Motion to Disqualify Mr. Sharp and Strike the Sharp Tubing Statement

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Affidavit of Counsel that is filed concurrently with this motion. In ruling on this motion and the affidavit submitted herewith, the CWCB's duty, and Mr. Sharp's duty, is to "eliminate every semblance of reasonable doubt or suspicion that a trial by a fair and impartial tribunal may be denied." Johnson v. District Court, 674 P.2d 952, 956 (Colo. 1984). 7. Under the authority set forth above, Mr. Sharp's long association and continued service with the Upper Yampa Conservancy District is by itself a sufficient basis to compel his disqualification. That conclusion is unavoidable in light of his Statement on the tubing experience at the City's RICD structures, which goes directly to a disputed factual issue in this matter. He simply cannot sit as a judge, as president of the governing board of a party opposed to the City's RICD claim, and as a witness in the same quasi judicial SB- 216 proceeding. Moreover, any use or consideration of Mr. Sharp's Statement in the proceedings before the CWCB creates an untenable conflict for the entire CWCB Board. The Board should not be asked to weigh the credibility of evidence offered by a fellow Board member. More importantly, the citizens of the City should not be left to question whether, given the association between Board members, evidence offered by one member might be given special and unwarranted weight by fellow CWCB Board members. Basic due process and the unmistakable force of the authority set forth above require that the City not only receive a fair and impartial hearing on the merits of its RICD claim, but also the appearance of a fair and impartial hearing. Resolution of this obvious conflict of interest requires either the disqualification of the entire Board, or that the Statement, and any and all references to the Statement in the prehearing statements filed in opposition to the City's RICD claim, be struck from the record. Because the Board is required to review this matter under SB-216, the latter option is the only viable alternative. 9. The Upper Yampa Conservancy District and the other proponents of the Statement will not be prejudiced in anyway if the Statement is struck because evidence on the recreational experience for tubing at the RICD structures at issue is available from any of the literally tens of thousands of people that tube at the structures every year. If there is any merit to the facts and opinions offered in the Statement, surely the parties seeking to introduce such evidence can find witnesses that are not also members of the CWCB Board. Tm1415 -3-