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The more open, the better

When times get tough and sketchy, as they have here in Pagosa Country, the importance of issues relating to transparency in government is magnified.

Colorado law deals with open meetings and open records. However, some individuals and groups seek loopholes and dark corners in the law, hoping to avoid scrutiny, hoping those seeking information and demanding transparency fail to demand the law be obeyed.

Thus, there is a need to regularly remind government and the public of some of the important aspects of the law, in particular regarding open meetings and the use of executive session — a mode favored by some in local government.

Executive sessions by a local body are limited to: matters which state and federal law require be kept confidential; security arrangements; purchase, transfer, lease or acquisition of real, personal or other property interest; receipt of legal advice; matters preliminary to negotiations; personnel matters in cases where the individual concerned does not request a public meeting; school board discussion of individual students; certain executive search committee meetings. No discussion concerning an elected official can take place in executive session.

When executive sessions are held, they must be entered into at a noticed regular or special public meeting with two-thirds of the quorum voting in favor, with minutes recorded.

The topic must be announced with as much specificity as possible, accompanied by a citation of the legal basis for the session. What constitutes specificity is determined by the extent of public knowledge of the matter — the more knowledge, the more information. A recent Court of Appeals decision stipulates that recordings of executive sessions announced only with citation of statute and no description must be released.

Here are some key points regarding executive sessions: Nothing other than the announced topic can be discussed; it is illegal to come out of session and indicate a decision has been made about other matters. A body can’t take formal action or adopt policy in executive session and can’t arrange for an impending vote, even with a straw poll.

If a citizen believes executive session rules have been violated, he or she can ask a judge to review the record. If the judge finds unannounced topics were discussed, he or she will make the record public.

Also of concern is the tendency of some elected officials to hold illegal meetings. The law defines a meeting of a local governmental body as a meeting of a quorum or three or more members, whichever is fewer, at which public business is discussed or formal action might be taken. These are public meetings and “full and timely” notice must be given to the public. County commissioners do not have to give 24-hour notice if two or more meet to discuss “day-to-day oversight of property or supervision of employees.” Hiring or firing of employees, constructing facilities, purchasing major equipment are not “oversight.”

Also worrisome is the so-called “serial meeting,” in which discussions take place between board members, one-on-one, eventually including a majority of members — or interaction via phone polls, straw polls or “e-mail meetings” undertaken away from the public eye. Concern extends to so-called “social meetings” of a quorum or “chance gatherings” at which a quorum is present and public business is discussed. If these are not illegal, they certainly flaunt the spirit of the law.

Bottom line: but for few exceptions, all discussions of public business must be undertaken in full view, at noticed public meetings.

What happens when government does not abide by the law, aside from loss of public trust? Most often, when legal action is pursued, government loses. And the loss is costly —payment of costs and, in case of repeated violations, court action involving a declaration and injunction. Why spend public dollars in this way, when transparency prevents a problem from developing?

Open meetings are a must. When controversy swirls, the intuitive response for some officials is to flee from the light. The exact opposite is effective: the more open, the better. Karl Isberg