Anatomy of a decision: Ethics panel reaches agreement in secret meeting

court door

What does it look like when a government body debates and makes decisions in a closed-door executive session? Pretty much the same as it would in public — which the law requires — except that only the meeting’s participants get to see what went into the decision.

For most of its existence, Colorado’s Independent Ethics Commission retreated behind closed doors to talk about the ethical quandaries it had to decide, only to emerge with fully formed decisions that almost always won swift, unanimous approval in a public vote. It was clear the commission hashed things out in secret — because no discussions about the ethical opinions the panel issued took place in public — but until the ethics commission released recordings of its executive sessions to The Colorado Independent as part of an open meetings lawsuit, it was unclear how this happened.

First, though, why does this matter? Colorado Open Meetings Law requires public officials to conduct business in public, carving out very specific exceptions for topics that can be discussed behind closed doors. In general, the law forbids government bodies from convening in private to make decisions — except about narrowly defined topics, such as lawsuit strategies and negotiating positions on land deals, among others.

“To deliberate behind closed doors and issue a ruling — that’s an obvious, plain and unambiguous violation of the Open Meetings Law,” Denver media attorney Steve 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.”

Zansberg’s law partner, Christopher Beall, is representing the Independent in its lawsuit alleging the ethics commission repeatedly violated open meetings law.

Near the end of the four hours and 20 minutes the commission met behind closed doors on March 19, commissioners forge toward consensus on an ethical question posed by state lawmakers: Do expenses paid by inter-governmental groups fall inside or outside a constitutional ban against gifts to public officials?

In the fourth clip from the March executive session, the discussion lasts one hour, 13 minutes. It’s almost solely devoted to the lawmakers’ question, which the commission still hasn’t answered yet, at least not in public. The commission considers two requests for an opinion, one from the General Assembly and the other from state Sen. Greg Brophy. Does the National Council of State Legislatures and the American Legislative Exchange Council’s designations as “joint governmental agencies” means the groups can pick up the tab for conferences or is that contrary to provisions of Amendment 41?

Here’s the audio from the fourth portion of the March 19 Independent Ethics Commission meeting. To download the mp3 file, right-click on the link. Listen to the recording here:

It’s a thorny question and one that goes to the heart of a central dilemma the commission has faced trying to interpret the sweeping ethics law passed by voters in 2006. When is a payment considered a gift to the state, which is allowed, and when is it a forbidden gift to the individual public official?

After debating the question for close to an hour, commissioners zero in on decision time.

“We have been worrying over this for probably nine or 10 months now, and it is time to give birth to an opinion,” commission chairwoman Nancy Friedman says. “So let’s just decide where we want to go and get this thing out.”

She puts it to her fellow commissioners. “We have to just make a decision,” Friedman says.

“But we can’t decide!” commissioner Sally Hopper exclaims.

“All we have to do is vote,” commissioner Roy Wood remarks.

Then there’s some back-and-forth about whether the commission wants to answer the General Assembly’s or Brophy’s question, or to tackle one head-on and address the other in a footnote. Maybe the commission can answer Brophy’s question in a letter — which would be subject to a Colorado Open Records Act request but otherwise not announced — and put it in a drawer rather than issuing a public opinion. Eventually, Friedman proposes a solution.

“OK. Everybody agree?” Wood asks. Murmurs of assent.

The commission moves into more detailed discussion about definitions and considers how some other states have handled the question.

As the commission prepares to conclude its closed-door meeting and move back into public session, Friedman asks the commission if they’ve reached agreement. They have.

“Where we are is that we’re just doing those three [particular inter-governmental agencies], we’re answering the General Assembly, and we’ve decided that those three are governments,” she says. “Is that where we are?” Hearing no objection, the conversation plunges ahead.

After some brief discussion, Hopper and commissioner Matt Smith propose a way for the panel to approach the commission’s ruling. They are answered with a chorus of “yeah” from the other commissioners.

Problem solved, decision made. Except that this decision would be either short-lived or still-born — more than five months later, the commission still has yet to issue a public ruling on the question. If the March 19 discussion had taken place in public, someone might have asked what happened to the decision, but since no one outside the commission knew about it until this week, no one has.

Listen to more recordings of the ethics commission’s closed-door meetings here.

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Ernest Luning

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