Not an open and shut case
Post Independent Staff
The Garfield County Commissioners have endorsed a 12th Judicial District Court decision in Costilla County that opponents say would dilute the Colorado Open Meetings Law.
Steven Zansberg, an attorney for the Colorado Press Association, said the 12th District Court’s decision would signal “a green light” to private parties to circumvent Colorado’s open meeting requirement of advance public notice.
The Colorado Supreme Court will review the court decision, according to a Feb. 12 letter from Garfield County to Colorado Counties Inc., the umbrella lobbying organization for the state’s 64 counties.
Garfield County argues that the Costilla County Commissioners did not violate the Colorado Open Meetings Law when two of the three commissioners attended a meeting called by two state agencies and Battle Mountain Resources in 1999. The meeting was held to discuss the company’s mine reclamation plans near San Luis.
The Costilla County Conservancy District sued, claiming the Costilla County Commissioners violated the Colorado Open Meetings Law because a quorum of two commissioners was present at the meeting. This constituted a legal county commission meeting, the lawsuit said, but the commissioners didn’t post a public notice that the meeting was to take place.
The 12th District Court ruled in favor of the Costilla County Commissioners, saying they did not violate the Open Meetings Law. But in 2002, the Colorado Court of Appeals overturned the decision, even though at the meeting the commissioners “made no presentation, did not participate in the discussions, and did not ask any questions,” according to the court’s published decision.
In a brief filed in the appellate case, Zansberg advised the court to “not provide a road map … to gain unfettered and private access to public officials” to present information that may shape public policy.
Garfield County Commissioner Tresi Houpt said it’s problematic for the county to notify the public every time two commissioners attend a meeting.
For example, Houpt and Garfield County Commissioner Larry McCown attended a Northwest Colorado Oil and Gas Forum meeting last week in Rifle. To comply with Garfield County’s interpretation of the Open Meetings Law, the county considered the forum a special county commission meeting, and posted the agenda at the Garfield County Courthouse and Courthouse Plaza 24 hours in advance.
Houpt said because the forum was considered a special county commissioner meeting, a county employee had to attend and take notes to be recorded as meeting minutes.
Houpt said there are valid reasons for Colorado’s Open Meetings Law, but complying with it can be difficult when a quorum is reached with only two members. Often, meetings are called by other governing bodies and groups that two commissioners must attend.
“The Open Meetings Law doesn’t address three-member boards, and most boards of county commissioners are three-member boards,” Houpt said.
If an individual or group wants to talk to all three commissioners outside a scheduled meeting, they must meet individually with each commissioner rather than all at once, Houpt said.
To make sure two commissioners don’t accidentally end up at the same meeting and risk violating the Open Meetings Law, they compare their upcoming schedules at their weekly meetings, Houpt said.
In the letter to CCI, Garfield County urged the group to join the Costilla County case as a friend of the court.
The Colorado Freedom of Information Council joined the Colorado Press Association in its friend of the court brief with the Colorado Court of Appeals, asking that the lower court decision be struck down, and the Costilla County Board of Commissioners be found in violation of the Open Meetings Law.
The brief said if the Court of Appeals upheld the 12th Judicial District Court decision, it would “have far reaching and deleterious impact upon the ability of the free press, serving as surrogates for the public … to access meetings of state and local public bodies at which business is discussed and public policy is formed.”
Houpt said she doesn’t think the public process will be harmed in Garfield County if the Supreme Court overturns the Court of Appeals decision.
“We have a great deal of respect for the public process, and I don’t see that would change,” Houpt said. “The commissioners truly believe in having a public forum and deliberating publicly, rather than behind closed doors.”
Houpt said she hopes the Supreme Court decision will help clarify what constitutes a meeting that must comply with the Open Meetings Law.
Contact Lynn Burton: 945-8515, ext. 534
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