BOCC’s closed-door talks broke `spirit of the law’
They met in secret as many as eight times – and when the doorswere finally opened, it was clear that a lot of blood had beenspilled in the dark.And it is also now clear that the secrecy surrounding that blood-lettingwas legally very questionable.The fight took place last summer between the Pitkin County commissionersand the Open Space and Trails Board – elected officials strugglingwith an appointed board over who was going to control a popularprogram authorized by the voters.The commissioners were trying to make sweeping changes in theway the open space program was run, but they justified meetingin secret on the grounds that the discussions involved “personnelmatters” and “legal advice.”Those justifications may or may not have met the letter of thelaw; at least one legal expert has said they certainly violatedthe spirit of the law.On August 4, the county commissioners announced their intentionto restructure the open space program, which was authorized byvoters in 1990. The program has a budget of $3 million to $4 milliona year, controlled by an appointed board.The Board of County Commissioners had some major changes in mind,but, hobbled by the voters’ mandate, the BOCC ultimately had tosettle instead for relatively minor changes in the way the openspace board manages its employees.But the fight over the Open Space and Trails Board’s autonomyreveals just how much can and, perhaps, is done behind closeddoors.The tensions between the county commissioners and open space boardmembers initially surfaced last July over the highway department’splan to use an acre of open space to widen Highway 82 and builda new transit center. The BOCC supported the plan to condemn theproperty, the open space board opposed it, arguing that the votersshould have a chance to decide the issue.The open space board’s reluctance to commit much money or timetoward the purchase of the Droste property, 800 acres of mostlyundeveloped property along Brush Creek Road, also added to thepressure that had been building with the BOCC, according to sourcesfamiliar with the situation.”There was a period there where the open space program came upa bunch of times in executive session,” said County Attorney JohnEly.Ely said the BOCC was trying to find a legal way to rein in whatone commissioner termed an “out-of-control board.” Many of thequestions raised by the commissioners centered around what thelaw allowed them to do when dealing with the open space board.The secret meetings, Ely said, were allowed under a provisionof the open-meetings law that allows local government boards tomeet behind closed doors for “conferences with an attorney …for the purposes of receiving legal advice on specific legal questions.”But a Denver attorney specializing in such matters said Ely’sinterpretation is out of line and the discussions should havebeen public matters.Breaking `spirit of the law’Attorney Chris Beall, whose firm represents The Aspen Times andthe Colorado Press Association on freedom of the press issues,said the open-meetings law was not meant to allow private meetingsto discuss broad policy issues, such as reforming the open spaceprogram, no matter how uncomfortable the situation may be.”The idea that all legal advice must be received in closed sessionis not in the spirit of the law,” Beall said. “The board membersare perfectly capable of discussing the merits of their variousactions amongst each other in open session.”In fact, not only was the public excluded from the discussionson the fate of the open space program, but former Open Space andTrails program director Jane Ellen Hamilton and the other twoemployees of the open space program were not included in thosemeetings, according to a source familiar with the situation.Beall noted that “personnel issues” are among the topics thatcan be discussed in executive session, but, he said, “The exemptionis written to protect the privacy of the employees, not the commissioners.If an employee doesn’t want their privacy protected, then thereis no reason to meet in closed session.”Hamilton was out of town during at least one closed meeting abouther position, and during other executive sessions, she was requiredto sit outside the meeting room while her fate was discussed.According to Beall, the commissioners could justify the closedmeetings if they were planning to fire Hamilton and expected toget sued for it. But if they were simply trying to strip the openspace board of its supervisory role and place Hamilton’s positionunder control of the county manager, the commissioners may wellhave strayed from the law.The minutes from an Aug. 4 commissioners’ meeting – the firstat which the situation was discussed in open session – seem toshow that the BOCC had discussed restructuring in several closedmeetings.”Chairperson [Dorothea] Farris said the issue before the Boardat this time is a consideration of restructuring of the Open Spaceand Trails program to comply with the statute and with the HomeRule Charter,” according to the minutes.When open space board member John Starr asked the commissionersto postpone the discussion until all five commissioners were present,Farris “said this matter has been discussed at several executivesessions when all five members [of the BOCC] were present.” (Starris a part-owner of The Aspen Times.)The minutes also indicate that Commissioner Leslie Lamont saidthe BOCC wasn’t changing the role of the open space board, itwas changing its staff structure. Ely confirmed that many of theclosed discussions centered around where in the county bureaucracythe open space employees belonged.”That’s not, in the traditional sense, a personnel issue,” saidBeall. “It’s an organizational or management issue.” The BOCC plan to strip the open space board of some of its powerwas only partly successful – the commissioners now have a greatersay in hiring and firing the open space program director. The move also generated quite a bit of animosity among open spaceboard members and supporters. Open space board Chairman Bill Faleswas quoted calling the BOCC plan “a power grab,” and rancher BobPerry told the commissioners on Aug. 4 that there was a distinctlack of confidence in the county’s elected officials and its seniorstaff.The distrust, however, was mutual. “What we were seeing was anopen space board that more and more thought of themselves as theirown government,” said a member of the county government familiarwith the situation.It’s clear from county records and lingering suspicions that lastsummer’s tenuous relations between the two boards could not continue,but it also seems clear that the county commissioners were onvery shaky legal ground when they kept the public in the darkas they attempted to restructure a voter-mandated program.Other open space program topics discussed last year in executivesession included purchase of new open space and personnel, accordingto Commissioners Leslie Lamont and Shellie Harper. Both topicsare legal reasons for a closed session.The state’s open-meetings law (also known as the Sunshine Law)requires that elected and appointed boards in local and stategovernment deliberate and make decisions in open meetings. Itallows decision makers to meet in closed session only if the topicfalls under a narrow range of exceptions.
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