Aspen City Attorney John Worcester continues to rebuff calls for an investigation into whether a criminal act contributed to the misstatement of Burlingame’s total costs in a 2005 brochure.
“Notwithstanding your conclusions about what people knew or didn’t know at the time, I am not aware of any evidence that suggests that anyone distributed information that they knew to be false,” Aspen City Attorney John Worcester wrote this week to James H. Perry, an Aspen resident who has requested that the city appoint an independent counsel to look into disclosure matters related to the Burlingame affordable housing project.
Perry said that if the city does not act on his request, he will take his complaint across Main Street from City Hall to the District Attorney’s office.
Perry’s request centers on a now-infamous, city-produced brochure titled “Burlingame Ranch Affordable Housing Development: Questions and Answers.” While most of the brochure is focused on density, sprawl and Burlingame’s effect on local schools and services, the last page lists the project’s “total costs” at $74.3 million. The number, based on a “sticks and bricks” construction estimate, did not include infrastructure, design and land costs — totaling tens of millions of dollars — that were known to the city at the time.
Since the discovery of what the city calls an embarrassing mistake and a “language error,” city officials have vehemently denied that costs were intentionally withheld in the brochure.
Perry, 50, who owns two properties in downtown Aspen and donated money to Rudolph Giuliani’s presidential campaign, has twice in the last seven days written Worcester to request an investigation. He points to the fact that the city had discussed higher total costs than what was published in the brochure well before 2005. Indeed, a memo dated Dec. 31, 2003, outlines four potential development scenarios, as well as their infrastructure costs and expected subsidy levels, which are in the $167,000- to $192,000-per-unit range. The brochure listed an expected per-unit subsidy of $62,522.
City officials say even though the city knew of the higher costs before printing the brochure, it doesn’t change the fact that the brochure was a “mistake.”
City Manager Steve Barwick lays the blame for the portrayal of partial costs as total costs on the fact in the months before the brochure, the city was in the business of comparing different affordable housing development scenarios on an “apples to apples” basis, meaning that “wild cards” — such as the infrastructure and land costs of a particular site — were not included in the analysis.
In one letter to Worcester, Perry cites a letter to the editor from Rachel Richards, now a county commissioner who was on City Council in 2005, in which Richards explained her theory on the language error.
“I believe excluding those cost components in the Burlingame informational pamphlet was an attempt by staff in 2005, however misguided, to create a picture of hard construction cost only because there were no easy comparisons available for the same soft cost (land and design) needed to develop an alternative 236 housing units on hypothetical scattered sites elsewhere,” Richards wrote in the June 9 letter.
“In the eyes of this concerned citizen of Aspen, it appears that City of Aspen officials and other interested parties were pushing this project forward, knowing full well, or had reason to know, that the information they were marketing to the voters was false,” Perry wrote.
In an interview Wednesday, Richards called this current flap “a low point for local politics.” She said the request for an investigation belies a political agenda to tarnish the image of affordable housing in Aspen, and to smear those who have fought hardest for affordable housing.
“It’s a witch hunt,” Richards said. “Some people out there won’t be happy until there’s a head on a pole at the castle gate.”
Her 800-word letter was intended as an apology for her role in not catching the bad brochure numbers, as well as an offering of her best explanation as to how the mistake might have happened, Richards said. Citing it as a justification for an investigation amounts to “trying to twist 10 words into an accusation.”
Richards also said she was interviewed by Worcester, who she said asked the tough questions about what she knew about the numbers. She added that, “In his best judgment,” Worcester agreed with her that nothing criminal had taken place.
Perry cites a section of the Aspen municipal code that bans disseminating false information “designed to influence the vote on any issue.” The municipal law is based on a similar state statute.
The city, pointing out that the March 2005 brochure contains no reference to the May 2005 vote authorizing Burlingame, says that the brochure’s purpose was strictly to inform the public about a major capital project the city was working on.
“City business doesn’t come to a halt because of an election,” Barwick said.
Perry’s not buying the assertion that the brochure had nothing to do with the election. “The brochure was meant to be disseminated to the voters, pure and simple,” he wrote in a e-mail. “What else would they make the brochure for? The brochure was not meant to influence the election (as required by law), but there was an education campaign.”
Worcester said one of the reasons he isn’t interested in pursuing an independent investigation, other than his belief that there was no wrongdoing, is that Perry’s charge would be particularly hard to prove. How, Worcester asks, do you prove someone’s intent was malicious in omitting information?
Although some have called for the city to move forward and focus on preventing similar mistakes in the future, Perry is troubled by the city’s reluctance to accept his request for an investigation.
“If there is nothing to hide, then why is there resistance from the city attorney?” Perry asked.
curtis@aspendailynews.com
