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Colorado Springs council asks city attorney for recommendations to change executive session policy

June 11, 2018 Updated: June 11, 2018 at 10:23 pm
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photo - Colorado Springs City Hall Photo by The Gazette file
Colorado Springs City Hall Photo by The Gazette file 

A near coup on the Colorado Springs City Council almost canceled a secret discussion Monday about the council's policies on executive sessions.

But despite three council members' expressions of discomfort over secret meetings, two of them changed their votes minutes later to enable an executive session about executive sessions.

The council has settled at least seven lawsuits since 2013 behind closed doors, spending about $5.4 million, The Gazette has reported. The votes in closed sessions apparently violated Colorado's open meetings law.

The council now is discussing whether those settlements should be decided in public.

A two-thirds majority vote is required to hold an executive session. During an initial vote Monday, Council President Richard Skorman and council members Yolanda Avila and Bill Murray voted against the closed session. Five others voted for it. (Councilman Tom Strand was absent.)

The council first met on the topic last month - in a closed session. Monday's executive session was to continue that discussion.

Skorman said he was uncomfortable holding another closed conversation on the topic.

Even Councilman Andy Pico, who voted in favor of Monday's closed session, said he was uncomfortable doing so and would not vote to do so again for such a conversation.

Councilmen Don Knight and Dave Geislinger said this topic eventually must be broached in public, though the council isn't at that point yet.

After the initial vote, city staff attorney Marc Smith said the conversation could not be held in public.

"Without the ability to provide legal advice in a confidential manner, the city attorney's office will withdraw that item," Smith said.

Knight took issue with that and asked staff to clarify for future meetings whether the city's attorneys are allowed to withdraw agenda items.

"They want to give us advice that is confidential, but we own that confidentiality," Knight said. "I don't see why a vote of five of us to waive that confidentiality would not allow it to be ... why that sole decision is on the attorney. One person out-ruling the will of five or more of us is not correct, is not right."

Geislinger, however, defended the need to protect attorney-client privilege with the closed discussion. Soon Skorman said that argument persuaded him to change his vote. Avila followed suit.

After the executive session, Geislinger said the conversation will resume in public in August.

"The reason it's taking so long is, we've asked the city attorney to give us some potential solutions on how we can do better," Knight said.

State Sen. Bob Gardner, R-Colorado Springs, called the council's continued settling of lawsuits in closed sessions "baffling" and a clear violation of the state's open meetings law.

Gardner was one of several legislators who sponsored a 2012 revision to the law banning elected bodies of government from using secret ballots to make decisions.

A secret ballot is any that obscures who voted or how.

Gardner said any vote to settle a lawsuit should be public, so residents can see how their elected officials voted.

City Attorney Wynetta Massey says the council can approve settlements behind closed doors legally because it isn't taking legislative action.

But Gardner said he's yet to hear anyone defend the practice - also used by Fort Collins, Pueblo and Salida - cite a clear statute in their favor.

The Colorado Municipal League, a nonprofit to help cities, also has guidelines on executive sessions.

"No 'adoption of any proposed policy, position, resolution, rule, regulation, or final action' may be taken in executive session," the league guide says.

Asked whether league member Colorado Springs violated that guideline, CML Executive Director Sam Mamet said "with regret" he had neither comment nor reaction. He wouldn't say why he wouldn't address the topic.

Mamet's silence came as no surprise to law professor Richard Collins of the University of Colorado Boulder.

"(Mamet) has to get along with all of his councils. His job is dependent upon the good will of the members of his organization," Collins said.

But the secret settlements have no legal precedent, he said. So while the practice appears to violate the law, someone must sue for a judge to establish whether lawsuits can be settled in secret.

The secret approvals obscure not only council members' individual votes, but also the record as a whole.

"How do we get a record that the settlement was approved at all?" Collins asked.

But banning secret lawsuit settlements might give rise to rubber-stamp votes in public after decisions are made behind closed doors.

"You'll have a presiding officer in the closed session saying, 'We cannot make this decision here under the law, but we can take a straw vote to see where we stand,' wink, wink, wink," he said. "And, of course, the straw vote will be consistent with the real vote."

Although rubber-stamped votes are difficult to combat, they at least provide a final decision that is public record, Collins said.

Knight has said he wants to change the city code to require public votes for high-dollar settlements, but Gardner advised against such action. Instead, he suggested the group decide themselves to vote on those settlements in public.

"I can tell you it's certainly not a violation of the law to take a public vote," he said.

But that honor system would be vulnerable to future councils, Knight said, while a new city code policy would be a binding solution.

Knight also has said he's considering asking the city's Independent Ethics Commission to rule on the matter because it is supposed to be the guiding authority for the council in issues of ethics.

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