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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 08/21/2001 - FIRST READING OF ORDINANCE NO. 131, 2001, AMENDING AGENDA ITEM SUMMARY ITEM NUMBER: 24 FORT COLLINS CITY COUNCIL DATE: August 21,2001FROM• Stephen J. Roy SUBJECT: First Reading of Ordinance No. 131,2001,Amending Sections 2-31,2-33 and 2-73 of the City Code Pertaining to Executive Sessions. RECOMMENDATION: Staff recommends adoption of the Ordinance on First Reading. EXECUTIVE SUMMARY: This Ordinance would make certain amendments to the sections of the City Code that pertain to executive sessions. The amendments are generally similar to recent amendments to the State Open Meetings Law and would, among other things, require the tape recording of executive session discussions so that, if a member of the public believes that an executive session discussion has strayed from the appointed topic or that final legislative action was taken in an executive session, he or she could apply to the District Court with a request that all or a portion of the recording of the executive session discussion be made available for public inspection. BACKGROUND: The state legislature has recently amended the State Open Meetings Law and the State Open Records Law in several respects. The general purpose of these amendments is to ensure that executive session discussions are limited to the topics authorized for such discussions and to provide a mechanism for allowing public inspection of a record of executive session discussions in those instances where a reviewing court finds that the discussions strayed from the appointed topic or that formal action was taken in the session. As a home rule city, Fort Collins has its own open meetings law. The City Charter and the City Code authorize the holding of executive sessions and specify the purposes for which executive sessions can be held. At present, no minutes are required to be taken of executive session discussions. Assuming that the City Council agrees with the recent amendments to the state law, staff has proposed similar amendments to the City's open meetings law, while preserving certain differences that exist between the state and local laws. (For example,the purposes specified under the City Charter and Code for executive sessions differ from those enumerated in the state statute.) DATE: August 21,2001 2 ITEM NUMBER: 24 The highlights of the proposed Ordinance are as follows: • The topic for a proposed executive session would have to be announced in as much detail as possible without compromising the purpose for which the executive session is to be held. • An audio recording would be made of all executive sessions. • The audio recordings would be held for at least 90 days. • The executive sessions could only be convened for the limited purposes specified in the City Charter and Code (personnel matters, legal matters, consideration of water and real property acquisitions and sales and certain electric utility matters). • Language would be added to clarify two things with regard to personnel matters: - It would be permissible to review not only the performance, but also the proposed compensation and benefits,of the direct City Council employees; - Personnel discussions would generally not include discussions of Councilmembers or board or commission members, or to the appointment of persons to those positions, or to personnel policies as opposed to individual employees; • Discussions covered by the attomey-client privilege would not have to be tape recorded. • If a person presents to the Latimer County District Court reasonable grounds to believe than an executive session discussion has deviated from its appointed topic,or that final legislative action was taken in the executive session,the court would conduct an in camera review;if it determined that a violation in either of these respects had occurred, the offending portion of the executive session would be open to public inspection. • If the court finds that the request for inspection was frivolous, vexatious or groundless, the court could order the requesting party to pay the City's attorney's fees and costs. (The amendments to the State Open Records Act would require the court to award costs and reasonable attorney's fees to the applicant any time the City has denied a request for inspection and the court finds that the request should have been granted,unless the court also finds that the custodian of the records was genuinely unable to determine,without a court order, whether disclosure of the requested record was prohibited by law. This changes the earlier provisions of the Open Records Act that allowed an award of attorney's fees to the applicant only if the City's denial of a request for inspection was arbitrary or capricious). . ORDINANCE NO. 131, 2001 OF THE CITY OF FORT COLLINS AMENDING SECTIONS 2-31, 2-33 AND 2-73 OF THE CITY CODE PERTAINING TO EXECUTIVE SESSIONS WHEREAS, the City of Fort Collins, as a home rule municipality, has adopted, in Article II, Section 11 of the City Charter and Chapter 2, Articles II and III of the City Code, certain rules governing the conduct of meetings of the City Council and boards and commissions of the City, as well as committees of the same; and WHEREAS,the provisions of§2-31 and§2-71(b)of the City Code relate to the purposes for which executive sessions may be held and contain certain procedural rules relating to such executive sessions; and WHEREAS,the State of Colorado has also adopted laws pertaining to the executive sessions of local public bodies, which laws are contained in Title 24, Article 6, Part 2 of the Colorado Revised Statutes; and WHEREAS, the State Legislature has recently approved amendments to the state law governing executive sessions for both state and local public bodies, which amendments require, among other things, that a record of executive sessions be made and maintained for a period of ninety days, so that a party having reasonable grounds to believe that a violation of the state executive session laws has occurred may apply to a district court for the release of those portions of the executive session that violated the state law; and WHEREAS, the City Council believes that the principles of open government and accountability that underlie this recent change to the state law warrant a similar change to the City's local regulations. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That §2-31 of the Code of the City of Fort Collins is hereby amended so as to read in its entirety as follows: Sec. 2-31. Executive sessions. (a) The City Council, and any committee of the City Council, may, by two-thirds (2i3) majority vote of those members present and voting,hold an-ge-hft executive session upon announcement of the topic for discussion in the executive session,which announcement shall include a specific citation to the provision of this . Section that authorizes the Council or Council committee to meet in executive session,and shall identify the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is to be bd&.Sd4 executive session,rnap'be held only at'a regular or speclaFmeeting ski ody.,ifor the purpose of considering any o€the following='matters: when(i)the Gity to be disettssed would be eentfary to the best interests of the eity,and(2)the fflafters to be diseussed in exeettfive session Fertain to one (1) or mere of the subjeets' (1) Personnel matters restricted to Om—emwtho§e !descnbecfi 3 subparagraphs (aj through,(d) beloW. Except as proytded h subparagraph '(c) below, "personnel matters" :shall not incli de discussions concerning any member of the City Council or members of city boards and commissions, or 'discussions concerning the appointment,of persons to fill such positions,.or to discussions q€ personnel policies that do not'require the discussion of matters personal to particular,employees: a. Matters involving the hiring, appointment, dismissal, demotion, promotion, assignment and discipline of city personnel,and the review and discussion of the performance and proposed compensation and benefits of the City Manager, City Attorney or other direct City Council employees. b. Consideration of complaints or charges against individual city personnel, provided that such matter shall not be considered in executive session if the individual concerned requests that the matter be considered in open session. C. Consideration of actual or hypothetical situations involving potential conflicts of interests with individual Councilmembers or city board or commission members, provided that no executive session shall be held for the purpose of concealing the fact that a member of the City Council or of a city board or commission has a financial or personal interest in the purchase, acquisition, lease, transfer or sale of any real,personal or other property interest from the city. d. Consideration and discussion of strategy matters relating to negotiations with employee groups including unions. (2) Meetings with the City Attorney or other attorneys representing the city regarding litigation or potential litigation involving the city and/or the manner in which particular policies, practices or 2 regulations of the city may be affected by existing or proposed reaisiensprovisions of federal, state or local law. (3) Consideration of water and real property acquisitions and sales by the city, restricted to consideration of appraisals and other value estimates and the consideration of strategy for the acquisition or sale of such property. (4) Consideration of electric utility matters if such matters pertain to issues of competition in the electric utility industry. (b) No final legislative action shall be taken by the city in executive session. Such final legislative action may be taken only in an open meeting. (c) Executive sessions shall be closed to the general public,but the City Council may permit any person or group to attend such sessions. Section 2. That Section 2-33 of the Code of the City of Fort Collins is hereby amended so as to read in its entirety as follows: Sec. 2-33. Minutes of meetings. (a) Except as provided below with regard to executive sessions, Mminutes shall be maintained of all regular and special meetings of the City Council and of all meetings of City Council committees, and such minutes shall be open to public inspection.The minutes of meetings at which executive sessions are held shall reflect the genera-topic of discussion at the executive session. (b) An audio recording shall be made of all discussions that occur in an executive session of the City Council or a City Council committee; provided, however, that no recording shall be required of the part of an executive session discussion that constitutes aprivileged attorney-client communication,so long as the audio recording of the executive session discussion reflects the fact that no finlher record was kept of the discussion based on the opinion.of said attorney that the discussion constitutes a privileged attorney-client communication. (c) If a court finds, upon application of a,person seeking access to the audio recording of an executive_session of the City Council or a City Council committee in accordance with the provisions of the Colorado Open Records Act,and after an in camera review of the record ofthe executive session,that the City Council or City Council committee engaged insubstantial discussions of any matters not enumerated in § 2-31 or that the City Council took final legislative action in an executive session in violation of§2-3 1(b),the portion of the record of the executive 3 se ldfr tlYat refleeCs the subsidntial tltscussion.af matters not enumerated in f 1 ql orEthv faking offinal legislative action shalt be open to;pttblic inspection No other pottiorr ofthexecord of any executive sessionofthe City'Counctl arCity Council conuittee shall~be open far public, iiispepfion or subject,to discovery in 'any adffi- alive or judidial proceeding„except upon the consent of the'City Council.. d) Any person seekingy access to the audio recording of an executi- s,. t3ertlii ec on°shall,upfi i ipZicatto fd*l`dtsirlctco`t C,show" s„ . Y'M. ' suppbrt a"reasonable beltgf that the City,,Cowcff of°City Ct`q committee engaged insubstantial discussion ofany matters not enumerated in§2,n or,,-that the City,Council took final legislative action in the executive session" violation bf§ 2-31(b). 'If the applicant fails to show grounds sufficient to support such reasonable belief,the court shall deny the application and,if the court findstlat the,appliotton was frivolous,vexatious or groundless;the court shalt award court cogs and attorneys fees: the prevailing party., If an applicantA Ows grounds sufficient to support sttch'reasonabla belief,;the'applicant cannot be found Wbafe brought:a frivolous,vexatious orgroundless action,regardless of the outcome of the Mn did*era review. (e) The record of an executive session of the City Council or City Council committee recorded pursuant to Subsection(b) of this Section shall be retained for atleast ninety(90)after the date of the executive session.- Section 3. That Section 2-73 of the Code of the City of Fort Collins is hereby amended so as to read in its entirety as follows: Sec. 2-73. Minutes of meetings. Minutes shall be taken of any meeting of any board or commission of the city, or any committee of such board or commission, at which the adoption of any proposed policy, position, resolution, rule, regulation or formal action occurs or could occur. Such minutes shall be open to public inspection and shall be filed with the City Clerk upon approval by such board, commission or committee. Such approval shall occur no later than the next regular meeting of the board,commission or committee, except in those instances when an audio or video recording has been made and maintained by the city of the board, commission or committee meeting which is the subject of the minutes. Discussions that occur in an executive session ofa board or commission, or any committee thereof, shall be subject to the same a idiorecordingrcquirements and related procedures and regulations as are contained in,§2-33 pertaining to executive sessions ofthe City Council and its committees.The minutes of a meeting during which an executive session is held shall reflect the general-topic of the discussion at the executive session. 4 Introduced and considered favorably on first reading and ordered published this 21 st day of August, A.D. 2001, and to be presented for final passage on the 4th day of September,A.D. 2001. Mayor ATTEST: City Clerk Passed and adopted on final reading this 4th day of September, A.D. 2001. Mayor ATTEST: City Clerk 5