Open Letter to City Council and City Attorney Chris Melcher:
Can you please stop violating the state's Open Meetings Law by making decisions behind closed doors?
Seems you've become so brazen in this regard that now Melcher even acknowledges such law-breaking in writing. You, Mr. Melcher, cavalierly note in an undated memo to Council:
"Closed executive legal discussion of this item was held on March 25, 2013. At subsequent open informal on March 25, 2013, Council President Hente announced that the Council had reached on consensus on the matter."
This matter dealt with whether the city will pay someone's legal bills when they're investigated for an ethics violation.
The extraneous word "on" notwithstanding, Melcher fully admits a violation of the Open Meetings Act, because the law doesn't allow any decision to be made in closed session.
In a 2006 story in the Aspen Times, the newspaper reports on the case of a school district superintendent being hired by the school board during closed session. The story quotes Colorado Press Association attorney Chris Beall as saying public bodies can't take any action, formal or informal, in a closed session.
“When a board or body [in executive session] comes to a consensus and the public action is to rubber-stamp a decision that was made in executive session, the open meetings law declares actions taken in executive session are void and of no legal effect,” Beall is quoted as saying in the article.
The same story quotes Tom Kelley, the state's pre-eminent First Amendment attorney, saying, “If the decision was made by consensus or straw vote in the executive session, that was a clear violation of the open meetings law.”
In another case in 2007 involving the Emergency Services Agency, I wrote a story quoting another media law expert Steve Zansberg as saying the law bars a public board from reaching a decision by any means in a closed session, and that includes by consensus.
And then in October 2011, the Gazette reported the Council made two decisions about collection of stormwater management fees in closed session contrary to law, although Council President Scott Hente asserted they weren't formal decisions. From the story:
As to why the decisions were made behind closed doors, Hente said Wednesday the council didn’t violate the law because council members simply reached general agreement during the meeting. The council didn’t cast any votes, he said.
“I don’t want to split hairs. We provided staff direction, which we do all the time in closed session,” Hente said.
Attorney Steve Zansberg, who has represented news organizations across the state in open records and open meeting cases, said the council is misreading the law.
“The law clearly states that not only formal action but any adoption of any position cannot occur in an executive session,” Zansberg said.
“Informal decision-making, no matter how it’s conducted, is prohibited,” he said.
Must someone sue the city, running up more legal bills that taxpayers must pay, in order to get this behavior stopped?
Mr. Melcher, please study the law. Please consult prior cases. Please advise your client accordingly.
And Council, even if Melcher doesn't advise you accordingly, can you please have some respect for the law and for the public you serve and stop the practice of deciding stuff when nobody is looking?
A concerned citizen of Colorado Springs and Sunshine Laws fanatic (Pam Zubeck)
p.s. We've asked for comments from Melcher and Hente and will report back when we hear from them.