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Council’s phone poll may have broken law

GLENWOOD SPRINGS ” City Council may have violated the state’s open meetings law Friday by holding a meeting via telephone without proper public notice and making the decision to start the city manager hiring process over.

Mayor Larry Emery said he called each member of council Friday to find out their opinions on what council’s next step in the hiring process should be.

The phone calls were made just hours after city manager candidate Mark Collins of Gunnison withdrew his application for the job Friday morning, leaving Basalt deputy town administrator Betsy Suerth as the city’s only remaining candidate.



After Emery made the calls, council members directed Glenwood Springs human resources director Sebrina Hoffmeister to inform Suerth that the months-long hiring process would start over.

Suerth said she was told of council’s decision on Friday afternoon.



According to Tom Kelley, a Denver attorney who specializes in open meeting laws, polling each member of City Council violated Colorado’s open meetings law.

“It’s essentially a telephone tree, or the functional equivalent of a tree,” Kelley said. “A Colorado court would not approve of getting around open meetings in this fashion.”

Colorado’s open meeting laws, also called Sunshine Laws, were enacted by the Colorado Legislature in 1973. They require, among other things, advance public notice for any governmental business that’s discussed by more than two elected officials within the same governmental entity.

Emery defends council action

Emery said he is aware of the state’s open meeting laws.

He defended his action by saying Friday’s phone calls were made simply to confirm the consensus that was reached Thursday night at an executive session ” a closed-door session allowed to discuss confidential information about personnel. Thursday’s executive session was held to discuss city manager candidates.

“Council made the direction very clear and I felt I had a very good feel for what they wanted to have happen,” Emery said, referring to the discussion held Thursday night. “I wanted to make sure I construed the correct decision.”

He insisted that no new decisions were made Friday based on the phone calls to his fellow council members.

But according to the Sunshine Laws, any decision made at Thursday’s executive session also would have been illegal.

The laws state: “A board cannot adopt any proposed policy, position, resolution, rule, regulation or take any formal action in an executive session.”

Emery contends that council’s decision to restart the search for a city manager wasn’t a formal decision, but more of a “general consensus.”

Suerth eliminated before Collins dropped out

Councilman Dan Richardson also said he feels members of council did nothing wrong by talking to Emery on the phone or by coming to a consensus at the executive session.

“The line I draw is: Are we making any decisions outside the public arena? That’s the bottom line to me,” Richardson said. “I certainly didn’t feel it was a decision or a meeting. I’m usually pretty careful about that.”

Richardson also said council decided to eliminate Suerth on Thursday evening, before Collins dropped out.

“It’s no different that we started with 70 candidates and started narrowing them down. Eliminating Betsy was the same as what we did with everyone else,” Richardson said.

“What could we have done? We agree that Mark is our guy. He drops out. What decision is there to make? I don’t know what other course of action could have taken place,” he added.

Despite these explanations from Emery and Richardson, Kelley said he thinks the open meeting law was clearly broken by Friday’s phone calls.

“If the position had already been taken, there would be no need to call,” Kelley said.

While there are no criminal consequences for violating the Sunshine Laws in Colorado, council could be sued by any citizen and the action taken could be made null and void, Kelley said.

He said in this case, such a suit is unlikely.

“A person who finds that most useful would be someone who doesn’t want a subdivision going through,” Kelley said.

How’s the city manager search going?

At another executive session held Tuesday, Richardson said City Council discussed the possibility that Glenwood Springs might need to use an interim city manager after present city manager Mike Copp retires on April 30 ” just over two months from now.

He said no decisions were made at that meeting.

Council also discussed how to go about examining the city’s hiring process to try and find out what caused four of the top five candidates for the manager job to drop out, he said.

Another of the top three candidates, Doug Williams of Winnetka, Ill., said he dropped out because of the city’s “poor financial situation.”

Richardson said the interim manager could be someone who already works at the city, or they might contact the Colorado Municipal League to find a temporary manager until the new hiring process is complete.

Contact Greg Masse: 945-8515, ext. 511

gmasse@postindependent.com

The Colorado Sunshine Law defines an open meeting as: “Any kind of gathering convened to discuss public business, in person, by telephone, electronically or other means of communication.”


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