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Double Duty: Who are council members accountable to in considering Utilities' tank appeal

Posted at 5:43 PM, Oct 27, 2023
and last updated 2023-10-27 20:08:29-04

As Colorado Springs Utilities appeals a decision that halted its work on a new water tank, some are asking, 'How can city council members be impartial, if they are also Utilities board members?' News 5 investigates wanted to look deeper into that question which was raised by a neighbor who lives near the new Wilson Water Tank.

Colorado Springs' elected leaders wear two hats; sometimes as city council members, and sometimes as utilities board members. They are not elected to the Utilities board, it comes with the job a council member. It has been that way in Colorado Springs since 1992. But what happens when that double duty conflicts? In considering Utilities’ appeal of the height and stop-work order issued by the planning commission over its Wilson Water Tank project, that’s what city council members are up against.

Ahead of the vote striking down Colorado Springs Utilities' request to increase the permitted height of a water tank, it was built too tall, neighbors who live around the tank sounded off to the planning commission, demanding it be fixed and people lose their jobs over the mistake and claiming they were lied to by Utilities ahead it's building the 60-foot high tank.

"What’s really sad in this process, because structure of the government and oversight of Utilities, we have no representative government protecting us,” Thad Zylka testified to commissioners.

It’s not a new debate in this city that reconsidered whether council members should pull double duty as board members in 2016 when then-mayor John Suthers favored an appointed utility board to take over from council members. Voters put the municipal utility in place back in 1924. But it was in 1992, when voters passed the Taxpayer Bill of Rights, or TABOR, amending Colorado's constitution, when the city council took on the dual role of representing constituents and governing Utilities as its board of directors.

"I believe the current system works well," said former Secretary of State and Springs Council member Wayne Williams.

He knows the position that council members find themselves in when considering Utilities’ appeal.

"They represent the people in the affected area. They also represent the utility. And they will have to balance those two things out. Because you could argue, 'Well, there’s a conflict because the voters put them in and now the voters are appealing.' So you always have some of that that takes place,” Williams told News 5.

Issues like these are not unusual and council members will have help if they need it, Williams said.

“I would assume the city attorney is going to be advising them as to how to resolve that and make sure that everybody is dealt with fairly in this process.”

Colorado Springs is not the only city where city council members govern municipal utilities. Fountain is another. News 5 also found other council-utility board structures such as in La Junta, where both the mayor and one council member sit on the utilities' board. But in cities closer to the size of Colorado Springs, like Loveland, Fort Collins, and Longmont for example, the council member who sits in on meetings cannot vote and acts only as a council liaison.

Not one Springs council member sits on the planning commission whose decision they are now evaluating.

"It may give the city council some cover by saying, 'Hey, the planning commission found all these problems.' It was a majority vote and I would hope that this would cause them to investigate what happened," Thad Zylka later told News 5 Investigates.

Some of Zylka's neighbors in Mountain Shadows are also questioning how council members are supposed to represent their constituents in issues that involve utilities.

"The frustrating part about the whole structure of city council and them being the governing body for Utilities is that if something comes up regarding utilities, then our commissioners can’t engage. Because if they were to engage and they got too involved, then they’d have to recuse themselves on any kind of votes. So what that leaves us with is no representative government," Zylka said.

There are two options to change the system if voters want to take action. The first is electoral recourse, either electing or recalling a council member. The second is to propose a ballot measure to separate members of the council from serving on the Utilities' board in favor of a separately elected board, an appointed board, or a combination of the two.

"That’s the bottom line, okay. How do we have better government and what happened? And right now, if it wasn’t for your work and others,’ some of this stuff wouldn’t have been uncovered,” Zylka said.

We asked board chair, Dave Donelson, if he could remain impartial in considering utilities appeal. He responded that, “Unfortunately an appeal to city council of a planning commission decision regarding Wilson tank is quasi-judicial, and as a member of city council, I am not able to comment on this matter.”

The council will consider the appeal when it meets next on November 14.

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