May 2013

Behind closed doors

The Montezuma County commissioners caused a stir on April 8 by going into a mysterious closed-door huddle with the district attorney at the end of their regular meeting.

“Would you two guys excuse us?” Commissioner Keenan Ertel asked Free Press reporter David Grant Long and Cortez resident Bud Garner, the only two remaining in the audience. “We want to meet with the DA.”

Long asked, “So is this an executive session that you don’t want the public here?”

Ertel said it was not an executive session, adding, “We don’t want anyone here, staff or public. We’re going to meet informally with the DA.”

So the three commissioners and District Attorney Will Furse stayed in the commission room behind closed doors while the audience and other staff – County Clerk Carol Tullis and Planning Director Susan Carver – left. (Then- County Administrator Ashton Harrison was across the hall in his office and the interim attorney that day, Michael Goldman, had already gone home.)

Did the meeting violate state sunshine laws? Maybe, maybe not. It’s difficult to say; their own attorney wasn’t present to advise them.

Colorado’s open-meetings law (CRS- 24-6-402) states, “All meetings of a quorum or three or more members of any local public body, whichever is fewer, at which any public [italics added] business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times.”

Furse later told the Free Press that county business was not discussed, and the meeting was “just a very informal casual discussion” that had “nothing to do with policies or county matters.” He said it was “a time to have all the commissioners together” and that what they discussed was of a “sensitive nature – nothing to do with anything agendized.” He likewise told the Cortez Journal the meeting was “just four guys talking” and suggested they could have been discussing something as bland and uncontroversial as basketball.

But Commissioner Larry Don Suckla told the Free Press the topic was “a very important issue” and that it was “personal” and “sensitive,” which certainly doesn’t sound as though they were chatting about the Denver Nuggets. And if they had been, why would they have shooed everyone else out of the room and closed the doors?

Local public bodies may discuss certain specific types of topics privately by going into an executive session, but Commissioner Ertel stated that this was not an executive session, just an “informal” one. Nothing in the law provides for “informal” sessions between county commissioners and the district attorney, and it’s difficult to imagine that the topic discussed had absolutely nothing to do with public business, although it may indeed have been sensitive. If the commissioners want to get together and chat with the DA on casual topics, perhaps it would be more appropriate to do it somewhere other than the commission meeting room (maybe a sports bar?). On the other hand, if they aren’t discussing casual topics, the state’s open-meeting law would apply if they are discussing public matters.

Perhaps coincidentally, perhaps not, Administrator Harrison resigned first thing the next morning, declining to give a reason. One source who spoke on condition of anonymity told the Free Press that they had heard from a third party that Harrison had been planning even before the bizarre closed-door conclave to resign. But another source who asked to remain anonymous said they believed Harrison had decided very suddenly to quit. At any rate, his resignation was effective immediately and the county has been left scrambling to fill in the gaps until a new administrator is hired.

At their April 22 meeting, the commissioners went into formal executive session for the first time in Montezuma County history. This time they did everything by the book; attorney Goldman announced the topic of the executive session (the hiring of a new county attorney), citing the portions of the law under which it qualified for such a session, and the commissioners voted to go into closed session. The meeting was recorded, as required, by Clerk Tullis. The reasons given for the session were to receive legal advice from Goldman on specific legal questions; to discuss a personnel matter; and to discuss a matter under negotiation (the new attorney’s salary).

On April 29, another executive session took place, but things got a little looser. The commission agenda showed nothing between an item at 11 a.m. and a public hearing at 1:30 p.m., but when Free Press editor Gail Binkly arrived at the commission room at 1:15, the doors were closed and people, including Tullis, were out in the hall as the board once again discussed the hiring of the new county attorney, John Baxter. When folks were allowed back into the room just before 1:30, Binkly asked the board, “What time did you reconvene after lunch?”

Ertel said, “One-thirty – we got back from lunch early.”

Goldman, however, said, “The meeting goes on all day.”

The latter, we believe, is probably the technical truth, but this hasty executive session sandwiched in at a time when no one from the public was likely to be around raises a few questions: Is it fair to call an unplanned executive session at a time when there is nothing on the board’s agenda and no one is likely to be present to challenge it if it sounds inappropriate? Is the board going to utilize different means of recording each executive session (supposedly the second one was taped; at the other, Tullis took minutes)? If the board is truly meeting through lunch and could go into executive session at any time, is it willing to have the public present during the meal?

Understand, we don’t believe the commission is doing anything nefarious in these closed-door meetings, but it’s almost as important to avoid the appearance of possible impropriety as it is to avoid impropriety itself. That applied particularly to the “informal” session on April 8. By having this unusual get-together in the commission’s meeting room, the board sparked a plethora of endless rumors and theories about the session’s possible topic.

For more than a quarter-century, the Montezuma County commission managed to get by without holding any executive sessions. They believed the public’s business should be discussed in public if at all possible. The policy seemed to work; we are not aware of any adverse consequences that occurred because of this absence of executive sessions. The commission was one of the most open boards in the area, and we hope that isn’t going to change.

It should be pointed out that state law does not require boards to go into executive session to discuss certain topics; it merely says that they may. However, a great many other boards and councils seem eager to jump into closed session for reasons that are sometimes trivial. Is there truly a need to meet in private just to hear legal advice from one’s attorney, for instance, on a question about an interpretation of a land-use-code provision? What terrible thing might happen if the advice were given in public? We’d like to see boards start asking themselves whether every executive session they hold is truly necessary.

The Montezuma County commissioners — along with all other boards of local government entities, school districts, and special districts — have every right to have executive sessions, and there are times when they are certainly appropriate, but we hope they will use them sparingly and will keep in mind that, when they close the doors to reporters, they are in effect closing the doors to the public – even if much of that public is not physically present.

These boards are chosen by the people, they spend the people’s money, and they handle the people’s business. That business ought to be conducted in the open, out in the sunshine. Remember Luke 12:2: “For there is nothing covered, that shall not be revealed; neither hid, that shall not be known.”

It’s hard to go wrong with transparency.