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					                                  Citizen Minutes
                          Regular Meeting of City Council
                            City of Littleton, Colorado
6:30 p.m.
City Council tour of newly renovated Fire Station 11
7:00 p.m.                                                                         Tuesday
Littleton Center                                                              April 6, 2010

1.     Roll Call
2.     Pledge of Allegiance
3.     Agenda
4.     Minutes
       a)     Minutes of Special Meeting March 9, 2010
       b)     Minutes of Regular Meeting March 16, 2010

5.     Introduce New City Employees
       Justin Sennett – Fire Dept.
6.     Citizens Appearances

       c)     Unscheduled public appearances

Carol Brzeczek asked the council to consider keeping the $5,536.42 rather than giving
it to South Suburban. “SSPD has requested the accumulated $5,536.42 be given to
them so they can make some improvements to the park which sound like worthy
projects and great additions to the park. However, the taxpayers of Littleton have been
paying a 1 mill levy property tax override for the past tens years and in 1999 SSPD was
debruced. Just last month the City funded improvements to the Carson Nature Center
$54,280 and another $50,000 to improve the entry road to SP Park. I pay more to SS
in property taxes than I do to the City of Littleton and it seems like they have their hand
in every one of my pockets!”

“That said, I am asking the Council to please consider using the Sterne Foundation
money to continue to accumulate until there is enough to conserve and repair the
fountain. The $5,536 is not going to make or break what SS does in the way of
improvements in the park. The $1,500 contributed to the fund each year by the Sterne
Family is miniscule and is probably less than what SS takes in in rental fees from the
park each year, which are $100 to $150 per use. It will, however, make a dent in the
funds that will be required to maintain and repair the fountain.”

Brzeczek also praised this Council for doing the right thing by putting the Judge Kimmel
item on the agenda and dealing with the situation in public. The Council of six or seven
years ago would have done this behind closed doors. She supported a number of the
Council members because they ran on a platform of open government and Brzeczek
thanked them for keeping their commitment to the voters in Littleton.

Kathy Thompson thought the action scheduled to remove Judge Kimmel was an
injustice and that he has an impeccable sense of justice. She asked the Council to do
the right thing, search your heart – you know what is right and what is wrong. Is this
your opinion or a matter of ego?

Paul Bingham agreed with Kathy Thompson and added that he had heard bad words
about every department in the city with the exception of the Municipal Court. He told
the Council to be very careful.
Darlee Whiting told the Council that she helped to get some of them elected and she
considered starting her comments with “Something is rotten in Denmark.” She praised
Judge Kimmel for his loyal service. She then put four questions to the Council – four
questions that have been adopted by Rotary International.

         1.   Is it the truth?
         2.   Is it fair to all concerned?
         3.   Will it build good will and better friends?
         4.   Will it benefit all concerned?

She ended her remarks by asking the Council if there was something rotten in Littleton.

Mickey Kempf said he understood that this was a done deal and then read a letter
signed by his mother, Mary Bradford, and himself. They asked the Council to
acknowledge the 30 years Judge Kimmel has given to this community. That would be
the right thing to do. The Judge gave his life to Littleton. They thought Judge Kimmel
has always done more than any other human being to do the right and proper thing for
Littleton and asked the Council to look beyond their personal feelings for the best
possible outcome for our city. This is truly a black eye for Littleton. Council could start
the healing process or hold their ground.

Larry Borger spoke on the South Suburban 1 mill levy tax question on the ballot this
May. He thought Littleton got their fair share of the money in the past 10 years. He
thought Judge Kimmel was an outstanding public servant.

Norm Brown said Sterling Ranch was going to be discussed this evening and he was
disappointed that it was no longer on the agenda. He displayed a map from the Villager
newspaper that showed the distance Sterling Ranch is from Littleton. He then quoted
from the BIAAC report of 2007 that made a case for two Littletons – one north of Ridge
Road and one south of Ridge Road. If Sterling Ranch became part of Littleton then we
would have two Littletons separated by a state park and a large reservoir. He did
complement the Council on their desire to have a public discussion about the project
prior to going into an executive session.

Marty Bolt said there had been a lot of nasty stuff on the internet about the removal of
Judge Kimmel and he commended the previous speakers for not repeating the stuff on
the internet that was targeting members of Council. This is not a lock step council –
each member acts very independently. You don’t see 7/0 votes very often. This is an
emotional issue and he felt certain that a lot of thought had gone into the issue. The
public doesn’t know the facts and he had speculated what triggered the action and he
hoped he would find out tonight. He felt the Council would make the best decision for
Littleton. And, if there is a recall threat against any member of council he would give
that individual all the money and time to make certain they weren’t recalled. He looked
forward to a fair meeting.




d57380ac-2082-4ff5-8329-6911eabeab8e.doc                                            2
7.       Consent Agenda Items
         a)    Ordinance on first reading amending Littleton City Code Section 10-3-2 and adding
               Section 10-4-4 (B) 2.6 pertaining to pigeons – Peggy Cole moved to
               postpone the decision on this until after the Planning Commission
               offers an opinion. Jim Taylor did not see any reason to postpone.
               Motion passed 5/2 with Taylor and Brinkman dissenting.

         b)        Ordinance on first regarding Conservation Easement for Ensor Property –
                   Passed 7/0

         c)        Ordinance on first reading amending city code Sections 10-1-2, 10-3-2, 10-8-2 and
                   adding Section 10-4-15 relating to Animal Boarding and Care Facilities – Passed
                   7/0

8.       Second and Final Reading on Ordinances and Public Hearings

         a)        Ordinance on second reading amending Littleton City Code Section10-1-2,
                   10-3-2 and 10-4-4 and adding Section 10-4-4 (B) 2.5 pertaining to chickens – The
                   language removed chickens from the definition of household pets and
                   limits the number of chickens a homeowner can have to four. The
                   Ordinance did not allow for the owner to kill their chicken for food and Jim
                   Taylor asked why. Ernie Rose said it was intentional to keep people from
                   raising chickens for food. Jose said old hens make good chicken soup.

         Bruce Stahlman asked about the fact that there was no specificity in the
               Ordinance about odor and waste – does it exist in another form to which
               Rose said yes.

         Peggy Cole wanted to know why there wasn’t something that addressed the
               chicken poop. Rose said the Ordinance states that the chicken house
               has to be clean and maintained. Cole said the Ordinance states that it
               has to be accessible not that they have to clean and maintain it.

         Stahlman moved to adopt the Ordinance and Cole seconded. Taylor
               moved to amend the Ordinance by removing the no kill language and
               Jose seconded. Suzanne Staiert told the Council that simply taking
               the language out does not mean that it is allowed. The amendment
               failed 3/4 with Clark, Brinkman, Cole, and Cernanec dissenting.

         Cole moved to amend the ordinance by adding language to address the
               noise, waste and drainage so it would not become a nuisance or
               safety hazard to the neighbors. Stahlamn seconded. Taylor said you
               can’t control the noise of a chicken and moved to removed the word
               noise from Cole’s amendment which passed 7/0. The amendment
               passed 7/0. Cernanec said his informal survey of chicken houses
               revealed that they are not predator proof and that he was not hot on this.
               Main motion passed 6/1 with Cernanec dissenting.

d57380ac-2082-4ff5-8329-6911eabeab8e.doc                                                     3
         b)        Ordinance on second reading amending the Littleton City Code Section 1-12-5
                   pertaining to conflicts of interest – Jim Taylor moved to postpone this until
                   May 4th, Brinkman seconded. Stahlman asked Taylor for the reason
                   to postpone and Taylor said it would get personal and he did not
                   want to do it tonight. Motion passed 6/1 with Stahlman dissenting.



9.       General Business
         a)        Motion to remove Municipal Judge James Kimmel – Debbie Brinkman
                   moved to remove Judge Kimmel and Stahlman seconded.

         Doug Clark said this had been discussed in an executive session and asked
              Staiert to comment on waive their executive session privilege. Staiert aid
              the law allowed for the release of the contents of the executive session
              with a majority vote. Cole moved to waive executive session privileges to
              reveal the discussion with Judge Kimmel and the waiver would not apply
              to any legal advice or attorney/client privilege. Clark seconded. Taylor
              asked if it was legal to limit the waiver to a portion of the meeting.

         Staiert said some of the meeting was with Judge Kimmel and she felt that it was
                not a problem to limit the waiver to the portion of the meeting where he
                was in attendance. Motion passed 6/1 with Taylor dissenting.

Phil Cernanec read the following statement that had been drafted for and by the
Council.

Littleton's City Charter assigns to City Council the responsibility for appointing, and removing,
judges for the municipal court. At present there are four municipal judges: Judge Kimmel, Judge
Kriss, Judge Katzman, and Judge Thomesetti.

After meeting with Judge Kimmel and discussing due process and the Aaron Henson case in
executive session on March 23, 2010, the Littleton City Council decided to immediately reduce
the scope of services provided by Judge Kimmel for the City and notified the Judge that the City
would not reappoint him to a new term as judge when his current 2-year appointment ended, at
the end of 2010. The Council's desire was to preserve the dignity of the Judge and the reputation
of the court, to avoid a public vote that could negatively impact Mr. Kimmel's ability to provide
judicial services to other municipalities, and to provide him with the opportunity to quietly
transition to other work.

Council’s decision was precipitated by events involving the Aaron Henson case, but Council’s
concerns extend beyond that one case to issues related to Judge Kimmel's lack of insuring due
process in the court and to his lack of knowledge of key elements of law.

In the Aaron Henson case, as a result of an unreturned DVD valued at $30, library staff prepared
a summons to Mr. Henson setting a court date of December 23, 2009. The library sent that
summons by certified mail, return receipt requested. The return receipt came back “Return to

d57380ac-2082-4ff5-8329-6911eabeab8e.doc                                                 4
Sender, Unclaimed, Unable to Forward”, indicating that Mr. Henson did not receive the
summons.

Mr. Henson did not appear in court on December 23, 2009. As a result, Judge Kimmel issued a
Show Cause Order requiring Mr. Henson to appear in court on January 14, 2010. The Show
Cause Order was mailed, regular mail. The library received the DVD on January 7, 2010 and
filed a document with the court showing that the DVD had been returned. Nonetheless, when Mr.
Henson did not appear on January 14, 2010, Judge Kimmel issued a warrant for his arrest, even
though Judge Kimmel was aware that Mr. Henson had not been served notice. As a result of the
warrant, Mr. Henson was arrested, forced to spend time in jail, and forced to pay bond costs and
other costs, including charges related to the impoundment of his vehicle.

The Henson events demonstrate Judge Kimmel's disregard for due process. Procedural Due
process is defined in West's Law Dictionary as “A fundamental, constitutional guarantee that all
legal proceedings will be fair and that one will be given notice of the proceedings and an
opportunity to be heard before the government acts to take away one's life, liberty, or property.”
The serving of notice, also called service, may be accomplished in different ways. When service
is accomplished by mail, the law dictates the procedure that must be used. Code of Criminal
Procedure C.R.S. § 16-2-109, Colorado Rule of Criminal Procedure 4.1(c)(1), and Colorado
Rules of Civil Procedure 4(g)(1) and 304(f)(1) all provide that: “Service by mail shall be
complete upon the return of the receipt signed by the defendant.” Similarly, CRMC 204(e)
provides that service may be accomplished “by mailing a copy to the defendant’s last known
address by certified mail, return receipt requested.”

The case of Potter v. State Dept. of Rev., 739 P.2d 908, 911 (Colo. App. 1987) provides that
when a notice is returned by postal authorities, “such return is evidence of the fact that the notice
was not served.” In the case of City of Black Hawk v. Cameron, Case No. 08-CV-25 (Gilpin
County District Court) Order dated August 28, 2008 at p. 4 the court stated that, “To construe
Rule 204(e) [of the Colorado Rules of Municipal Court Procedure] as permitting service of
process by a certified mailing return receipt requested, but without any corresponding duty to
review the signed return receipt (if any) and determine if the recipient ever got the mailing seems
ill-considered, and borders on the absurd.”

Beyond the legal requirement not being met for serving notice, common sense should lead a
reasonable person to conclude that a summons requiring appearance in court on a certain date
which is returned as undeliverable, means the person did not get the summons and therefore does
not know they are required to be in court on that date.

Because there was not proper service on Mr. Henson, it was not proper to enter a Show Cause
Order or a warrant for his arrest stemming from his failure to appear in court.

In addition, the Henson events demonstrate a lack of completeness or a lack of good judgment on
the part of Judge Kimmel. The library sent a document to the court on January 7, 2010 indicating
that the DVD had been returned. If Judge Kimmel did not know about such a document when he
issued the warrant for Mr. Henson’s arrest on January 14, 2010, that failure demonstrates either a
failure to thoroughly review the court file or a lack of oversight of the administrative functions of
the court. If the judge did know about such a document, then issuing the warrant for arrest after


d57380ac-2082-4ff5-8329-6911eabeab8e.doc                                                    5
the DVD had been returned, without talking to the prosecutor to dismiss the case, demonstrates
poor judgment.

Unfortunately, the Henson events are not isolated. Upon investigation of the Henson case it was
discovered that there were an additional 71 warrants that had been issued which did not have
proper service. The City therefore was forced to dismiss those cases. Those dismissals are not
without cost to the City.

Council was concerned with comments made by Judge Kimmel when Council met with the
Judge on March 23. Judge Kimmel first suggested that issuing the warrant for Aaron Henson was
proper because the Judge could, and did, issue arrest warrants for probable cause in domestic
violence cases. When it was pointed out that the Henson warrant was for failure to appear, Judge
Kimmel then suggested that the lack of return of a mailed item showed its delivery and service.
The summons sent by the library to Mr. Henson, however, came back “Return to Sender,
Unclaimed, Unable to Forward.” The Council could only conclude that Judge Kimmel's
comments demonstrated a lack of understanding regarding the well-established requirement that
“Service by mail shall be complete upon the return of the receipt signed by the defendant.”

Most problematic, however, was that Judge Kimmel acknowledged that he did not know what
procedures were actually required. This acknowledgment was troublesome for two reasons. First,
it showed that Kimmel lacks a thorough grasp of the rules of procedure expected of judicial
officers. Second, given the advance notice that Judge Kimmel had regarding the March 23
meeting, it shows evasiveness or lack of preparation. On March 21, 2010, Mayor Clark sent
Judge Kimmel an email stating: “The Council would like to discuss with you the issuance of an
arrest warrant for Aaron Henson, and arrest warrants and due process in general.”

Finally, the discussions Council had with Judge Kimmel on this issue were held in executive
session. The purpose of that was not only to preserve the reputation of Judge Kimmel, but also
the reputation of the court. While the City Council has kept the matter confidential, it appears
that Judge Kimmel has engaged in extensive communications about this situation, including
communications with the Police Union. This is not the first time the judge has chosen on his own
to violate the privilege of executive session.

In sum, City Council has lost confidence in James Kimmel's ability to serve as a municipal court
judge.

The Council readily acknowledges the long service provided by Judge Kimmel to the City, and
the extensive relationships Kimmel has with members of the community. Many of us on Council
have known him for years. It is for all these reasons that the Council wanted very much to do this
as quietly as possible. We held our meeting with the judge in executive session, determined to
unassign the judge his court duties rather than hold a public vote, asked the judge for a letter of
resignation and offered him a severance package. Each of our actions was taken, as we advised
him, in order to preserve as much as possible the dignity of the judge and the reputation of the
court. However, those efforts have proved unsuccessful and, therefore, we find ourselves here
tonight with this motion.

         Clark said it would take a unanimous vote to remove Judge Kimmel.


d57380ac-2082-4ff5-8329-6911eabeab8e.doc                                                  6
         Stahlman said it was clear from the community that Kimmel was well thought of
               and he was disappointed and saddened that it reached this stage. He
               said it was appropriate to acknowledge his service. The motion passed
               7/0.

         b)        Main Street Closure for Fiery Fun on Main Street – Stahlman moved to
                   approve the closure and to waive the $2,500 fee for placing barriers
                   and cleaning up. Motion passed 5/2 with Brinkman and Cole
                   dissenting. Main motion passed 6/1 with Brinkman dissenting.

         c)        Request to transfer Sterne-Elder Trust Funds to South Suburban Parks for
                   Improvements at War Memorial Rose Garden - Charlie Blosten gave the
                   Council a brief history of the fountain. The repair is estimated to be
                   between $10,000 and $20,000 but has yet to be reviewed by a
                   conservator. It is an historical architectural piece from the 1920s and
                   made from stone that is quarried in Colorado.

         Taylor wanted to know if the County Sherriff’s money could be used for the
                repairs and Blosten though it could along with some other open space
                funds. Taylor preferred to move forward with the improvements South
                Suburban wants to make and to give them the money.

         Brinkman asked if South Suburban had secured the grant and Blosten said yes.
               She also anted to know what was causing the damage besides neglect.
               Blosten said when it was moved in the mid 80’s they used maintenance
               men and a front end loader and there wasn’t great care taken in moving it.
                Brinkman wanted to know if the lawn sprinklers, mowers and weed
               whackers were causing any problems and Blosten said it doesn’t appear
               that they are.

         Blosten said the Rose Garden is not a public park and the fountain has a very
               interesting history and there’s a case to preserve the piece.

         Stahlman thought if the money was given to South Suburban that the restoration
               of this piece should remain on the open item list.

         Cole moved to transfer the $5,536.42 to South Suburban. Jose seconded.

         Brinkman said she would not support the motion for two reasons. First, it is a
               war memorial and she is not fond of pergolas and gazebos in a place
               intended for something else. Secondly, she thought the Sterne Elder
               Trust should be used to preserve the fountain and every season that
               passes adds to the deterioration and she did not know that any other
               money was available. She then suggested that South Suburban used the
               money it charges people to use the garden for their own trust fund.
               Motion failed 3/4 with Brinkman, Clark, Stahlman and Cernanec
               dissenting.



d57380ac-2082-4ff5-8329-6911eabeab8e.doc                                                7
         d)        Proposed settlement agreement with the State of Colorado regarding natural
                   resource damage claims related to the Lowry Landfill. The Littleton/Englewood
                   Wastewater Treatment Plant’s share is $52,088.98 of which the City of Littleton’s
                   share is $26,044.49 – Passed 7/0

         d)        Reduction of expenditures on food – discussion – Cole moved to reduce
                   council’s expenditures on refreshments and meals for the remainder
                   of the year by:
                   - limiting refreshments at council meetings to tea and coffee,
                   - eliminate the food for the budget meetings,
                   - all lunches be provided by the members of council rather than
                       catered, and
                   - to reduce the amount of food at the council Outreach meetings.
                       Stahlman seconded for the sake of discussion.

       Cole said this reduction does not represent a lot of money but we have asked all
other departments to tighten their budgets and they should too.

       Brinkman said the food is not for council – some meetings go until midnight and
some citizens come directly from work. Sharing a meal at their breakfast meetings
leads to a cordial atmosphere for discussion. It was not a significant savings.

        Taylor asked if anyone knew how much they spent. Cole said they spent $2,200
for their council workshop.

      Clark moved to delete the budget meeting and the breakfast meetings from
the motion. Cernanec seconded. Motion passed 4/3 with Brinkman, Jose and
Cernanec dissenting. Matin motion passed 6/1 with Brinkman dissenting.

      Added item – Council directed staff to meet with the Denver Water Board to
discuss a memo they had received from them.

10.    Consideration of Committee, Commission and Board Matters
11.    Ordinances on First Reading
12.    Resolutions
13.    Comments / Reports
       a)     City Manager
       b)     City Attorney
       c)     Council Members – Stahlman said that he and Brinkman, at the request of
Clark, had started collecting resumes for suitable candidates to help in the Courts.

         d)        Council President
         e)        DRCOG

14.      Adjournment




d57380ac-2082-4ff5-8329-6911eabeab8e.doc                                                     8

				
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