Ethics panel agrees to release recordings of secret meetings

<em>Monocle, Flickr</em>

Monocle, Flickr

DENVER — Colorado’s top ethics panel agreed Friday to release unedited audio recordings of two secret meetings and plans to turn over redacted recordings of five additional closed-door meetings conducted earlier this year.

The announcement came during a hearing in Denver District Court on a lawsuit filed by The Colorado Independent alleging the Colorado Independent Ethics Commission illegally met behind closed doors a dozen times between January and May.

An attorney for the commission said no recordings exist for five of its closed-door executive sessions, chiefly when commissioners talked about a formal complaint filed — and later dismissed — against U.S. Rep. Mike Coffman alleging ethical misconduct while he was Colorado’s secretary of state.

Chief Judge Larry Naves said he would rule later this month whether the commission can withhold portions of audio recordings its attorneys argue should be protected from public disclosure.

At issue is whether the ethics commission complied with Colorado’s strict Open Meetings Law by properly convening its numerous secret meetings, or, as the lawsuit filed by The Colorado Independent alleges, the commission repeatedly violated the law by failing to follow required procedures and, once huddled behind closed doors, held discussions state law says the public has a right to witness.

“All the commission’s actions were done in good faith,” a lawyer representing the commission, Assistant Attorney General Lisa Brenner Freimann, told Naves. “There was no intent to deceive anyone.”

“We don’t dispute the commission had good faith,” said Christopher Beall, the attorney representing The Colorado Independent. “It just isn’t relevant.”

Panel might seek change in law

Also at Friday’s hearing, the ethics commission’s director said the panel is considering asking the State Legislature to tighten restrictions on what the commission has to reveal to the public following a May ruling that forced the release of letters from lawmakers and government employees asking for guidance on ethical questions.

“The commission was very upset by [Denver District Judge Norman] Haglund’s decision,” said executive director Jane Feldman during testimony Friday on the open meetings lawsuit, “and there have been discussions about seeking changes in legislation because they are very concerned about confidentiality.”

The ethics commission went to court in May to keep submissions to the commission secret, arguing that releasing records to Colorado Ethics Watch would harm the public interest by discouraging officials and others subject to state ethics laws from seeking advice. In an unusually swift decision, Haglund ordered the commission to turn over documents sought by the watchdog group and said concern about a “chilling effect, while sincere, is merely speculation.”

The ethics commission was back in court Friday arguing its closed-door executive sessions — amounting to 85 percent of the time the commission met in the first part of the year, according to a Colorado Independent analysis — were convened properly. Freimann asked the court to let the commission decide how much of the recordings of those meetings to release.

“They can have the entire tape of the March 19 and April 21 meetings,” she said, adding that closed-door discussions in those recordings don’t contain any of “the three very narrow categories we are seeking to protect.”

The ethics commission also plans to turn over hours of recordings from another five meetings after government lawyers finish erasing segments the commission wants to keep confidential.

Freimann argued the commission is forbidden by law from releasing any discussions about complaints alleging ethical misconduct later dismissed as “frivolous,” and the names of people — usually lobbyists — who ask for so-called letter rulings on ethical questions. The commission also wants to keep under wraps instances when its attorneys offered legal advice, though in many cases Feldman simply stopped the recording during those discussions.

Media attorney: Portions aren’t enough

The attorney for The Colorado Independent said releasing only portions of the recordings wasn’t enough. Arguing the ethics commission consistently violated state open meetings laws, Beall asked the judge to decide whether the commission proved its executive sessions were convened according to exacting legal requirements. If not, Beall argued, “then its closed meetings were improper and the records of those meetings must be released in their entirety.”

In particular, Beall pointed to a legal requirement that government bodies planning an executive session identify “the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized.” Beall cited court rulings that ordered recordings released when public notices hadn’t gone into enough detail or accurately described proposed executive session topics.

Before The Colorado Independent published a series of stories about secrecy at the ethics commission, the commission routinely posted public notices describing its executive sessions only as “[d]iscussion pertaining to requests for advisory opinions and complaints filed with the Commission.” The commission announced just once that it planned to discuss the complaint against Coffman behind closed doors, and even then only noted the complaint number.

“In every case, it was possible to provide more detail,” Beall told the judge after questioning Feldman about the public notices for a dozen of the commission’s closed-door meetings.

After The Colorado Independent reported on the commission’s public notices and filed a lawsuit alleging they were insufficient — and following a ruling on Colorado Ethics Watch’s lawsuit about whether submissions to the commission could be kept confidential – the commission drastically changed how it posted executive session topics. Starting at its June 16 meeting, the commission began describing individual court cases up for discussion and listing complaints it intended to consider.

Also, starting at its May 19 meeting, the commission brought its deliberations on ethical questions posed by public officials into the open, rather than discussing them entirely behind closed doors as the commission had done previously.

“We’re opening things up,” said former State Rep. Matt Smith, the commission’s new chairman, at the June 16 meeting.

Feldman testified that, up to that point, commissioners had “just assumed that’s what they should do,” based on the practices of other ethics commissions, including the one in New York City, “where everything they do is confidential.”

Former ethics commission chairwoman Nancy Friedman, an Evergreen attorney, worked at the New York commission before moving to Colorado. Her term on the commission expired last month.

“The first time they discussed an advisory opinion, they went into executive session,” Feldman said, adding she wasn’t sure if an attorney had advised the commission to handle things that way.

“The commission went into executive session to keep confidential what they felt they needed to keep confidential in order to make the commission run and have people feel free to ask for opinions,” Feldman later testified.

Questions on ‘deliberations’ still open

Friday’s hearing didn’t address other allegations made in The Colorado Independent’s lawsuit: that the commission broke the law by conducting deliberations behind closed doors; that members reached conclusions which were subsequently rubber-stamped by the panel with unanimous votes after convening again briefly in public; and that the commission improperly excluded the public from discussions with its attorneys about matters state law required to be conducted in the open.

This week, state open meetings law changes to allow state government bodies to confer with attorneys in private about general legal matters. Previously, only local-government bodies could shield the public from routine legal discussions, while state bodies could only meet in private to discuss “pending or imminent litigation.” The commission regularly retreated to executive session for advice from its attorneys on all sorts of topics, including hours spent discussing and deciding the Coffman case, though almost none of those discussions were recorded.

If Naves decides the ethics commission convened its executive sessions properly, the next step could be an “in camera” review where the judge listens to recordings of the closed-door meetings to determine whether the panel held discussions Colorado law doesn’t allow in secret.

Colorado’s Open Meetings Law allows government officials to go into executive session to discuss certain personnel questions, pending land deals and lawsuit strategies, among other matters, though it requires public officials follow procedures strictly.

“The default position is, the public’s business will be done in public,” Beall said at Friday’s hearing. The State Legislature has created some narrow exceptions, Beall said, but “it shouldn’t happen often, and it shouldn’t be a regular occurrence.”

During the first four months of 2009, the ethics panel met regularly and often in secret — behind closed doors for 42 hours, 15 minutes, and in open session for just 7 hours, 30 minutes — to formulate decisions on ethical questions, only to emerge with rulings ready to be adopted by commissioners in swift, unanimous votes without any public discussion.

State courts have ruled that merely voting in public on questions decided in secret amounts to “rubber-stamping” and is no defense against allegations a public body violated Open Meetings Law, said Beall’s law partner, Steve Zansberg, who also represents media organizations in public-access cases.

In April, the ethics commission handed down a unanimous, 18-page ruling dismissing the complaint filed against Coffman after meeting numerous times in secret and on private telephone conference calls. At one public meeting in March, Friedman announced “deliberations in 08-01 [the Coffman complaint] are in process and a decision will be forthcoming,” though no deliberations took place in public, and the commission issued its unanimous ruling without holding a public vote.

“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 told The Colorado Independent in an earlier interview. “Even if it’s properly convened, they cannot reach a decision, they cannot adopt a position in executive session.”

Public to hear some discussions

Freimann said the commission will release audio recordings of the March 19 and April 21 executive sessions as soon as copies can be made — within a matter of days — and plans to turn over recordings of another five meetings later, after officials finish redacting portions.

At the March 19 meeting, commissioners met in executive session for 4 hours, 20 minutes — including a brief, unscheduled discussion about personnel matters — and met in public for only 55 minutes. According to records submitted to the court, the commission taped just 3 hours, 19 minutes of its closed-door meetings that day.

On April 21, the commission spent 45 minutes meeting in public and 4 hours, 40 minutes in executive session. The commission only recorded 2 hours, 31 minutes of its private discussions.

While the public notice describing the April 21 executive session was the standard “[d]iscussion pertaining to requests for advisory opinions and complaints filed with the Commission,” Feldman testified commissioners also talked about a lawsuit filed against the commission, as well as conducted a performance review and discussion about Feldman’s salary during that closed-door meeting.

The commission mistakenly failed to record discussions at two executive sessions, Feldman testified, including a Feb. 20 meeting when she said “it may just be in the chaos of the meeting I didn’t properly turn the recorder on” after commissioners finished talking about a topic she said didn’t have to be recorded.

A brief, impromptu executive session about personnel matters at an April 16 meeting also wasn’t taped. “I just forgot to record it,” Feldman said.

The commission did, however, accidentally record about 15 minutes of a Jan. 23 discussion about the Coffman case its lawyer didn’t want recorded. Describing the recording, which the commission’s attorneys have already handed over to the court, Feldman said it winds up with an attorney saying, “Is the tape on? The tape should not be on.” Feldman testified she stopped the recording at that point.

The state ethics commission was created in 2006 when voters approved Amendment 41, sold as a measure to increase accountability and transparency in government. The five-member commission is tasked with investigating ethical violations and enforcing ethical standards for public officials and government employees. Its members are appointed by the governor, both chambers of the General Assembly, the Colorado Supreme Court and the commission itself.

If the court rules against the ethics commission, it would be required to pay The Colorado Independent’s attorney fees, which could come at an especially hard time for the cash-strapped government body. At an ethics commission meeting last week, commissioners decided to cut a proposed second staff position from full-time to just over half-time to comply with an order by Gov. Bill Ritter that state agencies trim budgets by 10 percent in anticipation of a massive revenue shortfall.

Beall represented The Colorado Independent and two newspapers, the Coloradoan of Fort Collins and the Pueblo Chieftain, in another recent lawsuit over open meetings. Last month, the Colorado State University System Board of Governors settled that lawsuit by agreeing to release recordings of a secret meeting where the board picked a new system chancellor, as well as paying $19,000 to cover the media organizations’ attorneys fees.

Colorado Independent editor John Tomasic praised the commission’s recent moves toward more openness and transparency.

“We are pleased the ethics commission has decided to start releasing the recordings we asked for nearly three months ago,” Tomasic said in a statement.

“Here in Colorado, we’re used to the public’s business being conducted in public,” Tomasic said. “Colorado law demands great public access and public oversight of our government, and this is particularly crucial for the government body charged with holding all the others to the highest standards.”

The Colorado Independent is published by the Center for Independent Media, a non-profit and non-partisan organization that also publishes The Washington Independent in the nation’s capital, and state-focused politics and policy news sites in Iowa, Michigan, Minnesota and New Mexico.

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Ernest Luning

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