The city of Durango has requested a declaratory judgment from 6th Judicial District Court on whether an ordinance prohibiting active-duty law enforcement officers from concealing their identities can go to the ballot.
Facing tight deadlines to organize an election as required by the city charter, Durango City Council also directed the city manager to begin preparing for an election in case the court declares one is legal.
City Attorney Mark Morgan said the council is in a “quagmire.” The legality of sending the ordinance to the ballot is unclear, but the charter requires an election within 90 days of certification, which occurred earlier this month. If the ordinance becomes law, it may be unenforceable under the Supremacy Clause, and the Trump administration could withhold federal funding.
The ordinance was proposed by the No Secret Police citizens initiative, which delivered more than 1,700 signatures in support to the city last month.
Under the city charter, City Council appeared to have just two options available to it once the petitions were certified earlier this month: adopt the ordinance as written or let voters decide in an election.
Now that the city is seeking judicial clarity about whether the ordinance can legally go to the ballot, whatever ruling a district judge makes could set a precedent for similar citizen initiatives in Durango and across the state.
Morgan said at a City Council meeting on Tuesday that state statute dictates citizen initiatives can pursue “legislative” ordinances but not “administrative” ordinances.
He said neither his office nor outside legal counsel could determine whether the proposed ordinance banning law enforcement officers from wearing masks on the job falls into the “legislative” or “administrative” category.
A legislative ordinance sets community standards, and an administrative ordinance regulates government acts and behavior, such as setting water rates or having employees wear uniforms, he said.
Morgan told councilors they were in an unenviable position. A judge could deliver a declaratory judgment the day after a petition is filed, or a judgment could be issued later.
How the judge might rule is anyone’s guess, he said.
While the city waits for a judgment, the clock on holding an election within 90 days of the initiative’s certification – as required by the city charter – will continue ticking down.
The situation was further complicated by the fact that Colorado has a shortage of ballot printers, Morgan said.
It would save the city money to jump aboard a local election that is already scheduled.
Morgan said the only such election the city could join is La Plata County’s June 30 primary election.
City Clerk Faye Harmer said the deadline to sign up for that election was midnight Tuesday.
Morgan said if City Council calls for an election and a judge declares the election is illegal, yet voters approve the ordinance anyway, the city risks losing federal funding and spending a minimum of tens of thousands of dollars on an election with moot results.
He said seeking a declaratory judgment while starting election paperwork poses the least risk to the city.
City Council voted 4-1 to petition the court for a declaratory judgment
Councilor Shirley Gonzales was the sole opponent.
She said the city doesn’t have to seek judicial guidance to have an election, and she wants to proceed with an election regardless of what the court rules.
Five residents provided public comments supporting an election.
Ted Wright, No Secret Police organizer, said in an interview that drawing the distinction between legislative and administrative ordinances well after the citizen initiative was certified is an attempt to sink the ordinance.
In response, Morgan said Wright knew about legal issues with the ordinance “from the beginning” and that city officials are doing their jobs.
“No one is attempting to kill the ordinance and everyone knows the community is united against what we witnessed in Durango in October,” he said.
City Council could have begun the process to adopt the ordinance outright on Tuesday. But it concluded residents should be fully informed of the risks attached to the ordinance – including but not limited to the loss of federal funding for city operations – and weigh those risks for themselves.
Councilor Jessika Loyer pushed back against claims the city was avoiding action or acting nontransparently in its handling of the citizen initiative.
“What we are doing is taking the time to fully understand legal, operational and financial impacts of this proposal so that we can protect everyone in this community and come to the right conclusion,” she said.
Sarah Hill, transportation director, said the Federal Transit Administration informed her it would pullabout $4 million in funding if the anti-mask ordinance moves forward, which would result in routes and services being cut.
A ridership survey last year showed Durango Transit provided just over 470,000 rides last year, and 64% of riders depended on public transit to get around.
Tony Vicari, Durango-La Plata County Airport aviation director, said 63% of the airport’s capital funding over the past four years – $31.5 million out of $50 million – was federal dollars.
That funding contributed to the repaving of DRO’s sole runway, multiple other paving projects, and the airport’s ongoing renovation and expansion of its terminal.
He said DRO has about $9 million in outstanding federal funding that, if placed at risk, would become a liability for active contracts at the airport.
Mayor Dave Woodruff said masked agents “terrorizing” residents is unacceptable, but if the city adopts the anti-mask ordinance – which appears to be unenforceable – it would be giving up millions of dollars and harming the vulnerable community members the ordinance is meant to protect.
cburney@durangoherald.com
