It’s time for local elected officials to take open meetings laws seriously

  • Erin McIntyre
    Erin McIntyre
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Even in a pandemic, we deserve to have public business discussed in public, and we deserve to know what’s going on around here.

But that’s getting harder and harder to do as this situation drags on.

For example, last Thursday we listened in on a meeting where restaurant owners invited a county commissioner to participate in discussions about how and when to reopen for in-person dining service. Commissioner John Peters participated in the meeting initially, and then later on, Commissioner Ben Tisdel joined in the meeting, too.

That’s when a red flag went up — two commissioners constitutes a quorum, and they were discussing public business, the business of reopening restaurants, a topic the county had on its agenda the following week to request a variance from the state. This wasn’t a chance occasion where two commissioners just ran into each other at the post office and discussed the weather.

Tisdel left the meeting, leading us to believe he saw Peters and made a graceful exit in compliance with the law, which we would have been fine to move on and ignore. But no, he returned to the meeting and participated, putting Peters in an uncomfortable position. And it was clear everyone knew who was in the room at that time, and their participation clearly violated the Colorado Open Meetings Law. When a quorum of elected officials is discussing public business, all of their constituents deserve to have a chance to bear witness, not just the 20-some restaurant owners who received an invitation to a Zoom meeting.

Let us be clear — we don’t think this violation was orchestrated. It was an accident. But it’s still not OK. And we let the commissioners know this and warned them to be more careful.

In commissioners’ meeting Tuesday, our concerns about this meeting arose and Tisdel reasoned the violation was somehow “cured” because the press saw it happen.

But that sort of reason only stands if you believe any sort of act of breaking the law is fixed when someone witnesses it. If someone shoplifts a candy bar, but someone else sees it happen, is that enough? No, it would perhaps be cured if they put it back or paid for it. But in this case, it’s more like someone stole a candy bar and ate it, so there’s no returning it. Likewise, there’s no way to restore the opportunity for the public to be notified that their elected officials are going to discuss public business after it happens, unless one of us has a time machine handy.

This begs another question — is it a violation only if people notice and someone gets caught? If a tree falls in the forest and no one is there to hear it, does it make a sound?

Public officials need to take personal responsibility for complying with the open meetings laws, especially during a time when we are socially distanced and participating virtually in these meetings. We would hope a sense of conscience and compliance with the law would compel them to do this, as well as a desire to serve their constituents with transparency.

We’re willing to acknowledge that the sheer number of meetings is partially to blame for this situation, and the virtual format sometimes makes it difficult to understand who, exactly, is participating in these meetings. We can’t just notice when someone walks in or look around to see who is in the room. Sometimes we have black screens that just say “iPhone” on them, so who knows who is lurking there.

Last week, we at the Plaindealer covered more than 18 hours of virtual meetings. There were work sessions, there were special meetings, there were joint meetings, there were regular meetings, and there were meetings about meetings, there were meetings where decisions were made about decisions decided in prior meetings. It’s mind-numbing.

Amidst all these meetings, we’re particularly concerned about the way the Ouray School Board decided to select their new superintendent. The board voted unanimously to approve a contract for Tod Lokey, who had already signed the contract for the job on Monday.

The problem is, the board never made a decision in public to actually offer the job to Lokey over the other remaining candidate, Tennille Wallace. There should have been a public vote.

But no, the board instead met for more than eight hours in executive sessions discussing their pick for the next district leader and making the decision behind closed doors. How they met for that long and only discussed the merits of the finalists and their negotiations with them is anyone’s guess, but they clearly made a decision behind closed doors.

Colorado’s open meetings law expressly prohibits the “adoption of any proposed policy, position, resolution, rule, regulation or formal action” during a closed-door executive session. The Plaindealer raised concerns about this at the board’s May 11 meeting, specifically asking the board to make a decision in public as required by law.

We would argue that making a decision on who to hire for superintendent constitutes a “formal action,” and is possibly the most important decision the board will make this year. The decision to accept the contract Lokey already signed would not have been possible without a prior decision — the one made in private — to offer the job to Lokey in the first place.

But we don't know why they chose Lokey because we’ve been deprived of that transparency.

Instead, the board went with the assumption that they could make their decision in private and leave out all the messy details the public doesn’t need to know about, and then just wrap it up into a nice little package and vote unanimously to hire Lokey.

Court rulings have made it clear that public bodies are prohibited from “rubber stamping” previously made decisions from executive sessions, which is exactly what the Ouray School Board did. They reached full agreement in private, which isn’t allowed under the open meetings law. We deserve to see how some of this sausage is made, so to speak.

Ultimately, this erodes the public’s trust and it’s not a great way for Lokey to start out his new job with the district, especially after one of the finalists dropped out after declaring Lokey’s hiring a foregone conclusion when she found out his wife had already been hired to teach in the district.

It’s time for elected officials to take the open meetings laws seriously here in Ouray County and for them to be held accountable.

That’s the only cure for this problem.

Erin McIntyre is the co-publisher of the Ouray County Plaindealer. Email her at erin@ouraynews.com.