ISSUE # 69: September bANTer

"We must be vigilant to guard against the hubris of elected officials."  -- Keith Self

"My reading of history convinces me that most bad government results from too much government."    -- Thomas Jefferson

**VOTER NOTE: NOV 1 COUNTY ELECTION IS MAIL-IN BALLOT ONLY

Take 2 minutes right now and go to www.PitkinVotes.org to verify your voter registration status and mailing address in the "Voter Services" section. If you do not show up in the system as an ACTIVE voter, you will not be sent a ballot.  Make any and all changes before October 3.  Ballots will be sent by October 14.

HYDRO: FINALLY, A LAWSUIT TO STOP THE MADNESS

Litigation. It's all they understand at city hall. Lazy and incompetent city manager Steve Barwick and his wingman, crooked city attorney John Worcester, regularly break the rules and frequently dare citizens to sue them, knowing that most won't. But when citizens do, it's often very bad news for city hall.

Think of the Wienerstube lawsuit (challenging the Aspen Area Community Plan), which the city settled (lest the document be deemed simply advisory), yielding what is now to become the new Aspen Art Museum complex at Spring St and Hyman Ave, to be designed and built without Planning & Zoning review, per the terms of the settlement.

Then there's the city's fight with the owners of the Hotel Jerome over nearly $500,000 in real estate transfer taxes. Despite the current owners acquiring the property though a "deed in lieu of foreclosure" proceeding, the city went after them for the cash as though it were a standard sale. This was a pure attempt at a money-grab by the city. The judge ruled in favor of the hotel owners in June, and refused to reconsider her ruling.

And don't forget Marilyn Marks' lawsuit challenging the city's adherence to Open Records laws, specifically pertaining to anonymous voted ballots from the 2009 municipal election. The city won the first round in our notoriously government-friendly district court, but a ruling on appeal is expected any day now. In the meantime, a state court judge in Saguache County (CO) has ruled that voted ballots are indeed public records as there is no way to link a voted ballot to a voter, that is, if the election was conducted fairly and legally. Advantage, Marilyn.

On Friday, a local non-profit called "Saving Our Streams," joined by a group of neighbors whose homes exist along Castle and Maroon Creeks, filed a lawsuit against the city to stop the beleaguered hydro plant dead in its tracks! Their case? It appears that regarding the Castle Creek flume ditch, the Midland flume ditch and Maroon flume ditch, "the city of Aspen has not used the water rights decreed for hydropower use for over fifty (50) years, the city of Aspen has shown its intent to abandon the water rights decreed for hydropower use by not using the water right for this purpose for over fifty (50) years, and the city of Aspen has shown its intent to abandon the water rights decreed for hydropower use by, among other things, deciding to decommission the hydropower plant for which the right was decreed, by dismantling the electrical generation equipment, by allowing the water delivery pipelines to deteriorate to an unusable condition, by failing to repair the water delivery pipelines to the hydro plant, and by purchasing its electrical energy from Holy Cross and others since 1957."

No one is questioning or challenging the city's municipal water rights to the streams for domestic or irrigation uses. Just for hydropower generation. In short, use it (for hydro) or lose it. And they haven't used it in over half a century. (According to abandonment lists maintained by the Colorado Department of Natural Resources, there is legal precedence where the State water courts have declared specific decreed uses within a larger water right abandoned.) Read the full complaint HERE.

But perhaps the juiciest and most colorful part of the whole hydro debacle is the "Mick vs the Koch Brothers" sideshow. Obsessed with the politically conservative Koch brothers of Wichita, KS, Charles and David, Mick regularly carries on about a vast right-wing conspiracy that he portends exists whereby the water from Castle Creek will be sold to the front range of the Rocky Mountains if somehow the city of Aspen does not harness it for hydropower. This is of course preposterous. Charles and David Koch have nothing political to do with Aspen or Pitkin County, and it's their brother Bill who owns the former Elk Mountain Lodge at the upper end of the Castle Creek Valley and is one of many plaintiffs in the lawsuit. The family ties simply send Mick into a tizzy. "It's an open mystery why someone would be concerned about water being diverted eight miles downstream from them," Mick recently told the Aspen Daily News. Hmmm. I wonder how SkiCo green guy Auden Schendler feels about such a strange statement. (Schendler spent the last week in Washington DC, trying to get lawmakers there to focus on environmental issues here. And that's quite a distance greater than 8 miles away!)

MICK'S SOLYNDRA

It sounded so "green." Hydro power. Vote for it (in 2007) and feel the love. (And we did.) Never mind the facility can never cover its costs, even over a 50-year lifespan. (And the costs have escalated from $6.3M to $8.3M, so far.) Build it without permits; nobody will notice. Lie about an "existing" conduit in order to get an exemption from federal environmental impact studies and oversight. Ahh, but the truth comes out in the end. While the neighbors have now tied up the project and any possible federal approvals (the feds certainly can't and won't grant approvals when the water rights are in question), the city's arrogant indifference continues:

• Inept city attorney John Worcester said of the lawsuit, "It's a shame that citizens have to sue each other and attack our water rights since they belong to everybody." Well Worcester, no citizens are suing each other. They're suing YOU, the city of Aspen. And they're suing over water rights for a hydro plant that apparently YOU no longer have after abandoning and decommissioning the previous hydro plant in 1957, more than 50 years ago. Worcester's inane statement vividly illustrates the city's willingness to sacrifice the environment in order to build its precious hydro plant in hopes of someday being able to say its energy is "100% green." The city's real political end-game? Green energy at ANY price, even if it turns out not to be so green. The environment be damned!

In response to the city's arrogance, Ken Neubecker, director of The Western Rivers Institute responded in a RECENT LETTER to the editor:

• "Save Our Streams, American Rivers, The Western Rivers Institute and others have all tried to work with the city on this project and create something that meets both the goals of clean energy and protecting the stream environments. The city has been nothing short of obstinate and disingenuous." He continues, "Aspen says it wants to set an example to the world on how to be environmentally responsible. They are doing a pretty poor job so far."

The Red Ant is all over the financial picture. It's bleak. What did they know and when did they know it? Stay tuned. I'm all over this one!

THE GROCERY BAG TAX

The latest is that the boys moved toward an outright ban on plastic bags (instead of levying a 20 cent "fee" on each one), but then they'll charge that same "fee" for PAPER bags. No plastic bag option, just paper bags - for 20 cents each. And only at grocery stores. Does this really solve anything? Perhaps the most intelligent thoughts on the matter were summed up in a recent Aspen Daily News guest column by former city finance director Paul Menter. Read it HERE. In short, Menter argues that the "assignment of an arbitrary economic value for bags is an illegitimate use of regulatory authority. Dollars collected will fund environmental programs rather than address the impact of the bags themselves. The bags will become like cigarettes, primarily a source of government 'sin tax' funding and bureaucracy expansion; only secondarily an environmental problem to be eliminated."

He continues with a thoughtful argument that this so-called "fee" is actually government-mandated price fixing, a government-assigned price for a private good. Next, he illustrates that the "fee" is not a "fee" at all. "Fees" are set to "cover the cost of services provided to individuals, such as water and sewer services." This government-imposed charge on purchase and sale transactions to provide community programs is "the very definition of a sales tax, not a fee." He concludes by pointing out that such a sales tax does not comply with the US Constitution's 14^th Amendment's equal protection provisions, nor does it comply with TABOR (Taxpayer's Bill of Rights). The "equal protection issue" relates to the "grocery stores only" aspect of Aspen's plan, and TABOR requires all new taxes and changes in tax policy be approved by the voters.

In a subsequent letter to councilmembers, Menter continued with his analysis: "Your policy approach seems fractured and based on something other than the law, environmental protection, or good governance. To ban plastic bags and charge a fee on paper bags that are arguably worse for the environment illustrates this point. You want to be seen as 'leaders' but don't want to take the risk required to lead. Plus you have been persuaded that it is proper policy to 'feed the bureaucratic beast' by collecting money from private businesses through this policy without asking the voters if this is their desire. Not only is this illegal, it is a deeply cynical act, rooted in the belief that conscripting private businesses to do your policy bidding is proper governance. Its magnitude keeps it below the radar, but it is really, really bad policy and a dangerous slippery slope. Be very careful what you agree to. You are being asked to carry water for people who don't care about the consequences."

I couldn't have said it better myself. The updated plastic bag ban / paper bag "fee" ordinance will come before council in October. In case you were wondering what our local Gestapo thinks about being able to enforce the bag ban amidst speculation of myriad legal issues, city attorney (my, he's gotten vocal lately) John Worcester told the Aspen Daily News that he is confident "the city of Aspen has the requisite police powers to ban plastic bags." Nice. Police powers. Just what we need. In the meantime, make your thoughts known through letters to the EDITOR and/or letters to COUNCIL.

A $2418 SUBSIDIZED VACATION FOR MICK? JUST SAY NO! 

The following is a Letter to the Editor of the Aspen Daily News than ran today: 

Upon learning that Mick charged the city $2418 for a portion of his summer vacation in Europe, I looked into the Sister Cities program to research their mission for a better understanding of why our mayor deserved this subsidized trip.

Ironically, Sister Cities does not endorse individual visits by elected officials between cities.  It endorses information sharing (brochures, city reports, videos), strong city hall and business support through committees made up of a wide range of citizens, officially planned delegation visits (including a high-ranking city official, representatives of the business community, an official of the Sister Cities program, an educator and someone such as a performing artist who can highlight local culture), and specific substantive exchange reports. 

When Mick visited Aspen's Sister Cities of Davos, Garmisch-Partenkirchen and Chamonix, it was clearly not an officially planned delegation visit.  He was just there with his girlfriend.  Inquiries to Aspen's Sister Cities organization have gone unanswered, but I highly doubt they knew Mick planned to charge taxpayers for portions of his European vacation under the auspices of their esteemed program.

I've consulted with a city councilman and the city clerk, and both say there was no council pre-authorization of such travel by the mayor, despite the city's travel policy which states that personal travel may be combined with business travel only with notice to the department head.  In the case of the mayor, it is reasonable to assume such notification would be to city council.  Regardless, Mick's trip gives no appearance of official business travel to begin with.  Mick simply returned home and arbitrarily divvied up his vacation expenses, charging 60 percent of his airfare, half of his rental car bill, two of six tanks of gas, toll road charges and dinner with the Sister Cities folks in Garmisch to the Aspen taxpayers.  And city manager Steve Barwick presumably approved the fraudulent reimbursal.  Such leadership at city hall!

Can't you just picture the courteous Europeans unwittingly entertaining Mick and his lady during these unofficial and unapproved visits?  And, you can bet that Mick took full advantage of the gracious trappings of their hospitality.  One can only wonder the monetary value of these gifts.

Mick, if you cannot afford a European vacation, don't take one.  Get a job, or take a vacation in Moab on your own dime.  In the meantime, reimburse the city the full $2418.  Your European boondoggle was not city business and we shouldn't pay a dime for it!

Elizabeth Milias

I will be relentless in my pursuit of this reimbursal.  Stay tuned.

MICK: A 4-LETTER WORD, BUT A 4-YEAR TERM TOO?

Just six months into his third term as mayor, Mick predictably moved to extend the mayoral term from two to four years. He has done this without success in each of his previous terms, but this time he threw in the plea for beefier salaries for himself and fellow councilmen, likely to buy the support of his buddies at the table. (Recall that Mick does nothing professionally except reign over us all, so he is likely a wee bit worried about May 2013 when he is term-limited out of office and will no longer receive the $27,900 mayoral stipend plus city employee health benefits that he lives on.)

Mick complains that the job has become a full-time commitment, and the mayoral races start earlier each cycle, requiring more and more fundraising. Most notably, he fears that every election could possibly yield 3 newcomers to the council table. (Two council seats are up every four years.) The Red Ant asks, since when is the ability to change the majority with each election a bad thing?? He wanted the election commission to take the issue on and theoretically recommend a ballot measure.

The good news is many-fold. The election commission wanted no part in Mick's highly politicized request, as their focus is on election conduct and integrity. And, despite what was written in the papers, council did not fall for Mick's bribe. Torre went so far as to submit a letter to the editor, reiterating that he does NOT support Mick's request to change the mayoral term! And, in a subsequent personal conversation with councilman Steve Skadron, I learned that he too feels that a two year term is just fine.  

Additionally, while many feared that Mick would finagle another couple of years onto his current term, this cannot happen. A change to the mayoral term would need to be approved by voters in the next municipal election, which marks the end of Mick's current term. If anything were to change, it wouldn't affect him because thankfully, he'll be gone. He does need to sit on the sidelines for a couple of years before running again thank goodness, but considering his employment prospects (after 18 years in elected office in the county and city), he'll be back. What else can he do? In the meantime, he's not giving up. Mick plans to try again with council soon, this time to propose a "citizen review committee" that will study his request. Look for a team of sychophants to comprise THAT panel!

The Red Ant says, "If the 435 members of the U.S. House of Representatives can run for re-election every 2 years, so too can Aspen's mayor!"

MY "RIDDICU-LIST" - THE "YOU CAN'T MAKE IT UP" FILE

You recently read about the city's desire to harness geothermal energy from beneath the earth's surface by drilling 1000' holes right here in Aspen (ISSUE # 67). Turns out the $200K test-drilling project has attracted a total of ZERO bids. Yep, ZERO. Apparently it's the first time in 10 years that NO BIDS have been received for a city project. Maybe it's just a REALLY bad idea. Ya think?

DESPITE THIS CITY HALL B.S., THERE'S A LOT TO LOOK FORWARD TO AND BE PROUD OF...

I attended the ACRA luncheon on Friday, Sept 9, at the Sundeck atop Aspen Mountain. In addition to culinary treats from various SkiCo on-mountain restaurants, there is much good news to share:

• World Cup returns to Aspen Thanksgiving weekend
• The benevolent SkiCo owners, the Crown Family, have invested $26 million in on-mountain capital improvements. These include:
  • $6M renovation of Merry-Go-Round restaurant at Highlands
  • $7M Tiehack Express chair will take 7 minutes from bottom to top; opens Dec 10
  • A new Elk Camp Restaurant at Snowmass, to open Winter 2012-13
  • 50 miles of biking terrain at Snowmass on the Free Ride Trail
• Aspen will welcome up to 30 daily flights into ASE from 6 hub cities:
  • American Airlines begins service into Aspen from DFW (its largest hub) and LAX
  • Frontier will offer 4 flights daily from Denver, its hub, through 4/15/12
  • United will offer 2 daily flights from Houston, 4 from LAX, 2 from SFO, plus 12 from Denver
• The discovery of mastodon and other prehistoric bones in the Ziegler Reservoir at Snowmass have put Aspen/Snowmass on the elite map in yet one more category:
  • According to the Denver Museum of Nature & Science, the skeletons (almost 5000 fossils were found) are like "tweets from deep time" 
  • Snowmass is "the richest mastodon site in the world, by far"
  • The Ziegler Reservoir site is "the best high level ice age site in the world"
  • Who knew?

Happy fall.