Illegal Executive Sessions

Littleton voters passed a City Charter amendment limiting the use of executive sessions in 2013. The Littleton City Council, who wants to use executive sessions more often than what is currently allowed, placed on the ballot this November amendment 3E which rolls back those limitations enacted in 2013.

An executive session is a meeting where the city council, or one of its appointed boards, conducts government business in secret. While State law limits the topics that can be discussed in executive session it is very difficult to determine if, and when, that law is being violated – precisely because the meetings are secret. Enforcement of executive session law is left up to citizens, who must file a motion with the court when abuse is suspected. Since filing that motion exposes the citizen to the potential of financial liability, executive session abuses are rarely exposed.

Which makes the documented abuse of executive sessions in the city of Englewood, and that city’s refusal to address those abuses, so important. And for Littleton so timely. The Englewood executive session abuse is one of the rare cases that is clearly documented by events which took place outside of executive session. But unfortunately Englewood is not the only entity to abuse executive sessions.

Background

On May 7, 2018 Englewood City Manager Eric Keck requested the Englewood City Council call an executive session to discuss a personnel issue and to receive legal advice; which the Council called on a 5 – 1 vote. After the vote and prior to entering the executive session, Mayor Pro Tem Rita Russell read a statement prepared by Englewood’s City Attorney to describe what would be, and what would not be, discussed in the executive session. That statement, which reiterates Colorado open meetings law said:

“We will go into executive session for a conference with the city attorney for the purpose of receiving legal advice on specific legal questions under Colorado Revised Statues section 24-6-402(4)(b) and also for discussion of a personnel matter under Colorado Revised Statues section 24-6-402(2)(f) and not involving any specific employees who have requested the discussion of the matter in open session, any member of this body or any elected official, the appointment of any person to fill an office of this body or of an elected official or personnel policies that do not require discussion of matters personnel to particular employees.”

50 minutes later the Council ended the executive session reconvened in open session. Mayor Pro Tem Russell read another statement prepared by the Englewood City Attorney, which said in part:

“For the record, if any person who participated in the executive session believes that any substantial discussion of any matters not included in the motion to go into executive session occurred during the executive session or that any improper action occurred during the executive session in violation of the open meetings law, I would ask that you state your concerns for the record.”

According to the video recording of the meeting Council member Laurett Barrentine said discussion happened about behavior and policies of a council member and an elected official during the executive session and that she objected to that discussion during the executive session and now in open session.

Despite the call from the chair of the meeting for people to go on record about the executive session, per the instructions of the City Attorney, no record of Barrentine’s objection appears in the minutes for the May 7th meeting.

The Police Report

Around midnight after the meeting of May 7th Englewood Council member Cheryl Wink called the Englewood police dispatch because Council member Barrentine “had yelled at her during a Council meeting at city hall” and asked for an extra patrol near her residence because “she did not feel safe.”

After the officer arrived to interview Wink, she described what happened during the executive session. Wink told the officer “certain concerns were brought up about [Barrentine] who was in the process of being recalled” by other Council members and she, Wink, agreed with those concerns telling Barrentine “she heard similar concerns from the citizens in the community.” Wink’s description about what happened during the executive session was documented by the police in a police report, case number 1805306.

The police conducted extra patrols around Cheryl Wink s residence that night, as requested.

The Denial

Two weeks later at the May 21st Englewood Council meeting Mayor Pro Tem Rita Russell introduced a motion to release the portion of the executive session which occurred outside of the law saying that during the executive session council members became the object of the discussion. Russell said she objected to that discussion while it was happening during the executive session, and said “the City Manager should not have brought this topic to Council since the entire topic is not permitted in executive session.”

The City Attorney responded that she did not “believe anything illegal took place during the executive session.” Council member Wink, who had already described in detail to the police discussions which fell outside of the law during the executive session, said “I will also be voting no, I think [the executive session] was appropriately conducted.”

Russell’s motion failed on a 2 -3 vote.

The Harm

The harm of this type of discussion happening in executive session was described by Barrentine during the May 21st meeting: “I do not believe executive sessions are intended for council, elected officials, or staff to accuse or attack other elected officials with impunity with no ability for vetting the information’s truth or accuracy and causing chaos and damage in secret without public transparency.”

Yet that is exactly what happened.

Even though half of the Council members in that executive session have now either described discussion, or stated that the discussion that took place went beyond the law, the Council can, and did, simply choose to not release the executive session.

The only recourse is for a private citizen to use his own money to petition the court to review an executive session for compliance with the law. The danger in doing so is the citizen is liable for fees if the court determines the petition is frivolous.  Plus this has to happen within 90 days or the recording of the executive session is destroyed – as has happened in this case in Englewood.

Back to Littleton

Englewood isn’t the only city to abuse executive sessions. In the 18 month period before the citizens voted to restrict executive sessions in 2013 the Littleton City Council held 30 executive sessions on various topics. The City Manager was an object of 10 of those executive sessions, the City Attorney or Attorney’s office six sessions, municipal judges six sessions, and 11 sessions were devoted to receiving legal advice on everything from State liquor laws to the City Charter.

The excessive number of executive sessions seem to indicate either a City that is out of control, or a Council that is abusing executive sessions to conduct the public’s business in private. For example, if the City Manager was performing poorly enough to warrant 10 executive sessions for personnel issues in less than 2 years, the public needs to know why the City Manager was still employed. And the citizens need to hear how the Council is being advised about how State liquor laws are to be interpreted or what the City Charter means. It is impossible to citizens to know what not to do, or what their rights are,  if interpretations of laws are kept secret.