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Gazette Premium Content EDITORIAL: Outrageous ruling threatens open meetings protections

The Gazette editorial Published: April 9, 2014

Transparent government is a Colorado virtue. Laws that mandate open records, meetings and process are about as controversial as mom and apple pie.

That's because government is chosen and funded by the people to serve the people, so almost nothing should be done in secrecy to exclude the people.

Yet, few Coloradans know their most fundamental expectations of open meetings are under attack.

A court ruling, which has received almost no media attention, threatens a law that says local governing bodies cannot adopt "any proposed policy, position, resolution, rule or regulation or tak[ing] formal action by secret ballot."

The language of the law comes from House Bill 12-1169, proposed by Colorado Springs Republican State Rep. Bob Gardner in 2012. It was enacted as a means to protect the public from secret ballots.

Shockingly, members of the Arvada City Council chose to blatantly violate a law they clearly don't like.

The story begins in December, when Colorado voters were recalling a third senator, Democrat Evie Hudak, for governing in a manner that disregarded electoral values and participation in process. As the recall looked inevitable, Hudak resigned. Democrats chose Arvada City Councilwoman Rachel Zenzinger to replace Hudak in the Senate.

The Arvada council held a special meeting Jan. 10 and embarked on four rounds of secret voting to elect Jerry Marks.

Mayor Marc Williams explained the voting procedure like this: "We will each be marking with a checkmark so that no one will ever know which one of us were Xs or Os or some other form of marking, so we will all use a checkmark designation on the ballots."

Council members also agreed to fold ballots as part of the effort to keep secret how each member voted. After four secret rounds of elimination, the council voted openly to appoint Marks.

Arvada resident Russell Weisfield quickly filed suit, claiming his representatives had deprived him of protections against secret voting by public officials. Given the clear and concise wording of the law, it seemed an open-and-shut case. It was not.

Jefferson County District Judge Margie Enquist ruled in favor of the secret ballot shenanigans, with apparent disregard for the intent of the law. She didn't question whether Arvada politicians violated the law. Instead, she allowed their actions by questioning the standing of the plaintiff.

Enquist wrote that Weisfield had not "sufficiently alleged an injury-in-fact. He does not list himself among the four finalists eliminated by the voting procedure (nor does he contend that he had an individual interest in the outcome of the election.)"

It's an obnoxious and dangerous ruling. The judge is saying ordinary residents of a community are not sufficiently injured when their elected representatives break laws enacted to protect the public's right to know. The judge believes only the offending council members themselves, or the handful of nominees for a council seat, have standing to demand obedience to the law.

In other words, only the political class can enforce laws intended to constrain the political class. Her ruling means almost no one can demand enforcement of the law. Even the candidates who were not selected are unlikely to file suit, given the fact they may want council favor when seeking future appointments.

Elliot Fladen, an attorney with Schlueter, Mahoney & Ross P.C., a firm representing the plaintiff, said Weisfield will likely appeal. If allowed to stand, the judge's ruling will have devastating consequences.

"The judge's ruling would essentially render the open meetings law a dead letter," said attorney Steven Zansberg, a First Amendment expert, as quoted by the Colorado Freedom of Information Coalition.

Without open meetings, Coloradans will become subjects of politicians elected to serve them.

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