Something stinks in Greeley, and it’s not the feedlots. Rather it’s the stench of swampwater as the city government uses shady tactics to keep a citizen-initiated measure off the ballot. And if not cleaned up quickly, the stink will certainly spread to other parts of the state.
Greeley really wants to build a massive entertainment complex. According to the FAQ site for the Greeley Westside Project, the project includes “… a new arena and ice center, a transit center, new opportunities for retail, commercial, restaurants, lodging (including a water park hotel) and much needed mixed-income housing.” Sounds to me like a little something for everybody. It’ll also be a little something owned by the local government. Greeley is planning to use public money and other incentives to help finance the project, ultimately ending up as the owner of the arena hotel and water park.
Bypassing voter consent
In lieu of going directly to voters to ask about borrowing money, as required by the Colorado Constitution, Greeley is jumpstarting development of this $1.1 billion project using certificates of participation (COPs). COPs are a handy way for local governments (and sometimes the state) to circumvent the Taxpayer’s Bill of Rights (TABOR) requirement that multi-year debt be approved first by voters.
Greeley is “selling” their city hall, police station, fire stations and other real estate (46 buildings in all) to a developer, and will then lease the buildings back for their intended use. The capital generated by the sale ($115 million) will pay for “predevelopment” of Westside, while annual renewal of the city’s lease payments to buy back their buildings help avoid that whole messy “ask before you take on multi-year debt” thing. As an interesting side note, at least one of these fire stations is a veteran: it’s been sold by Greeley and bought back before in one of the city’s previous COP schemes!
If you raised an eyebrow at how such shenanigans can be legal, never fear. The Colorado Supreme Court (the same court that said more money coming out of your wallet isn’t a tax as long as the state calls it a “fee”) gave the nod to this. As we’ll soon see with regard to the Greeley scheme, Colorado’s high court is a fan of labels. As long as governments are clever with wordsmithing, the plain language of the Colorado Constitution really doesn’t mean much.
Smells like swampwater
A group of Greeley citizens calling themselves Greeley Deserves Better took umbrage at the COPs scheme and exercised their state constitutional right to citizens’ initiative, collecting enough signatures to put the issue to a vote on the November ballot. This is democracy in action. The Colorado Constitution gives citizens the ability to “talk back” to policymakers via a robust right to initiative and referendum. If there’s something we don’t like, we have the direct power to do something about it.
Greeley Deserves Better handily got enough signatures to put a repeal of the Greeley ordinance authorizing the COPs (Ordinance 2025-15) on the ballot. Another group of Greeley residents then filed a protest against the initiative. The protest went to a hearing, and the hearing officer deemed the initiative invalid. Democracy in action again, right?
No, actually. The source of the stench became clear when Greeley brought in a hired-gun hearing officer for what should have been city clerk business, with the protestors’ lawyer capitalizing on a different (but just as wrongheaded) Colorado Supreme Court decision used to invalidate people getting a say at the ballot.
What happened in Greeley could easily be repeated across the state, potentially robbing you and others of your rights to “talk back” to your government via the initiative process.
The ‘administrative’ label
This whole swampy mess traces back to a 2013 Colorado Supreme Court decision involving a state highway entrance in Aspen, where the high court held that citizens’ initiatives cannot undo government actions that are “administrative in character.” Imagine your city council decided to build a new road and passed an ordinance authorizing it. If you, and enough of your fellow citizens, decide that you don’t like this decision, you have the chance to undo it by running an initiative to put the decision on the ballot. By contrast, you and your fellow citizens could not run an initiative to stop the city from hiring Bob’s Paving to do the work, this latter being an “administrative” decision.”
At first blush, this is reasonable. The power of initiative should be reserved for actions related to public policy, not the mundane minutiae of running a city. Things would be pretty chaotic if people tried to run ballot measures to stop the city from purchasing Ford trucks instead of Chevies, for example.
But by solving this particular problem, Colorado’s high court opened the gates wide to another. One of the dissenting opinions in the court’s decision foreshadowed what just happened in Greeley: “While I view our prior attempts to distinguish administrative from legislative action as little more than a license to judicially nullify popularly initiated measures at will, I am presently more concerned that the majority’s elaborate justification in this case risks extending that entitlement to the oversight of representative bodies as well.”
That is, the decision risked extending the ability to skirt citizens’ initiatives around legislative decisions as well, giving politicians the ability to thumb their nose at you provided they’re clever enough in their labeling.
Not long after the high court decision, the Littleton City Council stepped right up and added specific wording to their city charter to forestall challenges to their decsions. If you look in Article 3, it mentions more than once that the city council’s power is legislative, while in Article 7, it labels the city manager’s actions as administrative, while providing the handy workaround that his duties can include “…such other duties as may be prescribed by this Charter, or required of him or her by the Council not inconsistent with this Charter.”
Say what you will about Littleton, at least they put their disdain for citizens’ initiative right out in the open. If you wanted to challenge something they did, you’d at least know what you were up against. Greeley, by contrast, plays things closer to the vest. When the group of citizens protested Greeley Deserves Better’s initiative, the Greeley City Council took an option allowed in the Greeley city charter, sidestepping the city clerk as hearing officer to bring in a hired gun.
On August 5th, one day prior to the actual protest being filed, the Greeley council appointed a woman the Pueblo Chieftan called the one of the state’s “most knowledgeable experts in Colorado municipal elections,” Karen Goldman as the hearing officer. In a masterful bit of double speak, Ms. Goldman found in her ruling disqualifying the ballot measure “ … that while adopted through an authorized legislative process, Ordinance 2025-15 is not a legislative ordinance. Therefore, the initiative petition seeking its repeal is also not legislative.”
Nullifying initiatives
Goldman here demonstrates the maxim that if the desire is great enough, anything can be anything. Her reasoning pivots on the absurd idea that how the city council chose to fund the Westside project was administrative because it was merely carrying out the decision to undertake the project in the first place. Imagine if this were the model for how all governments worked. Imagine that the only policy decisions were those where legislative bodies decided to do something, and that regardless of what is required for implementation, or how much money is involved, or who is impacted, everything after that is only “administrative.”
There’s your license to nullify initiatives right there.
This is the blueprint any Colorado government that takes offense at your ability to hold them in check can use. If you either plan on, or take the time to, start an initiative all the government has to do is to label the matter as administrative, truck in a government-friendly hearing officer, and the problem can be neatly swept away. Don’t like it? Well, you can follow the pattern in state government where you get to start the process over again in district court after first going to administrative court.
Our ability as citizens to talk back to our government via our constitutional right to initiative is in jeopardy thanks to a trick of labeling, okayed by our state supreme court. Do Better Greeley has been forced to appeal what the Greeley did, possibly costing more time, certainly costing more money. They are right to do so and I wish them luck.
Attempts by other governments to do what Greeley just did should be met with vigorous protest and legal action. Sadly, unless and until Colorado’s highest court fixes their earlier mistake, Coloradans must fight tooth and nail for their initiative rights.
Cory Gaines teaches college physics and is a regular contributor to Complete Colorado. He lives in Sterling on Colorado’s Eastern Plains. He also writes at the Colorado Accountability Project substack.
