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Colorado Springs mayor having to walk a fine line while campaigning for stormwater fee

October 4, 2017 Updated: October 5, 2017 at 6:21 am
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photo - FILE - Mayor John Suthers is pictured at the construction site for the water quality pond at Woodmen Road and Sand Creek, which is the first project funded as part of $19 million a year the City has committed to spend on stormwater, on Wednesday, March 9, 2016. (Photo by Stacie Scott, The Gazette)
FILE - Mayor John Suthers is pictured at the construction site for the water quality pond at Woodmen Road and Sand Creek, which is the first project funded as part of $19 million a year the City has committed to spend on stormwater, on Wednesday, March 9, 2016. (Photo by Stacie Scott, The Gazette) 

By stumping for a Nov. 7 ballot proposal to reinstate stormwater fees in Colorado Springs, Mayor John Suthers may have crossed into an ethical gray area, though he likely didn't break any laws, city and state officials say.

In the past months, Suthers has advocated heavily for the fees, which will appear on El Paso County's ballot as Issue 2A. He has called area voters by phone, hosted question-and-answer sessions and even donated his own money. In the coming weeks, mailboxes will be stuffed and radio ads will carry messages advocating for the fees as part of a campaign managed by the Colorado Springs Chamber & EDC, said campaign manager Rachel Beck. Already the cause has raised more than $311,000, much of which she credits to Suthers.

The stormwater fees would raise an estimated $17 million a year by charging homeowners $5 a month and nonresidential property owners $30 a month for every acre they own. The fees would last 20 years, and all the money raised must be spent on the city's stormwater obligations, which are now met with general fund money.

Suthers' advocacy for 2A is a gray area in campaign finance law in certain instances, said Luis Toro, executive director of Colorado Ethics Watch, a Denver-based nonprofit promoting "ethics and accountability in government and public life."

Colorado Springs staff and elected officials are not allowed to use city resources to advocate for upcoming ballot issues, City Attorney Wynetta Massey said in September after the measure was placed on the ballot.

Calling himself "very adept" at understanding what the law allows, Suthers, a former Colorado attorney general, said he has not used any city resources to advocate for the fees.

While city employees are not allowed to spend work time advocating for or against an issue, elected officials are afforded more leeway, said city spokeswoman Jamie Fabos.

Work time does not apply in Suthers' case because he was elected, City Clerk Sarah Johnson said.

"Virtually everything I do is city business," Suthers said. "What I've got to make sure I'm not doing is putting any burden on the taxpayers for my advocacy for this issue."

The gray area comes into play with Suthers' State of the City address the afternoon of Sept. 22, Toro and Johnson agreed. Toward the end of his address, accompanied by a police officer and city staff members, Suthers said to hundreds in the audience and more watching on television:

"Investment in stormwater infrastructure is critical to our continued economic prosperity. I ask you all to become an advocate for Issue 2A and carry the message to your family, neighbors and co-workers. It is very important."

Asked about the legality of Suthers' message, Johnson and Fabos deferred to the city's attorneys who said the address "plainly was not a campaign event." They also argued that "he did not directly urge people to vote for or against Issue 2A."

The attorneys also said Suthers is allowed to "make proclamations about issues."

Contradicting the attorneys, Suthers acknowledged his statement did urge constituents to vote for the issue. He also said it doesn't qualify as a proclamation, which are written documents.

Still, the statement was fully legal, he said.

Campaign laws would have been violated "if the city staff was expending any resources. I wrote the speech, I guess someone did type it, but no, there is not anything above an absolute (minimal amount) of city resources that went into my statement," he said.

Though the event was held at The Broadmoor and hosted by the Chamber, the city's charter requires the mayor give an annual State of the City address.

Each year city staff works at and attends the event, Suthers said. And a short statement advocating for Issue 2A did not cost the city any resources "over and above" what would have been spent on the address had he avoided the topic.

The rest of Suthers' campaigning and fundraising for 2A is acceptable because it was not done using any city resources, Fabos said. He even donated $200 of his own money to the Chamber's campaign, according to data from Johnson's office.

Other big donors to the Chamber's campaign include Schmidt Construction Co., Colorado Springs Forward, the Housing & Building Association, Development-Management Inc. and the Chamber, all of which donated $25,000 each.

That money will be spent on targeted mailers, radio, Facebook and Google advertisements which will run until Election Day, Beck said.

Suthers has said if 2A passes it will provide the city with financial stability over the next two decades by freeing general fund money now going to stormwater projects for other city services that have been shortchanged, such as bolstering the city's police and fire departments.

Douglas Bruce, author of the Taxpayer's Bill of Rights and an anti-tax advocate, has argued that the fees would not raise any more money for stormwater, but would simply change the source of the money.

Bruce, who was convicted of felony tax evasion and filing a false tax return in 2012, is urging voters to oppose the fees, which he calls a "bait and switch" because the general fund money freed by the fees would be spent hiring new police officers and firefighters.

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