Pitkin County commissioners appear to have violated both county policy and state law this week when they convened a closed-door executive session.

Both the county’s formally adopted “Governance Policies” and the Colorado Open Meetings Law require elected officials to identify the matters to be discussed in an executive session in “as much detail as possible without compromising the purpose for which the executive session is authorized.”

On Tuesday the commissioners made and passed a motion to go into executive session that included only a list of nine topics and included no further details or discussion about the topics.

“The commission’s announcement of the particular matters to be discussed at the July 28 meeting does not conform to the statutory requirement of identifying ‘the particular matter to be discussed in as much detail as possible,’” wrote Christopher Beall, an expert in the state’s Open Meetings Law and an attorney in the Denver office of Levine, Sullivan, Koch and Schultz LLP. “The commission instead has simply provided a laundry list of what appears to be the entire collection of legal matters on the county attorney’s docket this week, without identifying the ‘particular matter, ‘i.e., the specific issue, that has arisen relating to those docket items that the commission wishes to discuss.”

At the request of the Aspen Daily News, Beall reviewed a transcript of the commissioners’ motion, which was recorded and transcribed by a reporter.

Luis Toro, senior counsel at Colorado Ethics Watch, also reviewed the transcript and concluded the motion fell short.

“They should have done a better job,” Toro said. “Instead of doing this laundry list, they should have gotten more specific about why they were talking with their attorney.”

Colorado Ethics Watch is a nonprofit watchdog group in Denver that holds public officials and organizations accountable.

Pitkin County attorney John Ely said he felt the motion was adequate.

“I believe we complied with the language and the intent of the statute and gave as much detail as practicable and possible in the context of the motion,” Ely said.

Commissioner Michael Owsley, who seconded the motion to go into executive session, said, as far he knew, the motion was OK.

“I think it is fine, but I’m relying on the advice of our attorney,” Owsley said. “I have no problem with informing the public as much as possible. But it does really boil it down to legal interpretations.”

Here is the entirety of the discussion and the motion prior to the executive session:

Commissioner Patti Kay-Clapper: “OK, we ready? I need a motion to open the special meeting and go into executive session for the purposes of Christiansen tax lien offer, RFTA/Larsh lease, Comcast cable franchise, CWBC (sic) Trust Agreement and river district discussion, Starwood notice of claim, Board of Equalization, code enforcement, is this New World contract claim, is that what this is?”

Pitkin County attorney John Ely: “Yes.”

Kay-Clapper: “Items pursuant to C.R.S. 24-4-402 4b.”

Commissioner Jack Hatfield: “I’ll make that motion.”

Commissioner Michael Owsley: “Second.”

Kay-Clapper: “I have a motion and I have a second, all in favor please signify by saying ‘aye’.”

Commissioners Hatfield, Owsley and George Newman: “Aye.”

Kay-Clapper: “We are in exec.”

At that point this reporter — the only member of the public present — left the room and the commissioners met behind closed doors, with several staff members present, for approximately 90 minutes.

(The legal citation included in the motion, that was also printed on the day’s agenda, contained a minor error. It is 24-6-402 4b, not 24-4-402 4b, of the Colorado Revised Statutes that allows elected officials to go into executive session for “conferences with an attorney.”)

Boards may go into executive sessions for a number of reasons, including personnel matters or “determining positions relative to matters that may be subject to negotiations,” as long as they properly convene the executive session.

The specific subsection referenced in the motion — “4b” — relates to “conferences with an attorney for the local public body for the purposes of receiving legal advice on specific legal questions. Mere presence or participation of an attorney at an executive session of the local public body is not sufficient to satisfy the requirements of this subsection.”

A key term in the statute is “receiving legal advice on specific legal questions.”

“This means that the commission may not engage in wide-ranging policy discussions behind closed doors simply because they involve legal issues, or simply because a lawyer is present,” attorney Beall said. “Rather, the statutory authorization for a closed door meeting is narrow, and allows only for a discussion in which the commission seeks and receives ‘legal advice’ on ‘specific legal questions.’

“In this regard, it may be that the laundry list of topics identified by the commission actually gives us a clue as to what is going on during the closed-door meetings with the county attorney,” Beall said. “It may be that what is actually going on is not the receipt of ‘legal advice’ on ‘specific legal questions,’ but rather that the county attorney is simply giving status reports on the various matters on his docket, updating the commission as to what is going on with each specific matter. If that is what is transpiring, it is not proper under the statute. The statute does not authorize closed meetings for status reports from an attorney. It authorizes those closed meetings only for receiving legal advice on specific legal questions.” 

When asked if the topics in executive session included any active, threatened or potential litigation, Ely replied that “there was no active litigation for any of the items, I suppose the threat is always there depending on how events might transpire but the desire for an exec isn’t really premised on litigation but just the desire, in this case, to confer with counsel.”

From the perspective of the attorney with Colorado Ethics Watch, that is not good enough.

“They have to get into more specificity,” Toro said. “It is not a specific legal question to say, ‘We are going to discuss the Comcast cable franchise.’ That is too broad. To me, it is not specific enough. Board of Equalization? That is incredibly broad. That tells us nothing about what they are going into the session for. I’m sure they had more information about why they wanted to talk to their attorney about the Board of Equalization.”

Jenny Flanagan, the executive director of Colorado Common Cause, which helped pass the Colorado Sunshine Law in 1972, said elected officials should give citizens more to go on.

“I think it is an important thing to communicate to the public why you are going into executive session,” Flanagan said. “Yes, you can cite ‘4b’, but why not say ‘We are seeking legal advice on a specific question.’ Tell the public why you need the executive session, because it can be appropriate. But the public has a right to know why, and they are required to tell them.”

Ely, the county attorney, said he keeps a running list of topics to discuss with the commissioners in executive session after the topics are either suggested by the board, staff members or himself.

The commissioners regularly hold executive sessions before their Tuesday work sessions and Ely puts his list of topics on a printed agenda, usually on Friday. Sometimes, as happened on Tuesday, additional topics are added at the last minute and are not on the printed agenda.

Ely said he often is not sure in advance what specific legal questions the commissioners may have about a topic on his list.

Tom Lyons, the general counsel for Colorado Counties Inc., a statewide association that represents counties’ interests, said it would be difficult to determine the adequacy of Tuesday’s motion without hearing the tape of the executive session.

State law provides for a mechanism for citizens to ask a district court judge to determine if an executive session complies with state law. If not, the transcript of the executive session becomes public.

And just because the commissioners may want to talk with their attorney, they don’t have to do it behind closed doors.


“The county commission always has the power to conduct any of its discussions with its attorney in open session, if it wishes to,” Beall said. “There is no legal requirement that such discussions must always occur behind closed doors. As a matter of policy, most public bodies conduct these discussions behind closed doors. They do so primarily because they believe that a public discussion will reveal their legal strategy to their opponents. Whether that belief is accurate, however, is up for debate.” For the full story, please visit http://www.aspendailynews.com/section/home/135870