'gtl opinion From trio ('ounly r\( form'\' ,
voted Lo refuse to r,'mnvc Victor .Jat'.uhuc•r. i from hi :: position m:. nlii ;iior
of I.lu' Depar'tment of Engineering Susie.':: . prior Ln Lakin:c 111:11.
action the Hoard of County Commissioners (ii'I.i rminrrl Ihnl. I.hat rued
of Article Alil , Section S-( fi ) of the Weld Untruly lime• Rule ('harl •.'r
• which authorizes the Weld County Council to suslu'nd au of h' irr,. :c l, ' ,::I:. but
indicted for , hill not. convicted of an (II I'I•list' In In: an i i I • ;' I i •• I
of power and thc'relure IninnfurCrnhll: ; and ,
WIIJ:REAI; , al ( hl: moetiig hold on Sept'. mlll'r :f , I :1'i 'i , Lhr Wok' Comm :,
Counci.I, made the following findings :
T . Jinsod upon the Iiy(aI opinion provided the lleId ('oiinfv ('nllnri I
by its aLLornrv , Rohl'r(. E . Ray , and' Lhf' le::al opinion ;•: itl•n k .
Hoard or County CI Inmis:; Ionrr:: hy County AL ( nl'Ir.•v , 'Ilium,:; U,•
is apparent that Cho ball ial. ` iiNprlisinn iii victor .J;Irc,l,nts: $ it; II.11 ❑:.
en l''Irreall l r ❑:; :; I'ni I ::11::prlls i'.In t:nn i ii have he-n. ••
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Cl) r l •
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I'Ilr r, nu'a':rl o f \' i rl of ,I;>, Lure i I I ..•
m Ila •, 1I,';: il iota: Li.
,rdinnl„I••
}. I I,h . Ih1,;1rlIII", r"nL In hill..i III c• I' in:; ? •I
'V I :. nb:.ulnIi• IV ng•r,••.;::nrM' in
()1'dul' IC) MN 111 In iii l ho el t I::n115 ' eon ] I (tenet) i n the I r hove l•nlllca i. , and in
order to I'elnt.>vc any pc>:;s i hi 1.1 ty of !.he :'i>pe:ll•:I Mill 1, 1' i 111p rnj)ric'r i es w hi ell
nail:lit :t.risv i f G11• . .Iac()huc.c.i were Ic: IL in chart;(• ,tf I.hr tlel,n.1•I.InenI. ttho,cn
employees may In: haIIt'd I.() Lest i. fy', eil.hrr I.or or :I,;ni ist Mr . .Iaeol>uce.i. ,
in the penclint; c.vimin:II l>rosecat.ion .
,I . AI..I members of the Weld CniiiiL.y (.'ounc:.iI ;tail ( lie We' id Coteau'
I3o:a'd of C( lmuissionur, Look an on.L.h Lc) uphold a I I provi sinus of the
Weld Col.inL\ Iloau: Ruin Cha.l'ter . 'ft('in loin , iI, i :;• not. I'I'tn!'c'r . r ! I:hel• •
moral Iy nr I ,y;a 11 .1' , for ei Hier Flu! (_:nunl.y Cowie i I or Ilo:trcl of I.', ,,,.:,
1t :. i , .n c:l'
to ch:Larmino Ghat some pt'ovi.slets of the \Sc,.i (I Cain I y Ilnm'• Rul • ('h .( rter
are i 'Iva I. HI , and Lhcrcfore rt' fusa to foI lot/ Lie :.millet
•l . The only method the Weld Cuulll.y Conn,: iI in:; a\ :aiI al) lr Lo is :t 1
this Lilac: to lien n.lre Ilit, \'.i.c:Lnr .i:tr.ohnrc. i i•:: rcnl„\v:d Iron' his 1'u:; i.("ion
as Coord ;a •
intnt• of the I)ep:lrl:nlcat of pme:iileerinr, S,•r•virr;<:
•
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II m I roam all of his chit des as a !Veld C:ouu Ly Colloid :::: it .i '.'
NOW, 'I'1lIiItl•;POlth; , HE IT RESOLVE!), that I he l i all lit::: ul' Paul .," l.
f()rth iii the ilt•r:ctloI. ioa of Lilt, Wel tl Conn ! y ('ount•.' I dated Au::n::I. ' I :r; , ,
• and d,::t.l ing with the p;l rt.ial suspension of Vi.rlol• .I:ac..ohurc' i ._. 1: r , and
hereby 8.r(.! , inrol1por;ttetl herein by 'reference and mode .t part. Ilct•.•hy
as though fill I :wl, For Ili , and , based llpun the foreg(Wir. . `." ieI . • 1
Iaeol)ueeI he , :Intl he hereby is , sils:l)ctncirci I rum Ili :.: po:; i Li „n ai, . ,
•
Comm is::l one r on the \Vold nullity Iloaril n1' ('oun ' y Limon i :: ; i inn,l•,: , :tail :a11
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du I. ic•m :U. Lc:nda.nt I.hcn•ete . Said suspension ::ha I I he 1: 1 ( il fit I I pa}' ,
sll:tl..l . Lake effect 'mined i.ateiy , ad n :;hnl.l. rcar,ain in rl' lee l. as pr i , .•cl
for in Art:iele XI IL , SueLion f3-( 5 ) or l.he !Veld Conn Iy (loin,' Itn1e Char, l•r .
'I•hc above ;aid foregt) inp; liesnl (IL 1.nit Wa:t , nn runt. ! on duuI ;. . :a!
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Src.c>nded , adopted by 1.11(.• Iotlotcing (ro Les :
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NAYS : /J
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11:1Incl : Sep temi I• r G , I '):7 •
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mEmORAnDUm
p
OF LAW
To Board of County Commissionersie August 29 , 1977
COLORADO From Thomas O. David, Weld County Attorney
s"elect: Legality and enforceability of a resolution regarding
the partial suspension of Victor Jacobucci , Weld
County Commissioner, by the Weld County Council.
You have requested a legal opinion concerning the legality
and the enforceability of a resolution regarding the partial
suspension of Victor Jacobucci, Weld County Commissioner, by the
Weld County Council.
On August 24 , 1977 , the Weld County Council passed a
resolution suspending Weld County Commissioner Victor Jacobucci
from his position as coordinator of the Department of Engineering
Services of the Office of the Weld County Commissioners . The
resolution stated that it would take effect immediately on the
24th day of August , 1977 , and would remain in effect until such
time as Victor Jacobucci has been acquitted of the charges ren-
dered against him in the indictment handed down by the Weld
County grand jury on August 17 ,1977 .
The resolution passed by the Weld County Council cited
as authority for their action Article VIII , Section 13-8- (5)
of the Weld County home rule charter which provides in part as
follows :
"In the event an elected official is formally
charged or indicted for the commission of a
crime, the Council may suspend such officer,
with or without pay, pending the prosecution
of the offense; and, . . . "
Further in the same resolution, Article VIII , Section
16-10- (14) of the home rule charter was cited for the purpose of
defining the word "crime" as follows :
"Crime--A felony or a Class I or II misdemeanor
as defined by state law, or a comparable federal
crime or crime in some other state. Does not
include petty or traffic offenses . ; and, . . . "
Section 30-10-105 of the Colorado Revised Statutes
sets forth the conditions which can create a vancancy in a county
office. The portions of Section 30-10-105 which are applicable
to this memorandum are as follows :
" (2) In the event a county officer is found
guilty of any felony or infamous crii?fe- by a court
or jury , the board of county commissioners shall
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immediately suspend such county officer from
office without pay until his conviction is final
and he has exhausted, or by failure to assert
them has waived, all rights to new trial and all
rights of appeal . At the time such officer' s
conviction is final and he has exhausted or
by failure to assert them has waived, all rights
to appeal and new trial , the said board shall
remove such officer from office and his successor
shall be appointed as provided by statute, unless
during such period of suspension a successor has
been duly elected and qualified and said successor,
whether so appointed or elected, shall be the duly
constituted officer.
(3) Should the officer suspended from office by the
board of county commissioners as provided in this
section be found not guilty in a state or federal
court either on appeal , original trial , or new
trial , the board shall forthwith reinstate such
officer and give him his back pay, unless during
such period of suspension a successor to such
suspended officer has been duly elected and qual-
ified. In the event a successor to such suspended
officer has been so elected and qualified, such
suspended officer shall receive his back pay only
up to the expiration date of his regular term of
office and he shall not be reinstated or paid fur-
ther unless he is such person duly elected and
qualified. "
In order to properly determine the validity of the
Sections of the Weld County home rule charter used by the Weld
County Council to suspend Commissioner Jacobucci , it is first
necessary to examine the Sections of the Constitution of the State
of Colorado and the statutes enacted thereunder which permit
County home rule in Colorado and define the power that may be
exercised by a home rule county.
Article XIV, Section 16 of the Constitution of Colo-
rado provides as follows :
"Section 16 . County home rule. (1) Notwithstanding
the provisions of sections 6 , 8 , 9 , 10 , 12 and 15
of this article, the qualified electors of each county
of the state are hereby vested with the power to
adopt a home rule charter establishing the ORGANIZATION
and STRUCTURE of county government consistent with this
article and statutes enacted pursuant hereto.
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" (2) The general assembly shall provide by statute
procedures under which the qualified electors of any
county may adopt, amend, and repeal a county home rule
charter. Action to initiate home rule may be by petition,
signed by not less than five percent of the qualified
electors of the county in which home rule is sought,
or by any other procedure authorized by statute. No
county home rule charter, amendment thereto, or repeal
thereof, shall become effective until approved by a
majority of the qualified electors of such county
voting thereon.
" (3) A HOME RULE COUNTY SHALL PROVIDE ALL MANDATORY
COUNTY FUNCTIONS , SERVICES , AND FACILITIES AND SHALL
EXERCISE ALL MANDATORY POWERS' AS MAY BE REQUIRED BY
STATUTE.
" (4) A HOME RULE COUNTY SHALL BE EMPOWERED TO PROVIDE
SUCH PERMISSIVE FUNCTIONS, SERVICES , AND FACILITIES
AND TO EXERCISE SUCH PERMISSIVE POWERS AS MAY BE
AUTHORIZED BY STATUTE APPLICABLE TO ALL HOME RULE
COUNTIES , except as may be otherwise prohibited or
limited by charter or this constitution.
" (5) The provisions of section 6 , 8 , 9 , 10 , 12 and
15 of article XIV of this constitution shall apply to
counties adopting a home rule charter only to such
extent as may be provided in said charter.
Adopted November 3 , 1970--Effective January 1, 1972 . "
(Emphasis on certain portions supplied. )
The powers which may be exercised by a home rule county
in the State of Colorado are set forth in Section 30-11-511 , C. R.S. ,
1973 , as amended, which provides that a home rule county of
Colorado can exercise only those powers specifically granted by
statute. The full text of Section 30-11-511 C.R.S . , 1973 ,
reads as follows :
"Board of county commissioners - home rule counties.
A home rule county shall provide all mandatory county
functions , services , and facilities and shall exercise
all mandatory powers required by statute. A home rule
county may provide such permissive functions , services ,
and facilities and may exercise such permissive powers
as authorized by statute applicable to nonhome rule
counties , except as may be otherwise PROHIBITED or
LIMITED by the county charter or the Constitution of
Colorado. Any power, function, service, or facility
vested by statute in a particular county officer,
agency, or board, including a board of county commission-
ers , may be exercised or performed within a home rule
county by such county officer, agency, or board desig-
nated in the home rule charter . For home rule counties ,
the term 'board of county commissioners ' means the
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governing body of the county designated by the
county. "
(Emphasis supplied. )
Section 30-11-511 , C.R.S . , 1973 , as amended, limits
the power of the home rule county to the exercise of only
those mandatory powers required by statute and permissive
functions which are specifically authorized by statute and
applicable to nonhome rule counties .
The Weld County home rule charter , Article VIII ,
Section 13-8- (5) purports to expand the power of the Weld
County government beyond the scope of Section 30-10-105, C.R.S. ,
1973 , by permitting the immediate suspension of a county
officer who is formally charged or indicted for the commission
of a felony or a class I or class II misdemeanor as defined
by state law. The charges lodged against Commissioner
Jacobucci are misdemeanors , not felonies . It is to be noted
that there is a vast difference between a person being charged
with a misdemeanor and being convicted of a felony, and I
am therefore of the opinion that Article VIII , Section 13-
8- (5) insofar that it provides for suspension of a county
official simply upon being formally charged or indicted for
a crime, whether felony or misdemeanor, is beyond the scope
of the power given to home rule counties by state law and is
consequently invalid and unenforceable.
Section 30-11-511, C.R.S. , 1973 , which is set forth
in full above , permits the transfer of any power, function,
service or facility vested by statute in a particular county
office , agency, or board , including the board of county com-
missioners, to another agency or board designated by the
home rule charter. This would indicate that the home rule
charter could transfer the power given to the board of county
commissioners under Section 30-10-105, C.R.S . , 1973 , to suspend
county officers found guilty of a felony or infamous crime
by a court or jury to the Weld County Council . Although this
power to suspend may be transferred, the power to suspend an
officer is strictly limited to the criteria as set forth in
Section 30-10-105 , C.R.S . , 1973 .
The resolution passed by the Weld County Council on
the 24th day of August, 1977 , purports to suspend Commissioner
Jacobucci of his duties as coordinator of the Department of
Engineering Services . Article III , Section 3-6 of the Weld
County home rule charter provides as follows :
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"Commissioner - Departments.
(1) The department of Finance, Central Purchasing
and Personnel shall be coordinated by the Chairman
of the Board of County Commissioners.
(2) Each of the other four major departments , as
established by Article IV, shall be coordinated by
one of the other commissioners together with assis-
tance from another commissioner, both of whom shall
be appointed by the Board at its first meeting in
January each year. "
The above cited section of the Weld County home rule
charter specifically delegates to the Weld County Commissioners
the power to designate Commissioner-Coordinators of the four
major departments of County Government other than the Department
of Finance, Central Purchasing and Personnel, which must be
coordinated by the Chairman of the Board of County Commissioners .
The determination of Commissioner Coordinator positions is there-
fore the full prerogative of the the Board of County Commissioners
and cannot be exercised by any other agency of Weld County
government.
The Weld County Council under Article VIII , Section
13-8 (6) of the Weld County home rule charter provides that the
Council shall review all aspects of county government and shall
make such periodic reports to the people relating to expenditures ,
efficiency, responsiveness , adherence to statutes , laws and
regulations, and other matters as the Council deems advisable.
This section further provides that such reports shall
be in such form as the Council shall determine and shall be
filed with the Board of County Commissioners and copies furnished
to all elected officers . This particular section of the Weld
County home rule charter would imply that the Weld County Council
may act in an advisory capacity to the Board of County Commissioners
of Weld County, Colorado, and therefore it is my opinion that the
resolution passed by the Weld County Council on August 24 , 1977 ,
can be considered as advisory only upon the question of whether or
not Commissioner Jacobucci should remain as Commissioner Coordinator
for the Department of Engineering Services . Any action changing the
position of Commissioner Coordinator for Engineering Services must
therefore be initiated and acted upon by the Board of County Com-
missioners of Weld County, Colorado.
Based upon the foregoing I am of the opinion that the
resolution passed by the Weld County Council on August 24 , 1977 ,
suspending Weld County Commissioner Victor Jacobucci from his
duties as Commissioner Coordinator of the Department of Engineer-
ing Services is invalid and unenforceable.
Dated this 29th day of A ust , 1977 .
Thomas 0. David , Weld County Attorney
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