A Thornton city councilor’s purchase of a home outside of Thornton has her fellow council members reviewing the city charter and state residency rules.
Thornton City Council obtained legal advice from city attorney Tami Yellico and attorney Geoff Wilson on city council vacancies during the Feb. 1 planning session meeting. Wilson is special counsel to the city attorney’s office on some matters, and Yellico said he has extensive experience in municipal law and joined to provide an independent review of the law.
Council also voted to put discussion about Councilor Jacque Phillips’ residency and a possible action on the Feb 8 meeting agenda.
Mayor Pro Tem Jessica Sandgren sent council members and city staff an email about 30 minutes before Thornton’s Jan. 25 city council meeting, detailing a controversy regarding city councilor Jacque Phillips’ secondary home in Alamosa, Colorado. She also provided Phillips’ deed of trust for her property in Alamosa.
“The items in the deed of trust indicate that the property was purchased as the principal residence,” Sandgren said at the meeting. “I’m looking for the direction from the city attorney’s office for what we are supposed to do with this information moving forward.”
Sandgren said in an interview that while campaigning, she heard concerns from residents about Phillips residency, as well as emails and phone calls from residents. That’s why, she says, she brought the issue to the council.
“We’ve been getting emails from every ward this week,” she said.
“This is all politics. It is no secret that Sandgren and I have different political views and visions for the city of Thornton. By removing me from my council seat and appointing someone else it provides the opportunity to further entrench Council with members that will share Sandgren’s view and vision for the city,” she said in an interview.
City councilor Julia Marvin agreed.
“I do feel like it’s rushed,” she said.
Yellico explained the process in which the matter would take place.
“Residency is an issue that could lead to a vacancy in a council member seat,” she said.
Causes of vacancy, she said, “shall be established by competent evidence thereof and placed on the record in council minutes.”
She said the council determines the validity of the evidence and then determines if there’s a vacancy on the council. That discussion would take place at a council meeting.
“The standard there is competent evidence, that is relevant evidence, factual evidence that goes toward the issue at hand,” she said.
“It is the city council’s sole determination whether or not the evidence as such that a vacancy exists,” she said.
“Among the qualifications in section 4.4 of the charter are that a council member be both a registered elector and a resident of the city of Thornton,” Wilson said.
He said in Colorado, there is a consistent system of voter registration via the establishment of residency, whether that’s at the state or local level.
He points to Thornton’s municipal code in section 2-243A, where it says “The residence of a person is their primary home or place of abode at which the person has a physical presence on a regular basis and to which that person intends to return after a departure or absence.”
Some factors that are included, he said, are business pursuits, employment, income sources, residence for income or other tax purposes, age, marital status, the residence of parents, spouse and children if any, leaseholds, physical location of personal and real property and motor vehicle registration.
“The state law says that a person will not be considered to have lost their residence if they leave home or go into another state or territory or another county or municipality of this state merely for temporary purposes with the intention of returning,” he said.
He also said it’s common to consider voter registration and vehicle registration.
Councilor Henson asked if the council did vote for a vacancy if there is a potential for a lawsuit. Yellico said yes.
“(The decision made by council) can always be challenged in court so that potential is definitely there,” Yellico said.
City Councilor Karen Bigelow asked if voting someone off council has occurred before or happens frequently in other municipalities, and Wilson said no.
“This doesn’t happen very often at all,” he said. “One of the reasons it doesn’t happen is because of the issues that are coming up here, it is very fact determinative, residency is difficult to establish and disprove.”
He said it’s safer to go with a recall election because of the items need to be proved and thresholds needed to be reached. He also said there are more often lawsuits associated with a council vote versus a recall election.
“You can recall somebody for having red hair if you feel like it,” he said.
“It basically requires the person upon a sufficient petition being submitted to run for office mid-term to see how they are doing with the voters,” he said.
Councilors Adam Matkowsky and David Acunto asked if there was potential for a lawsuit due to inaction on the item, and Wilson said no.
Mayor Pro Tem Jessica Sandgren said that the charter states that it is the council’s job to act on a vacancy if they feel one has occurred. Wilson said that’s not true.
“(The charter) doesn’t mandate that (council receives competent evidence)” he said. “It doesn’t say council shall hold a hearing but it says that the fact of a vacancy, if you’re going to pursue that, shall be established competent evidence”