The bottom line biggest concern is these changes do not appear to have been well considered through the lens of the voter. Instead, more severe limitations are placed on the exercise of these processes, all of which are guaranteed to every voter in every municipality under Article V, Section 1(9) and Article XXI of the State Constitution. This simultaneously increases the legal risk to the City of having to try to defend these changes - at the taxpayers' expense - while limiting the rights of Fort Collins voters. It appears the City Council was not aware of these risks when adopting the ballot questions.
Instead of having a chance to fix minor technical issues with a submitted petition that is otherwise sufficient, voters would need to start any petition process over from the beginning.
The processing time on the City side is increased for all processes in several areas, and significantly overall in total. This limits the opportunities voters have to get something on the ballot, whether it is recall, initiative or referendum.
Changes are clearly intended to push as many petition processes to a November election as possible - eliminating the potential for any other timing for most initiatives entirely, and pushing out the potential timing of an election for any petition process significantly. In some instances, this removes the potential to hold an election on the process altogether, particularly with recalls.
Annotations in the Colorado State Constitution cite multiple instances of Colorado courts upholding the significance of ensuring the state's voters have unencumbered rights to these key petition processes as part of the fabric of the State's governance, including at the municipal level.
Recall, initiative, and referendum are fundamental rights of a republican form of government which the people have reserved unto themselves. Such a reservation of power in the people must be liberally construed in favor of the right of the people to exercise it. Conversely, limitations on the power of referendum must be strictly construed. Bernzen v. City of Boulder, 186 Colo. 81, 525 P.2d 416 (1974).
Power of recall is a fundamental constitutional right of Colorado citizens, and the reservation of this power in the people must be liberally construed. Groditsky v. Pinckney, 661 P.2d 279 (Colo. 1983).
The right of recall is a fundamental right of the People. Statutes governing this right are to be liberally construed in favor of exercising such right, and any limitations on this power must be strictly construed. Mirandette v. Pugh, , 934 P.2d 883, 884–85 (Colo. App. 1997) (citing Hazelwood v. Saul, 619 P.2d 499 (Colo.1980))
The changes to the Charter language in these sections negatively impact Fort Collins voters and their ability to exercise these rights by:
Reducing the number of days voters have to circulate a petition for signatures (when the current Charter already gives voters in Fort Collins just 50% of the time allowed under state law for circulating recall petitions and 1/3 or 33% of the time under state law for circulating initiative petitions.)
Eliminating cure provisions from all petition processes available to voters in Articles IX and X of the City Charter while maintaining the ability of Council candidates to use cure provisions for their nominating petitions in Article VIII. In at least two of three instances, this further reduces the time voters have to potentially circulate petitions and garner signatures. In all instances, it strips voters of the right to correct deficiencies that may not be fully compliant with legal requirements but could still constitute substantial compliance and allow a process to move forward without litigation.
Increasing the time that can be taken to process a petition for all of the petition processes available to voters, while again maintaining the tight timing for how candidate's petitions are processed. This increased time for processing negatively impacts voters by:
Lengthening the time before a recall process could be completed and when the subject officer could potentially face a recall election - this serves to effectively eliminate the potential to ever subject the office of mayor to a recall, unconstitutionally eliminating that right from Fort Collins voters;
Lengthening the time before an ordinance adopted by the City Council and protested by residents under the referendum could be stayed. The timing under the Charter for when a typical city ordinance takes effect provides no opportunity for voters to stop it from going into effect. These changes would extend the time it is in effect before it can possibly be stayed, by up to an additional month from the longest possible current timeline, for a new total of 3 months.
Eliminating timelines mirrored in state statute for conducting an election based on a petition effort in favor of what in the instance of recall elections would be an entirely nebulous timing requirement solely determined by the City, and for initiatives virtually eliminating the potential to hold an election on an initiative any time other than with a November Coordinated Election.
Many inaccurate or incomplete assertions are found in the ballot language and largely mirror the assertions made publicly when the Council considered these questions.
In some instances, important changes in the Charter language are not mentioned at all in the ballot language, while in other instances the ballot language only partially addresses what the changes do or even inaccurately characterizes the changes.
Ballot Question 2B changes a completely different provision than what the ballot language indicates, and that change actually creates a new unsolvable conflict within the Charter.
For both ballot questions 2C and 2D, there is a full breakdown of each assertion made in the ballot language to evaluate their accuracy.
Additional language added to Article VIII calls for the City "to adopt the applicable requirements and procedures of the Municipal Election Code for contests to elected officials and their qualifications." This language is in direct conflict with existing Charter provisions that are not before voters for amendment in Article II, and changes a different process than what the ballot question says is being changed.
It is not clear why or how it was determined to add this language. It is not addressed in any of the publicly available information about this proposed language, beyond a line in the ordinance adopting the proposed language stating it, "eliminate(s) vague language for challenging nominations and qualifications of candidates (substituting the Municipal Election Code process)."
The key problems being created with this language include:
"Challenging nominations of candidates" and "challenging qualifications of candidates/elected officials" are two different processes - but the ballot language combines these two distinct elements while the actual proposed charter language only addresses one.
The proposed changes to the Charter language ("The City adopts the applicable requirements and procedures outlined in the Colorado Municipal Election Code of 1965, as amended, for contests to officers declared duly elected.") address challenges to officers that have been elected - this is what the Charter already contains a clearly defined process for in Article II. Section 2(c). Providing for two different processes within the Charter itself has the potential to create a conflict that is likely unable to be resolved without litigation every time candidates are elected to office.
It appears the "applicable requirements and procedures" for "contests to officers declared duly elected" is referencing CRS 31-10-1301 in the Municipal Election Code. This is the process that conflicts with Article II of the Charter that is not being changed. In addition, CRS 31-10-305, outlines a process for "objections to nominations." Because neither the existing or proposed Charter language contains any process for "objections to nominations", under the provisions of the Charter itself, the Municipal Election Code already applies to objections to nominations in Fort Collins.
So the problem the ballot language says is being solved with the proposed language is already addressed by the Municipal Election Code, and the language being added instead creates a new completely different problem that can't be resolved without further future amendments to the Charter.
This includes:
Writing the summary language of an initiative or referendum to appear on the petition form
Determining the timing of an election as a result of a petition process
Currently the petition representatives are charged with preparing their own summary language to appear on the petition form. There are guidelines provided for these statements, and in the last three years with three different referendum and initiative processes, there have not been issues with finalizing reasonable and acceptable summary language produced by the representatives.
No process is provided in the proposed changes to allow petition representatives any input regarding this language, including providing no ability to protest or object to the language prepared by the City.
Similarly, the City is given a high degree of latitude in the proposed language in determining a potential election date. The initiative language pushes nearly all initiatives to November elections, without an option for voters to elect other timing. For recall elections, the City Clerk alone is given the ability to determine the 'next meetable date' for an election, with no guardrails or provisions outlining what constitutes a 'meetable' date. Again, as well, the recall timing language is intended to push as many potential recall elections to a November election as possible.
There are two significant and disturbing technical errors that were made when this language was adopted, one relating to noticing the Charter questions pursuant to state law, and one regarding making any update to the language of the ordinance relating to question 2D based on how Council had amended it when it was passed on first reading.
I started looking at the proposed Charter language when it was time for ballots to be mailed out to ensure I was prepared to vote. It was at that point I began discovering issues of concern, and I first reached out to the City, including my elected representatives, the City Clerk's Office, the City Manager's Office, and the City Attorney's Office, on October 13.
NOTICE OF CHARTER AMENDMENTS UNDER STATE STATUTE
In contacting the City, I requested clarification on whether the notice of the election and Charter Amendments in the Coloradoan on September 1 and 4th, 2024, met the specific requirements of C.R.S. § 31-2-210 (4) Procedure to Amend or Repeal Charter:
The governing body shall, within thirty days of the date of adoption of the ordinance or the date of filing of the petition (if the same is certified by the clerk to be valid and sufficient), publish notice of an election upon the amendment or proposal, which notice shall contain the full text of the amendment or statement of the proposal as contained in the ordinance or petition. The election shall be held not less than sixty nor more than one hundred twenty days after publication of such notice; except that, if the proposal is for formation of a charter commission, the election shall be held not less than sixty days after publication of such notice.
As I’ve always read and applied that section in two different Colorado jurisdictions, it would seem the notice published on September 1 and 4 needed to have been published within 30 days of July 16, 2024, or by August 15, 2024. Fort Collins has not home-ruled any aspect of making Charter amendments, instead the Charter specifically says it follows “the manner provided by the laws of the State of Colorado.” I shared I would like to understand if a different interpretation applies here, or what the consequences are of not following this provision specifically for the questions on the ballot.
The last response received from the City Clerk on this topic indicated:
"As far as the Notice goes, we continue to believe that the election notice provided by the City was in substantial conformance with the Charter and that the untimely publication of one notice will not diminish the fairness of the election. This is the general standard for review of election-related procedural issues. And, as you may recall, Charter Article VIII, Section 10 reads that “No city election shall be invalidated if it has been conducted fairly and in substantial conformity with the requirements of the Charter."
That response addresses a different concern - regarding the additional deficiencies that occurred in the notice of the election itself. The actual issue raised here is specific to the notice of the Charter amendments themselves that is required under state statute (C.R.S. § 31-2-210 (4) Procedure to Amend or Repeal Charter). That notice was 17 days late, more than two and a half weeks. It is not that the City election may be invalidated but rather that the charter questions themselves may not be appropriately before the voters because of this particular oversight.
NO CHANGES WERE MADE TO THE VERSION OF ORDINANCE 96 AMENDING TITLE X THAT WAS ADOPTED ON SECOND READING.
The amendments the Council made as part of its approval of this action at first reading were never incorporated into the ordinance and the Council subsequently adopted the original version at second reading. After inquiring with the City Clerk and City Council, I learned City staff and City Council were unaware of this error and the City Clerk has subsequently provided notice to the Council and published notice to the public about this error and what language is actually under consideration.
What happened in this instance is the same version of the ordinance presented to the Council at first reading was subsequently published prior to second reading, included with the agenda materials presented to and voted on by Council on July 16 without discussion or amendment, published again after adoption, and presented to the mayor for signature for signature and clerk for attesting before being archived in the official ordinance repository where still today it reflects the originally proposed timing for circulating initiative petitions and not the timing the Council had amended the ordinance to include. It is also what is posted on the Elections website now and is the only written information ever publicly presented for Fort Collins residents and voters. No one on City staff or the City Council had previously ever verified the ordinance that was presented and adopted was the correct version and therefore the incorrect version is now the official ordinance and before voters for approval.
In addition to the fact the City was significantly delinquent with the required published notice of the Charter questions under state law, the overall amount of time the public was provided to review this substantial amount of changes to Charter language was incredibly brief. These are substantial changes of 3 of the 12 substantive sections of the charter, with 2 of those sections full repeals and reeanctments with completely new language.
Fully a quarter of the entire Charter is being revised with these changes, and the public had less than 5 calendar days - during the biggest summer holiday week - to review the final language before the Council acted on it.
The July 2 City Council meeting when these ballot questions were adopted by ordinance on first reading was the only time the specific ordinance language and ballot questions as passed were discussed in detail public. Early drafts of potential language changes to the relevant charter articles were presented and discussed at the Election Code Committee meetings in April and May, but the language was not in final form, had not yet been reorganized, and did not include any of the ordinance language or language for the ballot questions. These changes did not go to a work session. There was also no discussion before all three ordinances were adopted on the consent agenda at second reading on July 16 - and adopted without the amendments made on first reading by Council, which was not noticed by anyone at the City until pointed out to them in mid-October.
The actual language of these charter changes and the ballot questions was not available publicly until late in the day on Thursday, June 27, before being presented the following Tuesday, during a holiday week. In addition to not ever seeing the language until that point, that was also the only time and way residents were notified of the opportunity to protest that ballot language, no later than noon on Monday, July 1. So residents/voters had 1.5 business days to find, read, understand, and prepare and submit a protest to the City Council of this ballot language once it was finally made available, along with the proposed charter changes. I have worked with these specific provisions extensively, and can assert it takes a significant investment in time and research to understand their complexities and impacts. And yet, even within these constraints, one resident did manage to protest the ballot language for questions 2C and 2D and get it filed before the deadline. This person was not able, however, to attend the Council meeting in person that Tuesday night - again that the public was only made aware was where this language would be considered the prior Tuesday - during a holiday week, 2 days before the midweek holiday, and about an hour and a half into the meeting.
During the only Council discussion on adopting these ordinances on July 2, Mayor Jeni Arndt made clear these changes were intended to be purely housekeeping in nature, to clean up existing language and not make substantive changes. She urged her colleagues on the Council to call out any Charter changes that came forward at any point under this umbrella that had any hint of substantive change in order to preserve public trust in the work Council has planned for Charter clean up.
"It is a council priority and we’re starting to work on that; as we continue to scour the charter we will continue to find more things. Hopefully they’ll be just as dull and non controversial and clean up and we can trust each other, and the public trusts us that there’s no hidden agenda, that we’re not making substantive changes.
Substantive changes go to work sessions, they go to lots of public outreach, those sorts of things, and then we’re very clear about those intentions.
Hopefully when we see these come up under the umbrella of that council priority for charter review, that’s the intention. We spent a lot of time on these three tonight, and that’s fine, so that the public understands what we’re doing. Also I charge the Council if at any time when one of these comes before us, that we pay really close attention, so that if at any time we see something in one of these that we feel might be a values change, that we take it out, because, we really, that’s not the intention, and if it happens, let's error on the side of not. If you could all just keep your eye on it and make sure it really is non controversial changes that make things more clear."
The Council appears to have based their understanding of these changes on the information they were provided by City staff about their content and impact. Only 3 of the 7 Council members are on the Election Code Committee that spent time at two committee meetings looking at potential areas to include in these amendments, and then entire Council only had the same 5 day period the public did to see the final language that was published before it was considered on July 2. There again was another 5 day period from when the ordinances were posted with the agenda on July 11 for second reading on July 16. No members of Council, the City Clerk's Office, the City Manager's Office, or the City Attorney's Office noticed the wrong ordinance was brought forward for the changes to Article X, and did not include the amendments the Council made at first reading. As a result, the incorrect ordinance was finally adopted and the City was unaware of this until I notified them after reviewing the information.
These circumstances seem to have led Council to act on these changes outside of the scope they themselves identified for such actions. At this stage, however late it is, they now have clear information that is not what this is. These changes are not yet in the Charter and should not have moved forward under these grounds.
The proposed amendments add significantly more issues to already problematic language in these articles instead of fixing it. The results will cost the City and its taxpayers immediately in their publication and codification into the charter, and long term in increased legal liabilities and expenses.
Until the City is prepared to undertake a thorough analysis of any potential Charter changes, the existing Charter should not be changed and the City should not incur that not insubstantial expense in codification and republication. The wide range of varied oversights, errors, and unintended consequences found in these questions is evidence these provisions were not thoroughly vetted. There was also no degree of public outreach involved, which could have helped the City surface some of these issues at earlier stages to work through resolution before they appeared on a ballot.
Ballot Question 2C states it "clarifies the usage of the term “shall” by replacing it with “will,” “must” or other appropriate language," however two instances of the term 'shall' inadvertently remain in the proposed amended article and would need to be further updated by a future Charter change to complete this work. The missed terms are in:
Section 2(G)(c)
Section 4(c)
Similarly, Ballot Question 2 D states it "modernizes the language to be more inclusive by removing he/she language" however six instances of this gendered language remain in the proposed amended article and would also need to be further updated by a future Charter change to complete this work. The missed terms are in:
Section 2(b)(2)f(viii)
Twice in Section 2(c)(5)
Section 7(b)(2)f(viii)
Twice in Section 7(c)(5)
Ballot Question 2C states it "retains the same percentage requirements for signatures (based on first-choice votes with ranked choice voting)" however, the relevant Charter language was only changed in one of two places it appears, successively, in the article, meaning if this change is necessary, it won't apply to initial recall attempts. Correcting this would require a future Charter change by voters as well.
CHARTER ARTICLE IX, SECTION 2 (e) Number of signatures required. (PROPOSED NEW LANGUAGE)
(1) First recall attempt. The petition must be signed by registered electors equal in number to at least twenty-five (25) percent of the total of votes cast at the last preceding regular city election for the office to which the incumbent sought to be recalled was elected.
(2) Subsequent recall attempts. After one (1) recall petition and election, a recall petition filed against the same officer during the same term for which elected must be signed by registered electors equal in number to at least fifty (50) percent of the total of first choice votes cast at the last preceding regular city election for the office to which the incumbent sought to be recalled was elected.
Changes to Article X addressed by Ballot Question 2D include duplicated provisions in two different parts of the proposed Charter langauge. This again is the kind of housekeeping change that would need to be further updated by a future Charter change to complete this work.
Section 2 repeats “upon submittal of a petition, the Clerk must not remove the signature of an elector from the petition” in both (e)(4) and (f)(3)
The same language also repeats in the referendum section of the article, in Section 7 under (e)(4) and (f)(3).