Pitco involved in illegal talks?
The Pitkin County Commissioners apparently broke the state law on open meetings this week when they met and decided not to defend county election laws in federal district court.On Wednesday night, the commissioners bowed out of the first round of a federal lawsuit against the home rule charter’s campaign spending and contribution limits by agreeing to comply with an injunction sought by the Common Sense Alliance ordering the county not to enforce the limits.The injunction, which was scheduled for a hearing next Tuesday in Denver, is part of the Common Sense Alliance complaint asking the court to declare the limits unconstitutional. By agreeing to the terms of the injunction without a hearing, the county opens the way for unlimited fund-raising and spending by the Redstone-based group in next month’s election. The commissioners said they plan to contest the rest of the lawsuit.That the commissioners are hesitant about taking on 25 years of case law is not a problem, said attorney Chris Beall, but the fact that they deliberated on the question in executive session and then made their final decision through a series of phone calls is cause for concern. And while the commissioners are allowed to receive advice from their attorney in private, Beall pointed out that the law does not allow them to meet in closed session to discuss matters of policy and budget as they decide on a legal stance, which is exactly what happened.”The reason why the open meetings law says you can’t make these kinds of final decisions in closed session is because we won’t know who supports enforcement of the campaign law and who doesn’t,” said Beall, whose job at the Denver law firm of Faegre & Benson includes representing The Aspen Times and other newspapers in their attempts to open up government records and meetings.County officials, including Commissioner Dorothea Farris and County Attorney John Ely, maintain that their actions are protected under the section of the open meetings law that deals with executive sessions. Ely said that even though the commissioners agreed to suspend enforcement of a county law, the decision was allowed in closed session because it came as direction from their attorney on a pending legal matter.The commissioners have been laboring over the question of whether to defend the spending cap of $12,547 per election and contribution cap of $500 per person or organization for much of the last week.They met in executive session late last week, and following the meeting Commissioner Shellie Roy Harper declared that the county planned to fold on the entire case. But Commissioner Mick Ireland protested, noting that neither he nor Commissioner Leslie Lamont, who is on maternity leave, were presentfor the discussion.So the discussion picked up in an executive session that began Tuesday morning and stretched late into the afternoon. Commissioners Ireland and Patti Clapper could be heard through the walls shouting at each other during the meeting, with Clapper arguing it would be fiscally irresponsible to spend $200,000 or more defending a constitutionally suspect law and Ireland maintaining that a case that could possibly overturn a bad decision by the U.S. Supreme Court was worth pursuing on principle.Neither Clapper’s budgetary concerns nor Ireland’s constitutional principles has anything to do with the specific legal issues relating to the case at hand. Ireland said after the meeting, “I thought we could have held some of that discussion in open session.”The closed session on Tuesday apparently ended in an impasse. If their positions at the end of the closed session remained consistent with stances taken in interviews earlier this week, then Ireland favored a full-on fight, Farris was leery of wasting the county’s money but unwilling to concede entirely, Clapper was ready to fold on every point, and Harper wanted to build a consensus. The missing opinion belonged to Lamont, who was at home caring for her baby, so the commissioners put off a final decision until she could be consulted.They then apparently spent much of the next day calling one another to discuss the issue, in direct violation of the meetings law. Although Clapper and Ireland denied they were involved in any phone discussions, and Farris said she spoke only to Lamont, Harper had another version of events. “We were calling each other back and forth and trying to figure things out,” she said.Ireland suggested that Farris stitched together a consensus by calling her fellow commissioners. Harper also said Ely, the county attorney, called her and the other commissioners to make sure they were on the same page before acting on the case.”That’s a meeting, and by the legal definition it’s an illegal meeting,” Beall said. “It’s black letter law.”The telephone calls allegedly violated the open meetings law, because they allowed the commissioners to deliberate and decide without notifying the public that they were discussing the case. Beall also pointed out that the county commissioners technically violated the law by issuing instructions to their attorney in a closed (or in this case, illegal) meeting.The open meetings law states that an elected local public body like a county commission can meet in closed session with their attorney “for the purposes of receiving specific legal advice on specific legal questions. Mere presence or participation of an attorney at an executive session of a local public body is not sufficient.””In the real world, local public bodies instruct their attorneys in closed session all the time,” Beall said. “But the law expects something else – it expects that decisions be made and legal direction be given in public, open meetings.”
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