Aspen’s housing authority board violated open meetings law
The Aspen-Pitkin County Housing Authority board violated Colorado open meetings laws in February when it met behind closed doors and discussed the executive director’s pay.
In a March 4 letter to City Manager Sara Ott, then-APCHA executive director Mike Kosdrosky asked for a $50,000 raise and represented that the board supported his request in a Feb. 19 executive session.
But that executive session violated open meetings law because the announcement did not include specificity and citation that the topic of discussion was a personnel matter, according to Jeff Roberts, executive director of the Colorado Freedom of Information Coalition.
“(The announcement) is to give the public an idea of what they are talking about and it also provides a guardrail for the board to not get off topic,” he said. “It’s difficult for the public to know what’s going on and this a reason to be skeptical.”
According to state statute, a local public body may discuss authorized topics in executive session only if it cites the legal basis for the executive session and announces to the public the “particular matter” to be discussed with as much specificity as possible without compromising the reason for the executive session.
Also, no decisions can be made in executive session. However, Kosdrosky intimated that board members gave verbal support for him to ask for a supplemental budget appropriation to be approved by Aspen City Council.
“If he came away with that understanding, it was a decision and then he put it in writing,” Roberts said.
APCHA’s attorney said no decision was official because there was not a vote.
Ott asked for Kosdrosky’s resignation in July and he officially stepped down Aug. 12, with a $43,000 severance package on the condition that he refrain from contacting the media, city and county staff and Aspen-Pitkin County Housing Authority board members.
Kosdrosky was unavailable for comment.
Ott said Friday the onus to conduct meetings legally is on APCHA’s legal counsel, Tom Smith.
“Providing proper public notice for public meetings is a critical function of instilling trust and maintaining credibility of how and when decisions are made by government entities on behalf of the community,” she wrote in an email. “This includes ensuring compliance with all provisions of the Colorado Open Meetings Law.
“If the city were to find itself in a position that may not have had proper public notice for a meeting or topic, it would remedy the situation by not holding the meeting or not discussing the topic until proper public notice is made.”
Smith said last week that discussing compensation behind closed doors was a mistake, although it was a brief conversation and was brought up by Kosdrosky as board members were getting ready to leave.
“It happened, there’s no denying it happened,” he said last week. “It wasn’t on the agenda and no decision was made and he didn’t get the raise and he resigned.”
Smith added that he, along with other APCHA and city staff, were not present for the compensation discussion. He said he left the room after the discussion about litigation, which was properly noticed, was over.
According to the minutes of the Feb. 19 meeting, board members present were Carson Schmitz, Rick Head and David Laughren, along with Pitkin County Commissioner George Newman and Aspen City Councilman Skippy Mesirow.
There was no formal vote on the compensation request when the APCHA board came out of executive session.
When asked earlier this month whether Kosdrosky had ever discussed his compensation with them, some board members said they have had conversations but did not cite the executive session.
“Mike did mention his compensation package once, not in a public setting but as he is an employee of the city, it was not appropriate to get involved in a personnel issue,” Newman said in an email earlier this month.
The Aspen Times last week asked under the Colorado Open Records Act for an audio recording of a portion of the executive session in which compensation was discussed. Smith said a recording does not exist.
According to the Opening Meetings Law, a board must have an electronic recording of an executive session except if the board’s legal counsel certifies that the discussion involves a matter of attorney-client privilege.
Smith, who represented the town of Basalt in 2016, was found culpable, along with Basalt Town Council, for violating the state’s open meetings law for not properly noticing executive sessions.
Basalt resident Ted Guy sued the town, and the Colorado Court of Appeals made its ruling in June.
Also in June, Glenwood Springs City Council found itself having to release an audio recording of an illegal executive session held in May in which elected officials discussed topics not noticed, including the local government’s COVID-19 response.
The APCHA board was scheduled during its Aug. 5 meeting to receive training on open meetings and executive sessions by an attorney representing the city’s insurance carrier, but the meeting was canceled “due to a light agenda,” according to board members.
Kosdrosky had been asking his bosses at City Hall since 2017 to increase his pay so that is was on par with his counterparts around the state.
The more recent requests to Ott began in April of 2019, and were based on a city-hired outside consultant who conducted a salary survey market analysis. It found that the average salary of housing authority executive directors in Colorado was $159,300, which would place the housing executive director in the highest pay grade in the city, according to the report prepared by Compensation Studio LLC.
However, that salary average is based on surveying larger organizations than the city of Aspen and executive directors of housing authorities having more responsibilities, including reporting directly to a board of directors.
The APCHA director reports to the assistant city manager, who carries the responsibilities of what other executive directors in housing authorities around the state have, therefore Compensation Studio’s survey found that the average locally is $119,475, according to the report.
A separate city of Aspen study put the APCHA executive director salary at $133,510, so weighting the different studies gives an average of $124,250, according to the report.
“Based upon the job match and analysis of market data, the recommendation is to place the housing director position in the city’s Pay Grade V,” reads the report. “ The range is $103,657 minimum; $124,648 midpoint; $145,638 maximum.”
Kosdrosky’s salary was $108,500.
Ott offered Kosdrosky in June 2019 a 3.5% merit increase for the period between January 2018 to January 2019, plus a one-time market adjustment of his base compensation of $7,000 effective Dec. 31, 2019 based on him meeting specific performance goals, according to correspondence obtained by The Aspen Times.
It’s unknown whether Kosdrosky received that additional compensation.
The city has frozen merit pay increases since March 2020, which is scheduled to continue into 2021 due to budget cuts related to COVID-19 impacts.
Kosdrosky also had for the past two years been vocal about his frustrations on APCHA’s governance structure, where he reports to the city manager but takes direction from the board, creating conflicts of interests.
This past November, he told the APCHA board that his job is “untenable” and said he wouldn’t be able to recommend the position to anyone because of the governance structure.
Ott had reprimanded Kosdrosky after he sent out a news release last October that gave details about an eviction on an individual for failing to meet the affordable housing program’s work requirements.
He said at the time that the board had directed him to have the agency be more transparent and communicate with the public, and expressed frustration about who he was supposed to take direction from — the board or the city manager.
APCHA board Chairman John Ward noted during a public meeting Aug. 19 that the relationship between Ott and Kosdrosky was strained.
“We’ve seen in the meetings here the abrasiveness between Mike and Sara and other things, too, so ultimately change is good,” he said. “Change hopefully gets us to a place where we can be much more productive and get a lot more done.”