Emails show side talk ahead of Hecksel decision
READ THE EMAILS
These emails were provided to the Post Independent under the Colorado Open Records Act. Redactions were made by the PI to black out non-public contact information.
Electronic communications among Glenwood Springs City Council members leading up to the recent dismissal of Jeff Hecksel as city manager show a fair amount of conversation around the issue outside of public meetings, but nothing illegal on its face.
Three council members in particular, Kathryn Trauger, Steve Davis and Mayor Mike Gamba, were pushing hard for a transition plan after council voted 4-3 on Aug. 6 to give the required one-year notice of non-renewal spelled out in Hecksel’s contract, council emails show. The Post Independent obtained the emails through the Colorado Open Records Act.
“We let Jeff know that, although we do not have a pre-determined outcome of tomorrow’s meeting, we believe that there are probably four votes to request that council give him a formal notice of non-renewal of his contract,” Gamba writes in an Aug. 5 email sent individually to council members.
The message followed a meeting the previous day among Gamba, Davis and Hecksel to discuss the pending decision on whether to renew Hecksel’s two-year rolling contract. Action had to be taken by Sept. 1 or the contract would automatically renew.
It was at that meeting, Gamba indicates in the email, that Hecksel said he would prefer to remain in the manager’s position for a year, rather than step down immediately and take nine months’ severance as afforded by his contract.
“We let him know that we wish him the best and are more than willing to provide a good recommendation for him to any potential future employer,” Gamba wrote.
The PI filed the open records request for email exchanges between council members and directly with Hecksel and other city staff sent between July 1 and Dec. 4.
The request came after council member Stephen Bershenyi alleged at a Dec. 3 meeting that the decision to get rid of Hecksel prior to an agreed-to Feb. 1, 2016, separation date, and to hire former county manager Andrew Gorgey as interim city manager, had been made by the council majority beforehand.
“I will not condone government by fiat making decisions in secret,” Bershenyi said in a prepared statement at the meeting before walking out in protest, saying he believed it to be an “illegal action” under state law.
Colorado’s Open Meetings Law holds that any gathering of three or more members of a local elected body, such as a city council, where public business is discussed constitutes a meeting and should be formally noticed.
That law has been revised over the years to include email communications among elected officials as constituting a meeting if three or more members are included.
Steven Zansberg, president of the Colorado Freedom of Information Coalition, concurred that three is a magic number when it comes to defining a meeting, even if that “meeting” happens electronically.
However, what he referred to as a “daisy chain,” or series of emails that are forwarded to three or more elected officials, does constitute what he called “walking quorum” or “constructive quorum.”
“Courts in other states have repeatedly found [such an exchange] violates state open meetings laws,” Zansberg said, but not in Colorado.
In Glenwood’s case, while there were multiple communications between individual council members regarding Hecksel and the eventual transition to an interim manager and ultimately a new permanent city manager, records indicate there were never more than two elected officials included in any single message.
Some messages did include all seven members of council, as well as Hecksel, City Attorney Karl Hanlon and City Clerk Catherine Mythen.
Gamba said Wednesday that those types of notes are common prior to scheduled council meetings as a way to inform the process. But the policy is clear that council members are not to “reply all” if they have a follow-up thought, he said.
“That’s very clearly explained to us when we go through our orientation as council members,” Gamba said, referring to a routine session with the city’s insurance provider, CIRSA, after each election cycle.
“I can’t say we’ve always been perfect, but as a rule we do try to adhere to that,” he said.
Some level of communication outside the usual public realm is necessary in order for council members to prepare in advance of regular council meetings, Gamba added.
“A lot of the decisions we make we don’t want to make on the fly,” he said. “You want to be able to mull it over for a while before you make your decision.”
A Nov. 5 email sent by Councilor Trauger to the full council and top-level city staff shows she did take care not to violate any laws, even reminding her fellow councilors to be careful.
“Just a reminder, please do not reply to all,” Trauger wrote. “If you have a comment, it can be made at council this evening … if you email me, I will read your email at the council meeting.”
That particular message does, however, reveal Trauger’s impatience with the process to hire an interim manager, and that she and other council members had spoken with Gorgey about his interest in the job.
“Todd, Michael and I all acknowledged that we have had conversations with Drew,” Trauger wrote in recapping a discussion at council’s morning pre-meeting on Nov. 5, which some members were not able to attend.
“Additionally, I mentioned that I had reached out to several people on Jeff’s list to see if there was interest,” she wrote in regards to a list provided by Hecksel of potential interim managers.
“Jeff indicated that would be a red flag to them,” Trauger continued. “I apologized for perhaps overstepping, but as a new council member I felt as if I was mired in mud in that the process did not seem to be moving forward.”
It was also in that email that Trauger refers to staff’s recommended process for hiring an interim manager, including interviews, but expresses concerns about waiting much longer.
“I expressed concern that dragging this out could potentially cause conflict with the start of the Grand Avenue Bridge construction, and I would like to move forward with this process as quickly as possible,” Trauger wrote.
Council, following an executive session meeting on Nov. 19 and a Nov. 25 press release from Gamba announcing that Gorgey was being considered for the position, ultimately decided at the Dec. 3 meeting to hire Gorgey without conducting interviews.
Bershenyi and two other council members, Leo McKinney and Matt Steckler, criticized the move, saying they expected an interview process.
Bershenyi in his Dec. 3 comments alleged that the council majority was meeting secretly an making decisions in advance of meetings — though he acknowledged the next day that he couldn’t substantiate it. Trauger, Gamba and Davis the next day acknowledged a meeting at which Davis joined Trauger, Gamba and a city staffer. They agreed it was a mistake, and also said they ended post-council meeting drinks because of concerns about legal appearances.
Davis and Todd Leahy rounded out the majority that led to Hecksel’s ouster and the decision to seek a new city manager. The city has begun a formal search for a new manager using the services of Slavin Management Consultants.
Emails also suggested Davis wanted to move the process along, especially after Hecksel was announced as a finalist for a city manager job in Washington state in September.
“The morning after contemplation of yesterday’s events leads me to strongly believe that it is vitally important to complete the separation agreement being crafted by Karl [Hanlon] and get it executed prior to Jeff’s interview trip,” Davis wrote in a Sept. 18 email to Gamba.
That separation agreement was finalized Oct. 15, specifying that Hecksel would remain on until Feb. 1, but leaving the door open for him to be dismissed sooner.
Hanlon, who was charged with compiling the emails requested by the PI, said he also advises council members to be extra careful with communications involving city business outside a council meeting.
“In this instance, I didn’t see anything that was a violation of the Open Meetings Act,” Hanlon said. “Clearly, this was difficult, touchy subject because it involved personnel. I believe council and Jeff both were trying very hard to be professional and careful, and not make it something more than what it was.”
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