County commissioners’ closed session surprises city

Some question if open government law’s spirit is observed

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CLIFF VANCURA/Durango Herald illustration

Editors’ note: Sunshine Week is a national initiative to promote open government and freedom of information. Newspapers around the country highlight this week by looking into the openness and transparency of local government agencies. This year, the week was observed March 10-16. The Durango Herald recognized Sunshine Week by examining several aspects of open government, including meetings, records and court documents.

By Jim Haug

Herald Staff Writer

The potential for sprawl always concerns Durango officials, who don’t want to subsidize growth or make taxpayers financially liable for infrastructure improvements as part of any future annexations of a substandard development.

So city staff members were perplexed earlier this year by a county proposal that called for changes to the intergovernmental planning map for areas outside the city limits. They considered the proposal a departure from earlier discussions.

To learn more about the county’s thinking, city planners Greg Hoch and Vicki Vandegrift went to the county commissioners’ work session Jan. 31 with county planning staff members.

After meeting for about an hour and 15 minutes in public, the commissioners voted 3-0 to go into executive session, meeting behind closed doors.

The county’s stated reason was for “negotiations with the city.”

The executive session was not publicized before the meeting. The public notice simply stated that the commissioners would discuss a “county/city intergovernmental agreement and community planning areas.”

The law requires a public body to state the reason for going into executive session, but the law is less explicit about how much notice or advance warning it should give.

Colorado’s government-in-the-sunshine law requires “full and timely notice” of a public body’s meeting agenda. “The posting shall include specific agenda information where possible,” according to Article 6 of the Colorado Sunshine Law.

So the executive session came as an unwelcome surprise.

“There were other citizens in the room who asked, ‘Why are you going into executive session? It was not noticed. So theoretically, you should not be going into executive session.’ No explanation was provided as to why they were doing this,” Hoch recalled.

Craig Adams, a resident who attended, said “everybody in the room sort of looked at each other.”

He said he was put off that Bobby Lieb, county chairman, hedged about whether commissioners would convene again in open session, advising the public that they probably would not reconvene.

“Maybe it’s not the law in Colorado, but it would have been a courtesy to the public to know whether we should stick around or not,” Adams said.

State law, in fact, does not require public bodies to reconvene after an executive session.

Dick Norton, a county resident, said the county’s executive sessions are “not only poor government, but an anti-learning approach.”

“I have dealt with government staffs long enough to appreciate the extent to which many people in government choose to treat the public as uninformed, ignorant and simply obstacles to what they perceive to be progress,” Norton said.

Colorado’s open-government law, which is highlighted every March as part of Sunshine Week, is meant to expose “the inner working of government as much as possible” to give the public confidence in its government, said Michael Beylkin, a lawyer with the firm Levine Sullivan Koch & Schulz, which represents the Colorado Press Association and The Durango Herald.

Beylkin said it always is advisable for an elected body to give as much notice of an executive session as possible because it tells the public that important policy discussions are likely to take place.

But Beylkin said it would be difficult to argue in court that county commissioners did anything wrong.

The county did publicly notice the meeting more than 24 hours in advance. Sheryl Rogers, the attorney for the county, gave notice of the executive session at the beginning of the work session. The topic of the executive session was related to the stated topic of the public notice of the meeting.

The county commissioners also complied with the law at the public meeting by citing the statutory basis for their executive session, announcing the topic in relative detail, and then voting to go into executive session.

Legal or not, Hoch feels it lacks transparency.

“In the executive session, they come up with a new strategy and then say (to us), “Do this.’ It’s like they say ‘Jump,’ and I’m supposed to say, ‘How high?’” Hoch said.

“I feel I am a persona non grata to some members of the commission generally,” Hoch told the City Council and Durango Planning Commission. “I ask questions. They generally don’t like to be asked questions.”

Lieb responded that he didn’t know why Hoch feels that way.

“That’s his own personal perception,” Lieb said. “I am concerned that Greg and staff are trying to paint a picture that builds distrust in the councilors toward the county government.”

He said elected officials meeting in secret from representatives of another government body is not unusual.

“It happens all the time because there are so many intergovernmental contracts,” Lieb said. “Discussions about how to best position your interests are done confidentially.”

As for going into executive session Jan. 31, Lieb said, “Everything we did was perfectly legal. Doing so was entirely appropriate.”

“The whole point was to give direction to staff,” Lieb said. “Obviously, no decisions were made. We are very careful about that now.”

On March 11, county commissioners met publicly to discuss changes to the intergovernmental agreement map, Lieb said.

To get on the same page about planning areas, the City Council wanted to meet with the commissioners this week so the council would have the benefit of outgoing Mayor Doug Lyon’s institutional knowledge.

Lieb, however, said commissioners thought it would be best to wait to discuss the new map until after the April 2 election of three city councilors.

jhaug@durangoherald.com

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