July 5, 2013 Updated: July 5, 2013 at 6:30 pm
At a recent City Council meeting, the city attorney asked the panel to retreat behind closed doors to discuss a sensitive case that carries the threat of a lawsuit against the city.
But council said no.
Instead, the group voted 6-3 to openly discuss the situation involving Memorial Hospital and an ongoing pension fight with employees who retired before the hospital was leased to University of Colorado Health last year. Council members Jan Martin, Val Snider, Joel Miller, Jill Gaebler, Helen Collins and Don Knight voted at the June 25 meeting not to go into a closed session. Council president Keith King and council members Andy Pico and Merv Bennett voted for the executive session.
The move went against City Attorney Chris Melcher's advice and may signal that the council sworn in three months ago is not as willing to go into closed session as often as the previous council.
At the meeting last month, Melcher handed each council member a confidential packet concerning the Memorial issue. The information, he said, fell under attorney-client privilege, and he told the council it would be a disadvantage to speak about the case in public.
"But this is not a typical client-attorney relationship," Martin said. "We do our business in public."
Martin said she's uncomfortable with the amount of closed-door meetings that have been scheduled in recent months. Of 22 informal and formal council meetings since January, the council has met behind closed doors 11 times. She is hopeful the council sent a signal to city staff that it won't automatically go into closed session just because it is recommended, but instead will review each issue case-by-case, she said.
"I do believe this council is beginning to be more tuned into the need to only have closed sessions for special legal advice or negotiations," Martin said.
By law, council can go into a closed meeting to discuss transfer of property, attorney legal advice, security arrangements, development strategies for negotiations, personnel matters and documents protected by the mandatory non-disclosure provisions of the Open Records Act. Going into a closed meeting requires a two-thirds vote, and the council cannot vote behind closed doors.
Council president Keith King said he was not ready to declare the June 25 council action as a trend of bucking closed-door meetings, but said executive sessions should rise to the level outlined in the law.
That wasn't the case in a June 24 closed City Council meeting, some council members said. The council spent two and half hours in executive session discussing the details of terminating the city's long-standing partnership with El Paso County and other smaller fire districts for shared ambulance service. The issue was listed on the agenda as executive session for "legal advice, consultation and contract negotiation strategy discussion with the city attorney regarding public safety and intergovernmental agreement."
After the meeting, council members Martin, Snider and Miller said the majority of the discussion did not meet the standards required by law for a closed-door meeting.
"I expressed concern about that," Miller said. "A small portion of that time, I feel, would have risen to the need to have a closed session."
Since April, when six new city council members began their terms, council has gone into closed session five times. Miller and council member Helen Collins have consistently voted against moving into a closed meeting. For example, Miller and Collins voted not to go into executive session May 13 and May 27 when the Memorial pension issue was on the agenda.
"I do feel transparency is very important," Miller said. "I think it's fine if the staff wants to list (an item) as closed but it's up to the council if they want to keep it open."
In the case of the shared ambulance service agreement, Martin said she was bothered that the public was left out of the discussion. Her frustration played a part in her vote not to close the meeting on the Memorial pension issue, she said.
"I think we need to be careful when we get into those (closed) sessions and focus on the legal aspect as to why we are in closed session," she said.
Council saw an increase in requests for closed meetings in 2011 when the city was discussing the sale of Memorial hospital, Martin said. Then in April, the previous council -- in one its last meetings - changed its rules and proceedures to include listing "executive session" on every council meeting agenda, just in case an issue needed to be taken behind closed doors. Now there is an executive session scheduled at every meeting, including at the Colorado Springs Utilities board meetings, said Council member Val Snider.
"I am concerned about so many executive sessions and I am concerned with the lateness we get the material before the executive session," he said. "Enough is enough for all these closed sessions and enough is enough of getting the written materials to us late."
Melcher said that in the case of the ambulance agreement, the council was discussing a new ambulance service contract and receiving legal advice from the city attorney - both issues that are covered by the law to hold a closed meeting.
In the case of the Memorial penision fight, a group of retirees has threatened to sue the city and the council. He had planned on discussing possible legal strategy.
Bennett said he voted to go into executive session over the Memorial pension issue because it could result in a lawsuit, and the council needed to discuss its options in private.
"I tend to trust the recommendation of our attorney," Bennett said. "If our attorney feels we have to have an executive session to review legal issues - especially something like Memorial, where we are already involved in a lawsuit - I vote to go with the recommendation."