Legality of closed-door meetings still at issue

ASPEN It appears city officials won’t be legally accountable for a possible violation of the state’s open meetings laws after granting a city employee lifetime housing in a closed-door session last month.According to First Amendment attorney Steve Zansberg, the Aspen City Council broke the state’s open meetings law three different ways because it made a decision on changing public housing policy, despite claims made to the contrary by City Manager Steve Barwick.Zansberg, a consultant for the Colorado Press Association, said City Council violated the law when it met May 4 in an executive session. “They were discussing public policy and that is why it should be discussed in public,” he said.Zansberg said the only way to hold accountable the council and the city administration is for a member of the public to challenge the decision in court. If a judge determines the meeting was held illegally, then the decision City Council made is null and void, Zansberg said. “It was not a properly convened executive session,” he said. “I couldn’t be more confident in court of a decision that says that.”City Attorney John Worcester disagreed with Zansberg’s position, arguing that it was a personnel matter and Overeynder’s benefits had to be negotiated privately in order to strategize ways to keep him from resigning for a better-paying job in California, where it’s more affordable to retire.The outcome of the May 4 meeting ultimately allowed Public Works Director Phil Overeynder to live in city-owned housing for the rest of his life, an unprecedented departure from the current housing policy. The council also discussed the future of the city’s housing program, possibly granting key employees similar deals. Barwick and Worcester both live in city housing on Cemetery Lane. They still fall under the current policy, which stipulates that if a city employee who purchased a house in the city’s inventory resigns, that employee has six months to vacate. If a city employee rents a house in the city’s inventory, that employee has 30 days to vacate if she or she quits.The announcement of the topic of the closed-door meeting didn’t specify that the council would be making an exception to the housing policy or discussing the future of that policy, another violation of the open meetings law, Zansberg said.”Every which way they have violated the law,” Zansberg said. “They voted unanimously to adopt a position and that’s prohibited.”And they discussed extending the policy to others, which is clearly not a personnel matter.”According to the audiotape of the executive session City Hall released last week, Barwick asked City Council for its permission to make an exception to the city’s policy. Council members individually told Barwick that they approved of his proposal.”The fact that individual council members explained the basis for the position they were taking further demonstrates why this discussion should have been conducted in a meeting open to the public,” Zansberg said. “They were discussing public policy, and that is prohibited.”The agreement, signed May 8, stipulates that Overeynder, 59, must work full time for the city for the next five years and then part time for five years. After that, he and his wife, Deborah, can enjoy retiring in the house on the Holden-Marolt Open Space, where they have lived since 1995.Worcester compared the situation to other executive sessions, when the City Council must negotiate the price of a land purchase. If the discussion was public, the seller would know how much City Council would be willing to pay.”Steve [Barwick] hadn’t completed negotiations with Phil and wanted some direction,” Worcester said. “The council is entitled in executive session to direct staff, but sometimes they have to come to a consensus; otherwise staff doesn’t know what council wants.”Zansberg said Worcester is comparing apples and oranges.”This isn’t hypothetical,” he said. “They didn’t convene to purchase real estate.”The meeting came just hours after Barwick asked Overeynder if lifetime housing would keep him in Aspen, which Overeynder responded in the affirmative. At that point, all Barwick needed was the blessing of the council.”Asking for permission doesn’t sound like negotiating,” Zansberg said. “There was no negotiating.”In explaining the decision to the press, Barwick at first said he went to ask the council for permission, but then he said he was merely advising the council that he would be making a change to the housing policy. (See related story).”I’m politically astute enough to go council and give them information,” Barwick said. “I wanted to see if they had a problem with the housing policy I made …”This is clearly something they put me in charge of.”According to the city charter, the council is the policy-determining body and the city manager is the person who executes those policies. But Barwick said there are gray areas and Overeynder’s compensation package is one of them. He added that he has the authority to make changes to public policy.”When a city manager comes to the City Council and asks for their permission in an illegal meeting, that’s wrong,” Zansberg said. “There is no doubt in my mind that they made a decision.”In hindsight, however, Barwick and Worcester said if they had to do it all over again, they would have discussed the issue and made the decision publicly.That’s what Snowmass Mayor Doug Mercatoris would have done as well.”I believe discussions of policy changes with housing should be done in public,” Mercatoris said. “It was a very strange precedent to set.”Sam Fitch, a public policy professor at the University of Colorado-Boulder, said generally that changing policy should happen in public.”I think there would be a howl here in Boulder [if City Council made a similar decision in executive session],” he said. “Changing housing policy without some sort of public discussion I don’t think is a great idea.”Carolyn Sackariason can be reached at csack@aspentimes.com