The Steamboat Springs city clerk’s office offered a mixed decision in its initial determination over the latest election complaint alleging the Yampa Valley Housing Authority unlawfully expended public funds to urge voters in favor of the annexation of Brown Ranch.

The complaint submitted Feb. 20 by Steamboat residents Dave Barnes and Kelly Phillips included five categories of housing authority communications alleged to violate Section 117 of the Colorado Fair Campaign Practices Act. Signed March 1 by City Clerk Julie Franklin, the initial decision dismissed the first two sections while accepting the latter two categories for additional review.

A decision on the final section of the complaint, dealing with the housing authority’s hiring of a paid communications consultant, was not made in the clerk’s findings.

The state election rule in question, which is incorporated into the city’s election code, prohibits any political subdivision from “expending any money” or making contributions to “urge electors to vote in favor or against” a local ballot measure.

If completed, the Brown Ranch affordable and attainable housing development would see the phased construction of 2,264 affordable and attainable housing units on 420 acres of land by 2042. City Council members passed an ordinance to annex the property in October. A successful citizens’ petition will put the annexation decision to a voter referendum on March 26.

Complaints upheld

The sections of the Barnes and Phillips complaint accepted for additional review by the clerk will be consolidated with portions of a separate but similar filing by another Steamboat resident, Ken Mauldin Jr., related to the housing authority’s production of fact sheets, flyers and a series of community presentations on the Brown Ranch project.

Like the one submitted by Barnes and Phillips, Mauldin’s complaint alleged the publication of the documents constituted a violation of the state and city election code because “it includes only positive attributes of the proposed annexation argument.”

In issuing an initial decision on Mauldin’s allegations last month, Franklin found the complaint “states a factual and legal basis for further investigation under the city’s election code.” The clerk requested the housing authority provide additional information to show when the fact sheets were prepared and if public funds were spent in their production and dissemination.

Franklin also asked the housing authority to provide documentation as to who produced housing authority presentations related to Brown Ranch and if public funds were spent in their production and dissemination.

“These documents are material and relevant to a determination as to whether the production and/or dissemination of the presentations complies with the Election Code,” Franklin noted in the response to Mauldin’s election complaint.

The city’s election code allows the clerk 30 days to review election complaints after an initial decision is issued, but City Attorney Dan Foote said last week that he and clerk’s office staff hoped to issue a decision on the consolidated matters in the complaints before the March 26 referendum.

The housing authority has rejected allegations that it has violated the city’s election code.

YVHA Executive Director Jason Peasley said in a statement last month the housing authority takes seriously its mandate “to provide affordable and attainable housing, as well as to educate the public on what we do and how we do it since our housing developments are so different from market-rate housing.”

Complaints dismissed

The dismissed sections of Barnes and Phillips’ complaint concern the inclusion of links to newspaper articles, guest columns and editorials on the housing authority’s website and the production and dissemination of five newsletters by the housing authority.

The complainants alleged the media content and newsletters featured by the housing authority urged voters in favor of the Brown Ranch annexation and violated the state’s Campaign Practices Act because public funds were spent to host the links to the articles and funds were expended to produce the newsletters.

In explaining her decision to reject the elements of the complaint, Franklin outlined Section 117 of the Fair Campaign Practices Act with respect to how the terms “urge electors” and “expend any money” are interpreted on a legal basis.

On interpreting the term “urge electors,” the city clerk noted state law provides housing authorities to “engage in planning and management” of the development of low to moderate income housing and for the authorities to acquire and hold properties as a part of that mission.

“Communications that principally relate to the management of YVHA real property and the planning of housing development are not subject to Section 117 even if they could have the incidental effect of influencing either election,” the city clerk wrote in her initial decision.

On the interpretation of “expend any money” in the context of the election code, Franklin cited a decision from a Colorado Court of Appeals over the inclusion of a university newsletter of materials urging electors to vote in favor or against a ballot question “did not constitute an expenditure because (the) materials did not increase the printing costs for the newsletter.”

“I interpret this decision to mean that the use by YVHA of digital communications systems such as email or website pages to host or disseminate election advocacy materials does not constitute an expenditure unless YVHA incurs additional costs as a result of hosting these materials,” Franklin wrote.

The clerk went on to assert the news and media section of the YVHA website “constitutes a generally neutral assessment of the Brown Ranch annexation” with respect to the news articles, not editorial or opinion columns, listed on the website and published by the Steamboat Pilot & Today and The Yampa Valley Bugle.

“The vast majority of linked articles consist of factual assessments of the project and annexation process that are written by professional journalists with no obvious bias in favor for or against the Brown Ranch Annexation,” the decision states.

The clerk’s finding further states the housing authority’s website includes “nine guest columns and letters to the editor that speak solely in favor of the project,” but includes no links to letters to the editor or guest columns opposing the project.

“However, taken as a whole I find that these links do not constitute an exclusively positive view of the project and that they include arguments against the project,” Franklin wrote in the decision, adding that none of the nine guest columns and letters featured online by the housing authority were produced within the defined campaign period for the Brown Ranch annexation vote.

With respect to published editorials regarding the ballot question 2i campaign period, Franklin’s finding said “most of these articles, guest columns and letters focus principally or exclusively on the overall Brown Ranch project.”

One exception, the clerk noted, dealt with a November guest column in The Steamboat Pilot & Today written by City Council member and housing authority board member Dakotah McGinlay, “which expressly advocates for referred measure 2i.”

However, the election code “permits her to express her opinion (on the ballot question) and permits the incidental expenditure of not more than $50 in YVHA funds for Ms. McGinlay to express her opinion,” the clerk’s decision notes, adding that “no evidence has been presented to support a conclusion” that costs for the column exceed $50.

Regarding the allegations concerning the housing authority’s newsletters, Franklin’s decision noted one of the documents was published outside of a defined campaign period and another was found to relate to the YVHA board passing a resolution in support of the Brown Ranch annexation — a decision allowed under the city’s election code.

For the other three newsletters, the clerk’s office determined their content did not constitute “urging electors to vote for or against” a ballot measure.

“It may be that these newsletters’ discussions of Brown Ranch and its financing could have influenced the vote on referred measure 2i,” the decision states. “However, this effect is permissible as it is incident to communications that have a purpose, such as ongoing project planning, other than urging voters to vote for or against measure 2i.”

Complainants respond

Barnes responded Sunday to the clerk’s findings over the more than 250-page complaint he submitted with Phillips last month, saying he felt it was “pretty favorable” for the housing authority. He could not say if there would be any appeal over the decision.

If any of the remaining sections of the complaint are upheld, the housing authority could receive a cease-and-desist order, a prescription to cure its actions or at worst a fine — an outcome Barnes said he and Phillips are not seeking.

“We weren’t looking for a punishment in a monetary form,” he said. “We were looking for a cease-and-desist on their one narrative on the explanation of Brown Ranch and that their facts (we) have disputed, that are not quite facts.”

Barnes took issue with the clerk’s ruling that the housing authority disseminated media coverage deemed to show “no obvious bias in favor or against” the Brown Ranch project.

“I don’t think there is a bias,” Barnes said. “I think there is a hesitation to publish the negative. I don’t know why we are afraid to go to the city and sit down and say, ‘What is the deal with this? Where is the money going to be?'”