When no one is looking, something could be cooking.
During meetings of governmental bodies, board members can announce an executive session, closing the door to the public and the media on issues pertaining to personnel, legal or a host of other somewhat vague matters. But many citizens are concerned that closing the door can open up the possibility of board members breaking rules – unbeknownst to John and Jane Doe.
A new bill being introduced in the Colorado Legislature this week would reinforce honesty as the best policy when board members adjourn to a closed session.
The bill, written by the Colorado Press Association, is co-sponsored by Rep. Shawn Mitchell, R-Broomfield, and Sen. Stan Matsunaka, D-Loveland. The bill would make it mandatory to keep records of executive sessions. Minutes, or recordings of public meetings, are usually stopped once officials announce executive sessions, making it extremely difficult for the public to question or prove a breach of the open meetings law. The current open-meetings law requires all government, school boards and special districts to conduct their business in public.
There are only three exceptions. Government can go into secret, executive session for a personnel matter, to receive specific legal advice or to negotiate the purchase of property.
“We’re saying there’s been abuses with executive sessions and we want the law tightened so, indeed, government and boards are using executive session within the law,” said Joan Ringel, lobbyist for CPA.
Keeping records of closed meetings would leave little room to abuse executive session privileges, and would hold board members accountable for their actions, possibly at the expense of taxpayers.
House Bill 1359 would require board members to briefly state why they are having a session. The original format of the bill also required board members to record the conversations in executive sessions, said Mitchell.
“If they’ve been following the law they shouldn’t mind the taping,” said Ed Otte, executive director for the Colorado Press Association.
Anyone who wants to contest the validity of an executive session discussion can ask the district court to review the closed session record to determine if there was a violation. Only if there was a violation would the recordings be open for public inspection – and attorneys’ fees and court costs would be picked up by the government, i.e. the taxpayer.
“If discussions weren’t held in public then city councils could give contracts to their friends with city money, or make a deal with a developer or corporation that, if the public knew about it, they might disagree with the decision,” said Ringel. “In general when a public body is going to spend the tax money, the public needs to be aware of those decisions.”
Otte said the bill has already faced opposition from the Colorado Municipal League, and Colorado Communities Inc.
“This bill is aimed at reassuring compliance with two pre-existing requirements for the open meeting laws,” said Geoff Wilson, general counsel for the Colorado Municipal League, a trade association that represents municipalities throughout Colorado. “We agree with and endorse the current requirements. Our concern is that the changes in the law make executive sessions less effective. … Sometimes the public is best served if discussions stay private.”
Wilson said despite its concerns, the League, whose board of directors is made up of city council members and mayors, doesn’t have a formal opposition to the bill
A strong concern the League has is that the bill requires government to pay attorney fees and court costs if a public board is found violating the executive session requirements.
The current Open Records Act holds the record keeper for the governmental body responsible for paying attorney’s fees as well as costs incurred by the applicant who was denied public records. The proposed bill holds the government liable, said Wilson.
“We think that goes too far, because open records law is open to different interpretations,” he said. “And to have taxpayers pay is not appropriate.’’
However the taxpayer is the first person who would benefit from the bill, according to CPA’s lobbyist.
“The bill is designed for the public and not for the media,” said Ringel. “It is a costly exercise to get a public official to hand over records if they don’t want to.”
“The press association seeks attorneys’ fees if citizens are inappropriately denied to see the records,” she said. “It’s about a two-year process to go through the courts and the CPA feels if citizens really believe they’re right, then we believe they should have their attorney’s fees paid for.”
Mitchell said some of the bill has been softened as a result of talking to opposing sides, but he supports its current form. One change made to the bill was the requirement of recording executive sessions as if they were open meetings. Mitchell said opponents were concerned that such a condition (would breach the attorney-client privilege, and an attorney would not discuss anything if that rule was in place. The revised bill would allow the minutes of executive session to stop in the presence of a lawyer, with a notation explaining the pause.