Aspen election commission under fire over e-mail exchanges
November 23, 2009
ASPEN – The Aspen city attorney’s office is expected Monday to provide the City Council with an opinion as to whether two members of a citizen-based election commission violated open meeting laws or engaged in improper actions by privately communicating with an individual who is suing the local government.
The council on Nov. 9 directed City Attorney John Worcester and special counsel Jim True to review hundreds of e-mails between election commissioners Chris Bryan and Elizabeth Milias, and Marilyn Marks, who last month filed a lawsuit against the city in an attempt to force it to publicly release ballot images from the May election.
The attorneys’ review of the allegedly ex parte communications was prompted by former City Councilman Jack Johnson. He said that Marks and the two commissioners conspired to further Marks’ goals in private without the benefit of the public knowing what was happening behind the scenes.
Worcester said he will provide a private memo to the council, citing confidentiality because of attorney-client privilege. He also will provide a second memo that explains the election commission’s duties and authority, which also will remain confidential unless the council chooses to release it to the public.
The council is scheduled to have an executive session at 4 p.m., an hour before its regularly scheduled meeting. While the main topic is related to the potential purchase of land, the election commission issue may come up. If it does, it will have to be announced as a topic of discussion before the meeting is closed to the public.
After spending weeks analyzing and linking together the e-mail correspondence between Milias, Marks and Bryan, Johnson earlier this month publicly shared his interpretations of them. Johnson has alleged several acts of wrongdoing, which has put Marks on the defensive.
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More than an hour was spent at the Nov. 9 meeting on the issue, which was led off by Marks telling the council she expects it to stop the personal attacks, which she characterized as “libelous, slanderous and untruthful.”
Marks said she wants the allegations now hanging in the court of public opinion to stop.
“At some point you have to do something to save your reputation,” she said.
Johnson has alleged several infractions, and highlights a few that center around a public body that he says is allowing itself to be manipulated by an individual who’s suing the city to advance her agenda and that the citizen committee held private meetings online. Those conversations, for the most part, excluded the commission’s chairwoman, City Clerk Kathryn Koch.
“The election commission is working behind the scenes to give Marilyn Marks the remedy she seeks for her lawsuit,” Johnson said. “I think the record is clear that that they knew what they were doing and it was to further Marilyn’s goal.”
For months Marks had been requesting that the city – including in presentations to the council – release the ballot images so they can be checked against how the scanning machines interpreted them as part of an independent review to be conducted by an outside group.
Marks ran for mayor in the May election against three candidates, including incumbent Mayor Mick Ireland. The election marked the debut of the city’s voter-approved Instant Runoff Voting, which pitted Marks against Ireland. Ireland prevailed with 1,301 votes, or 53.6 percent. Marks received 1,124 votes, or 46.4 percent.
When the city officially denied her request on the ballot images, she lobbied the election commission, via e-mail communications, to help her cause and eventually took the matter to the 9th Judicial District Court.
Marks doesn’t apologize for advocating to a citizen group, which is a public body charged with overseeing Aspen’s municipal elections.
“I think the election commission ought to be a body that a citizen can petition,” she said. “Not only am I denying [wrongdoing], I’m proud of how I did it … I would have advocated to any board.”
Johnson said the problem is that the alleged influence over a majority of the board was an attempt to subvert the desires of voters expressed in the May election, and it was done in private.
He points to e-mails that discuss a potential voiding of the election and Marks’ arguments that it was unconstitutional because the ballots were not secret. She argues that the city’s prior release of data strings, which show candidate rankings, can be matched against poll books that recorded when and who voted. Because ballots weren’t shuffled, Marks said if someone wanted to determine how someone voted, he or she could look at the numbered data strings in an image format known as TIFF and match them against the poll books.
She said she does not intend to take any action in an attempt to void the election, but that doesn’t mean someone else won’t in the future, which is a valid legal argument for as long as the people elected this past May are in office.
Marks said if someone is successful in voiding the election in court, she’ll withdraw her name from the ballot.
“I have absolutely no current plans [nor will I] attempt to lift a finger to void the election,” Marks said, adding her goal is to bring the issue to the forefront so it can be corrected through election reform.
“I think it’s a serious problem that the City Council has to deal with,” she said. “That’s the best remedy … that everyone knows that that information is out there and can be abused.”
City officials don’t believe that people’s personal votes can be identified and have argued that point against Marks’ claim.
Earlier this month the city filed a motion to dismiss Marks’ lawsuit, arguing several points, including that people have a right to a secret ballot under the city’s home rule charter. Worcester said some voters’ identities could be revealed because of unique or unintentional markings on the ballots in question.
Worcester also argues that if ballots are released, it sets a precedent for future elections and people might intentionally mark their ballots knowing that they will be viewed by the public. It could happen, for example, if someone was paid to vote a certain way.
Releasing ballots also sets a bad precedent for future mail-in ballot elections when a person’s vote could be more easily identified, Worcester argued.
But more importantly, Worcester said, is that “there should be some finality to elections.”
Marks has argued that the ballots became public record when their digital images were flashed on the screens in City Council chambers on election night. She has also countered that the identity of the voters wouldn’t be revealed because any marks on the ballots should have made them invalid.
Marks, who routinely advocates for a transparent government, said she doesn’t see communicating with a public body in private problematic and was doing it only to avoid litigation with the city.
“It was the right thing to do,” she said, adding it’s been characterized as a horrendous act. “It’s not secret in any way.”
Johnson said the e-mail communication shows a disconnect between Marks’ constant pursuit of transparent government and her manipulation behind the scenes.
“It’s inconsistent between her public words and her private acts, which means she is a hypocrite,” he said. “I think she should be exposed.”
Additionally, Johnson said Milias and Bryan abused their positions and violated the public trust by communicating in private, and never disclosing to the public or the council what they were doing. He cited one e-mail that suggests the two members had indicated how they would vote on a matter, knowing City Clerk Koch would dissent and they would have a majority decision.
According to Steve Zansberg, a First Amendment attorney based in Denver, if the election commission is a body conducting the public’s business, it is subject to Colorado open meeting laws. And if two of its members communicated without the public present, it’s a violation.
“If two of them are communicating with [Marks] or each other, I believe it’s a quorum of a three-member body,” Zansberg said. “Communications via e-mail are clearly covered by the open meetings law.”
Bryan, the Democratic Party representative on the commission, said he would have appreciated information from the city attorney’s office that set out parameters of what a citizen board can and cannot do.
“It would have been helpful to know that e-mails were a quorum of two,” he said, adding it’s unfortunate the commission’s roles and responsibilities weren’t explained to him. “No one told me that I couldn’t talk with Kathryn [the city clerk] in private or Elizabeth in private … it would have been nice to know that.”
Bryan said he didn’t initiate any of the electronic communications, wasn’t influenced by any of Marks’ e-mails and has no opinion relating to her interest in the May election, or future reforms.
“I’m the only one stuck in this game who doesn’t care,” he said. “I have no agenda.”
The remedies for violating Colorado open meeting laws are to either stop doing it, or any decision made during private sessions will be null and void.
Bryan said the commission made no decisions, other than asking the council to hire an independent counsel to determine if the city attorney has a conflict of interest in advising the citizen board, which Milias and himself have suggested.
The council in September declined that request and instead sent the matter to the Colorado Bar Association Ethics Committee, which is reviewing the matter.
“All we’ve done is ask for independent counsel and nothing else,” Bryan said. “That’s what has been lost in the psycho drama.
“When the sideshow takes over the circus, we have to scratch our heads and say, ‘What are we doing here?'”
Milias was unavailable for comment.
Bryan said Marks was unable to do much in her e-mail advocacy.
“If she was trying to influence the election commission, it certainly wasn’t successful,” he said.
“I didn’t do a very good job because I didn’t get anything done,” she said.
Johnson said the point is that it was all done in secret, which is a violation of the law. He said one remedy is to remove Milias and Bryan from the commission.
Councilman Torre during the Nov. 9 meeting suggested a cleaner solution – appoint a new election commission since the city charter stipulates that new members should be selected the July after an election, which wasn’t done. Torre couldn’t get support from his fellow council members, who said they want to learn the facts before making any decisions.
Worcester said the charter requires that the election commission serve a two-year term, and be appointed in July and leave their posts the July after the last election. But the current commission wasn’t appointed until March, and was convened mostly to help oversee the city’s first IRV method.
Torre said he plans to raise the issue again at tonight’s meeting.
Bryan said he wishes it hadn’t come to this but understands Torre’s position.
“I just wanted to be a volunteer and serve on a citizen board,” he said. “No deed goes unpunished.”