C I T Y O F B O U L D E R, C O L O R A D O

Office of the City Attorney

Municipal Building
1777 Broadway
Post Office Box 791
Boulder, Colorado 80306
Telephone (303) 441-3020
Facsimile (303) 441-3859

To: Jane Brautigam, City Manager

From: Erin Poe, Acting Deputy City Attorney
RE: Legal Opinion Robert Morehouse Complaint
Date: July 13, 2017
______________________________________________________________________________
INTRODUCTION
This memorandum is in response to your request for an opinion regarding conflict of
interest and contract compliance issues relating to Robert Morehouse and Vermilion, Inc.
(Vermilion). This memorandum assumes the facts presented to this office are true and that all
relevant facts have been presented. Omitted facts could greatly change the nature of this
opinion. Records prior to 2013 have not been provided to the City Attorneys Office. The
contracts available for review and the term of each are as follows:
1. Contract for Annual Consulting Services. January 9, 2013 January 31, 2017
2. Contract for Climate Commitment. July 2013 November 2013
3. Contract for Zero Waste Project. February 2015 October 2015
4. Renewal for Annual Consulting Services. January 1, 2015 January 31, 2015
5. Renewal for Annual Consulting Services. January 1, 2017 January 31, 2017
Vermilion, Inc. is a Colorado corporation that advertises services of brand development, digital
marketing, web design, packaging design, and environmental design. Vermilion has performed
work as a consultant for the City every year since 2005. The CEO for Vermilion is Robert
Morehouse. Mr. Morehouse is alleged to have lobbied city council on multiple occasions
concerning the citys efforts to municipalize the electric utility over the past four years. He is
alleged to have done this as a member of Empower Our Future which describes itself as a
coalition of community organizations, local businesses and individuals.

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 QUESTIONS
The following specific concerns were presented by a member of the public:
The citys contract for annual consulting prohibits Mr. Morehouse for advocating
around climate change and municipalization without express permission from the
City.1
Mr. Morehouse was awarded the contract for communications work for the
Chautauqua shuttle service while he is a board member of the Colorado
Chautauqua Association.2

1. Lobbying and Annual Consulting Contract

The Citys current annual consulting contract was entered into January 9, 2013 through
December 31, 2013. Section VII.C.2. of the 2013 annual consulting services contract states that
the consultant shall not, without the prior written consent of the City. . . Lobby any City agency
on any pending matter while they are under contract with the City . . . . The consultant is
defined by the contract as Vermilion, Inc. The 2013 annual consulting contact was renewed for
the period of January 1, 2015 through January 31, 2015 and January 1, 2017 through January 31,
2017.
Vermilion did not have written permission from the City to testify before council.
However, in 2013, Mr. Morehouse asked for more information about this provision and was
advised verbally by city staff that he could speak publicly about matters that were not included in
the scope of his existing contracts. None of the contracts with Vermilion included work on
Boulders Energy Future or municipalization.

In addition, it is alleged that Mr. Morehouse lobbied on behalf of municipalization as a

member of Empower Our Future and not as CEO of Vermilion. This does not constitute a
breach of contract, because the contract does not extend the prohibition on lobbying to
employees, officers or directors of Vermilion. Only Vermilion as an entity is prohibited from
lobbying. The 2015 and 2017 annual consulting renewals did not change the lobbying language,
and the 2013 climate commitment contract and the 2015 zero waste contract have identical
lobbying language.

2. Contract for Communications Work

Vermilion consulted regarding the Chautauqua Access Management Plan pilot (CAMP).
The work for the CAMP project was to develop: (1) Unique temporary branding for the Park to
Park shuttle, and (2) Additional print collateral to distribute information throughout the
community. Mr. Morehouse is a member of the board of directors for the Colorado Chautauqua

1
The annual consulting contract is in fact between Vermilion, Inc. and the City.
2
The contract for the Chautauqua shuttle service was also with Vermilion, Inc.

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Association, a 501(c)(3) Colorado nonprofit corporation. Mr. Morehouse is not a member of any
city board or commission.
The City of Boulder Code of Conduct establishes rules of conduct that apply to City
employees and officials. Mr. Morehouse does not fall into either of these categories. The
definition of public employee in 2-7-4, B.R.C, 1981, expressly excludes consultants who
have independent control over their work product. The Vermillion contracts provide for such
independent control and treat Vermillion as an independent contractor.3 Thus, neither Mr.
Morehouse nor Vermillion is subject to the citys code of conduct.
The Colorado Chautauqua Association is referenced by Vermilion in its scope of work to
note that if the CAMP project can be connected with a 501(c)(3) nonprofit, possibly CCA, we
may be eligible for the Google nonprofits program which includes a grant for up to $10k/month
in free paid search ads. Another possible reference occurs with a reference to additional
shareable social graphics will be designed for use by partner organization to help spread the
message along with email templates. It is possible that the Colorado Chautauqua Association
was an entity that would benefit from the shared graphics.
Because the Code of Conductis not relevant to this matter, I reviewed the citys
purchasing procedures for guidance. Section 2-8-8, B.R.C., 1981, Selection of Bids for
Consultants, Purchased Services and Insurance states:
In determining whether to accept a proposal for consultant services,
purchased services or insurance, the city manager shall determine, based on an
evaluation of all the proposals, which bidder best meets the needs of the city,
considering whether each bidder:
(a) Possesses adequate technical and financial resources to perform the
project or services or the ability to obtain the resources required for
performance;
(b) Possesses necessary experience, organization and technical skill in
the relevant fields or the ability to obtain them, including, without
limitation, arrangements with subcontractors;
(c) Proposes a reasonable approach to achieve the project or service
objectives;
(d) Has a satisfactory record of performance in developing and
implementing similar projects or providing similar services in other
jurisdictions; and
(e) Will perform the project or services at a reasonable cost, compared
with the level of effort to be expended.

3
This memorandum does not address whether Mr. Morehouse violated the Colorado Chautauqua Associations
conflict of interest policy.

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 There is no evidence that Vermilion fails to meet these criteria. Nor, is there any evidence
that city staff violated the Code of Conduct by awarding the contract. The implication is that city
staff is impermissibly favoring Vermilion. If city staff chose Vermilion to favor a personal
friend, that would be a violation of 2-7-8(f)(4), B.R.C., 1981. However, the fact that Mr.
Morehouses beliefs concerning municipalization align with City Council direction does not
create a violation of the Code of Conduct. The Code of Conflict does not prohibit awarding
contracts to entities that share the citys vision or values.

CONCLUSION

In the matter of Vermilion, the City Attorneys Office finds neither a Code of Conduct
violation nor a breach of the Vermilion contracts. However, the City Attorneys Office
understands how the lack of an informal bidding procedure to solicit quotes from similar
consultants could create the impression that city staff is favoring Vermilion for improper reasons.
The City Attorneys Office recommends that departments using Vermilion services work closely
with city purchasing staff to ensure that the purchasing codes and policies are followed. The
process for routing contract renewals to the City Attorneys Office should also be followed.