Despite a protest which was lodged and formal hearing last Friday, August 2, a hearing official brought in from Chaffee County at Salida, Colorado, has ruled that efforts by a committee to recall District 3 Hinsdale County Commissioner Stan Whinnery may proceed.
Over the weekend, Chaffee County Clerk & Recorder Lori Mitchell, in her capacity as Hearing Officer, reviewed testimony and cross-examination from a total of 13 witnesses at the August 2 protest hearing and on Monday, August 5, ruled the protests were insufficient.
In her ruling, Hearing Officer Mitchell concluded she “did not find by a preponderance of the evidence that petition circulators substantially mislead 24 persons who signed the recall petition.” She concluded her statement by saying, “The Hearing Officer determines that the recall can proceed and the DEO [Hinsdale County Clerk Joan Roberts in her role as Designated Election Official] shall set a date for holding the election under Colorado State Law.”
According to County Clerk Roberts, barring a timely challenge which may be filed with Hinsdale County District Court, the recall election to remove the three-term District 3 Commissioner from office will take place during an already-scheduled Hinsdale County Coordinated Election to be held Tuesday, November 5. In addition to a ballot asking registered county voters whether Whinnery should be removed from office, the coordinated election will include a ballot question asking voters whether Lake City resident Robert
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Hurd should be named Whinnery’s Successor Candidate for the District 3 Commissioner post.
The Coordinated Election will also include two state questions, according to County Clerk Roberts, and candidates for Hinsdale County School Board.
A possible wrinkle to the scheduled recall election is state statute which allows the incumbent, Whinnery, to resign from office. Unless a challenge is filed with Hinsdale District Court, Whinnery has up to next Monday, August 12, to tender his resignation. A long-time Hinsdale County Republican, Whinnery changed his party affiliation to Democrat on June 25 this year.
If he does resign, it would fall to the Hinsdale County Democratic Party’s Vacancy Committee to name a replacement to fill the remainder of his term. The Democratic Vacancy Committee — comprised of party officers Jennifer Rightsell, Grant Houston, Lorie Stewart, and Carol Robinson, and Henry Woods, Bill Stewart, and Ed and Mary Nettleton — have conferred in recent days on a potential District 3 Democrat to nominate in the event the sitting commissioner does resign.
If Whinnery remains in office, does not file a district court challenge and does not resign, the November 5 recall election will proceed.
A standing-room-only audience attended last Friday’s protest hearing in the commissioners’ meeting room in Coursey Annex.
Commissioner Whinnery was represented at the hearing by his legal counsel, Montrose attorney Martha Whitmore, before the designated Hearing Officer, Chaffee County Clerk & Recorder Lori Mitchell. Seated with Mitchell at the front table but making no comments during the hearing were Hinsdale County Clerk Joan Roberts and County Attorney Michael O’Laughlin.
In her opening remarks, the Hearing Official stated that in the hearing, per state statute, the burden is on the protesters to prove by a preponderance of the evidence that the recall petition is insufficient. “In this case the protesters will have to prove that at least 24 signatures on the petition were improperly obtained. This is the case because the minimum threshold of signatures needed for the certification of the petition is 145 and there are 168 signatures on the petition. The 145 signatures represent 25 percent of the entire votes cast at the last preceding general election.”
Again per state statute, Mitchell said that the grounds for the protesters to prove the recall petition insufficient include failure of any portion of the petition or circulator affidavit to meet requirements of CRS 1-12-101, or any conduct on the part of the circulators that substantially misleads persons signing the petition.
She added that either party, Whinnery or the recall committee, may appeal the Hearing Officer’s decision to Hinsdale County District Court.
On Whinnery’s behalf, Martha Whitmore called and administered oath to Robert Keith Chambers, Burton Earl Smith, Nora Roper Smith, Robert G. Quinn, and Michael Thomas Murphy, each of whom was identified as a protestor to the recall petition. Chambers, whose name was subsequently removed from the petition, testified that in collecting his signature, Ron Bruce had cited Commissioner Whinnery’s alleged malfeasance in awarding a bid to his brother-in-law in the courthouse renovation project. Chambers then signed the petition but later requested that his name be removed after contacting Commissioner Susan Thompson and former Commissioner Cindy Dozier, both of whom independently stated that the contract had not been improperly awarded.
In his testimony, Burton Smith — whose name on the petition has also been removed — stated that he had signed the petition while both he and the petition carrier, Ron Bruce, were standing on Federal property at Lake City Post Office. Signing the petition on government property, Smith stated, is a violation of Federal law. Smith also briefly alluded to the departure of county road supervisor Monte Hannah, which he said was the result of a decision by all three commissioners. Smith also cited SILVER WORLD letter from Tony Warren relating to his bid on the courthouse project which Smith said made him feel there was no basis to claims by the recall committee that the bid had been improperly awarded. Smith said he saw no basis for the claim hundreds of thousands of dollars had been wasted on the courthouse project.
In her testimony, Nora Smith acknowledged that she had never signed the recall petition, although she had witnessed “intense” discussion about the recall and the petition both in church and at the post office. Robert Quinn stated he had rebuffed requests by both Wally Hays and Ron Bruce for him to sign the recall petition. He said that based on his research, there was no validity to the claim of hundreds of thousands of dollars of taxpayer money which was wastefully expended on the courthouse project. Quinn also stated he researched the bid of Whinnery’s relative, Tony Warren, awarded on the courthouse property and which was accepted by Commissioners Thompson and Dozier, Whinnery recusing himself.
Michael Murphy testified that he, too, had not signed the recall petition, although he recalled a conversation with Alan Rae — not one of the petition carriers — in which the alleged misappropriation of courthouse funds was cited.
After a five-minute recess, Martha Whitmore called several additional witnesses, upper Cebolla resident Frances Yeager, who carried one of the petitions, Commissioner Susan Thompson, former County Commissioner Cindy Dozier, and Tony Warren.
Warren, Thompson and Dozier reaffirmed that Whinnery had recused himself from the vote and left the meeting room at the time the other two commissioners approved a ceiling-lowering bid from Warren on the courthouse project.
On cross examination by Diane Bruce, Commissioner Thompson was queried on a conversation she had at her home with Road & Bridge employee Don Menzies — Thompson affirmed — and whether she was aware of a September, 2011, newspaper article on Whinnery being charged for third degree assault against a Gunnison resident.
Diane Bruce, representing the recall committee, called several witnesses shortly before noon on Friday, among these former Hinsdale Sheriff Ron Bruce who stated that he had, in fact, voted for Whinnery in each of the last two elections. Bruce countered Burton Smith’s recollection that he had sought and obtained Smith’s signature while standing on post office property.
Ron Bruce also recounted emergency concealed weapon permits which he had allowed during his term as sheriff, in one instance two local residents who stated they had been threatened by Whinnery. Bruce stated that while he did have discussion with some signers on why they should sign the petition, the majority of those signing the recall petition “jumped at the opportunity.”
Former Hinsdale Road & Bridge Supervisor Monte Hannah was called by Diane Bruce and read a prepared statement refuting portions of prior testimony by Nora Smith which he said was based on a “commissioner work product” not available to the public. The county board’s “lack of transparency,” according to Hannah, “should be a concern to everyone.”
Also called to testify by Diane Bruce was retired Hinsdale Road & Bridge Supervisor Robert Hurd. Hurd described as a “win-win” for the county a proposal by upper Lake Fork seasonal resident Bruce Wagner to provide a rock crusher free of charge to the county in return for aggregate on the driveway to his house and to allow the county to stockpile gravel for future road work.
Hurd estimated that the Wagner offer was worth in excess of $100,000 to the county, yet was declined based on Whinnery’s reluctance to compete against private contractors.
A final witness called by Martha Whitmore near the end of the protest hearing was her client, Commissioner Whinnery. Described by Hearing Officer Mitchell as the “star of the show,” Whinnery stated he had never been asked to sign a recall petition. He recalled his role as non-paid general contractor on the courthouse project and reiterated that he had recused himself when the decision was made on a bid by his brother-in-law. He stated that he and the late county building inspector, Jack Nichols, took turns overseeing work on the courthouse project
Questioned by Whitmore and on cross-examination from Diane Bruce, Whinnery explained that county policy requires the chairman of the board to sign contracts and that his name appears on the contract to his brother-in-law, Warren, as chairman, although he was not present for either discussion or the ultimate vote on awarding that particular contract.
He affirmed that he had never “punched anyone” in a county meeting, nor had he threatened the life of Dan Murphy who, he said, he had grown up with and “always has my back.”
In his testimony, Whinnery said he objected to the repeated term “bully” used to describe him by recall advocates. Extreme passion, he said, can be interpreted as obnoxious or being a bully. “I’ve been elected three times because I don’t take no for an answer,” he said.
Diane Bruce declined to cross-examine Whinnery.
In closing, Whitmore asked the Hearing Officer to strike all signatures which appeared on recall petitions Nos. 1, 6, and 9 based on the manner in which the signatures were collected, Whitmore summing up the recall as a “personal feud”.
Diane Bruce, in her final remarks to the Hearing Officer, stated that the recall had been conducted carefully as the result of reading state statutes and numerous calls which were made to the Hinsdale County Clerk.
“There is a lot of emotion going on here,” said Bruce, “it’s not about emotion, it’s about specifics and facts.” Bruce referenced the five points specifically cited on the recall petition, failure to exercise fiscal responsibility, creating adversarial county employment environment, failure to effectively communicate with constituency, conducting himself in an appropriate manner to peers, subordinates and external persons, and dereliction of duty.