July 1, 2012
Brent Gardner-Smith, of Aspen Journalism, reviewed the public record, interviewed city officials and wrote a crackerjack piece of investigative journalism.
He described in detail the facts surrounding the city of Aspen’s spinning a yarn about the construction of the penstock (water supply) for Castle Creek Energy Center. Anyone interested in how the city conducts business in general should read Gardner-Smith’s detailed report at http://www.aspenjournalism.org. The Aspen Daily News also reprinted it on June 4.
One is struck by the lack of documentation supporting the city’s version of the truth and the excess of documentary evidence refuting it. And yet, rather than admitting the facts, city officials continue to tell their fairy tale when confronted. Just read the quotations from interviews in the article.
One point brought out by Gardner-Smith has troubled many – the abuse of executive sessions (secret meetings) by City Council. Colorado’s open meetings law requires all city council meetings to be noticed in advance with an agenda. A few narrowly defined subjects are permitted in executive session. Even in such exceptions, however, it is required that the meeting be noticed to the public in advance with as much detail as possible about the subjects without compromising the city’s interests.
The city of Aspen routinely ignores these requirements, while insisting on scrupulous application of other rules when it suits the city’s purposes. It seems the city ignored the open meetings law in discussing and, apparently, deciding on the actions to be taken in respect of the penstock.
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The facts revealed in Gardner-Smith’s article strongly suggest that the city discussed and perhaps decided to disseminate the emergency drain-line story and to grant a $2.3 million contract to build the penstock in executive session and then officially approved its decision using the “consent calendar” trick, a convenient way of technically providing an opportunity for public discussion while virtually assuring that there would be none. City Council did not discuss in public the “drastic” need for an “emergency” drain line requiring a $2.3 million expenditure when it adopted that consent calendar. So when did it discuss the matter publicly?
The city claims the executive session was private because it “related to lawsuits and a (Federal Energy Regulatory Commission) application.” That is not enough; an executive session must be for “the purposes of receiving legal advice on specific legal questions” (Colorado Open Meetings Law, CRS sec. 24-6-402).
The executive session was improper to the extent it did not involve receiving legal advice. If the purpose of the executive session was to receive legal advice, why did people present at the meeting freely disclose what happened to Gardner-Smith, as they did (e.g., “What we said to City Council was …”; “Phil Overeynder told us such and so …”; “When I was asked to make the decision …”)? Are city officials compromising the city’s attorney-client privilege to justify their actions? Was the meeting even partially for receiving legal advice? Did City Council hold an improper secret meeting that would be embarrassing if held in public and create an excuse by having a lawyer attend? How many other times have they done this? We cannot know because it was secret.
While the city’s Federal Energy Regulatory Commission counsel, Karl Kumli, was at the secret session, he does not seem to have given even the most basic “legal advice.” For example, one city official present denies that he was told how the Federal Energy Regulatory Commission process worked (“I did not know that there was a traditional licensing process …”). If Kumli was not advising City Council on the Federal Energy Regulatory Commission process, in which he is the city’s expert counsel, there could not have been much legal content in a meeting that was made secret on the excuse that it was for receiving legal advice.
So, beyond providing extensive documentation disproving the city’s version of events, Gardner-Smith also has provided a peek at the city’s habit of holding secret meetings and using bogus excuses. A city official is quoted claiming, “The public is best served” by City Council’s conduct in this matter. Many think the public is best served by following the rules and having public, not private, meetings on public matters.
One wonders whether, had the city obeyed the rules and invited the public into its discussions, the city might have strengthened the public’s trust in its actions, and possibly avoided many of its pratfalls in the expensive comedy that Castle Creek Energy Center has become.