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Secret sessions raise questions

Allyn Harvey

Did the Board of County Commissioners break the law earlier thismonth when it met behind closed doors to discuss a proposal thatwould radically change land-use law in Pitkin County?Different versions of what transpired during a five-hour executivesession on the morning of March 2 make it difficult to determinewhether Colorado’s open-meetings law was violated. Two commissioners agree on one scenario, one insists on another,the county manager isn’t sure about either version, and the countyattorney did not answer messages requesting comment. Colorado’s open-meetings law requires local legislators to deliberateand make decisions in meetings that are open to the public, withsome exceptions. Passed in the wake of the Watergate scandal ofthe mid-1970s, the law is especially relevant in Pitkin County,where the commissioners have spent between 80 and 100 hours sinceJanuary 1998 in executive session.According to county records that document the time, date and topicsof discussion, the commissioners spent much of the time in executivesession with County Attorney John Ely discussing ongoing or pendinglitigation. During the 14-month period investigated by The AspenTimes, Ely or one of his assistants briefed the commissionerson 21 lawsuits that involve the county in one way or another.Litigation is by no means the only topic that comes up, however.The board also spends considerable time in executive session onpersonnel issues and the purchase or sale of property, which isalso permitted under the open-meetings law.But the county’s own records also reveal several apparent discrepancieswith the open-meetings law:On March 2, 1999, the commissioners met in executive session todiscuss changes to the land-use code proposed last December bythe Agriculture Committee. According to two commissioners, the board agreed on a “process”for presenting the controversial plan to the public and usheringit into law. The open-meetings law, however, does not allow the board to deliberateon matters of “process” in secret; and it clearly states thatno decisions can be made in executive session. Commissioner Mick Ireland insists that the board simply questionedthe county attorney about legal issues regarding the proposal’s”pipeline” – planning jargon that refers to the point at whichland-use permit applications fall under new rules, even if theyhaven’t formally been adopted.”We’ve had litigation over almost every pipeline decision we’veever made,” said Ireland, a practicing attorney. If the topic was indeed the “pipeline” for the Agriculture Committee’sproposal, the executive session was probably legal. The open-meetingslaw allows local governments to meet behind closed doors for “conferenceswith the attorney for [the county government] for the purposesof receiving legal advice on specific legal questions.”But BOCC Chairwoman Leslie Lamont maintains that the pipelinewas never discussed. “I want to make it absolutely clear,” shesaid, “that we didn’t talk about the pipeline.” n Sometime between October 1998 and December 1998, the commissionersmet in private with officials from Colorado Public Radio. Theyapparently agreed to keep new developments regarding the disputebetween the Denver-based public radio conglomerate and two localpublic radio stations under wraps. The records fail to document either of two executive sessionsCPR officials say they attended. And, Denver attorney Chris Beallnoted, if a quorum of the BOCC directly negotiated a secrecy agreementwith CPR behind closed doors, it broke the law.The open-meetings law doesn’t allow the board to negotiate directlyin executive session, but it does permit commissioners to developstrategies for negotiation and to instruct negotiators.On April 28, 1998, the “conduct of meetings” was one of five topicsdiscussed in executive session.”That falls under personnel,” Ireland said. “We discussed theconduct of certain board members at the meetings.””Board members are not employees,” Beall countered. “They maybe paid, but they are the chief legislative officers and, in somerespects, the chief executive officers of the county government.”Personnel issues imply an employer-employee relationship, andthe essential element of that relationship is the power to hireand fire people. “No one has the power to hire and fire a board of county commissioners,”Beall said, “except the voters, once every four years.”Beall maintained that the open-meetings law does not allow electedofficials to discuss either their own conduct or management ofmeetings in executive session.Between February and October 1998, the county’s open-space programwas discussed in at least 13 separate executive sessions.Commissioner Shellie Harper said the secrecy was necessary becauseserious personnel matters were at stake. The closed meetings -some held jointly with the Open Space and Trails Board – apparentlyexamined the role of the director and her relationship with thecounty manager.”There was some stuff that clearly belonged in executive session,”said an Open Space and Trails Board member who asked not to beidentified.But the county’s broader aim to reorganize the program came tolight last August, after the Open Space and Trails Board insistedon discussing the subject in open meetings. “We balked,” the openspace board member said. “It wasn’t proper to be in executivesession.”Attorney Beall, who represents The Aspen Times and the ColoradoPress Association, said the open-meetings law gives legislatorsquite a bit of leeway when comes to personnel issues. If, however, there was a major reorganization under way, the factthat some job descriptions might change isn’t enough to justifyan executive session, he said. On Sept. 29, 1998, the board met behind closed doors to discussa pending application to build 778 units of affordable housingat W/J Ranch near Woody Creek. County officials admit it is unusual to meet in executive sessionover an application that is under consideration. But they insistthat the commissioners were merely seeking direction from Elyabout the legal ramifications of their decision.”We basically knew whichever way we went we were going to getsued,” recalled Harper, “and we needed to know what not to say[in open session].”As long as they were seeking answers to specific questions oflaw, the commissioners were in compliance with the law.”It is certainly not pending litigation,” Beall said, “but itprobably comes under the section that allows consultations. Atleast they can be construed that way, even if it’s not a wiseidea.”On March 3, 1998, the commissioners met in executive session todiscuss “BOCC process.” Neither the commissioners nor County ManagerSuzanne Konchan were able to recall the nature of the conversation.On Dec. 8, 1998, a similarly vague topic was entered under theheading “land-use code application.” Again, no one was able torecall what was discussed.Ely’s failure to answer phone messages seeking comment makes itimpossible to confirm whether the board had specific legal questions,or was simply discussing possible changes to the “BOCC process”and “land-use code application” behind closed doors. n County commissioners are required by law to fill out forms explainingthe nature of what went on behind closed doors. Several of thoseforms from meetings held in 1998 are missing, which accounts forthe inability to pin down the exact amount of time the board spentin executive session over the last 14 months. An employee at the county clerk’s office said she has broughtthe issue up with Ely and Commissioner Lamont and expects thepaperwork to be filed shortly.Konchan said the board has been meeting in executive session lessoften in recent days. “We made a conscious decision last yearto try and cut out half our meetings [in executive session] fromlast year,” she said.When they do gather in executive session, commissioners usuallydiscuss litigation or real estate purchases. But in Pitkin County,where the land-use rules are exceptionally complicated, Konchansaid, the board needs to be briefed on broader matters of land-uselaw.”There is a lot of new case law in takings and transferable developmentrights that is very pertinent to the present dialogue,” she said.”I think it’s important for the BOCC to understand the latestcase law.”Beall, however, pointed out that the law is based on the overarchingprinciple that open government makes for the best government.Executive sessions are allowed for a narrow range of subjects- updates on case law isn’t one of them. “It’s perfectly legitimate for them to spend 10 hours – all day- talking about a topic in executive session,” he said, “as longas it falls within the narrow exceptions in the state open-meetingslaw.”Ireland and Lamont defended their actions, contending the boardneeds to meet behind closed doors to protect the county from expensivelawsuits.”We have to protect the public money from lawsuits,” Ireland said.”It’s irresponsible for us not to get the county attorney’s adviceon the propriety of what we’re saying.”Commissioner Patti Clapper said that while she has a healthy distrustof government, “I’m finding out the importance of being able todiscuss issues openly with our lawyers.”Harper was the only commissioner to question the board’s propensityto meet in executive session. “I’m not sure we needed to meetin executive session [to discuss the agriculture committee’s proposal],”she said.”How is the public to know what’s being decided in its interest,”pondered Beall, “if discussions and deliberations are going onbehind closed doors?”Editor’s note: This is the first in a series of stories that willaddress closed meetings held in Pitkin County.


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