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Forcing open the doors of government not easy

Allyn Harvey

Pitkin County’s government clearly has a fondness for meeting in secret – a fondness so strong it is almost an addiction.

Unfortunately, Pitkin County is not alone in its near-addiction to secrecy.

And, even more unfortunately, it is neither easy nor cheap for the press and the public to force open those closed government doors.

Colorado’s Sunshine Laws, as the open-records and open-meetings laws are often called, open with broad declarations of policy.

“It is declared to be a matter of statewide concern and the policy of the state that the formation of public policy is public business and may not be conducted in secret,” says the open-meetings law.

“It is declared to be public policy of this state that all public records shall be open for inspection by any person at reasonable times,” reads the open-records law.

But, despite such noble sentiments and ringing declarations of principle, the laws do not make it very difficult for government at the state or local level to keep its business secret.

The laws offer a number of exemptions from the requirements for openness. The exemptions may be reasonable in principle, but they are stated vaguely enough that a determined government – such as Pitkin County – can often find a way to meet in secret.

The experiences of two Colorado newspapers show that the secrecy can be broken. Sometimes determination is enough – but money, clearly, helps. The Colorado Springs Gazette “I’ve worked in five states,” said Steven A. Smith, editor of The Gazette in Colorado Springs, “and this is the worst.”

Smith said Oregon, where he started his newspaper career, makes public access a much higher priority than Colorado, but both states pale next to states with populist roots, such as Minnesota and Kansas. “You can’t even burp in Kansas without it being on the record,” he said.

Much more is on the record in Colorado these days because of The Gazette’s willingness to use its financial resources and sue for access to public documents and meetings.

In 1994, the paper went to court to force the agency in charge of the El Paso County pension fund to open up its meetings and its records to the public and the press.

Smith said that once the documents and meeting minutes became public, serious fraud and malfeasance were discovered. “The manager of the county pension fund was using the money for personal gain,” he said.

That manager is now in prison.

The Gazette ultimately was reimbursed by the county for most of its legal expenses. The open-meetings law requires government to pay legal expenses when it is found guilty of violating the law, said attorney Steve Zansberg, whose firm represents The Gazette, The Aspen Times and The Colorado Press Association.

More recently, The Gazette forced the public utility agency in Colorado Springs to release the names of people who participated in an early retirement program and the amounts they were paid.

The utility argued that it would be at a disadvantage against private competitors if it had to reveal how much it spent to persuade several mid-level executives to retire. The courts did not agree.

Nor, apparently, does the state Legislature, which has been working on legislation to deregulate the utilities industry. “Public utilities sought a blanket exemption from open-records laws, and the Legislature said no dice,” Smith said.

Zansberg said the utilities ruling was significant, because public agencies and boards often use competition with private businesses as justification for meeting behind closed doors or keeping documents secret. By ruling in favor of The Gazette, the courts made it clear that public agencies, regardless of the competitive disadvantage that comes with public disclosure, are always subject to the state’s Sunshine Laws.

In its latest victory, The Gazette convinced the courts of the public’s right to know about malpractice settlements at El Paso County Memorial Hospital. The court required the publicly run hospital to release the documents in spite of its claims that privacy agreements were part of the settlements.

The Gazette is much more aggressive about the Sunshine Laws than other news organizations in Colorado.

Asked if Colorado’s newspapers were particularly meek in their pursuit of open meetings, Zansberg said, “All news media have limited resources, and they have to allocate them toward getting the paper out and paying their reporters. Nobody likes to pay attorney’s fees.”

Most newspapers, radio stations and television stations don’t file suit. Instead, they are far more likely to try to bring public pressure to bear by publicizing violations of the open-meetings and open-records laws, at least when they notice them. The Cortez Sentinel The Cortez Sentinel, a small weekly in southwestern Colorado, recently caught the Cortez City Council tripping over its own rhetoric.

Sentinel reporter David Long said the new council, elected last spring, started off on a questionable note at its very first meeting, in April, when the seven-member council voted 5-2 to elect a new mayor.

Long said the subject was never discussed in open session. Instead, when the meeting began, a motion was made, voted on and approved and the new mayor was seated.

The absence of any discussion seemed to make it clear that the matter had been discussed by the council before the public meeting began – a clear violation of the state law.

Four of the votes in favor of the new mayor came from newly elected council members who were recruited and financed by the “Good Government Committee.”

The Sentinel protested the council’s conduct again when the city manager was fired last December after a secret meeting. The open-meetings law allows closed meetings to discuss personnel issues, but that exemption from the open-meetings requirement is designed to protect the employee, not his or her bosses.

The Cortez city manager was never told about the meeting, Long said, much less asked whether she wanted it to be in closed or open session.

The firing resulted in talk of a recall campaign and the formation of a citizens’ group that monitors the council meetings and challenges every executive session.

“I don’t really know if there is much of a remedy in the Sunshine Laws,” Long said, “but there was a lot of public criticism as far as letters to the editor and comments at the council meetings.”


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