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Public policy is public business

On more than one occasion, The SUN has received forwarded emails from local board members discussing public policy via email. We provide the following from the Colorado Freedom of Information Coalition as a reminder of the seriousness of this issue.

On a Friday afternoon earlier this month, a town trustee in Berthoud emailed six fellow board members “to give you all a heads up on a critical issue we will be voting on next week.” Paul Alaback’s message argued against the appointment of a former trustee to the town’s planning commission.

Berthoud Mayor David Gregg rightfully sounded an alarm in his response 48 minutes later: “This is the sort of discussion that should take place in the light of a public meeting, not working to influence ahead of the public meeting.”

According to the email thread obtained by the Berthoud Weekly Surveyor, only Trustee Mike Henning continued the electronic conversation, chiming in a few days later to say that he would be a “no” vote on the nominee for planning commissioner.

Henning’s email demonstrated a lack of understanding of Colorado’s Open Meetings Law (OML). “Not sure what David is talking about,” he added. “We have email to use for these kinds of things.”

No, Henning, you don’t. Not unless you can figure out a way to invite the entire Berthoud community to join your electronic conversations with two or more fellow trustees regarding this or any policy matter under your purview. And you would have to give the public 24 hours’ advance notice, publish an agenda and, in certain circumstances, keep minutes.

For local public bodies like the Berthoud town board, there are rules for conducting meetings under the OML, also known as the Sunshine Law. The statute emphatically declares that “the formation of public policy is public business and may not be conducted in secret.”

The law defines a meeting as “any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by (any) other means of communication.” This includes emailing, texting, tweeting, instant messaging, Facebook messaging and forms of communication that haven’t been invented yet.  Moreover, the law makes it abundantly clear that “if elected officials use electronic mail to discuss pending legislation or other public business among themselves, the electronic mail shall be subject to the requirements” of the OML.

Technology makes it incredibly easy to reach out to others nowadays. But when three or more members of a city council, county commission or school board use electronic devices to talk policy – it can be just two members if two constitutes a quorum – they deny the public its right to “attend” that meeting.

This is the crux of the controversy in Pueblo that, as of last Friday, has led to the resignation of one city council member and the start of a recall movement against two others. As reported by The Pueblo Chieftain, the three councilors engaged in illegal online discussions about several controversial issues with a political adviser, Pueblo County’s transportation director.

Forwarding the thread, which clearly discusses public business, to a third council member made the email exchange a “meeting” under the OML. You might wonder if it’s acceptable under the law for a member of a public body to simply receive such emails in their inbox and do nothing else. It’s not.

Colorado Freedom of Information Coalition President Steve Zansberg commented: “One unsolicited email would be understandable and forgivable. Receiving a series of emails on a subject, however, without saying ‘Do not contact me via email to discuss this,’ is tacit participation in the conversation. That’s how I’d draw the line.”

Jeffrey A. Roberts, CFOIC executive director

This story was posted on August 21, 2014.