Grand County will appeal YMCA tax case | SkyHiNews.com

Grand County will appeal YMCA tax case

The Grand County Board of Commissioners has moved to file an appeal in a recent decision to grant Snow Mountain Ranch a full property tax exemption for religious use. The board moved at their Aug. 12 meeting to allow Grand County Attorney Anthony "Jack" DiCola to move forward filing appeal with the Colorado Court of Appeals. DiCola had recommended that Grand County Commissioners appeal the decision from the Colorado Board of Assessment Appeals to grant religious use tax exemptions to YMCA of the Rockies, which owns Snow Mountain Ranch. "With taxes, we just want to get it right," DiCola told the Sky-Hi News. "There's really no question that we need an appellate decision on this issue." DiCola, who met with attorneys for Larimer County over the weekend, said during the board meeting that the state constitution contradicts the Board of Assessment Appeals' ruling. "I don't believe the YMCA property is used solely and exclusively for religious purposes," DiCola said. "I believe we should appeal this decision." Larimer County attorneys made the same recommendation to the Larimer County Board of Commissioners at their Aug. 12 meeting, DiCola said. The exemption means that YMCA of the Rockies does not have to pay the more than $200,000 annual property tax bill for its Snow Mountain Ranch Property. It also means that Grand County will have to refund taxes paid in 2002, 2003 and 2004. YMCA of the Rockies, which is headquartered in Estes Park, first applied for religious purposes and charitable use property tax exemptions for two of its properties, Snow Mountain Ranch and the Estes Park Center, in December 2003. The Property Tax Administrator eventually granted both exemptions, though the Board of Assessment Appeals reversed them. The Colorado Court of Appeals vacated the Board of Assessment Appeals' decisions in April 2013. After the appellate ruling, the Board of Assessment Appeals reversed its previous ruling and granted YMCA of the Rockies religious use exemptions. It declined to rule on the charitable exemption. DiCola told the Sky-Hi News that he was frustrated with the Board of Assessment Appeals' decision, and called the board's and the Colorado Property Tax Administrator's handling of the cases a "real failure." He criticized the lengthiness of proceedings and the Board of Assessment Appeals' decision not to rule on the charitable use exemption. DiCola did say that he believed the counties had a chance for a successful appeal. "I wouldn't recommend that we appeal it if I wasn't at least optimistic," DiCola said. Hank Shell can be reached at 970-887-3334 ext. 19610.

County manager: county did not backfill attorney’s retirement

A recent email from the Colorado County Officials and Employees Retirement Association seeking to elucidate the subject of Grand County Attorney Anthony "Jack" DiCola's retirement contributions has contradicted previous assertions, though officials maintain that the county did not make retroactive contributions to DiCola's plan. Previously, County Commissioners Merrit Linke and James Newberry, as well as County Manager Lurline Underbrink Curran, have asserted that DiCola contributed to CCOERA, the county's retirement plan, starting on July 1, 1980. That assertion has been based on a 2015 email from CCOERA Director of Client Services Tom Krushensky. But a more recent CCOERA email bumped the date forward to 1986. The Krushensky email has been used to justify the "benefits" clause in the attorney's contract that states, for the purpose of benefits, "the County Attorney shall be considered as a full-time employee from the commencement of his employ with Grand County, July 1, 1980. "If the plan does not allow for participation, Attorney shall in addition to the salaries provided for herein, be paid an amount equal to the County's contribution to the pensions." The clause was added to the contract in 2013. The contract was last reviewed by outside legal counsel in 2000. In an April 28 county commissioners' meeting, some citizens said they took that to mean that the county had backfilled the attorney's retirement as part of the 2013 clause. Newberry, however, denied that was the case. "It was believed that in 2013, that a new contract made the attorney a full-time employee retroactive," Newberry said. "What we did was asked the county manager to investigate when the county attorney started with our retirement plan, which was in 1980 or 82, so the issue that I heard, maybe I heard it wrong, was that he wasn't part of the retirement, but we made him retroactive we made him part of the retirement." Newberry went on to state that when the county contacted CCOERA, "they said that he started on the plan on July 1, 1980. So the question about retroactive, that is now answered to me." Linke echoed Newberry's that the attorney's contract was based on sound information. "It says in there that the county attorney is a full-time employee with a contract, but he's always been an employee with a contract, so we're not going to go back and back fill some big pile of money because he's already been contributing to CCOERA since day one," Linke said. Commissioner Kris Manguso suggested having the contract reviewed again, though DiCola contested the suggestion. "Why would you want to review something that's over in two months?" DiCola said. Contradicting messages from CCOERA During the April 28 meeting, Curran presented what appeared to be a partial photocopy of an email from CCOERA Director of Client Services Tom Krushensky indicating that DiCola had started participating on July 1, 1980. However, Linke read a memo from Curran during a May 12 commissioners' meeting that said she had received an email from Gloria Michalko with CCOERA stating that Grand County began making contributions to DiCola's retirement in 1986. Krushensky did not immediately return a request for comment. "Last week, we had talked regarding the employee's contract and we did some research into CCOERA, and I reported it probably erroneously, probably because I had gotten erroneous information, and I believe staff had gotten erroneous information from CCOERA," Linke said. Linke said perhaps the county was not "asking the right question or it could be that he just simply made a mistake on there." Linke declined to speak on the matter, referring to his May 12 statement. As of press time, the county had not responded to a Colorado Open Records Act Request for the emails from Krushensky and Michalko. County 'did not contribute' During the May 12 meeting, Curran said she could not ask CCOERA what DiCola contributed to the retirement fund, but that the county did not contribute. "I can only ask if the county contributed, and the county would only contribute as a match, so my assumption is there was no contribution by Mr. DiCola before that date because our contribution is match only," Curran said. Curran echoed those comments in an interview with the Sky-Hi News, stating that DiCola has always been a full-time employee, but that the county did not contribute to his retirement before 1986. The county's original inquiry into DiCola's participation start date elicited Krushensky's response, Curran said. When the board of commissioners instructed her to find out if the county had been contributing monthly since 1980, Michalko responded, Curran said. DiCola was made an appointed official in January 1981, though he was a contract employee until being added to payroll in 1986, Curran said. DiCola announced earlier this year that he plans to resign effective July 1. The county has received nine complete applications for the county attorney position, Linke said. Hank Shell can be reached at 970-887-3334 ext. 19610.

New attorney a former Grand County resident

For Alan Hassler, Grand County's selection for county attorney, his new job will a bit of a homecoming. Hassler, who was named as County Attorney Anthony "Jack" DiCola's successor on Tuesday, June 23, grew up in Kremmling and lived in Grand County for 27 years. Hassler currently lives in Grand Junction with his wife Karla, where he runs a private practicing working primarily in real estate and business law, he said. "We had four very qualified applicants competing for this position and we felt Mr. Hassler was the best qualified fit for the county." wrote Commissioner Merrit Linke in a press release. "Mr. Hassler was extremely well prepared for this interview and was very familiar with the current issues facing the county. We felt this would allow for a very smooth transition into the position." Hassler graduated from West Grand High School and got his bachelor's degree in sociology from the University of Colorado, according to the press release. He received his doctorate from Washburn Law School in Topeka, Kan. After leaving Kremmling, Hassler worked for nine years as the assistant county attorney in Mesa County before starting a private practice handling contract work for counties and special districts, he said. During that time, Hassler represented the Town of Kremmling, Town of Hot Sulphur Springs, Kremmling Memorial Hospital District and others. Hassler has also served as the county attorney for Rio Blanco County. "I've always been attracted to government practice," Hassler said. "I think part of the attraction is that it's made to help a lot of people. A lot of the time we don't feel the government is helping us when the government is around, and I think working through the government is a good way to serve society." Hassler added that he's looking forward to an assured workload as county attorney. Hassler's first day will be July 6. Commissioners discuss retainer for DiCola The Grand County Board of Commissioners discussed retaining DiCola following his departure from the county at its June 23 meeting. "The reason that we are even entering into a conversation with this agreement is because of several ongoing cases that Mr. DiCola has a huge amount of historical knowledge about, and we don't want to just end that in the middle of the case," Linke said. "So that's why we have even brought up this conversation." The agreement would see Grand County continue to pay DiCola a $3,000 retainer each month for 12 hours of work. The retainer would be paid regardless of whether the 12 hours are used. The county would be billed $250 for any additional hour. It's unclear how long the county would pay to retain DiCola. Assistant County Attorney Robert "Bob" Franek questioned whether the 12 hours would roll over from one month to the next if DiCola didn't use them all. "What happens if he doesn't work the 12 hours?," Franek said. "That's the question I have. Does it roll over to the next month?" Commissioner Kris Manguso suggested letting Hassler review DiCola's retainer agreement, which other commissioners agreed with. The board will revisit the matter later this month. Hank Shell can be reached at 970-887-3334 ext. 19610.

YMCA of the Rockies granted full property tax exemption

The Colorado Board of Assessment Appeals has granted YMCA of the Rockies a full property tax exemption for religious use after originally denying the exemption. The ruling means that YMCA of the Rockies will avoid paying upward of $200,000 in property taxes annually for its 2,187-acre Snow Mountain Ranch, located outside of Granby. "We are pleased that the Board of Assessment Appeals has aligned their decision with the Court of Appeals and lifted up the YMCA of the Rockies' sincere Christian Mission," said Kent Meyer, CEO of YMCA of the Rockies, in a press release. "This ruling correctly applies both statutory law and Colorado Supreme Court rulings for other nonprofit camps and conference centers to YMCA of the Rockies." The Colorado Court of Appeals struck down the board's original ruling. The latest decision aligns with the Colorado Property Tax Administrator's previous decision to grant YMCA of the Rockies religious and charitable exemptions. The board decided not to rule on the YMCA's charitable tax exemption, though Laura Fields with YMCA of the Rockies said that the additional exemption will have no additional benefit for the organization. County Attorney Anthony "Jack" DiCola will meet with Larimer County attorneys this weekend to determine how the two counties will move ahead, though at this time the county does not have a position on the ruling, said Robert Franek, assistant county attorney. The decision, issued Aug. 1, is retroactive to the 2002 tax year, Fields said. YMCA of the Rockies stopped paying property taxes in 2005, and has instead been putting the money it would have paid aside into savings. If the county chooses not to appeal the latest decision, or if its appeal fails, it will owe YMCA of the Rockies the total amount of property tax paid for 2002, 2003 and half of 2004 for its Snow Mountain Ranch Property, Fields said, though she couldn't say exactly how much that would be. Court of Appeals finds flaws in reversal The Colorado Court of Appeals' decision to vacate the Board of Assessment Appeals' ruling on YMCA of the Rockies' religious exemption found that it was overly narrow and prohibited by the establishment clause of the First Amendment. The board aligned with the court's decision in its Aug. 1 ruling, citing the necessity of avoiding a "narrow construction of property tax exemptions." The board also cited the general assembly's decision that any activities of a religious organization that promote its religious purposes constitute "religious worship." "Applying the law as directed by the Court of Appeals to the facts of this case," the board wrote, "the Board holds that the YMCA is entitled to a religious purpose exemption for all portions of the properties within its applications." The board also held that the properties were not being used for private gain or corporate profit. Counties' dissent relies on Illinois law Both the Grand County and Larimer County boards of commissioners, which appealed the Property Tax Administrator's original decision to allow the exemption, focused on Illinois' religious exemption statute and its similarity of Colorado's. The counties sought to prove that the YMCA had not furnished sufficient proof of religious use for a tax exemption and argued that the case would be resolved against the YMCA under Illinois law. The counties cited cases in the Land of Lincoln's Court of Appeals that found "Christian service" as overbroad in constituting religious purpose for a tax exemption. The board ultimately decided that Colorado's statutes require "a different analysis" than those in Illinois, and that, under Colorado statutes, public officials may not inquire "as to whether particular activities of religious organizations constitute religious worship." The counties may now petition the Court of Appeals for judicial review. They have 49 days to file a notice of appeal. Hank Shell can be reached at 970-887-3334 ext. 19610.

Fees for employees addressed after multiple subpoenas

The Grand County Board of Commissioners has voted unanimously to reimburse legal fees for the county manager after she was subpoenaed to appear before a grand jury. The commissioners made the motion at their Tuesday, Aug. 19, meeting to enter into a contract with Haddon, Morgan and Foreman, a Denver-based law firm, for County Manager Lurline Underbrink-Curran's legal fees. Underbrink-Curran and several other county employees, including the county finance director and county treasurer, have been subpoenaed to appear before a grand jury, which is based in Routt County. A grand jury is a prosecutorial tool used to investigate possible criminal misconduct and may or may not issue indictments. They can also give a prosecutor a sense of a case's strength. So far, there has been no word as to what the grand jury is investigating or whether it has issued any indictments. In Colorado, all participants in a grand jury are sworn to secrecy. The fees agreed upon were for $425 an hour and would not exceed $10,000, said County Attorney Anthony "Jack" DiCola. County Finance Director Scott Berger would also be requesting reimbursement from the county, DiCola said. DiCola also recommended that county commissioners agree to reimburse any employee who is not immune from prosecution for their attorney's fees. "If in fact those employees are indicted then we will cross that bridge when we come to it, but it would be my recommendation then that we seek our reimbursement of those attorney's fees from the employees," DiCola said. Commissioners ultimately made a motion to cover attorney's fees for elected officials as well, though DiCola expressed some reservations about whether an elected official is technically an employee of the county. "If I'm asked to come on down and I have the criminal one, I expect that I would be represented by the taxpayers until I'm indicted," said Gary Bumgarner, county commissioner. "That would be my recommendation as well, but I'd like to cross that bridge when we come to it," DiCola said. "Maybe I'd never have to make that recommendation." The practice of covering attorney's fees for public employees and elected officials who are not indicted by a grand jury or are later found innocent isn't uncommon. Hank Shell can be reached at 970-887-3334 ext. 19610.

Letter: Is this a great county or what?

To the Editor: I very much appreciate the entertainment our county attorney and the county manager give me. I was thrilled with the depth of Mr. DiCola's statement that, perhaps there should be some checks and balances to prevent the possibility of double dipping in expense reimbursement. This as we were treated to the tip top management practices that stopped the 12 year Building Department scandal. And let's not forget that the public has been assured that most of the money taken from the Building Department scandal will be recovered. How is that going for us? With Commissioner Newberry's, Mr. DiCola's, and Ms. Curran's combined public service exceeding 80 years, we need to be patient and allow them more time to practice their management skills. I will also rejoice in the knowledge that Ms. Curran and Mr. DiCola each received a pay raise — yes after the scandal was uncovered — in excess of a 25 percent increase. What a generous and benevolent county we live in. We are truly fortunate to be guided by their commitment to service. John R. Dickinson Granby

Citizens group questions Grand County attorney’s letter

A self-proclaimed citizen's transparency group has raised questions about a letter from Grand County Attorney Jack DiCola regarding County Commissioner James Newberry's double-dipping of mileage reimbursements. The group, Citizens for Transparency in Grand County Government, first brought to light last year that Newberry had charged both the county and the Colorado River Water Conservation District, of which Newberry is board president, for the same mileage to attend district meetings in Glenwood Springs. The 5th Judicial District Attorney's Office is investigating Newberry to determine if any criminal conduct occurred. Group spokesman Chas McConnell questioned the board at its Feb. 3 meeting about a Dec. 19, 2014, letter from DiCola to Jacob Scott, an investigator with the 5th Judical District Attorney's Office. The letter states that it is both DiCola and the board's opinion that Newberry did not violate the law or county policy. McConnell's questions focused on why the county attorney had written a letter to support a single commissioner. Commissioner Merritt Linke said that the 5th Judicial Distict Attorney's Office had solicited the information in the letter, and that the board had directed DiCola to draft the letter. Linke said the board had shared the opinion that Newberry hadn't violated any policy or law, though he did disagree with Newberry's actions. "I think that was wrong, and I think the policy needs to be changed," Linke said. DiCola said that Newberry had first advised him that someone from the 5th Judicial District Attorney's Office would contact him. "I didn't initiate anything," DiCola said. "It wasn't my idea." Newberry and Linke said they did not see the letter before it was sent, and Linke said he didn't like the "exact wording" of the letter. Linke said he would have omitted a portion of the letter that characterizes McConnell as having a "political agenda." McConnell has run for Newberry's commissioner seat twice, losing both times. Commissioner Kristen Manguso, who took office ilast month, said she did not agree with the letter "in any way shape or form." McConnell cites 'intimidation' McConnell also raised questions about what he referred to as "bullying and intimidation" of his family. Specifically, McConnell referred to an open records request on McConnell's wife that DiCola had filed. McConnell's wife is the business manager for the Fraser Valley Recreation District. When asked about the request, DiCola responded, "I don't have to answer any of Mr. McConnell's questions that I don't care to about my private business." Both Linke and Manguso told McConnell that they had heard about the request. "You should take that up with Mr. DiCola," Linke told McConnell. "I encourage you to." Hank Shell can be reached at 970-887-3334 ext. 19610.

Commissioners, citizens discuss county attorney search

A discussion at a recent policy workshop shed some light on how the county may approach the hiring of a new county attorney. Grand County Attorney Anthony "Jack" DiCola announced his resignation effective July 1 at a Tuesday, Feb. 10, Grand County Board of Commissioners meeting. During the Monday, April 6, workshop, citizens debated hiring a current employee versus opening the search to applicants from outside Grand County. Former County Judge Ben McClelland previously suggested that the county promote Assistant County Attorney Robert "Bob" Franek to the position. County Treasurer Christina Whitmer said, given the public support for the idea, she believed the search should be open to all applicants. Commissioner Merrit Linke said he was afraid that, if Franek turned out to be the most qualified after an open search, he would be accused of orchestrating a "back door deal." He added that Franek had not expressed interest in the position. A previous suggestion entailed creating a search committee that included at least one citizen. Citizen Jolene Linke said such a committee would alleviate any concerns of impropriety. Commissioner James Newberry said the board wasn't making any decisions at the workshop. "We're discussing this," he said. "We're trying to come up with the best plan. That's what we're trying to do." Commissioner Kris Manguso said she believed it should be open. "I think it's wise to allow applicants just like we do for a road and bridge employee or an assessor employee," she said. Attendants also discussed whether the new attorney should be allowed to practice privately in addition to performing duties with the county. DiCola has a private practice in Hot Sulphur Springs. "You either exclude it or you don't, but you should find out if it's ethical," said citizen Ted Kaplysh. Restructuring the county attorney's office was also a topic of discussion. One suggestion included delegating legal work to non-contracted attorneys and possibly eliminating the assistant county attorney position. The county attorney search is scheduled for discussion again at the board's April 13 policy workshop.

Grand County rejects marijuana moratorium

Grand County will not enact a moratorium on marijuana businesses, the board of commissioners has decided. Commissioner Merrit Linke brought the discussion item before the board, citing concerns about water and land use in relation to marijuana businesses. Commissioner Gary Bumgarner said the purpose of the discussion was to determine whether the county needed "to take a timeout" to reassess its regulations regarding retail marijuana businesses. But a heavy majority of citizens who spoke at the board's Dec. 23 meeting voiced their opposition to the moratorium, and the presiding opinion seemed to sway the board. "I believe that my concerns, which I've heard, and our regulatory powers are sufficient enough to address concerns that we have heard from our citizens that may come up in the future," said Commissioner Merrit Linke. "I believe they're there." The Grand County Board of Commissioners approved retail marijuana businesses in unincorporated parts of the county in late 2013, though the county has yet to issue a license. A number of current applicants voiced their concerns about additional regulations at the meeting. Kevin Speier of MMK Limited LLC, which is currently seeking to open a retail marijuana store in a formerly unincorporated enclave of the county within Granby, spoke against the moratorium, citing the stringent regulations in place by both the county and the state. His statements echoed those of County Attorney Jack DiCola, who attested to the stringency of the regulations currently in place before the hearing. "The bottom line is, every aspect of a marijuana facility, whether it's retail or cultivation, is regulated," DiCola told the board. However, a few residents still maintained that a moratorium was necessary to re-examine current regulations. Rich Rosene of Kremmling called the county's 1 percent sales tax "pathetic," arguing that the county should increase its taxation of marijuana businesses. But the commissioners unanimously decided to move forward with the current regulatory structure. "It's a scary process," Linke said, "but I do believe in the right of the individual and the responsibility of the individual. Hank Shell can be reached at 970-887-3334 ext. 19610.

County barred pot stores in Grand

Despite voters’ Nov. 2, 2010, decision to allow medical marijuana businesses in unincorporated Grand County, Grand County commissioners have voted against them. In a unanimous decision last week, county commissioners voted to not adopt a law allowing the cultivation, manufacturing and sale of medical marijuana and medical marijuana-infused products, and warehouses used to store medical marijuana, overturning voters’ decision to allow them. The reason, according to Grand County Attorney Jack DiCola, is “the law’s changed.” An April 2012 Colorado Court of Appeals decision found that a valid marijuana card or state authorization to operate a dispensary is “no defense” to a charge of possession of marijuana under federal law. “The state constitution and federal constitution are in conflict,” DiCola said. Despite the vote of the people, the attorney “does not believe that Grand County can allow medical marijuana operations as it is a violation of federal law,” states a June 12 memo from the county planning and zoning department to commissioners. “Further, the board of county commissioners takes an oath of when elected to office affirming they will support the Constitution of the United States,” the memo continues. “As medical marijuana remains a federal crime, it is the opinion of the county attorney that they cannot legally allow for medical marijuana facilities in unincorporated Grand County.” The commissioners’ decision does not affect the practices of caretakers – people who supply medical marijuana to a limited number of patients under state law. The county has no jurisdiction to regulate caretaking operations “because medical marijuana is a matter of statewide concern,” DiCola said. The county has been under a moratorium on medical-marijuana operations since Sept. 2009 to buy time for appropriate regulations with which to govern medical marijuana centers, operations and the sale of medical marijuana-infused products. A statewide two-year moratorium on new medical marijuana dispensary applications is set to expire July 1. According to Colorado’s Medical Marijuana Enforcement Division, there are about 4,000 pending applications in the state. Although there have been “inquiries,” there has not been any pending applications for a dispensary or related business in unincorporated Grand County, according to Grand County Planning Director Kris Manguso. – Tonya Bina can be reached at 970-887-3334 ext.19603