Judge: Colorado’s top ethics panel broke open meetings law

(Photo/Dpbsmith, Wikimedia)

(Photo/Dpbsmith, Wikimedia)

DENVER — The Colorado Independent Ethics Commission violated the state’s Open Meetings Law when it failed to convene a dozen closed-door meetings held earlier this year according to strict legal requirements, a Denver District Court judge has ruled. Because the ethics panel didn’t follow the law, the court ordered the state’s top ethics panel to “immediately” release all records of any improperly closed meeting, even those the commission claims are protected by attorney-client privilege.

The ruling by Chief Judge Larry Naves was in response to a lawsuit filed by The Colorado Independent in May over the secret meetings. In its lawsuit, The Independent alleged the commission repeatedly violated state law by failing to adhere to required procedures and, once huddled behind closed doors, held discussions the law says the public has a right to hear.

The judge agreed with The Independent’s arguments. He also directed the commission to hand over notes made during meetings the commission didn’t record to decide whether those should also be released. In addition, the judge ordered the commission to pay The Independent’s legal fees.

Late Tuesday, the commission delivered the unedited recordings of the five meetings still in dispute to The Independent’s attorneys.

“Colorado law assumes the public’s business will be conducted in public,” Colorado Independent editor John Tomasic said after the ruling was handed down. “This is most important when we’re talking about the state ethics commission, which routinely wields the power to hold other public officials to account.”

Last month, the ethics commission released nearly 11 hours of recordings of its closed-door meetings but held back two hours of recordings, claiming the conversations were protected communications between the commission and its attorneys.

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.

The ethics commission released unedited recordings from two meetings and made public hours of recordings from another five meetings after government lawyers finished erasing segments the commission wanted to keep confidential.

“Public bodies really ought to sit up and take notice,” said Denver attorney Christopher Beall, who represented The Independent in its lawsuit. “Unless they follow the rules for closing a meeting, they’re going to be required to produce the record of the closed meeting.”

“In such circumstances where a public body has not properly convened an ‘executive session,’ the recording of the closed meeting will be treated as an ordinary public record, subject to disclosure under the [Colorado Open Records Act], because the meeting does not constitute a privileged ‘executive session,’ ” Naves wrote in his ruling.

The public’s business

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.

Colorado’s Open Meetings Law allows government officials to go into executive session to discuss certain topics, including personnel questions, pending land deals and lawsuit strategies, among other matters, though it requires public officials follow procedures strictly. The law doesn’t allow public officials to deliberate in private or reach decisions without the public watching.

“The default position is, the public’s business will be done in public,” Beall said at the July 31 court hearing on The Independent’s lawsuit. The state legislature has created some narrow exceptions, he said, but “it shouldn’t happen often, and it shouldn’t be a regular occurrence.”

Naves found the ethics commission didn’t “strictly comply” with Colorado law when it failed to adequately describe topics commissioners planned to discuss outside public view.

Before The Colorado Independent published a series of stories about secrecy at the ethics commission, the panel 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 hotly contested complaint against Coffman behind closed doors, even though it met several times before rendering its decision.

The commission also violated the law, Naves ruled, by deliberating on topics the law requires public officials to discuss in public.

From Judge Naves’ order:

[B]ecause of the Commission’s failure to adequately identify the particular matter to be discussed behind closed doors, and because the Commission’s deliberations on non-frivolous complaints, advisory opinions, letter ruling, and position statements were not in any event matters that could properly be discussed behind closed doors, the Court concludes that the entire recordings of the following meetings must be made available for inspection and copying as public records: January 14, 2009, January 23, 2009, February 2, 2009, March 19, 2009, April 6, 2009, April 21, 2009, and May 6, 2009.

Naves also ordered the commission to turn over notes from the meetings it didn’t record — most often on the advice of its attorneys, who cited attorney-client privilege as a reason for shutting off the recorder — for an “in camera” review by the judge. He could decide to release those after determining whether they fall under the “protected work product” shield.

“What is important about the outcome here,” Beall said, “is the court is enforcing the rule even in the context of purported attorney-client communications. The rule requiring compliance with Open Meetings Law is effectively more important than attorney-client privilege.”

A spokesman for a government watchdog group cheered the ruling.

“For the second time this year, a court has found the [Independent Ethics Commission] in violation of Colorado’s open government laws and ordered the IEC to release secret documents and pay attorneys’ fees,” said Luis Toro, senior counsel with Colorado Ethics Watch. “The IEC should be a model of transparency, not a repeat offender, and we hope the IEC will take today’s ruling to heart and operate in a public and accountable fashion.”

In May, Ethics Watch won an open records lawsuit that forced the commission to release documents it wanted to keep confidential, including letters from lawmakers and government employees asking for guidance on ethical questions. Ethics Watch is also the organization that filed the complaint against Coffman and argued its case before the commission.

Moves toward transparency

After The Colorado Independent reported on the commission’s public notices and alleged they were insufficient in its lawsuit — and following the ruling on Ethics Watch’s lawsuit over submissions to the commission — the ethics commission drastically changed how much information it made public. Starting at its June 16 meeting, the commission began describing individual court cases up for discussion and listing complaints it intended to consider. Also, after The Independent published the results of its investigation, the commission began discussing and deciding ethical questions in the open, rather than entirely behind closed doors.

The ethics commission was created in 2006 when Colorado voters approved Amendment 41, touted 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.

Beall represented The Colorado Independent and two newspapers, the Coloradoan of Fort Collins and the Pueblo Chieftain, in another recent lawsuit over open meetings. Earlier this summer, 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.

Attorneys for The Colorado Independent have until next week to submit an application to the court detailing fees and costs incurred in the litigation.

A spokeswoman for the commission declined to comment on the court order.

“The ruling [on the ethics commission] is a recognition of the importance the state places on open government,” Beall said. “The Legislature has made it very clear through the Open Meetings Law that closing meetings should be very rare, and when a public body wants to close a meeting, it has to do so in very careful compliance with the rules. If it doesn’t follow the rules, there are consequences.”

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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