The fate of a November ballot question that could lead to Fort Collins providing high-speed internet services is in the hands of Larimer County District Court judge.
Fort Collins resident Eric Sutherland and attorneys representing the city squared off in court Friday morning to argue about whether the content and form of the broadband ballot question meet legal requirements.
District Court Judge Thomas French has until Tuesday to decide whether to change the ballot language approved by City Council or let it stand.
The city’s deadline for certifying the ballot language to the Larimer County Clerk’s Office is Sept. 8. The county is coordinating the Nov. 7 election.
Sutherland raised five complaints about the ballot language, ranging from the lack of a comma, which he said made the question grammatically incorrect, to whether it complies with the Taxpayers’ Bill of Rights, or TABOR, amendment to the state constitution.
If approved, the measure would amend the City Charter to allow but not require the City Council to establish a telecommunications utility. The utility would be a standalone entity or part of the city’s Light and Power Utility.
Sutherland said the inclusion of the $150 million figure in the ballot language would in effect allow the issuance of debt that would be repaid by taxes without an election. TABOR requires voter approval for a government to issue debt backed by tax revenue.
The city’s chief financial officer, Mike Beckstead, testified the bonds would be backed by revenue from utility ratepayers. The utility is defined as an enterprise — a government-owned business — and does not need voter approval to issue debt.
The $150 million figure was included in the ballot language at the direction of City Council in the name of transparency, he said. The idea was to show voters the financial commitment a broadband utility could require and to set a cap on debt, he said.
Sutherland said the ballot language is confusing to the public. He asked to submit a copy of a letter to the editor published in the Aug. 29 Coloradoan supporting the city’s proposal as evidence of the public’s lack of understanding.
French refused to accept the evidence, saying it was hearsay and not relevant.
Sutherland said he was frustrated the City Council did not follow his suggestions for the ballot language as it was being drafted. He asked the judge to replace the city’s ballot question with one he has written.
“I’m here, I believe, on behalf of every single voter in Fort Collins asking that this court find that there were certain omissions that may be very practically applied to the ballot question that significantly reduce public confusion, which is a requirement of state law, but even more beneficially, improve understanding,” he said.
Deputy City Attorney John Duval said City Council members are elected to represent residents and make decisions, such as the wording of ballot measures.
Council members heard Sutherland’s protests about the ballot language but simply did not agree with him, he said.
The broadband question is not a TABOR issue, he said.
“There’s no intent here or plan here to circumvent TABOR … to the extent that TABOR applies, the city will have to follow that,” Duval said.
Kevin Duggan is a Coloradoan senior reporter covering local government. Follow him on Twitter, @coloradoan_dugg, and on Facebook at Coloradoan Kevin Duggan.
Charter Amendment No. 1 proposed by the city of Fort Collins expected to be on the Nov. 7 ballot:
“Shall Article XII of the City of Fort Collins Charter be amended to allow, but not require, City Council to authorize, by ordinance and without a vote of the electors, the City’s electric utility or a separate telecommunications utility to provide telecommunication facilities and services, including the transmission of voice, data, graphics and video using broadband Internet facilities, to customers within and outside Fort Collins, whether directly or in whole or part through one or more third-party providers, and in exercising this authority, to: (1) issue securities and other debt, but in a total amount not to exceed $150,000,000; (2) set the customer charges for these facilities and services subject to the limitations in the Charter required for setting the customer charges of other City utilities; (3) go into executive session to consider matters pertaining to issues of competition in providing these facilities and services; (4) establish and delegate to a Council-appointed board or commission some or all of the Council’s governing authority and powers granted in this Charter amendment, but not the power to issue securities and other debt; and (5) delegate to the City Manager some or all of Council’s authority to set customer charges for telecommunication facilities and services?”