November 2015

Dear Montezuma County commissioners...

You have a lot going for you. You’re popular – you were elected by wide margins. You’re not afraid to take stances and try innovative ideas. And while you don’t represent the views of everyone in the county, you certainly represent a sizable constituency.

Now, we recognize that a lot of that constituency doesn’t give a hoot about whether you’re following Colorado open-meetings law. Nevertheless, we’re disappointed that you seem to share that attitude.

During your regular meeting Oct. 26, while you were preparing to make selections for a seven-member citizens’ committee to work on a Master Leasing Plan regarding energy development, county attorney John Baxter suggested you might want to go into an executive session.

As you know, Colorado law allows local public bodies such as county commissions to hold closed-door meetings (executive sessions), but only for specific purposes. The body planning such a meeting is supposed to cite the relevant statute and announce the topic of the session, then take a vote.

On Oct. 26, Baxter strolled over to a laptop to look at a list of the reasons (called exemptions) allowed under state statute for holding such a session, and started reading off this one and that as if he were ordering toppings on a sundae. “Let’s do B, but also let’s do E. . . and F. . . .” Unfortunately, not one of those was appropriate.

Start with Reason F, discussion of “personnel.” Citizens serving on a working group are not personnel. The term refers to employees – for you, county employees in the performance of their jobs.

The statute reads, “. . . Personnel matters except if the employee who is the subject of the session has requested an open meeting, or if the personnel matter involves more than one employee, all of the employees have requested an open meeting.”

And even if the advisory group members were considered employees, this exemption still would not have applied because none of them had been asked if they wanted an open meeting.

A guide by the Special District Association of Colorado notes, “The rule concerning executive sessions to discuss personnel matters is often invoked, frequently inappropriately.”

That’s an understatement.

Let’s move on to “E,” “Determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators.” This typically refers to business-type negotiations or matters involving labor unions. None of that was involved here. You weren’t using any “negotiators” to choose the advisory group.

As for “B,” “obtaining legal advice from an attorney on a specific legal question,” no legal question had been raised during the meeting related to the group’s selection. Just before the executive session, in fact, Baxter said he hadn’t seen the letters from the applicants.

We later spoke with attorney Christopher Beall, who specializes in media and First Amendment law. He told us he could not imagine a proper basis for an executive session under the circumstances we’d described — selection of an advisory committee.

Yet you forged ahead with the closed door meeting, insisting that everyone in the audience leave the room.

We wouldn’t be making a fuss about this if it were the only time you’ve skirted the law. But it isn’t. A few other examples:

• On Aug. 24, you also decided to go into an executive session to discuss “personnel.” When we asked whether the “employee” had been given the choice of having the session be open to the public, you said you weren’t actually discussing an employee, you were talking about a personnel-related “process.”

Your attorney then made the curious statement that you didn’t even have to have an executive session, you could just “have a private meeting and kick everybody out.”

Let’s quote from an open-meetings guide by the Colorado Municipal League:

“While ‘personnel matters’ is not defined, it is provided that this term does NOT include. . . discussion of personnel policies that do not require discussion of particular employees.”

We later heard that you were probably going to discuss interviews done with candidates for county fleet manager. But no one would come out and say this. Why such coyness?

After all, stating the topic is part of the required process for holding an executive session, and there are cases in which courts have found executive sessions illegal because the topic was not given. The topic is not the exemption. “Personnel,” for instance, does not suffice. The topic is the “particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized.”

Frequently you have skipped the step of naming the topic – you did it again on Oct. 26. The motion to go into executive session did not include a topic. The only reason we know what it was is that, earlier, Commissioner Larry Don Suckla asked Baxter, “How do we go about this process – talking about. . .?”

To which Baxter responded, “The appointments? I haven’t seen the appointments.” He then said you could, if you wanted, “do an executive session. . . and then come out and vote on who you want.” (Note, nothing was said about negotiations or specific legal questions when discussing the session.)

• Another instance when you did not appear to follow the law was the process of hiring the county’s current administrator, Melissa Brunner, in 2013.

State law provides that when hiring a “CEO,” such as a county administrator, “The state or local public body shall make public the list of all finalists under consideration for the position of chief executive officer no later than fourteen days prior to appointing or employing one of the finalists to fill the position. No offer of appointment or employment shall be made prior to this public notice.”

No list of finalists and their qualifications was ever made public when Brunner was hired. Instead, the original 22 or so applicants were winnowed to four or five who were interviewed in executive session. The commissioners announced their choice a week or so later – a fait accompli.

(Two footnotes: We aren’t complaining about the selection of Brunner, just about the way it was done. And Commissioner James Lambert was not on the board at the time, so he can’t be blamed.)

Then-Commissioner Steve Chappell told us the applicants had been promised anonymity so they wouldn’t risk losing their current jobs. That promise should never have been made, because it violates the law, which is designed to allow the public to evaluate hiring choices made by governmental bodies, to ensure there isn’t a bias or flaw in the process. (Say, for instance, an elected official has a lazy brother-in-law he wants to get off his couch.)

• And, lest we forget, the administrator’s job was open at that time because the previous administrator, Ashton Harrison, had resigned abruptly after the commissioners held a closed-door meeting with District Attorney Will Furse, kicking everyone else out of the room (including the county clerk and Harrison). We were told that the matter being discussed wasn’t “county business,” and the meeting was not an executive session – just a private, informal conclave at which you might be discussing “basketball.”

But later it came out that the subject was an investigation into then-Undersheriff Robin Cronk, who was ultimately thrown in jail for feeding from the public trough. (But maybe he was a deadly shot from three-point range!)

Open-meetings law actually allows boards to hold executive sessions to discuss “investigations.” You could have legally held a closed session to talk over the Cronk situation, but that would have required going through the procedure and recording the executive session, and apparently you didn’t want to. Instead, we were asked to believe that the undersheriff ’s being investigated for multiple crimes was not “county business.” Really?

We recognize that it would be a lot speedier and easier if you could conduct all your business in secret. But democracy isn’t always neat, efficient and comfortable. As someone said, it’s the worst form of government – until you try the others.

No, we don’t think you’re plotting world conquest in there. And we aren’t asking you not to have any executive sessions. You’ve held some when we didn’t make a peep – because you followed the procedure, and the topic was appropriate.

But this latest session was beyond ridiculous.

You have called for the BLM to be more transparent. Fine, we’d like you to be transparent, too. You have called for the federal agencies to follow the law – we’d like you to follow the law.

Because Colorado Open Meetings Law isn’t a nuisance to be dodged or swatted down like a gnat. It isn’t a magical incantation you recite that gives you carte blanche to talk privately about anything you consider uncomfortable or sensitive. The law was enacted to help ensure that citizens are able to openly see and understand their elected officials’ decision-making process.

When you have inappropriate executive sessions, when you discuss county business outside meetings (via phone or email), when your attorney just says, “Get out – we’re doing this!” to someone who questions an executive session, you’re depriving the public of that privilege – and violating the people’s trust.

We know you aren’t the only local board guilty of sometimes flouting this law, but you’re the most powerful board in the county and we expect you to be the example everyone else follows.

Please don’t disappoint us.