Kelly backed off in the face of the blustering councilman. "Well, maybe you can read what you know into the record at the hearing so all the councilpeople know, and then it would be okay," he responded. Gallagher looked incredulous; the thought of reading the results of 1,900 surveys into the record was a bit overwhelming, even for the garrulous former state senator.

And that survey information isn't the councilman's only problem. Even before he was elected to city council, Gallagher took part in a press conference in which he, former councilman Scheitler and then-state representative Rob Hernandez sharply criticized developer Biehl for allegedly considering placing a King Soopers and a Hugh M. Woods store on the site. After blasting the idea of large retail development, Gallagher intimated that a citizen's referendum would be forthcoming--hardly judgelike behavior.

The city attorney's office won't say whether Gallagher will be encouraged to recuse himself from the Elitch's proceedings. "I don't know exactly what he said at the press conference," Kelly says. "I don't think he knew enough about the application to prejudice himself at the time...I don't know."

Neither does Gallagher, who is appalled at the notion of being unable to represent his constituency because of issues he raised as a candidate. But he's not taking any chances. "I can't say anything to anybody," he says. "The Mount Airy thing won't let me."

He's not the only one confused by the matter. When asked to give his opinion on Elitch's before the July 7 briefing, veteran councilman Ted Hackworth freely complied, saying, "I wouldn't think running a commercial development all the way to the north would be acceptable."

City council president Deborah Ortega says she's unclear as to whether Mount Airy applies before a zoning application has been filed, but she's pretty sure it doesn't. "I think you're allowed to comment as long as there's not an application on file," she says.

Bob Kelly, meanwhile, says both Gallagher and Ortega are right. "Different people have a different factual involvement," he says. "Like judges. They can talk about issues as long as they don't know the facts. Gallagher knows the facts--that's why he can't talk."

The Mount Airy decision applies to a lot more than just gum-flapping. Kelly and Aviles explained at the briefing that the city council must remain impartial in rezoning matters, a standard the lawyers said could be jeopardized by evidence of a personal, financial or official stake in the matter at hand. In the case of Elitch's, the array of potential council conflicts is as dizzying as a Tilt-a-Whirl.

For starters, the City and County of Denver has long enjoyed a cozy relationship with Sandy Gurtler and his amusement park. In 1989, when the administration of former mayor Federico Pea floated a massive municipal-bond package that included $14 million in "infrastructure" for a relocated Elitch's, promotional buttons were distributed that read, "Vote for Elitch's--It's Denver."

That political camaraderie continued during the administration of Mayor Wellington Webb, when the city gave Gurtler an additional $15 million in loans and other bond revenue to finance his move to the Central Platte Valley. Seven million dollars of that care package came in the form of a loan from the Mayor's Office of Economic Development, which raised the money by pledging the city's future federal community-development block grant funds. That $7 million is backed by the old Elitch's as collateral. Which means that the city stands to inherit the property if Gurtler defaults on the loan. And it would theoretically stand a much better chance of recouping its $7 million if the property were rezoned for commercial use--a consideration that gives Denver a direct financial stake in the outcome of the rezoning.

If the same quasi-judicial standard that supposedly requires Dennis Gallagher and his colleagues to remain dumb (in both senses of the word) on zoning issues holds sway, the financial interest the council now holds in the old Elitch's could also be grounds for recusal. Not only Gallagher but every member of the city council would have to throw in the ethical towel in order to vote on the issue.

And the potential conflicts don't stop there. Andy Loewi, developer Biehl's attorney at the high-powered firm of Brownstein, Hyatt, Farber & Strickland, acknowledges that he has personally given money to the campaigns of Susan Barnes-Gelt, Ed Thomas and Cathy Reynolds--and helped raise substantial sums for Polly Flobeck, chairwoman of the council's zoning committee.

But John Bennett, the council's chief of staff, says it wouldn't matter if every councilmember had a conflict of interest. Under another legal rule, he says, they could go ahead and vote anyway. "The Rule of Necessity," Bennett says, "means that if a conflict of interest would make a vote impossible, you can still vote."

In fact, it's happened before. Back in 1986, then-councilman Sam Sandos tried to get the council to pass a "warranty of habitability" that required landlords to make sure their rented property was livable. At the time, eight members of the thirteen-member council were landlords and asked to be excused from voting. Assistant City Attorney Patricia Wells told them to vote anyway, citing the Rule of Necessity. Not surprisingly, Sandos's bill was voted down.

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