September 2007

The public's right to know: E-mails, open meetings among isues that prompt conflicts

By Gail Binkly and David Grant Long

Mumbled conversations. Executive sessions for questionable purposes. Workshops where more gets done than in formal meetings. E-mail exchanges in which decisions are tacitly made.

There are many ways elected officials can skirt public scrutiny, if they choose to. At one point or other, many of the main governing bodies in the Four Corners have probably been accused of employing such techniques.

But, in truth, officials rarely need to bother trying to hide their deliberations and actions from the public – because the public isn’t paying attention anyway.

Do local citizens even care what governmental entities are doing? And when they do, can they readily find out?

No matter whom you ask, you’ll get a different answer.

An open window

Sheila Wilson of Cortez still remembers the evening in April 2000 when she stood outside an open window at Southwest Memorial Hospital in Cortez and wound up in a lot of trouble.

Wilson, then a candidate for the Montezuma County Hospital District board, was annoyed because she believed the current board had just gone into an illegal executive session. Two topics had been announced for the session, one of which concerned a request for an easement across hospital property to a doctor’s office that was yet to be built.

The doctor in question had written a letter to the MCHD board and a copy had been sent to the city of Cortez. Wilson herself had a copy, she said.

When the executive session was called, the audience — which was fairly sizable — went outside. However, the window to the meeting room was open and Wilson was able to hear much of what was being said.

“I was standing outside talking to four or five people and I could hear it,” she said. “They didn’t talk about anything that wasn’t public knowledge. How did I have a copy of the letter if it wasn’t public knowledge?”

She later wrote to the Cortez Journal accusing the board of having an illegal executive session. In her letter, she admitted she heard the discussion “through the window” and from “behind the wall.”

Controversy erupted. Some members of the board, and its attorney, maintained the session had been held in accordance with state law and that Wilson should perhaps be charged with deliberately eavesdropping on a governmental entity’s executive session, a felony.

In an editorial in the paper, Wilson was labeled “undoubtedly paranoid” and “overly dramatic.” She lost her race for the hospital board. Shortly afterward, she suffered a major heart attack that “left me with less than half a heart,” she said.

Now, Wilson says, she washes her hands of politics. “When you start losing parts of your heart, you use your head,” she said. “I’m just enjoying life with my husband.”

E-mail messages

Conflicts between citizens and government over open meetings or access to records rarely take such a dramatic turn, but they can be heated.

State law delineates what types of meetings are public, when and how notice should be provided of those meetings, and when it’s acceptable to go into executive (closed) session. The law also specifies which records are open to public review.

Beyond questions of legalities, though, there are broader issues surrounding the ways in which government entities make their doings accessible. What happens in official public meetings, whether open or closed, is only the tip of the iceberg of government operations.

For example, e-mail messages are emerging as a murky but significant issue.

This summer, an open-records request involving e-mails by commissioners in three different counties has stirred up controversy.

Luke O’Dell — until recently the executive director for the Republican Study Committee of Colorado — demanded to see several years’ worth of e-mails to and from San Miguel County Commissioner Art Goodtimes, all three Gunnison County commissioners, and Garfield County Commissioner Tresí Houpt. Goodtimes is a member of the Green Party, and the other four are Democrats.

O’Dell wanted to see all the e-mails involving public business, not regarding any topic in particular.

San Miguel County said it spent $2,300 researching the request and wants to be paid before handing the emails over, although it offered to make them available for review for free if O’Dell came to Telluride.

Garfield County said it wanted $3,700 before even researching the material.

Gunnison County, however, sent O’Dell the e-mails for no fee, even though the county attorney said the research had required about two weeks’ worth of staff time.

In a column for the Telluride Watch, Goodtimes discussed the matter, saying that O’Dell’s request would likely bring more clarity and openness to issues around e-mail correspondence. He said San Miguel County may soon begin publishing its commissioners’ emails on its web site.

However, he wrote, O’Dell’s “unfocussed ‘all the emails for the last 5 and half years’ aspect of this CORA [Colorado Open Records Act] request seems excessive. . . . I really don’t like the idea that a citizen from the Front Range with an axe to grind . . . can make taxpayers in Western Slope counties foot the bill for an email assembly process that costs several thousand dollars, at the least. That’s the amount we grant annually to many of our local non-profits to help them in their community missions.”

O’Dell wrote an “open letter to the people of Colorado” on Aug. 21, stating that, “For decades liberal operatives have used open-records requests as a tool to wage bureaucratic war against those with whom they disagree” and that he wanted to “test the principles of democracy” by seeking the records.

He said he couldn’t pay to get the records from Garfield and San Miguel counties but did not explain why he couldn’t go to Telluride to view those for free.

No requests

State law in Colorado says e-mails by elected officials involving government business should be available. However, the vast majority of those emails go unseen because no one ever asks to view them.

Ashton Harrison, Montezuma County administrator, said the county commissioners don’t even have public e-mail accounts, though other elected officials such as the clerk and treasurer do.

“The first time I ever e-mailed [the commissioners] was last week with the agenda and map for the CCI [Colorado Counties Inc.] meeting,” he said.

Harrison said the county hadn’t received any open-records requests involving e-mails during his tenure and he wasn’t sure how it would charge for them.

E-mails on private accounts but involving public business would likely be considered open records, and Harrison said it might be expensive sorting through those.

“You’d have to have an attorney go through them to make sure there was nothing confidential, like involving attorney-client privilege,” he said.

The Cortez City Council uses e-mail more extensively. City Manager Hal Shepherd sends out a weekly report to council members discussing numerous aspects of public business.

“Most of our e-mail is not between city council and myself,” he said. “We do the weekly report on Fridays updating them on what’s happened during the week and of course all the written documents for the council meetings.”

But whatever the source or subject, all city e-mails are available for inspection.

“I consider everything in city hall [to be] public documents except for the health records of employees,” he said, “or something legal where we’ve got a lawsuit going between parties.”

Shepherd said the city used to keep a log of the e-mails, but no one ever asked for them.

Cats at large

Even before e-mail, there were plenty of ways that public officials could discuss government business in private – phone calls, “chance encounters” at social gatherings, one-on-one discussions that don’t constitute an official meeting.

But for every time that a board, commission or special district has flouted sunshine laws, there are dozens of instances when public matters that ought to be of interest go ignored.

In Montezuma County, there are 24 special districts; in Dolores County there are nine. They handle matters including volunteer fire-fighting, libraries, mosquito control, cemeteries and soil conservation. And, of course, Southwest Memorial Hospital is operated by a special district.

These entities have boards with elected members who meet in regular public meetings. But members of the public or the press rarely attend.

Bob Diederich, whose many years of “community service” include stints on the Cortez City Council, the Cortez Sanitation Board, and the Cortez Planning Commission (a current member) said people almost never attend board meetings without a personal axe to grind “unless the person is interested in running for council, P&Z or the san board the next time.”

“You never saw anybody just drop in,” Diederich said, adding that increasing efforts to get the public more actively engaged in the process would be futile.

“People are just busy with their own lives and don't get involved unless they got some ox to gore,” he said.

“For instance, the meetings that are going on now for [a new city] comprehensive plan — there's a few people showing up, but they don't seem to be at every meeting. They only come when a particular subject interests them.” Not even all members of the P&Z board attend those sessions, which are intended to plot the city’s future, he said, even though that board will be the “first ones to have to wrestle with the thing before it goes to city council.”

The council meeting with the largest attendance during Diederich’s tenure was over an unlikely topic, he recalled.

“It was a [proposed] cat ordinance that would have made cats equivalent to dogs,” requiring licensing and making owners responsible for not allowing felines to roam at large. The overwhelming sentiment among the overflow crowd was outrage, and the council dropped the idea like a hot coal.

Council meetings do have an at-home audience, however, as they are televised live.

Formal vs. informal

Although there have been calls for the county to televise its meetings, the commissioners have never been interested in doing so. Harrison said one problem is that state law says that if minutes are electronically recorded they must continue to be recorded in that manner.

Also, the county’s meetings are often lengthy, lasting from 9 in the morning to mid- or late afternoon. Whether people would tune in to meetings so long – and which often include stretches where little is happening – is unknown.

Harrison said he does find it odd that so few people attend the commissioners’ Monday meetings. There are times when there is not a single person in the audience, whether a citizen or a reporter.

“It’s not typical in my experience,” said Harrison, who was town manager of Kremmling, Colo., and Rico before coming to Montezuma County in 2006. “It does surprise me sometimes.”

Montezuma County has historically conducted its meetings very informally, except during official public hearings. People coming before the commissioners are greeted with handshakes and sit with the board around a rectangular table – rather than standing in front of a podium addressing the whole room.

“It’s more informal than other places I have had experience with,” Harrison said. “At Rico, the architecture of the room is more formally laid out – but because it’s Rico, it’s still pretty laid back.”

Montezuma County’s unusual arrangement has both advantages and disadvantages.

“I think some people feel more comfortable approaching the commissioners when it’s not so formal and intimidating,” Harrison said.

On the other hand, the table arrangement means he sits with his back to the audience, as do the people coming before the board. “It has been a big difference for me, having people talking behind my back,” Harrison said. “I like to look at people when I talk to them.”

Harrison said Dolores County has a more formal arrangement “where there’s a demarcation between the audience and elected officials, and they face the audience.”

In San Juan County, Utah, the commissioners and staff sit around a rectangular table, but it’s much larger than Montezuma County’s, allowing everyone but people coming before the board to face the audience.

Montezuma County’s laid-back approach has drawn sporadic criticism. Montezuma Vision Project, a grassroots group pushing for changes in the landuse code, complained that the board’s agendas were too vague and that important matters came up with little warning.

Harrison said the county has made its agendas more specific, although there is still some wiggle room in a section that says “and any other business that may come before the board.”

Cortez’s Shepherd finds fault with the brevity of the county’s minutes.

“I’ve been pretty disgusted with the county minutes because I look back on an issue and they can have an eighthour meeting and they’ve got one page of minutes, and our minutes for a 30- minute meeting can be eight pages.

“I don’t know how their minutes could be legal, because I’ve looked back at issues we’ve had over there and I can’t find out anything because it’s not reflected in the minutes. Our minutes aren’t word-for-word but they’re very thorough.”

Working in workshops

In contrast, municipalities’ meetings are generally more structured. But municipal boards, such as Cortez, Dolores and Mancos, also have “workshop” sessions that are open to the public but almost never draw spectators. Workshops thus can be used to hash out subjects in a fairly private fashion; minutes don’t even have to be kept, under Colorado law.

Diederich said workshops have both advantages and disadvantages in advancing open government. While the sessions give some council members a chance to become more informed about agenda items – “to not look stupid” at the formal meeting — they also sometimes forestall a thorough airing of issues at council meetings.

“A lot of times, things are said at the workshops that wouldn’t be said in front of the public,” he said. “Depending on the strength of the members, the council can be swayed in the doggone workshop and when they go into the public meeting they’ve already got their minds made up – and that isn’t right.”

Interestingly, although town boards, school boards, and other such entities regularly have to go into executive session to discuss personnel matters, property purchases, or student discipline, the Montezuma County commission has never – at least in anyone’s memory – held an executive session.

Disseminating information

Greg Kemp, a member of the steering committee of Montezuma Vision Project, says just hearing the county meetings is a problem because acoustics in the meeting room are “terrible.”

“There’s a lot of background noise,” he said. “You get the swamp cooler going, the traffic noise, and especially when there’s a room full of people [for a public hearing], you can’t hear. But he praised the county for making information readily available on all aspects of planning.

Montezuma County gets good marks from most observers for information availability. Its web site, www.co.montezuma. co.us, offers the agenda for each county-commission and planningcommission meeting, plus minutes from meetings dating back years. Documents such as the county land-use code and comprehensive plan are available online too, and the budget and audit soon will be, according to Harrison.

San Juan County, Utah, (www.sanjuancounty. org) likewise has an impressive site with the commissioners’ agenda, detailed minutes, and many documents.

In contrast, the towns of Mancos (www.mancoscolorado.com) and Dolores (www.townofdolores.gov) don’t yet post their town board’s agendas or minutes on their web sites.

But the city of Cortez’s site offers a plethora of information – dates of meetings of the council, planning and zoning, and city committees; agendas; building codes and public notices – but no minutes. Council meetings can even be viewed on-line.

The increasing depth of web sites reflects a change in how information is disseminated to the public. Newspapers, once the central source for information about local areas, are losing their dominance. Strapped for money, papers have cut back on staff and overtime, and rarely send reporters to meetings unless they’re sure in advance that they’ll get a story.

Teaching civics

Lack of press coverage may exacerbate apathy about government, but it’s long been a problem.

“It’s true for everything – church and meetings and all,” commented Helen Rohrbaugh of Cortez. “It’s the old people carrying on, mostly.”

Helen and her husband, Earl, long active in the Democratic Party, have attended numerous county-commission and other meetings.

Helen Rohrbaugh agreed that the set-up and acoustics of the commission room discourage observers. “I think they could make a U-shaped table so we could see everybody that’s speaking instead of their backs,” she said. “And they need a good sound system.”

But she said the commissioners have been unfailingly courteous and helpful when she does attend.

Rohrbaugh is one of a very few citizens who make an effort to sit through all parts of county meetings, not just the controversial topics. But “watchdogs” such as her are growing scarce.

“There doesn’t seem to be anyone from the Republican or Democratic Party or the Green Party or the League of Women Voters to go to meetings,” Kemp said. “It’s gotten to the point where there’s nobody who wants to take on that observer role.”

Earl Rohrbaugh said the causes of apathy are myriad.

“I’d say it’s a combination of things. There’s a feeling among the general citizenry that they are powerless,” he said. “People don’t have much knowledge of how things really operate.”

Also, most meetings of local governments are “business meetings,” with little opportunity for citizens to just voice concerns. More open-ended forums such as the ones Cortez has been having on its revised comprehensive plan draw more interest, Rohrbaugh said.

Another factor may be that publicschool students are rarely taught much about how local government works. They aren’t exposed to town-board or special-district meetings and don’t know how they can take part.

Rohrbaugh said he used to teach public school and once was assigned to teach a ninth-grade civics class. “We were given a textbook and told to go at it,” he said. “That drove me back to graduate school.”

He said in too many places, social studies is considered a “second-rate” discipline, and may be assigned to a teacher who isn’t interested in the topic. “You go through the textbook, and that’s the beginning and end of it. The students just memorize facts to pass the test.

“When you teach only the format of government or the structure of government, you leave out the whole process of decision-making. No wonder you come out with people who have no idea how that relates to controversies that occur in their neighborhood.”

What they want

Harrison said he wishes he knew how to generate more interest in public issues and county government. “I don’t know. I would like to know.”

“You have some topics that create their own interest, like Desert Rock [the power plant] and building codes,” Harrison said, “but there are big things we’re doing where there is no interest.”

Meetings the county sponsored last year to gather input about which roads should get improvements drew only a handful of participants. And annual budget hearings rarely attract any citizens. Harrison said he winds up explaining things to only the commissioners “because nobody’s there.”

Shepherd agreed that the annual budgeting process, which decides the way millions of dollars will be spent, elicits no interest from taxpayers.

“I’ve always found it humorous, in a way, that the single most important document passed by city council in my 35 years [of managing city governments], hardly anyone has spoken for or against the budget document [and] nobody ever reads it,” he said.

Government can’t force citizens to get interested, of course. Public meetings can’t compete with video games and action movies in terms of entertainment.

Wilson said she doesn’t think most people have any idea what’s going on in local government, but it’s up to them to change that.

“People get what they want in their government,” she said. “It’s up to the people to decide what they do want.”