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County commissioners likely broke state law

Allyn Harvey

Although they have been trying to walk a legal tightrope, thereseems to be little doubt the Pitkin County commissioners violatedstate law when they met in a secret “executive session” on March2.State law requires that government meetings must be open to thepublic unless certain conditions are met – and the recollectionsof the people at the meeting and official records reveal specificviolations of state law. In fact, Commissioner Leslie Lamont iseven willing to admit mistakes were made that morning.”I admit that we made a mistake meeting in executive session,”she said.According to Lamont, she telephoned her fellow commissioners onthe evening of March 1 to see if they could add discussion ofa complex new regulation to their official agenda for the March2 meeting.The regulation in question is designed to preserve the remainingranch land in Pitkin County. The commissioners were scheduledto discuss the proposal with the county Planning and Zoning Commissionon the evening of March 2 and Lamont wanted the commissionersto talk about it before meeting with the P&Z.Lamont said Commissioner Mick Ireland told her that an open discussionon the topic would require public notice 24 hours in advance -which they did not have time to do. They instead agreed to talkabout the regulation in a closed-door session. Their plan wasto meet 90 minutes early for an already-scheduled 10 a.m. executivesession.That plan – which they carried out – was itself in violation ofthe state law, according to Denver attorney Chris Beall, who representsthe Colorado Press Association and The Aspen Times.According to Beall, changing the time of the officially scheduledmeeting requires the same 24-hour notice as changing the agenda.”If they had a 10 a.m. meeting that was previously noticed andthey decided to meet early, it required a new notice,” said Beall.”You only get to go into executive session from a duly noticedopen meeting.”The point of the law is to make certain that the public knowswhat the government is up to. Changing the time of a meeting withoutinforming the public is essentially the same as excluding thepublic from the meeting.If starting the meeting early was a violation of state law, sowas the discussion held during that session.The state’s “Open Meetings Law” (also known as the “Sunshine Law”)requires that a closed meeting must begin with a public sessionand that the commissioners must officially vote to go into secret.When they take that vote, they must also specifically declarewhat they are going to discuss behind closed doors.”The vote that takes the board into closed session has to namethe topic,” Beall said. “And that topic is supposed to serve asa limit about what’s being discussed.”At the March 2 meeting, according to documents filed with thecounty clerk’s office, the commissioners voted 5-0 to go intoexecutive session at 8:30 a.m. and remained there, uninterrupted,until 1:30 p.m. The ranch-land-preservation proposal is not listedas one of the topics discussed.Lamont recalled that County Attorney John Ely advised againstdiscussing the proposal. Such a discussion, he said, would notqualify under state law for an executive session, which is allowedon very specific topics.Lamont said the board initially complied with Ely’s advice, butafter Commissioner Dorothea Farris left the room, the remainingcommissioners “stood around and just talked about the proposal.”Under the law, characterizing their behavior as “standing aroundand just talking about the proposal” does not exempt the commissionersfrom the public meeting requirements.The open-meetings law gives decision makers some room to navigatethrough their communities without having to avoid each other.Chance social gatherings are not considered meetings. But, because the board had convened on March 2 to conduct publicbusiness, their decision to “stand around and talk” about theproposal after being advised against it is an apparent violationof the law.”Meeting,” the law reads, “means any kind of gathering convenedto discuss public business in person, by telephone, electronicallyor by other means of communication.”The recollections of other county commissioners and staff membersmakes it clear that the board did indeed discuss the ranch-land-preservation proposal.Commissioner Ireland said the board used its time in executivesession to discuss the timing for implementation of the proposal.County Manager Suzanne Konchan recalls a discussion that focusedon the law. “We spent a fair amount of time getting advice onspecific legal issues.” Konchan’s use of the term “specific legal issues” is apparentlya reference to the allowed list of topics for closed-door discussions.One permitted area of discussion is asking their attorneys “specificlegal questions.”Commissioner Shellie Harper’s account, meanwhile, more or lessconfirms Lamont’s version of events. “All five of us had differentopinions. What we wanted to do was air out all of our opinionsand decide what we could say to the P&Z,” Harper said.That evening, Lamont opened a joint meeting with the Planningand Zoning Commission by announcing the board’s plan for commissioningan economic study on the agriculture committee’s proposal andscheduling public hearings.If the board did agree to commission such a study during theirexecutive session, that would also be a violation of the statelaw.Under the law, even if a secret meeting is properly scheduledand properly run, any official decisions have to be made duringa public session.But even if the board agreed on its plan in secret, the land-uselawyers and real estate agents present at the joint meeting eitherdidn’t notice or weren’t concerned.”I called five people after that meeting and asked if they felttheir concerns were heard and understood,” said County Planningand Zoning Commissioner Charlie Tarver, “and all five said yes.”The state Legislature passed the open-meetings law in the aftermathof the Watergate scandal of the mid-1970s. It requires electedofficials and representatives on appointed boards to deliberateand make decisions in open meetings.


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