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Sunday
Feb172013

City of Fruita - A Home Rule Municipality Run by Impersonated Public Officials???

In recent communications with the City of Fruita, VetTheGov learned that the entire City of Fruita City Council, City Manager, City Attorney, Police Chief, Municipal prosecuting attorney, and the Judge have never SUBSCRIBED and FILED their required Oath of Service/Office as stated in their own municipal code!!! So there is no confusion going forward here is the definition of SUBSCRIBE from the Black's Law Dictionary free online Legal Dictionary 2nd Edition: In the law of contracts. To write under; to write the name under; to write the name at the bottom or end of a writing.

The Municipal codes in question are 2.44.010, 2.04, and 2.28.090.

2.44.010 OATH OF SERVICE

Before entering upon the duties of their respective office, each of the officers named in Chapter 2.04 shall take and subscribe the following oath:

"I,_________________________________, do solemnly swear that I will support the constitution of the United States and of the State of Colorado and that I will well and faithfully discharge and perform the duties of the ________________________________ of the City of Fruita, to the best of my skill and ability: So Help Me God." (Ord. 28 Art. 1, S4 (part), 1907)

Notice the word Before at the beginning of the Municipal code and the word Subscribe that are two very important parts of this Oath requirement. Typically the Subscribed Oath's are then filed with the City Clerk! VetTheGov received an email from the Clerk when requesting these Oath of Service documents and was informed that no Oath of Service's were on file for any of the named Office positions above. VetTheGov was informed that these Officer positions have only taken ceremonial Oath's and never Subscribed an Oath of Service and nothing is on file with the City Clerk's Office. In speaking with Clint Kinney City Manager, he stated he was not required to take or subscribe an Oath of Service since he was appointed and contracted by the City Council. If you are a resident in the City Limits of Fruita, wouldn't you have expected the CEO of your city to uphold the United States Constitution, the Colorado Constitution your city is chartered under, and finally your local Municipal codes that the CEO is in direct charge of making sure they are adhered too??? In section 4.05 in the City of Fruita Charter it specifically calls the City Manager Chief Administration Officer and in section F of the same paragraph gives the City Manager direct authority to see that all laws and provisions of the Charter and Code are properly performed.

The City Manager also believes if he hires or contracts someone out of his office they work for him directly and not the Citizens of Fruita and therefore not required to take, subscribe, and file an Oath of Service. The City Manager specifically noted this in regards to the municipal prosecutor position. The City Manager advised VetTheGov that the Municipal Prosecutor is a contracted position with his office and not required to take an Oath of Service, yet in the municipal prosecutors contract it specifically states the contract is with the City of Fruita and the attorney being contracted as the City's attorney. Municipal Court documents also state that the City can use the City Attorney against you in court. The Municipal prosecutor represents the People of Fruita along with People of the State of Colorado, yet no requirement to uphold the Constitution or much less the City municipal codes they enforce in court. The Colorado Bar issued the following statement in an Ethics opinion regarding attorney's working for a Public Entity: "A lawyer representing a governmental body assumes certain responsibilities of a public or quasi-public official and thus, having the same ethical responsibilities as a public official."

This behavior and thought process cannot be tolerated or the City will continue to forge its given power against the will of its people who give it to them! If left unchecked by the Citizens of Fruita, this behavior will only exacerbate itself at a huge cost to the taxpayers inside the City Limits! 

For the Citizens of Fruita, the law of Colorado typically recognizes the positions that did not meet the requirements in taking the offices in question as Vacant. This is very serious when you have a City Council, the City Manager, City Attorney, the municipal prosecuting attorney, the Judge, and the Police Chief making decisions and enforcing Municipal Codes for your City potentially seen as Vacant. If these aren't specifically spelled out in your Charter then the Colorado Constitution becomes the authority on what constitutes a Vacancy. This question was raised to the Texas Municipal League regarding Oath of Office and since the City of Fruita is a member of the Municipal League it might behoove the City to seek some additional help in defining the word Subscribe in regards to Oath of Office, although the document states to refer to the City Attorney who also must Subscribe an Oath and hasn't! Will make for an interesting opinion! If positions are considered Vacant, then are all the Officers and Appointed Officers Impersonating Public Officials or Peace Officers in their current roles??? Again will make for an interesting opinion! The City of Fruita Charter specifically states if a Council position is found Vacant the Council has 60 days to fill the Vacancy. But what if all the positions are considered Vacant? Can you see the dilemma? 

In a recent records request, VetTheGov was provided only one Oath of Service and it was from a police officer with the City of Fruita but nothing for the City attorney's, Chief of Police, or the Judge. In the attached Oath of Service the City only shows the Oath was administered never Subscribed by the actual person taking the Office!!! In the response from the clerk she states, "There are no written oaths for Judge Brown and Chief Angelo. They gave their oaths at a public City Council meeting. The minutes of the Council meeting are an official record of their promise, or subscription, to the oath." Debra Woods, Deputy City Clerk City of Fruita 325 E. Aspen Ave. Fruita, CO  81521 (970) 858-3663 (970) 858-0210 (fax). VetTheGov spoke with a former Elected City Council official who stated he never Subscribed the Oath of Office only a ceremonial one at a Council meeting! It appears the Judge is appointed and offered a contract every one or two years, so a question surfaces of wouldn't the Contracted Judge be required to Subscribe the Oath of Service every contract interval??? This opens up a huge can of worms for any decisions the contracted Judge would have made during their contracted tenure with no Oath of Office/Service on file! Interesting to note the current City Judge is also a traffic defense attorney. VetTheGov asked the City Manager what checks and balances were in place to make sure there is never a conflict of interest with the Judge. The City Manager's answer was there are no checks or balances in place, only trust in the Judges personal integrity. 

VetTheGov wanting to make sure this is a requirement across the Grand Valley looked into other Home Rule Municipalities such as the City of Grand Junction and The City of Delta. VetTheGov even communicated with the City Attorney for the City of Grand Junction who confirmed they require every Officer of the City (Elected and Appointed) as well as every employee take and subscribe their Oath of Office and file it with their City Clerk. The question arises as to why the City of Fruita doesn't feel the need to meet this same requirement noted above in their Oath of Service? 

99. Oath of Office. City of Grand Junction, CO

Every officer or salaried employee shall, before he enters upon the duties of his office, take, subscribe, and file with the clerk an oath or affirmation to support the Constitution of the United States, the Constitution of the State of Colorado, and the Charter and ordinances of the City of Grand Junction, and faithfully to perform the duties of the position upon which he is about to enter.

138. Oath of Office--Bond-City of Delta, CO. Every officer or salaried employee shall, before he enters upon the duties of his office, take, subscribe and file with the Clerk an oath or affirmation to support the Constitution of the United States, the Constitution of the State of Colorado and the Charter and ordinances of the City of Delta, and faithfully to perform the duties of the position upon which he is about to enter. Any officer or employee required to give bond shall not be qualified for his office or appointment until such bond has been duly approved by the Council and filed with the Clerk who shall have custody thereof.

Citizens of Fruita as shown in your City's organizational chart could this mean in the Court's opinion that all decisions ever made without fulfilling the City's Oath requirement be considered erroneous? Could this mean litigation and challenge for any of these previous decisions the City Council or City Officers implemented are invalid? It definitely leaves open the opportunity for challenge! Citizens of Fruita it is time for you to look under the hood and make sure your Elected and Appointed government servants are meeting the requirements set out in your Charter and your Municipal Codes. Citizens of Fruita its time to make sure your Charter reflects the conditions you want your Elected and Appointed leaders to follow! VetTheGov believes if they won't adhere to your own local codes by subscribing to your required Oath of Service, then it must be that they really don't feel obligated to uphold these foundational principles on your behalf! Citizens of Fruita you deserve better!

VetTheGov has reached out to the City Council and the City Manager, as they are now well aware of this situation. Hopefully they will make this right for the Citizens of Fruita's sake!!! Thomas Jefferson said, "At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account." 

Reader Comments (4)

I would ask this question: have any past holders of these positions SUBSCRIBED and FILED their required Oath of Service/Office as stated in the municipal code? If there is a history of others doing as is required, then you may have a case. If there is no history of others following what is written in the code, then that is a whole other animal.

February 18, 2013 | Unregistered CommenterRockyMtnMarine

RockyMtnMarine Did you click on the link Oath of Service in this paragraph? In a recent records request, VetTheGov was provided only one Oath of Service and it was from a police officer with the City of Fruita but nothing for the City attorney's, Chief of Police, or the Judge.

If you do it proves at least one officer subscribing the Oath of Office but his own police chief never has! Records directly from the Clerk's Office!

February 18, 2013 | Registered CommenterVet the Gov

I meant checking the past for other City Attorneys, Chiefs of Police, etc. If others who went before these folks HAVE subscribed and filed their oath, then they should too. If others in the past HAVEN'T done it, then you can't fault them for not following the code since no one else has. Keep up the good fight!

February 18, 2013 | Unregistered CommenterRockyMtnMarine

Thanks RockyMtnMarine they have a 30 year attorney who invokes Oath requirements at quasi-public hearings per the municipal code but doesn't understand the legal definition of SUBSCRIBE when it comes to their Oath of Service. Not sure that no one else has ever done it rule could apply, but won't be surprised by the PR campaign on this issue to use the excuse!

February 18, 2013 | Registered CommenterVet the Gov

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