City Will Hire Special Counsel for Questions About Confidentiality in Executive Sessions; Citizens Comment on Lack of Teamwork

During the Attorney’s Report at the Feb. 27 Council Meeting, Interim CCOB Attorney Pat Gilbert asked for consent from Council to hire special counsel to review the Feb. 20 Executive Session.  This special counsel will provide a legal opinion to Council on what parts of the Feb. 20 Executive Session and other Executive Sessions in general must be kept confidential and which parts can be announced to the public.  Attorney Gilbert recommended Attorney Marcus McAskin of the law firm of Michow Cox & McAskin LLP.  Their website states that Marcus “represents and counsels Colorado municipalities on a broad range of local government legal matters.”  Council ultimately approved that hiring, but not before Council discussion and earlier Citizen Comment regarding the Feb. 20 Executive Session.

On Feb. 20, after about two and a half hours in closed City Council chambers for Executive Session, Broomfield City Council Members exited without reconvening in Council Chambers at about 1:30 A.M.  About a dozen Broomfield residents had been determined to act as a physical reminder to Council that citizen concerns about health and safety should be paramount in their Executive Session discussions.  They arrived in Council Chambers during the end of the Study Session concept reviews, right before the vote to go into Executive Session, and then remained in Council Chambers until most Council members exited out other doors at 1:30 A.M.  Most citizens expressed confusion that Council could make a decision without taking a vote in front of the public, given the Colorado Sunshine Laws.  The residents had certainly been expecting to hear Council’s deliberations on any decision.

After a two and a half hour Council Executive Session on February 20, the City wrote a letter to the COGCC on February 21 with two requests:

1) to extend the COGCC comment period beyond the current Feb. 24 deadline for the Form 2 and 2A permits for the Livingston and Interchange Pads.

2) to postpone any COGCC hearings on these pads until the April COGCC hearings.  Based on Extraction’s submission date of the permits, any hearings could occur at the March public meetings.

The COGCC responded by extending the deadline for the submission of permit comments until March 1 but did not respond about the postponement of the hearings.

Questions about how the Feb. 20 Executive Session was handled were brought forth in the Feb. 27 Citizen Comments.  Heidi Henkel stated, “There seems to have been a decision that was made and, no matter how small it was, it was still a decision that needs your teammates involved, especially when we are also putting in the work on our end as well.”  Cristen Logan added, “We come here to speak to you all because we want to make a difference and change and hope we could influence your decisions in some way. That really is our right. Decisions should not be made prior to meetings or they shouldn’t be made behind closed doors.”

Laurie Anderson stated that she had previously sent a legal opinion to Council based on the published opinion of the courts on the Martinez v. COGCC decision on March 23, 2017.  Laurie reflected back on the Feb. 20 Executive Session that, “I can only surmise that the City chose not to move forward with that viable legal option.”  In general, Lois Vanderkooi added, “I and others are frustrated that when we express concerns, raise questions, challenge the state, we are dismissed and not taken seriously.”

Council’s discussion of Attorney Gilbert’s proposal to hire special counsel to review the Feb. 20 Executive Session can be viewed from 4:52-5:15 on the Council meeting video. Council Member Castriotta referred to a stressful week where she “felt like I let my constituents down” as they “perceived a lack of transparency.”

Council Member Shelton objected, stating that the fact that “decisions were made in executive session should not be misconstrued as official action being taken” but that he “understood people were concerned” so that “we should get legal advice.” Council Member Law-Evans said, “I believe that we have been completely appropriate” and that “we’re asking the citizens to take our word for it.”  Mayor Ahrens stated that the issue of what should be confined to Executive Session had not come up in his 13 years with Council.  “I know people talk about let’s all be a team, but that’s not proper in a legal setting.”  There is a pending lawsuit by Broomfield Way against the City that pertains to Council’s use of Executive Sessions.

Council Member Jezerski questioned “if the entire executive session is privileged or just the legal opinion.”  Council Member Kreeger agreed that legal advice and negotiations in Executive Sessions had to be kept private.  However, he hoped for clarity from special counsel if the subsequent decision making process and deliberations by Council had to be kept private.  “Remarks have been made to the public that we have pursued every legal option given to us.  That was not true.”

There was no time frame given as to when the City expected to receive the legal opinion from Attorney Marcus McAskin.  He will be reviewing the tape of the Feb. 20 Executive Session.

For further reading on Open Meetings, please see this 2 page document by the Colorado Municipal League.