The nonprofit, nonpartisan Colorado Ethics Watch has requested that the Board of County Commissioners of Lake County (BOCC) hold a new vote on the Declaration of Emergency in recognition of the fact that they may have violated the Open Meeting Law.

In an April 7 letter to the commissioners, Colorado Ethics Watch senior counsel Luis Toro wrote that “[t]he evidence…strongly suggests that the February 13 special meeting was merely a staged media event to “rubber stamp” the decision the commissioners had already made in private.”

“The most compelling evidence that the special meeting was held merely to 'rubber stamp' a decision previously made in secret is the minutes of the meeting itself,” wrote Toro.

“Those minutes state that 'Commissioner Hickman read aloud a statement by the board explaining the need to declare a disaster.' If the board had a statement prepared before the meeting, 'explaining the need to declare a disaster,' then obviously the decision to declare a disaster was made before the meeting.”

He also pointed to several other events as evidence that the commissioners had made their decision to declare a State of Emergency long before they did so. Among them were an draft of the speech announcing their decision to raise a “red flag” about the LMDT sent by Brad Littlepage on Feb. 2, the Feb. 9 shooting of a video for State Sen. Tom Wiens' personal website about the LMDT situation, the fact that a transcript of the video was sent to the commissioners so they could edit it before its release, and the fact that the same videographer shot the Feb. 13 meeting.

Toro also pointed to Brad Littlepage's email to the commissioners on the morning of Feb. 13 which proposed wording for “today's declaration of emergency.”

“It is evident that one or more members of the BOCC advised Mr. Littlepage that an emergency declaration was to be made at the special meeting,” he wrote.

In his letter, Toro argued that the commissioners had violated the letter and spirit of the Open Meetings Law by conducting parts of the policy-making process that led to the disaster declaration without full and timely notice to the public.

Toro noted, for example, that Commissioner Mike Hickman had “admitted” in his March 6 letter to the Leadville Herald Democrat that only “[a]fter personal interviews with water experts, engineers, BOR employees and other mining experts” did the BOCC call a public meeting “to allow those experts to publicly brief the BOCC.”

Avoiding a lawsuit

Toro argued that because any citizen can bring suit against a governmental entity that has violated the Open Meetings Law, it is in the best interest of the county to avoid a potential Open Meetings Law claim.

“The court in such an action can declare invalid an action that was taken in violation of the Open Meetings Law and award attorneys' fees to the petitioner,” wrote Toro. “We hope you will agree that it is not in the best interest of Lake County for its BOCC to become embroiled in Open Meetings Law litigation.”

Commissioners’ response

“If [a meeting] avoids a lawsuit, I don’t have a problem with it,” said Lake County Commissioner Mike Hickman, of the letter. However, he felt it was a moot point to have another meeting to declare a State of Emergency, particularly now that the Bureau of Reclamation and the Environmental Protection Agency are finally working together. He worried that such a meeting would simply be a debate between “a couple of people who are running for office.”

Moreover, he insisted the commissioners had done nothing wrong. “I’ll have any meetings anyone wants to have,” he said. “I did not violate the Colorado Open Meetings Law.”

Lake County Commissioner Carl Schaefer thought the best way to handle the letter was to make it an agenda item at the next county commissioners’ meeting.

“If we want to deal with it, we should deal with it in the public,” he pointed out.

Lake County Commissioner Ken Olsen also expected the commissioners to discuss the matter at their April 21 meeting.

Asked if the commissioners had ever consulted an attorney about their recent interpretation of the Open Meetings Law, Commissioner Schaefer said he had contacted Tom Lyons, an attorney he had been introduced to through Colorado Counties, Inc. (CCI), after Colorado Ethics Watch began their investigation.

CCI is a statewide organization of counties that provides services ranging from education to insurance. Schaefer could not recall what Lyons’ advice was, but thought Lyons had probably told him to be forthright.

For more information about the Colorado Ethics Watch investigation, its request of the commissioners, or to view the documents that caused the organization to come to their conclusion, visit coloradoforethics.org.