Did Mayor Ken retaliate against a whistleblower? That is the fundamental question and reason for the recall campaign.
The answer to that question is, absolutely YES.
The recordings and text messages below are just some of the evidence we have.
And not only did Mayor Ken conspire, but he led several other councilmembers to do it, too.
To explain the evidence we are providing here, let’s give you a timeline of events:
Philip Rodriguez was unanimously hired by the City of Brighton after a thorough, nationwide search and extensive vetting of his background and qualifications.
Mr. Rodriguez began working in City Hall after moving his family to Brighton. During this year, Mr. Rodriguez heard from many concerned residents and council member Matt Johnston about longstanding problems with water bills. He began to look into this issue in greater detail over the next several months.
Rodriguez placed Utility Director Curt Bauers on a performance improvement plan and insisted on utilities staff improving their performance and becoming accountable. He finds more serious deficiencies and that Director Bauers was the individual most responsible for the lack of accountability to the city manager and the public.
Mr. Rodriguez received his first annual performance review by Mayor Ken and the city council, scoring a 4.3 out of 5 out of 405 metrics, and earning a merit pay raise and additional benefits from the city. The vote was a unanimous 9-0 in favor of this positive review.
Mr. Rodriguez began work on his first full annual budget for the city of Brighton (the previous budget was created by then-acting city manager and current city council member Clint Blackhurst) with significant multi-million dollar budget shortfalls. Philip Rodriguez cut those shortfalls in half in less than two months, and was even publicly praised for doing so by then Mayor Pro-Tem Ken, mayoral candidate Kirby Wallin and mayoral candidate Wayne Scott.
During this process, Rodriguez began uncovering several other serious concerns with the Utility Department management, including a decade of unjustified water and sewer rate increases.
After delving into Utilities issues for a number of weeks, Rodriguez discovers $70 million in unspent and unbudgeted money in the Utilities Department. He fired Curt Bauers with cause, tells all utilities staff that he will not allow rate “gouging” to continue and would demand increased accountability, and then immediately alerted Mayor Ken and city council about the severity of his discovery. Each council member was offered personal briefings about his findings and concerns at the advice of the city attorney.
All but two council members agreed to be briefed – Lynn Baca and Clint Blackhurst refused. Mayor Ken was individually briefed for many hours by Mr. Rodriguez over three days, on September 17, 18, and 19.
Mr. Rodriguez also learned from the state that the city failed to conduct the required yearly financial audit under then-interim city manager Clint Blackhurst. He immediately takes action and requires staff to conduct an expedited financial audit.
Late September 2018
Council member Matt Johnston reported to his constituents via social media that it appears there have been pricing issues and billing errors in the Utilities Department, and informed the residents of Brighton of the discovery of the surplus funds.
September 28, 2018
Mayor Ken is notified by ICMA (International City/County Management Association) that past city manager Manuel Esquibel is publicly censured due to his unethical conduct while at the city and is banned from the largest professional organization for city managers in the world. Mayor Ken pressures the Brighton Blade to not run an article about this information and they oblige based on their close personal relationship with Mayor Ken.
October 2, 2018
At the end of a regular City Council meeting, Mayor Ken took the council into an illegal executive session (using a 5-4 vote instead of the legally-required supermajority of 6-3), and threatened Mr. Rodriguez’s job for the disclosure of the funds and the termination of Curt Bauers. Mayor Ken claimed he “has the votes” to terminate and flatly tells Rodriguez to quit or be fired. The plan is to vote to terminate Rodriguez immediately at the end of the council meeting if Rodriguez did not resign first.
The city attorney drafts and sends Rodriguez a canned resignation letter and continues to edit it without Philip’s knowledge while they sat at the dais. Mayor Ken prepared beforehand to appoint Marv Falconburg that night as the interim city manager, and Marv had already agreed, all behind the back of Philip Rodriguez and in violation of the City Charter.
The audio provided here is from the illegal Executive Session on October 2.
You can hear Mayor Ken call it to order, council member Matt Johnston rebukes Mayor Ken and warns the council that this attempt to terminate Rodriguez is retaliatory in nature for the disclosure of the utilities surplus money. You then hear city attorney Jack Bajorek tell the city council about his own serious concerns over Curt Bauers, followed by council member Clint Blackhurst defending Bauers, his personal friend and hand-picked protege in the Utilities Department.
This meeting took most of the council by surprise. The majority had not heard of any performance issues, especially considering they had just given Rodriguez a stellar review and an increase in pay for his good performance only a few weeks before. Blackhurst appeared motivated to retaliate because Bauers was a personal friend and his own successor in the utilities department.
Matt Johnston alerted the residents and local media of the attempt to fire Rodriguez over the newly-discovered funds that he and Mayor Ken had been briefed about, and asked the public to attend the next council meeting. Mr. Rodriguez’s job was spared largely because of the sudden public pressure that night, and that Mayor Ken could not secure one of the votes he claimed to have in his pocket.
Although Mayor Ken was on council for 6 years, including Mayor for 2 and Mayor Pro-Tem for 2 more, he claims to Fox31 he had no idea what the city and state laws were for calling an executive session:
Colorado law provides strict rules for the use of Executive Sessions, specifically to prevent public servants from abusing them to keep otherwise public matters secret.
Any time an executive session is not properly convened, it is an open meeting subject to the public disclosure requirements of the Open Meetings
Law. Gumina v. City of Sterling, 119 P.3d 527 (Colo. App. 2004).
Entering an Executive Session illegally, which Mayor Ken admits he did, voids the special protections of that meeting, and makes it a regular session, open to public participation and with strict requirements for retention of the meeting’s recording.
However, the City of Brighton, even after being told the session was illegal and to retain the recordings, destroyed them.
Within days, Philip Rodriguez proposed a “75-Day Work Plan”, an action plan to begin to resolve the many problems he discovered in the Utilities Department. This plan met with council approval; although his newfound antagonists on the council began speaking out publicly of their displeasure of Rodriguez and his plan.
December 2018 / January 2019
In creating the audited financial statements for the City of Brighton for 2018, Mr. Rodriguez and his newly appointed Director of Finance found 67 instances where the numbers being reported from within the city were wrong and were carried forward for years. This resulted in 67 restatements having to be done before the audited statements could be finalized.
Philip Rodriguez finds a number of additional, longtime deficiencies in the organization, and learns that assistant city manager Marv Falconburg is working with Mayor Ken and a few select council members behind his back to circumvent his leadership as city manager. Rodriguez places Marv Falconburg on a performance improvement plan and notifies him that he needs to resolve years of outstanding issues and to follow the City Charter.
Upset by having his performance called into question, Falconburg begins appealing to Mayor Ken to protect his job, an action that violates the City Charter and fractures Rodriguez’s leadership as city manager.
Mr. Rodriguez became so concerned over the serious financial discrepancies all over city hall, combined with the determination by Mayor Ken not to look into or resolve any of them, that independently, he informed state and federal authorities of his concerns as a private citizen, becoming a state- and federal-level whistleblower.
June 25 & 27, 2019
Mr. Rodriguez starts preparing council for the upcoming reality that they most assuredly will have to significantly reduce water and sewer rates as the rate study he began as part of his 75 Day Work Plan was drawing to a close. This required rate reduction would prove that residents had indeed been gouged for many years.
July 2, 2019
Mr. Rodriguez presented his findings on the Water Department and the $70 million surplus to city council and the residents of Brighton. After failed attempts to convince Mayor Ken and his allies on the council, Rodriguez publicly called for a forensic audit of the Utilities Department. Under intense public pressure, the council agreed and voted 8-0. During this meeting, Mayor Ken claimed to have “just found out” about the surplus funds (even though he received 3 days of briefings nearly a year earlier), in addition to many more over the previous seven months.
Mayor Ken states he has always supported a forensic audit, but this is a false claim. In an attempt to convince others to not vote for a forensic audit, Mayor Ken says to the council in meetings on both 10/23/2018 and 5/21/2019, “And we will do ourselves nothing but harm to when we go to the past. Let’s look for facts to make the future brighter. Let’s not look for trash to make our streets dirtier”. Conducting a forensic audit in Mayor Ken’s view, would cause harm and “dirty” the city.
Mr. Rodriguez also told the public that his job had been threatened before for making his findings public, and although he knew he was risking his job to do it, he felt the public had a right to know. Audience members in attendance told the council that any move to retaliate against Rodriguez would be met with a recall.
In a second session of council that same night, and at the proper request of two sitting council members, Greg Mills and Matt Johnston, it was reported to the entire council that Rodriguez had been pressured for a job in the city government for months by council member Lynn Baca, a direct and serious violation of city law.
Mayor Ken acknowledged that he had indeed been informed for more than a year but took no action because he’s “not the disciplinarian of the council.” He willfully hid it from at least four of the city council members and did not believe it was in their interest to know about the complaints from Rodriguez, even though they too were his supervisors. Council member Baca initially does not deny that the claims are true but instead highlights the technicality that it is outside the statute of limitations. This is also a repeated message in texts between Lynn Baca and JW Edwards preparing for the meeting.
Council member Clint Blackhurst was absent from both sessions.
Later that night, Mayor Ken text-messaged Clint Blackhurst, telling him he missed “a sh*tshow” and said, “We need to mobilize for next week.” That text message is here.
Mayor Ken later asked Blackhurst for contact numbers for the now 10-months fired Utilities Director Curt Bauers, which Blackhurst provided.
July 3-8, 2018
A flurry of behind-the-scenes “mobilization” was taking place between Mayor Ken and the four council members who would later vote in lockstep with him.
This text message from Mayor Pro Tem JW Edwards to council member Lynn Baca, for instance, asking on behalf of Mayor Ken if she will add her name to the list of members calling for a “special meeting” the Mayor planned for July 9, to begin the process to fire Rodriguez yet again. Baca replied, “Yep – if we are going to lock arms on this – we might as well start out that way.”
July 8, 2019
Mayor Ken sent a letter to the remaining four members of council declaring a special meeting for the very next day, with no further information or context. The only item on the agenda is to suspend Philip Rodriguez and place his termination on the agenda for the regular meeting on July 16.
In the letter, Mayor Ken states plainly, “Having conferred independently with council members JW Edwards, Clint Blackhurst, Mark Humbert, and Lynn Baca…”, admitting in black and white that he conducted an illegal process and unethical political ploy called a “walking quorum”, wherein he directly obtained the votes of other council members on official city business outside of a lawful assembly. Behind the public’s back, these same four council members would “lock arms” with Mayor Ken, as Baca described, and be the voting bloc that would eventually fire Rodriguez without cause.
No reason was ever given to the other four members of the council.
Assistant city manager Marv Falconburg was mentioned by Mayor Ken as taking control of the city immediately upon Rodriguez’s suspension, something they had tried but failed to do back in October.
July 9, 2019
In a packed and very contentious City Council meeting, Mayor Ken initiated the vote to suspend Philip Rodriguez, despite several pleas from the public in attendance, to wait for the forensic audit to conclude before taking any action against a whistleblower. Mayor Ken and these same four council members: JW Edwards, Clint Blackhurst, Lynn Baca, and Mark Humbert, voted as previously promised to each other, to suspend Rodriguez and place an item to terminate him on the July 16 meeting agenda. The only answer ever given as to the reasons the suspension was taken, according to Mayor Ken, is “a personnel matter”.
Marv Falconburg was installed immediately as acting city manager.
July 10, 2019
Council member Clint Blackhurst began appearing in local media, claiming that he had personally talked to “over 100” city employees about their now-suspended boss, in violation of City Charter about the separation of powers between council members and the city manager – a direct violation of the Charter he swore to uphold. Mayor Ken maintained that he cannot discuss “personnel matters”.
He did, however, reluctantly admit to Fox31 that Philip Rodriguez deserved the credit for finding and exposing the $70 million fund, even as he led a coalition of council members to oust him:
July 16, 2019
With all of Denver media and a record audience of residents in attendance, Mayor Ken and the four council members “locked arms” again and voted to terminate Philip Rodriguez, officially and on the record as “without cause”. The four dissenting council members again stated that they had no idea why this action was being taken.
This move cost the residents of Brighton more than $150,000 in severance and leave pay to Rodriguez and risks hundreds of thousands more in litigation for wrongful termination and violations of Rodriguez’s contract terms.
The recall movement began that evening in the parking lot of City Hall and obtained over 300 signatures and 45 volunteers during this meeting.
- July 17, 2019
The morning after Rodriguez’s termination, acting city manager Marv Falconburg hired Webb Strategic Consultants without following proper and lawful bid procedures to begin to combat the recall effort on behalf of Mayor Ken, and the fallout from the utilities department problems on behalf of the city.
To date, the city has spent in excess of $27,000 of taxpayer money on this firm, with more bills coming.