Moratorium e-mails may violate law
Amid all of the allegations of secret meetings and hidden agendas proffered by opponents of the development moratorium, it appears the only real basis for a broad legal challenge of the ban can be found deep in the county computer system’s memory.
A series of e-mail exchanges between three Pitkin County commissioners in the days leading up to the moratorium’s adoption appears to be a direct violation the state open meetings law. And they may come back to haunt the county if an appeal of the moratorium winds up in court.
E-mails between elected officials discussing official government business are subject to the open meetings law, just as a conference call or other gathering would be. “If elected officials use electronic mail to discuss pending legislation or other public business among themselves, the electronic mail shall be subject to the requirements of this section,” the law reads.
So when commissioners Dorothea Farris, Shellie Harper and Mick Ireland used e-mail over a three-day period to discuss why they supported or opposed the moratorium, they were meeting in quorum without required public notice or public access.
“It’s a shame. We never meant to violate the law,” said Harper.
The questionable exchanges began at 6:07 a.m. on Jan. 7 – one month to the day after the commissioners began considering a moratorium, according to sources at the county.
The first message was Ireland’s controversial e-mail that labeled a dozen landowners and two property holding companies as “liars and greedheads,” and professed disgust with a system that bent over backward to accommodate people, even when they were lying about their intentions.
“Why engage in hours of endless debate and rational analysis when it will likely as not get tossed out when Fear speaks these lines: What will it look like to do this? What will the press say? What if they sue? What if, what if, what if, what if,” he wrote. The message was sent to all five commissioners.
Harper replied five hours later, at 11:09 a.m., with an e-mail to Ireland that was also sent to the entire board. “I do not disagree with a single example you cited. I do not disagree with any of the goals or trends we wish to address. I just feel strongly that a `time out,’ or ID whatever [interim development regulations], or a moratorium is not the correct umbrella under which to enact these changes,” she wrote.
At this point it is not apparent that the commissioners were in violation of the law. Even though they had sent their communications to all five commissioners, the conversation was solely between Harper and Ireland. In fact, the two commissioners exchanged e-mails two more times that day without sending them on to the other commissioners.
Then on the morning of Jan. 10, about twelve hours before the moratorium was adopted, Commissioner Farris chimed in with a lengthy e-mail of her own. “Shellie, since you sent to us all, I guess my response can be shared as well – just some responses to your comments to Mick,” Farris wrote.
Farris’ e-mail, which like the others was sent to all five commissioners, pointed out the “total inconsistency and ambiguity in the code that is evident each time we must have a code amendment to approve a good proposal.” She noted that major revisions to the code have been under consideration for three years, with little movement toward adoption.
“If we don’t have a `time out’ for comprehensive review, what is your suggestion?” she asked Harper.
According to attorney Chris Beall, the addition of a third commissioner pushed the exchanges from legal give-and-take between two commissioners to an illegal meeting of a quorum. Beall is an expert on Colorado’s open meetings and open records laws who represents a number of newspapers around the state, including The Aspen Times.
“It sounds like a meeting. They’re getting together on their computers, in a written forum, to discuss the moratorium,” Beall said.
The question of whether the e-mail deliberations between the three commissioners poisoned the process enough to undermine the legal viability of the moratorium is a difficult one, but it may come up in the appeal of the moratorium filed by the Starwood Homeowners Association.
Starwood attorney Paul Taddune has said the issue that may be brought up if the appeal ends up in court. The county commissioners are expected to rule on the appeal on April 12.
“If you look at the open meetings law, their actions [with the e-mail] make the moratorium unenforceable,” Taddune said.
But Beall isn’t so sure. “The argument is that these deliberations were tainted, so any action as a result of them is also tainted and should be declared void. It’s a stretch,” he said.
The e-mails containing the commissioners’ deliberations were made public after Taddune filed an open records request for all county e-mails relating to the moratorium and recent attempts to revise the land-use code.
Among the county officials questioned yesterday, Farris was the only one to deny that the exchanges violated the law. While declining to comment specifically on the e-mails in question, County Attorney John Ely admitted the commissioners may have violated the law.
Ely said it was likely the county would soon have a policy on e-mail communications, including direction to the commissioners about what’s legal and what isn’t.
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