The county acted illegally – to reach a bad decision |

The county acted illegally – to reach a bad decision

Aspen Times staff report

The Pitkin County Commissioners are guilty of acting not only against the law, but against the express will of the electorate.

The issue here is the commissioners’ decision not to contest a preliminary hearing in a lawsuit filed by the Common Sense Alliance, which has asked a federal judge to overturn the county’s laws setting limits on political campaign contributions and spending. These are laws, we should note, that were not imposed by the commissioners, but were passed directly by the voters and incorporated in the county’s home rule charter.

To begin with, the commissioners’ decision was made in violation of the Colorado Sunshine Law, which holds that all decisions made by elected officials must be made in public, except under very specific circumstances.

The law does allow the commissioners to go behind closed doors for specific legal advice regarding strategy in pending lawsuits, but it does not allow the commissioners to give direction to the county attorney behind closed doors. For that, the meeting must be taken back into open session, so the public can know what their elected officials are doing. This preserves the commissioners’ right to hear their lawyer’s strategic advice and even discuss it in private. But the decision to act on that advice must be made in full view of the people.

Worse still was the fact that the commissioners made that secret decision through what is called a “telephone tree.” Following their closed-door meeting, in which possible actions were debated, but no conclusion was reached, the commissioners exchanged a series of telephone calls among themselves and with the county attorney, assembling a majority to approve the decision to surrender in the first round of the fight over the election finance laws.

According to experts on the Sunshine Law, such a series of phone conversations is clearly a “meeting” and, as such, must follow the law, which requires the commissioners to notify the public of their meetings – including their closed meetings – and requires that all meetings begin and end in open session. The “phone tree” was a deliberate act of subterfuge to get around the state’s open meeting requirements. It is not the first time the county commissioners have tried to conduct the public’s business in secret, and with each violation the commissioners lose more and more of the public’s trust and respect.

As things stand, the county will agree in writing to not enforce its laws for now, but will mount a legal defense at some future date.

Beyond the illegal fashion in which this decision was reached, we firmly believe it was a bad decision. The voters established these rules for a good reason – to prevent local elections from becoming the kind of bought-and-paid-for travesties that our national elections have become.

It is the county’s duty to fight for that point of view. A decision to simply knuckle under at this early stage does not bode well. It would be no great burden for the county to at least make a basic argument in favor of retaining and enforcing the law as it stands. This law is the expressed will of the public and should not be lightly abandoned without any kind of fight, even at such a preliminary stage. Certainly, there are subtle and far-reaching issues of constitutional law and conflicting interests – truly democratic elections versus free speech, as represented by unlimited spending.

But these are matters for the courts to decide. If the judicial system ultimately renders a verdict that the law is improper, then, sadly, it will have to be abandoned.

But, for now, it is unfortunate that our elected leaders are so willing to give this first round to those who oppose the people’s will. It can only be hoped that we, the people, will put up a better fight in the next round.

Until then, the commissioners should at least resolve to follow the law and carry out the public’s business in public.

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Posted: Friday, October 6, 2000

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