Judge makes preliminary findings that BoCC made decisions behind closed doors

A Nov. 3 court order from Sixth Judicial district Chief Judge Jeffrey Wilson makes a preliminary finding that the Archuleta County Board of County Commissioners (BoCC) made policy decisions during executive session earlier this year that should have been in made in public.
On May 6, the BoCC held a special meeting in which the executive session was the only item on the agenda.
The agenda states that the purpose of the executive session was “Conferences with an attorney for the public entity for the purpose of the Board receiving legal advice on the 1033 investigation.”
The Colorado Bureau of Investigation (CBI) had recently concluded its investigation into 1033 Program assets given to the Archuleta County Sheriff’s Office that were allegedly missing. Following the CBI investigation, Sixth Judicial District Attorney Christian Champagne determined there was no criminal wrongdoing on the part of the sheriff’s office.
The 1033 Program is a federal program to transfer, without charge, excess military supplies and equipment to local law enforcement agencies and first responders.
On May 8, the BoCC issued a press release which outlined the following directives that, according to the press release, the BoCC “will” implement:
“1. The BoCC will notify the Colorado State Patrol Department of Public Safety that Archuleta County will no longer participate in the 1033 Program until further notice.
“2. The BoCC will direct the research of the 1033 Program protocols and insure that all conditions and stipulations of the Program are met, including the disposal of equipment and supplies that are no longer needed by Archuleta County.
“3. The BoCC will direct the development and consider adoption of a procedural policy for disposal of unwanted, expired, non-functioning equipment and supplies. This procedural policy will be codified by the BoCC into local law and will include criminal penalties for any violations.
“4. The BoCC will direct that all County Departments adhere to C.R.S. 29-1-506 that designates that an Annual Inventory of Archuleta County assets will be conducted in compliance with Colorado State Law. In addition, the BoCC will encourage all elected officials, including the Sheriff’s Office, to participate in the Annual Inventory of Archuleta County assets.
“5. The BoCC will direct the Archuleta County Treasurer, Clerk and Recorder, Sheriff, and Assessor to furnish copies of any and all accounting, administrative, financial, recorded, or assessment records to the head of the Archuleta County Finance Department, as required by C.R.S. 30-11-121.”
On May 9, attorney Matthew H. Roane filed a Colorado Open Records Act (CORA) request for a copy of the May 6 executive session recording.
On May 13, Roane received a letter from Archuleta County Clerk and Recorder Kristy Archuleta, who stated she was denying Roane’s request pursuant to Colorado state statutes regarding the BoCC not consenting to release the tape and attorney/client privilege, the attorney work product privilege and/or the deliberative process privilege.
According to Roane, based on the state statutes that Archuleta cited as a reasons not to release the recording, she then filed a complaint, as required, which named Roane as the respondent.
Roane explained he filed a few briefs in response, and on Oct. 14, Wilson issued an order.
Wilson wrote, “the Court finds that sufficient grounds exist to support a reasonable belief that the BoCC engaged in discussions at the executive session that are not protected by CRS 24-72-204 …” and ordered the county clerk to issue a copy of the recording, under seal, within 14 days for the court to review.
On Nov. 3, after the court reviewed the recording, Wilson issued an order that determined that portions of the tape were not protected from public release.
Weaver explained that was about 16 minutes of the nearly hour executive session.
The order notes that “these portions of executive session, when considered in conjunction with the minutes of the Special Meeting held on May 6, 2019, the affidavit of Chairman [Ron] Maez and the press release signed by Chairman Maez, show that policy decisions were made during the executive session … While the five items in the press release have not been implemented by Archuleta County, the Court makes a preliminary finding the press release lists policy decisions made by the Archuleta County BoCC in private that should have been made at a public meeting pursuant to the Open Meetings Law, CRS 24-6-401, et seq.”
Archuleta County Attorney Todd Weaver explained in a phone call Wednesday that he disagrees with the portion of Wilson’s court order that states that policy decisions were made in private that should have been made in public.
“As we said and the county said all along, it was — we were discussing direction to be given to staff to be brought before the board of county commissioners for an actual, official discussion and decision,” Weaver said, adding. “Obviously this is — the judge has a snapshot of time, doesn’t know the whole history of the 1033 investigation. But you know, we do, we disagree with the court’s ruling.”
Asked about the language of the press release, Weaver said, “Each of those items still had to come before the board for a decision, which is proven by the fact that not one of those items, other than the statutory requirements, have been implemented by the board.”
According to Weaver, the county can either choose to release the portions of the recording that are deemed public by the court, file a notice for a hearing on the matter, or appeal the entire case.
On Tuesday, Roane told The SUN, “I am certainly very pleased with Judge Wilson’s order. I think it confirms what seemed obvious from the outset in that the commissioners clearly made a formal policy decision illegally behind closed doors. I think the only remaining question is why they felt empowered and compelled to do that and once we get the recording perhaps that will be obvious as well.”
Weaver explained in an email Wednesday that he and the BoCC have until early next week to decide how they will proceed with the case.

This story was posted on November 14, 2019.