The Colorado Springs City Council violated the open meetings law Tuesday when it made two decisions about delinquent stormwater fees in closed executive session.
In a news release issued Wednesday, the city acknowledged that the council met in closed legal session “and made two decisions related to past due stormwater accounts.”
The law requires decisions by a public body to be made in open session.
During Tuesday’s closed-door meeting, the council decided not to send past-due stormwater accounts of less than $20 to the El Paso County treasurer for collection through property tax bills.
The city will look for other ways to collect on those accounts. As of Oct. 20, there were 10,800 unpaid stormwater accounts totaling $1.26 million. Of those, more than 4,000 accounts totaling about $50,000 were less than $20, according to the city.
The council also decided Tuesday to figure out a different way to collect on properties with unpaid stormwater fees that have changed ownership since January. The city closed out the Stormwater Enterprise in December 2010. The council wants to hold the previous owners, not the new owners, accountable for their past-due fees.
Council members had received numerous complaints about stormwater fee collections in these two categories.
“Having received several calls from citizens who purchased property in good faith and were not told at the time of closing that past due stormwater amounts were tied to the property, we believe this is the right decision,” Council President Scott Hente said in the release.
He also said those that many residents who owed small amounts were confused over when the fees ended, and some had simply didn’t pay the last quarterly bill.
As to why the decisions were made behind closed doors, Hente said Wednesday the council didn’t violate the law because council members simply reached general agreement during the meeting. The council didn’t cast any votes, he said.
“I don’t want to split hairs. We provided staff direction, which we do all the time in closed session,” Hente said.
Attorney Steve Zansberg, who has represented news organizations across the state in open records and open meeting cases, said the council is misreading the law.
“The law clearly states that not only formal action but any adoption of any position cannot occur in an executive session,” Zansberg said.
“Informal decision-making, no matter how it’s conducted, is prohibited,” he said.
Elena Nunez, program director for Colorado Common Cause, a nonprofit that advocates open government, said a public body can go into executive session to receive specific legal advice.
But any formal action must occur in a public meeting, she said.
“The point of our Sunshine Laws is that the public has confidence that they are aware of the decisions that council is making,” she said.
“To facilitate that, we require that formal decisions happen in open session. In fact, when you come into open session, you have to explain the discussion you had in executive session and then actually take action in public,” she said.
Hente said the council may have used the “wrong word” to describe what happened in executive session. Hente said he talked to each council member individually about the news release before it was sent out.
“I’m at a loss here. We’re trying to do something good and somehow it’s being painted as being bad,” he said.
“Criticize my use of the English language,” he added. “Guilty as charged. I wasn’t an English major in college. I was a computer science major.”
Hente said the council wanted the public to know what direction the city is going with delinquent stormwater accounts, which has been a constant source of controversy.
“Let’s be honest, we told you about it. We’re talking to the press about it, so obviously it’s not something that we tried to hide. We wanted to be very open about it,” he said.
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