Mystery agenda perplexes critics of U.S. 36 construction finance deal


The new private consortium that has been granted the right to finance construction and charge a toll on U.S. 36 could be operating illegally.

That’s according to Karen Hammer, an attorney with the Drive SunShine Institute, a group that envisions a world where Colorado’s highways produce a lot less air pollution. Hammer says the 50-year deal allowing millions of dollars in tax-exempt bonds to be issued could be slowed or halted for myriad legal reasons and the public officials supporting the plan are to blame.

“The lawsuit is coming,” Hammer says, promising, “We’re going to court.”

The suit is expected to take issue with environmental impact studies allowing construction on U.S. 36 of a lane for buses, carpoolers and drivers paying a toll of as much as $6.

The suit may also allege that High- Performance-Transportation Enterprise’s (HPTE’s) board of governor appointees and state transportation commissioners illegally made changes to a critical Feb. 19 meeting agenda.

As evidence, Hammer produces a web snapshot taken roughly three days before that meeting. It states HPTE would hold a “lunch meeting” at noon and start its “Regular Board of Directors Meeting,” including a discussion about U.S. 36, at 1 p.m. Yet, on the morning of that meeting, Hammer was stunned to see the agenda had changed. The new agenda stated the meeting, including discussion of “U.S. 36 matters,” would begin an hour earlier, at noon.

Clearly, Hammer alleges, HPTE was trying to avoid the scrutiny of the public, especially her clients. That’s a violation of Colorado law requiring “full and timely notice” of public meetings, she adds.

But making the case for her side of the story, especially to the HPTE board, has proven more than challenging. When Hammer objected about the agenda during the meeting, video shows she was shushed by HPTE Chairman Tim Gagen and told to sit down because she was talking out of order. The board was conducting a “work session,” she was told, even though such a session is not specified on any version of the agenda.

When Hammer later attempted to testify during the period the board officially grants members of the public, she ran afoul of Gagen again. At his behest, the Colorado State Patrol ushered Hammer and two members of the Drive SunShine Institute out of the meeting hall.

That’s because Hammer violated board processes, claims Amy Ford, a spokeswoman for the Colorado Department of Transportation. Specifically, Hammer failed to sign up on the comment sheet, Ford says. Hammer says she simply wanted to speak for one of her clients, who had signed up.

“It was real unfortunate that had to happen,” Ford says, adding that she believes Drive SunShine Institute’s pending lawsuit has no merit. Environmental impact studies are definitive and thorough, Ford says, the product of a six-year-long process. As for Hammer’s agenda concerns, Ford says: “We convened the official board meeting at 1 p.m., at which point we opened it to public comment.”

That’s what the original agenda stated would happen. And that’s the agenda that anyone who visits the HPTE website will now see, which leaves Hammer wondering how a “lunch meeting” of public officials becomes a critical discussion setting the stage for $497 million in bonds to be issued in Colorado’s firstever “public/private partnership.”

Hammer would also love to find out what happened to that mysterious agenda that appeared and suddenly disappeared when she complained.