County admits violating open meetings law
SAGUACHE — Saguache County administration official Wendi Maez wrote in an email last week that she was “incorrect concerning the requirement for recording executive sessions for personnel matters,” referring to an executive session held Feb. 14. Maez continued in the email:
“I was under the impression that if the matter involved the personnel that were in the session, and they were aware that it was not being recorded, this it was acceptable. Therefore that personnel executive session in question was not recorded. I will from this point forward make it my responsibility to make sure all executive sessions are recorded with the exception of legal session.”
She then offered to provide a summary of the discussion or answer questions concerning what was discussed.
Maez told the Center Post-Dispatch reporter during a BoCC meeting March 20 the county was under no obligation to record meetings involving personnel matters and had made no recording of an executive session held during a BoCC work session Feb. 14. The notice for the meeting on the county’s website stated:
“Saguache County Commissioners, (2-14) 9:30 a.m. work session — Executive Session for personnel (CRS – SEC24-402(4)(f)(I); Land Use and Code Enforcement.” The executive session was the only item on the agenda.
When commissioners arrived for the meeting Feb. 14 at about 9:40 a.m., no official statement convening the meeting as either a work session or a special meeting was made. A unanimous vote was cast to go into executive session to discuss “the code enforcement job description.” No further information concerning the purpose of the meeting was offered to the public. No citation of the applicable statue was given prior to the session.
Sheriff Dan Warwick and Code Enforcement Officer Deputy Wayne Clark then met with commissioners for about two hours behind closed doors. When commissioners reconvened, no action items were mentioned from the meeting and the notice asking participants if anyone objected to anything discussed during the meeting was not recited.
A bystander in the courthouse lobby learned the meeting did not close properly and told Commissioner Jason Anderson that the executive session could be questioned as illegal. Anderson asked County Attorney Ben Gibbons about the matter but Gibbons assured him this was not the case. Anderson announced after the executive session that the county would issue a statement about the outcome of the meeting, which it did at the March 20 meeting.
The statement revealed that decisions were made during the executive session, which is not allowed under state statutes regarding open meetings. The March 20 statement reads:
“As a result of this [the marijuana situation on the county] the county will pursue the following actions:
The hiring of a full-time code enforcement officer, operating under the Sheriff’s department in partnership with both the Commissioners and Land Use office. In conjunction, we will pursue the position of a code enforcement administrator…”
Warwick said Tuesday that during the executive session Feb. 14, commissioners rehashed what had been said on previous occasions regarding the code enforcement problem, how to procure the right staffing, whether this would be something the sheriff’s office could handle, etc. “I didn’t see why we were in an executive session,” Warwick said. “This was all public information — I don’t care if people know what I want or am expecting, I want the public to know.”
Deputy Wayne Clark, as reported to the Center Post-Dispatch by another credible party, said he also did not understand why what was discussed in the executive session could not be discussed publicly.
Past COML communications
In a letter written by then Colorado Press Association attorney Steven Zansberg in October of 2014 regarding previous open meeting violations, Zansberg told Gibbons that according to reports received, “Saguache County has, for quite some time now, been conducting meetings, including executive sessions, in violation of Colorado’s Open Meetings Law, (COML);” § 24-6-402, C.R.S. He further described the violations of the COML as “rather straightforward and uncontestable.”
The letter laid out the parameters of what are considered open meetings and stated that it is believed the county has not been recording executive sessions as required by law. Gibbons denied this, commenting, “I don’t think that is correct. The only ones not recorded are those for legal consultation.”
Zansberg said: “Numerous related violations of the COML have been committed.” He also advised commissioners that they must take minutes of their work sessions if executive sessions are held, according to Colorado statue. Currently the county keeps no record of what is discussed in work sessions.
“Based upon the board’s minutes that are posted on the county commissioners’ web page, it appears that no minutes of any kind have been prepared and maintained for any of the ‘work sessions’ that the commissioners routinely convene… No minutes… of the ‘work sessions’ are available for the public to know what topic or statutory basis was announced to convene the executive session, nor a tally of the votes of those present in favor or opposed to meeting in executive session.
“By failing to take and maintain minutes of those work session meetings, the board has repeatedly violated the provision of the COML that mandates, unequivocally, that “[t]he minutes of [any] meeting during which an executive session under subsection (4) of this section is held shall reflect the topic of the discussion at the executive session.” § 24-6- 402(2)(d)(II), C.R.S.
In the letter, Zansberg reminds commissioners that the Center Post-Dispatch won an open meetings lawsuit with the county in 2011. He asks them to record their meetings, both their executive sessions and regular sessions, to avoid another lawsuit.
“We hereby respectfully request that the Board of County Commissioners for Saguache County, Colorado formally commit, at its next regularly scheduled public meeting, to fully comply with the COML, as described above,” the letter reads.
In his response to Zansberg’s letter dated Oct. 14, Gibbons wrote: “There may have been an occasion where an executive session was done during a work session, on an emergency basis. The BOCC has agreed that if an executive session is required between regular Board meetings, a special meeting will be scheduled, posted and any executive session properly announced and recorded.”
A special meeting before executive sessions held during work sessions has been called only once or twice since the 2014 letter was written and was not announced prior to the executive session held on Feb. 14.