Remember when your mom would say, "If you want to play the game, you have to abide by the rules"? Well, the mayor and three members of the business community need to meet your mom.
According to First Amendment expert and open-meetings guru Steve Zansberg, a Denver attorney, those who serve on public boards must submit to Colorado's Sunshine Law. And that pertains to the task force that recently welcomed Mayor Steve Bach and three businessmen representing the Regional Leadership Forum, a local business and community group, who don't want their meetings open to the public.
Last week, after seating themselves at the table with Councilors and others on the task force, Bach and his cohorts — Chris Jenkins, Phil Lane and Doug Quimby — expressed disdain at having to adhere to open-meetings laws by posting meetings of three or more members in advance and admitting the public to those gatherings. Bach said he didn't want to be held to the same open-meetings standard as task force members.
Council President Pro Tem Jan Martin, who chairs the task force, then said the four might be considered ex-officio members or "collaborators," as indicated by the Aug. 23 Council vote giving the forum a role. But, she said, perhaps only the four Council members on the panel — Martin, Tim Leigh, Merv Bennett and Brandy Williams — would be actual voting members. It wasn't clear, and won't be clear until at least this Friday's weekly task force meeting.
(To see how task force membership has evolved over the past few weeks below.)
Awaiting a legal opinion
Friday is when City Attorney Patricia Kelly is expected to report on whether Bach and company are members, whether they wear some other label associated with the task force, or whether they are no different from citizens in the peanut gallery.
Zansberg says by e-mail that if the mayor and his "collaborator" businessmen aren't on the task force, they can meet privately whenever and with whomever they want.
"Of course," he adds, "if the Mayor and the three others routinely appear at, and participate in, every meeting of this Task Force, and are treated as 'de facto' members — i.e., they receive all materials circulated in advance of meetings to members of the Task Force, attend its executive sessions, and have 'voting' rights — or are 'ex officio' — then it appears that the Task Force would be seeking to avoid the Open Meetings Law by treating them as full-fledged members, without formally 'appointing' them to the committee."
Zansberg says ex-officio members who are given access that's denied members of the public would qualify as members of the panel and subject them to Sunshine Law requirements.
Lane is waiting for the city attorney's take, but assumes he's not a member of the task force and won't have a vote, because he doesn't want to comply with open-meetings laws.
"We want this to be as open and efficient a process as we can make it," he says, adding, "We truly don't have anything to hide in this process." He says the state Sunshine Law's ban against "a casual conversation" and small group meetings without public notice undermines efficiency.
The task force has a Dec. 31 deadline to produce a request for proposals, analyze responses, and choose a company or nonprofit to run the hospital to recommend to the Council. Ultimately, voters will give it thumbs up or down at a special election in early 2012.
Lane says he's uncertain what role he, Quimby and Jenkins will have. "That's an open question," he says. "We were asked to help with this process. I think we're still willing and prepared to help in whatever way this continues to unfold."
Lane also notes that the status of six more appointees proposed by Martin last week, including health care professionals and an attorney, also remains unclear.
Councilor says no conflict
Martin urged all members to "avoid any contact" with potential bidders in the interest of keeping the panel's dealings above board and transparent. It came out at last Friday's meeting that Bach, Quimby, Lane and Jenkins already had met with representatives of HCA-HealthOne, the hospital giant that owns 10 hospitals in Denver and is interested in Memorial. They also have met with Memorial CEO Dr. Larry McEvoy.
None of those contacts appear to comprise a conflict of interest, which is defined as having a substantial financial interest — a contract or ownership stake — in the topic at hand.
But it's good information to know. Just like it's good to know that Tim Leigh's wife, Lisa, works part-time as a nurse at Memorial — a fact he didn't disclose before joining the task force months ago and voting Aug. 23 to admit Regional Leadership Forum members.
That's odd, considering it was Lisa Leigh's job that led then-Mayor Lionel Rivera and then-Councilman Darryl Glenn to pressure Leigh to resign from the Citizens' Commission on Ownership and Governance of Memorial in early 2010. The commission later recommended Memorial be converted to an independent nonprofit agency.
Glenn told the Gazette at the time that Leigh's link to the hospital might distract in a process the Council wanted to be fair and open.
Leigh says no conflict exists, because "I derive no benefit from her income," which he called "piddling" at $30,000 a year.
Luis Toro, executive director of Colorado Ethics Watch, agrees Leigh's wife's job might not pose a conflict, but says Leigh should have divulged it again before joining the new task force.
"It definitely needs to be disclosed," Toro says. "It's not enough to say, 'Everyone knows my wife works there.' Even though it may have come out [before], the citizens don't necessarily bear that in mind."
A day after the vote, Leigh sent an e-mail newsletter to his constituents, whom he asked to weigh in on whether they thought he had a conflict. Based on "a lot of feedback" he received, Leigh says, the answer was "no."
Task force as of Aug. 16, 2011:
Jan Martin, City Council president pro tem
Merv Bennett, Brandy Williams and Tim Leigh, City Councilors
Arlene Stein, Memorial board chair
Jim Moore, Memorial board vice chair
Marijane Paulsen, Memorial board trustee
Patricia Kelly, city attorney
Randy Purvis, former Councilor and former Mayor's Task Force member
Carm Moceri, Memorial chief strategy officer
Vic Andrews, Memorial board trustee
Task force as of Aug. 26, 2011:
Martin, Bennett, Williams, Leigh, Purvis, Kelly
Chris Jenkins, Phil Lane, Doug Quimby, Regional Leadership Forum members
Mayor Steve Bach
Task force as of Sept. 2, 2011*:
Martin, Williams, Leigh, Bennett
*Pending the city attorney's legal opinion, due Friday, on who is considered a member. Martin also wants to appoint Dr. Michael Welch, Peak Vista; Steve Schaefer, HealthSouth; Dr. David Steinbruner, private practice; Carolyn Flynn, Memorial nurse; Dr. David Corry, Memorial surgeon; Charlie Sweet, attorney at UCCS.
Source: Meeting minutes and task force discussion.