HomeMy WebLinkAbout22-39 Full & Final Release & Settlement Agreement with Committee Seeking Recall of Firestone Trustees 03-09-2022RESOLUTION N0.22-39
A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF
FIRESTONE, COLORADO, APPROVING A FULL AND FINAL RELEASE
AND SETTLEMENT AGREEMENT BY AND BETWEEN THE COMMITTEE
SEEKING THE RECALL OF FIRESTONE TRUSTEES AND JESSICA
KOENIG IN HER OFFICIAL CAPACITY AS THE TOWN CLERK OF THE
TOWN OF FIRESTONE COLORADO
WHEREAS, On August 23, 2021, the Committee Seeking the Recall of Firestone Trustees
("Committee") submitted recall petitions to the Town of Firestone's Town Clerk, Jessica Koenig;
and
WHEREAS, in accordance with C.R.S. 31-4-503, Ms. Koenig reviewed the petitions and,
on August 30, 2021, issued a Certificate of Insufficiency rejecting all of the petitions due to a
defect of assembly in that they were all bound merely by paperclip and that some of the petitions
contained signatures that post-dated the circulator's affidavit which demonstrated that contrary to
law the petitions had been disassembled; and
WHEREAS, after issuance of the Certificate of Insufficiency, Drew Peterson, Linda Haney
and Lou Ann Matthews submitted protests to the decision, and on September 8, 2021, Ms. Koenig
in accordance with C.R.S. 314-503(3)(b) issued a Notice of Protest Hearing to the Committee;
and
WHEREAS, the hearing was held on September 20, 2021, and after consideration of all of
the testimony and documentary evidence, Ms. Koenig on September 27, 2021, issued her decision
which upheld her original Determination of Insufficiency; and
WHEREAS, a primary reason for upholding her decision was that seventeen of the
petitions circulated by Mr. Peterson had non -sequential signature dates (meaning that signature
dates on a prior page of a petition which are required to be securely bound at all times would
postdate a signature on a following page) which was compelling evidence that the petitions had
been disassembled and thus separated from the circulator's affidavit and therefore invalid as a
matter of law; and
WHEREAS, Ms. Koenig further found that Mr. Peterson's explanation for the non -
sequential dates was simply not credible and exhibited a fundamental misunderstanding of not
only what constituted a petition but also of the importance of ensuring petitions were not
dissembled; and
WHEREAS, absent Mr. Peterson's seventeen petitions, the Committee did not have the
required number of signatures to proceed with a recall of any of the members of the Board of
Trustees; and
WHEREAS, on October 25, 2021, the Committee initiated an action in Weld County
District Court seeking to overturn Ms. Koenig's Determination of Insufficiency while also
asserting that Ms. Koenig had violated the Committee's right to initiate a recall election and their
rights of association, free speech and due process pursuant to 42 U.S.C. § 1983; and
WHEREAS, CIRSA the Town's insurer appointed counsel to represent the Town and Ms.
Koenig and counsel removed the case to Federal District Court and on the grounds that there was
not a legal basis submitted a Motion to Dismiss the Committee's 42 U.S.C. § 1983 First
Amendment Right of Free Speech and Right of Association claims and the Committee's 42. U. S.C.
§ 1983 Fourteenth Amendment Right to Due Process claim; and
WHEREAS, Counsel decided to remove the case to Federal District Court based upon his
experience that given their experience and depth of knowledge Federal Courts are a better forum
for consideration of constitutional matters; and
WHEREAS, additionally, as a matter of law, even if the Committee prevailed on its
challenge to overturn Ms. Koenig's Determination of Insufficiency absent prevailing on the
constitutional claims, it could not recover its attorney fees; and
WHEREAS, the Committee never filed a response to the Towns Motion to Dismiss the
constitutional claims but shortly after expiration of the due date for their response, the Committee
approached the Town's counsel with an offer of settlement; and
WHEREAS, though the Board of Trustees adamantly believes there exists overwhelming
evidence to uphold Ms. Koenig's Determination of Insufficiency, given that the Committee has
significantly reduced their financial demand and because the settlement amount is significantly
less than the cost of a trial and appeal and avoids the disruption to the Town Clerk's operations,
which would be necessitated by a trial the Board finds it's to the Town's benefit to bring this matter
to a close.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE
TOWN OF FIRESTONE, COLORADO:
The Full and Final Release and Settlement Agreement between the Committee Seeking
the Recall of Firestone Trustees and Jessica Koenig in her official capacity as the Town Clerk of
the Town of Firestone, Colorado Town of Firestone, is approved in substantially the same form
as the copy attached hereto and made a part of this resolution, and the Mayor and the Town
Clerk in her official capacity are directed to execute the Agreement on behalf of the Town.
INTRODUCED, READ, AND ADOPTED thisq�ftay of , 2022.
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FULL AND FINAL RELEASE AND SETTLEMENT AGREEMENT
This Full and Final Release and Settlement Agreement ("Agreement") is made and entered
into by and between the COMMITTEE SEEDING THE RECALL OF FIRESTONE
TRUSTEES ('Plaintiffl') and JESSICA DOENIG, in her official capacity as the Town Clerk
of the Town of Firestone, CoIorado ("Koenig").
WHEREAS Plaintiff and Koenig are the patties in a lawsuit pending in the United States
District Court for the District of Colorado, Civil Action No. 21-cv-03069-CMA-KLM
("Lawsuit"), arising from Koenig's rejection of several sections of a recall petition circulated by
Plaintiff on grounds that the sections in question showed evidence of disassembly in violation of
Colorado statutory requirements for municipal recall elections ("Dispute").
WHEREAS the Lawsuit's claims against Koenig in her official capacity is effectively a
suit against the Town of Firestone (the Town).
WHEREAS Plaintiff and the Town desire to settle the Lawsuit, and to enter into various
agreements related to the Lawsuit, the claims giving rise thereto, and all claims against Koenig
related to the Dispute.
THEREFORE, in consideration of settlement, the Town agrees to cause payment to be
made to Plaintiff, through its insurer, for a total amount of $12,500, delivered to counsel for
Plaintiff within ten business days fi•om the execution of this Agreement.
Furthermore, Plaintiff, the Town, and Koenig understand and agree as follows:
1. Plaintiff, on behalf of itself and its members (including Linda Haney), protestors
Drew Peterson and Lou Ann Matthews and its employees, agents, assigns and successors
("Releasors") hereby releases, acquits, and forever discharges the Town and Koenig, and any and
all other related persons and entities, both past and present, including current and former
departments, divisions, insurers, principals, attorneys, agents, employees, employers, contractors,
successors, elected officials, and officers, (collectively, "Released Parties") of and from any and
all liabilities, claims, insurance reimbursement or subrogation claims, demands, rights,
controversies, agreements, damages, actions, causes of action, expenses, attorney fees, interest,
compensation, judgment and any and all consequential and punitive damages, of whatsoever kind
and nature, either in law or in equity, which might exist with regard to all claims giving rise or
related to the Lawsuit or the Dispute.
2. Plaintiff and Koenig shall bear their own attomey's fees and costs associated with
the Lawsuit and Dispute. This Agreement is intended to and does release, acquit, and forever
discharge all claims for attorney's fees or other expenses which exist with respect to the Lawsuit
and the Dispute.
3. Releasors and the Released Parties covenant and agree that they will not bring any
action at law, proceeding in equity, administrative proceeding, or otherwise, nor prosecute or sue
one another by way of complaint, counterclaim, or by any other manner at all, relating to the facts
and claims asserted in the Lawsuit.
4. Releasors acknowledges that a portion of the consideration given for this
Agreement is being given for the full and final release of any and all unknown losses, claims,
injuries, costs, expenses, and damages which either may have occurred in the past and are not yet
known, or which may occur in the future and are not presently known related to or arising from
the Lawsuit or the Dispute. Releasors agree to voluntarily and knowingly assume the risk of any
mistake of fact, either mutual or unilateral, with respect to said losses, claims, injuries, costs,
expenses and damages, and shall not, under any circumstances, seek to present further claims
himself or on behalf of their agents, attorneys, heirs, executors, administrators, insurers,
successors, assigns, subrogees, subragons, and lienhoiders related to or arising from the Lawsuit
or the Dispute as against the persons and entities herein released.
S. Relcasors represents and warrants that no other person or entity has, or has had, any
interest in the claims, demands, obligations, and causes of action referred to in this Agreement,
except as otherwise set forth herein; that it has the sole right and exclusive authority to execute
this Agreement and receive the consideration specified in it; and they have not sold, assigned,
transferred, subrogated, or otherwise disposed of any of the claims demands, obligations, or causes
of action referred to in this Agreement. Releasors hereby agrees to fully indemnify and defend the
Released Parties against any claims which might be brought by any person or entity asserting any
such derivative right.
6. Upon execution of the Agreement, Plaintiff will take all steps necessary to dismiss,
with prejudice, the Lawsuit. Specifically, Plaintiff will dismiss, with prejudice, all claims asserted
against Koenig, each party to pay their own costs and attorney fees, pursuant to a Stipulated Motion
to Dismiss prepared by counsel for Koenig.
7. All consideration given for this Agreement is in full settlement of and is a
compromise of disputed claims and is not to be construed as an admission of liability on the part
of the Released Parties; and that any and all liability is hereby expressly denied.
S. Releasors have not relied upon any representations, express or implied, made by
Koenig or any of her representatives, as to the tax consequences of this Agreement and that
Plaintiff releases the Released Parties from any and all liability in connection with any such tax
consequences.
9. Plaintiff agrees to indemnify and hold the Released Parties harmless from any
claims, demands, liens and/or lawsuits by the Internal Revenue Service, any other governmental
agency, or any other creditor which may arise out of the consideration given for this Agreement.
10. No promise, inducement, or agreement not herein expressed has been made to
Plaintiff, that this Agreement contains the elitire terms of the agreement between Plaintiff and
Koenig to settle the herein described dispute, that the terms are contractual and not a mere recital,
and that this Agreement shall be construed according to the laws of the State of Colorado.
11. Every provision of this Agreement is intended to be severable unless otherwise
noted. If any term or provision hereof is declared to be illegal or invalid for any reason whatsoever
by a court of competent jurisdiction, such illegality or invalidity shall not affect the balance of the
terms and provisions hereof, which terms and provisions shall remain binding and enforceable.
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12. Plaintiff and Koenig have fully and carefully read this Agreement, have consulted
legal counsel, understand the contents thereof, and sign the same of their own volition.
13. This Agreement may be executed in two or more counterparts and shall be fully
effective when executed by all Parties. This Agreement may also be executed on multiple copies
via facsimile and shall be effective as if all signatures were affixed to one copy.
14. An electronically stored executed copy of this Agreement has the same force and
effect as the original.
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DATE
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APPROVED AS TO FORM:
Counsel for Plaintiff:
Scott E. Gessler
Counsel for Koenig and Firestone:
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Jo Marks
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COMMITTEE SEEKING THE
RECALL OF FIRESTONE TRUSTEES
f
TITLE
JESSICA KOENIG, in her official
capacity as the Town Clerk of the Town
of Firestone, Colorado
of Firestone
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-03069-C1\/IA-1-'-I 1VI
COMMITTEE SEEKING THE RECALL OF
FIRESTONE TRUSTEES,
Plaintiff,
V.
JESSICA KOENIG, in her official capacity as the
Town Clerk of the Town of Firestone, Colorado,
Defendant.
STIPULATION FOR DISMISSAL WITH PREJUDICE
Plaintiff Committee Seeking the Recall of Firestone Trustees (the "Committee") and
Defendant Jessica Koenig, in her official capacity as the Town Clerk of the Town of Firestone,
Colorado ("Koenig"), through their respective counsel, stipulate and agree as follows:
1. That the parties have reached a settlement in this matter and performed all
actions to effectuate the settlement, except for payment of settlement amount. The parties are
confident that administrative task will be accomplished shortly.
2. That this action and all claims that have or may have been asserted by each of
the parties herein shall be dismissed with prejudice, with each of the parties to bear its
respective attorneys' fees and costs; and,
3. That the parties respectfully request that the terms of this Stipulation be
approved and made an order of the Court.
FOR THESE REASONS, the court should approve the terms of this Stipulation and
make it an order of the Court, dismiss this action, and close the case.
Dated: March 14, 2022.
GESSLER BLUE LLC
s / Scott E. Gessler
Scott E. Gessler
7350 E. Progress Place, Suite 100
Greenwood Village, CO 80111
(720) 839-6637
sgessler(a)gesslerblue.com
Attorney for the Plaintiff
BERG HILL GREENLEAF RUSCITTI LLP
slJosh A. Marks
Josh A. Marks
1712 Pearl Street
Boulder, CO 80302
(303) 402-1600
jam@bhgrlaw.com
Attorney for Defendant
CERTIFICATE OF SERVICE
I certify that on this 1411, day of March 2022, the foregoing was electronically served
via CM/ECF on the following:
Josh A. Marks
Berg Hill Greenleaf Ruscitti LLP
1712 Pearl Street
Boulder, CO 80302
By: sl Joanna Bila
Joanna Bila, Paralegal
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