Recordings: Ethics panel deliberated, reached decisions in secret meetings

(Dpbsmith, Wikimedia)
(Dpbsmith, Wikimedia)

The state’s top ethics panel routinely deliberated in private only to emerge with positions ready for adoption in swift, unanimous public votes, audio recordings of the closed-door meetings reveal. The Colorado Independent Ethics Commission also discussed topics in executive session it hadn’t described for the public in detail — or at all, in some cases — as state law requires.

The commission released recordings of executive sessions to The Colorado Independent this week, nearly three months after the news organization first filed a request under the Colorado Open Records Act alleging the secret meetings were illegally closed to the public.

Following a series of reports on secrecy at the ethics commission, The Independent sued, alleging the panel didn’t post its meeting topics properly, commissioners were prohibited by law from discussing some of the things talked about in secret and the commission illegally deliberated on questions and came to conclusions before rubber-stamping their decisions in public votes.

At a hearing on the lawsuit on Friday, Denver District Chief Judge Larry Naves said he plans to rule later this month on whether the commission followed procedures when it convened its numerous executive sessions. If he rules it did not, he could order the commission to turn over the entire recordings requested by the Independent.

The commission on Monday handed over recordings totaling nearly six hours of executive sessions held March 19 and April 21. A state attorney representing the panel said it plans to release recordings of five additional secret meetings — Jan. 14 and 23, Feb. 2, April 6 and May 6 — after government lawyers finish erasing portions the commission wants kept confidential. No recordings exist for five other occasions between February and April when the commission met behind closed doors, the commission’s attorney said at Friday’s hearing.

In its public notices for the March 19 meeting and the April 21 meeting, the commission announced its executive session topics as “Discussion pertaining to requests for advisory opinions and complaints filed with the Commission.”

That description falls far short of legal requirements, argued Christopher Beall, who represented The Colorado Independent at Friday’s hearing. He pointed to a provision of the Colorado Open Meetings Law which states government bodies planning an executive session must 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.

Colorado Independent editor John Tomasic said the discussions revealed on the recordings “underline the importance of watching the watchers.”

“A judge will decide whether the Independent Ethics Commission bent the rules or broke the law when it convened these executive sessions,” Tomasic said. “But it’s clear from these recordings commissioners engaged in secret discussions Colorado law demands be held in public. We hope the ethics commission continues moving away from the secrecy that has shrouded it for so long.”

Below are the recordings and a description of topics discussed at the March 19 meeting, including links to the official policies that resulted from the closed-door session.

The first recording lasts just 1 second and appears to be only a quick on-and-off of the recorder.

Here’s the audio from the first portion of the March 19 Independent Ethics Commission meeting. To download the mp3 file, right-click on the link. Listen to the recording here (reminder, nothing appears in this recording other than 1 second of background noise):

In the second portion of the March 19 , which lasts 46 minutes, the recording picks up with commissioners considering how to respond to a request to reconsider a complaint they’ve already rejected. The request comes in the form of a motion — more appropriate to a court than this commission — appealing an earlier decision that said the commission lacks jurisdiction on Complaint 09-02, which argued the Gilpin County assessor lacked authority to tax a parcel of land. There’s plenty of discussion about jurisdiction and the peculiar nature of the complaint before the panel eventually agrees to reject it again on the same grounds.

About 15 minutes into the discussion, Jane Feldman, the commission’s executive director and sole employee, discloses that her husband works in the attorney general’s office as head of the Consumer Protection Division. “Jane and I thought she should make a formal disclosure to the commission so that it’s formally on the record,” says Nancy Friedman, the commission chairwoman. Feldman’s husband reports directly to Attorney General John Suthers, Feldman says, adding that she has “never discussed the business of the commission” except what’s in the public record, and has “no intention of doing so.”

A couple minutes later, the commission turns its attention to a draft of Letter Ruling 09-03, about whether nonprofit groups can provide meals to board members who are also public officials or government employees. The ruling answers a pair of requests for an opinion submitted by Denver attorney Doug Friednash on behalf of a group of clients who are involved in a protracted lawsuit challenging Amendment 41. The commission decides commissioner Sally Hopper will make the motion to approve the letter ruling when they return to open session later in the meeting.

Here’s the summary of Letter Ruling 09-03:

CO Const. Art. XXIX does not prohibit a nonprofit, non-lobbyist entity from providing a meal to one of its Board Members who concurrently is a government employee or official, or to his or her spouse or dependent child. The government employee or official, or his or her spouse or dependent child, may accept the meal, provided that it is being provided to all Board Members during a meeting and it is reasonably priced.

At about 25 minutes, the commission talks about a request for an advisory opinion from the governor’s office. Can state troopers accept free admission to events while they’re detailed to provide security for the governor? Friedman proposes answering more than the governor’s office asked by extending what’s allowable to include meals at events when troopers are on security duty. She checked with ethics panels in other states and says the New York board hasn’t considered the question, but “they can’t imagine saying no, as long as there’s no caviar involved.” The commission eventually decides to limit its response to the question that’s been asked.

Two meetings later, on April 6, the commission votes to approve Advisory Opinion 09-03, which allows state troopers to attend expensive events when they’re carrying out their duties. Here’s the summary:

It would not be a violation of Colorado Constitution Art. XXIX for Colorado State Patrol members assigned to the security detail of the Governor, the Lieutenant Governor, or any governor-elect to accept free admission to events with an admission price in excess of $50, when they are attending such events with any of those officials as part of their official duties.

At 35 minutes, the commission talks about a scandal brewing in Garfield County and decides someone has to file a complaint before the panel can act.

Then the commission breaks to eat lunch and stops recording.

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

The next recording lasts one hour, 18 minutes, and covers just two topics.

First, Friedman proposes three possible drafts of an advisory opinion about whether administrative law judges can accept payment of membership dues in the state bar association from their employer, and whether the Denver Bar Association’s waiver of annual dues is OK under Amendment 41. Does the offer constitute a “special discount” for public officials, which is forbidden under state ethics law, or is it a gift to the government, which would be allowed?

On April 8, the commission released Advisory Opinion 09-02, dated April 6, Here’s the summary:

It would not be a violation of Colorado Constitution Art. XXIX for an administrative law judge to accept free membership in the Colorado Bar Association from his or her employer. It would, however, be a violation to accept free membership in the Denver Bar Association from the Association.

About an hour into this recording, the commission turns to a longstanding question about whether public officials and government employees can negotiate future employment outside government, or whether that would run afoul of Amendment 41. The commission hasn’t figured this one out yet, but has a lively discussion about the problem.

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

The next clip lasts one hour, 13 minutes and is mostly devoted to a question the commission hasn’t answered yet, at least not in public. On the heels of a similar letter from the General Assembly, state Sen. Greg Brophy wants to know whether the National Council of State Legislatures and the American Legislative Exchange Council’s designation as “joint governmental agencies” means the groups can pay for expenses involving conferences or whether that would be contrary to Amendment 41’s gift ban.

After a wide-ranging discussion about the various types of organizations out there, the commission comes to an agreement about a particularly thorny issue: They’ll tackle the Legislature’s question first. It’s a provisional agreement, though, as the ethics commission has yet to issue a public ruling on the question more than five months later.

As the recording concludes, Friedman asks whether there’s anything else commissioners want to talk about in private before leaving executive session. “If not,” she says, “let’s go back into open and vote out — we have two things to vote out.”

When the commission convened in public a few minutes later, commissioners unanimously approved Letter Ruling 09-03, about meals to board members, without any discussion. Moments later, the commission votes — again unanimously — to “reaffirm the IEC’s previous decision” to dismiss Complaint 09-02, the one about the Gilpin County assessor.

After “voting out” both decisions, which were decided hours ago in private, and within five minutes of appearing again in public, the commission adjourns.

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:

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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