Legal questions surround secret meetings of state ethics commission

(Photo/drinksmachine, Flickr)

(Photo/drinksmachine, Flickr)

The Colorado Independent on Tuesday asked the state’s top ethics panel to turn over recordings of more than a dozen secret meetings held this year — including closed sessions where a member of the panel reported deliberating on an ethics complaint filed against former Secretary of State Mike Coffman, who won election to Congress last fall — charging the panel with violating the state’s Open Meetings Law.

The Independent is seeking access to audiotapes or minutes of 14 secret sessions held between January 14 and April 21 by the Colorado Independent Ethics Commission, arguing they are public records because the secret enclaves were illegal.

In all, the ethics panel — established by voters in 2006 by the adoption of Amendment 41, touted as a measure to increase government accountability and transparency — has spent nearly 85 percent of its time meeting in secret this year to discuss complaints filed with the commission and requests for rulings on the conduct of public officials and government employees.

The commission has met behind closed doors for 37 hours, 35 minutes, and in open session for only 6 hours, 45 minutes since the start of the year, according to a Colorado Independent analysis of the commission’s official minutes, agendas and meeting notices. The figures don’t include the commission’s most recent meeting on April 21 because minutes weren’t yet available for that meeting, which included a closed-door executive session on its agenda.

Colorado’s Open Meetings Law allows government officials to meet behind closed doors to discuss personnel questions, pending land deals and lawsuit strategies, among other matters, though it requires officials follow procedures strictly. The law places exacting restrictions on topics officials may discuss in secret.

On 14 occasions — including two secret meetings held by telephone conference calls — the ethics panel barred the public from hearing it formulate decisions on ethical questions, only to emerge with rulings ready to be adopted by commissioners in unanimous, formal public votes. State courts have ruled that merely voting in public on matters decided in secret amounts to “rubber-stamping” and is no defense against charges a public body violated Open Meetings Law, said Steve Zansberg, a Denver attorney who specializes in First Amendment law.

On March 19, the panel’s chairwoman, Nancy Friedman, announced that commissioners were considering how to rule on a complaint filed against Coffman alleging ethical misconduct when he was Colorado secretary of state, even though the commission wasn’t formulating its decision in public. Friedman, who didn’t respond to a request for comment Tuesday, “reported that the deliberations in 08-01 [the complaint against Coffman] are in process and a decision will be forthcoming,” according to the minutes of the March 19 Independent Ethics Commission meeting.

The day before, the commission met in secret for six hours at the offices of its attorney and then huddled behind closed doors for an additional four hours soon after Friedman’s statement. The commission didn’t hold a single discussion about the Coffman complaint in open, public meetings but met numerous times in secret and on telephone conference calls before issuing an 18-page ruling that cleared the Aurora Republican of wrongdoing.

“To deliberate behind closed doors and issue [an 18-page] ruling — that’s an obvious, plain and unambiguous violation of the Open Meetings Law,” Zansberg said. “Even if it’s properly convened, they cannot reach a decision, they cannot adopt a position in executive session.”

In its request for the recordings, The Independent argues that the executive sessions weren’t properly convened, either, pointing to strict legal requirements that a public body announce specifically what will be discussed in closed-door session, cite relevant statutes and then hold a recorded vote with two-thirds of its members agreeing to go behind closed doors.

The commission’s minutes don’t record a single vote to go into executive session, and on at least two occasions the commission met in executive session without first convening a public meeting at all.

“Colorado courts have held three separate times that when a public body fails to strictly adhere to procedural requirements, and doesn’t adequately announce the topic to be discussed in executive session, then it didn’t have an executive session that was closed to the public, it had an illegal meeting that was closed to the public,” Zansberg said.

Zansberg pointed to a settlement last week between the Steamboat Pilot & Today newspaper and the Steamboat Springs School board where the school board agreed to pay $50,000 in attorneys fees to the newspaper and release the transcripts of a secret session after a court ruled it had convened an illegal meeting. In that case, Zansberg’s partner, Chris Beall, filed a lawsuit against the district on behalf of the newspaper, arguing the school board failed to specify the topic it planned to discuss.

Citing an earlier court decision, Zansberg questioned whether the ethics commission has been adequately describing the topics it plans to discuss in secret meetings. Public officials must not only point to the legal basis for their secret meetings, Zansberg said, but also announce “the topic for discussion in executive session, [including] identification of the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized.”

The commission routinely describes its executive sessions as “[d]iscussion pertaining to requests for advisory opinions and complaints filed with the Commission.” The commission only announced once that it planned to discuss in secret the complaint against Coffman. Every other time it announced an executive session, the commission stated its intentions using the generic description.

The commission doesn’t have audio recordings of several of the secret sessions, executive director Jane Feldman told The Colorado Independent on Tuesday, citing a state law that allows public officials to discard recordings after 90 days. In addition, Feldman said, the commission turned off the recorder several times because the group was receiving advice from its attorney.

Colorado law explicitly waives attorney-client privilege for state bodies, including the ethics commission, except in very narrow circumstances, Zansberg said. State officials can only meet in secret for “[c]onferences with an attorney representing the state public body concerning disputes involving the public body that are the subject of pending or imminent court action,” according to the Open Meetings Law.

Feldman hasn’t formally replied to The Independent’s request for recordings or minutes of the secret meetings. Colorado law allows custodians of public records three days to respond.

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Ernest Luning

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