HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 07/16/2002 - ITEMS RELATING TO CONFIDENTIAL COMMUNICATIONS AND AGENDA ITEM SUMMARY ITEM NUMBER: 38
FORT COLLINS CITY COUNCIL DATE: July 16, 2002FROM
Steve Roy
SUBJECT :
Items Relating to Confidential Communications and Open Meetings.
RECOMMENDATION:
Staff recommends adoption of the Ordinances on First Reading.
EXECUTIVE SUMMARY:
A. First Reading of Ordinance No. 109, 2002, Amending Section 2-568 of the City Code
Pertaining to Ethical Rules of Conduct.
410 B. First Reading of Ordinance No. 110, 2002, Amending Chapter 2, Article VI, Division I of
the City Code Pertaining to the Rules of Procedure for Alternate Ethics Review Boards.
C. First Reading of Ordinance No. I i 1, 2002, Amending Section 2-26 of the City Code
Pertaining to Meetings of the City Council.
These three Ordinances present for Council's consideration certain amendments to the City Code that
would modify various substantive rules and rules of procedure pertaining to: (1) the receipt and
disclosure of confidential information by Councilmembers; (2) the ability of a Councilmember to
participate in an executive session if he or she has a conflict of interest; (3) opinions of an alternate
ethics review board; and (4) e-mail communications among Councilmembers.
BACKGROUND:
At two retreats earlier this year, the City Council discussed at some length a number of issues
regarding confidential information, executive sessions and related topics. At the conclusion of its
second retreat,the City Council directed the City Attorney to bring forward several proposed changes
to the City Code. Three ordinances have been prepared which propose those changes. They are as
follows:
Ordinance No.109,2002,Amending Section 2-568 of the City Code Pertaining to Ethical Rules
of Conduct.
If approved by the City Council, this Ordinance would:
July to, 2002 1 1
DATE: ITEM NUMBER:
• Clarify that a member of the City Council is an "officer or employee" of the City
within the meaning of Section 2-568 of the City Code and is subject to the ethical
rules of conduct contained in that section.
• Add a definition of"confidential information"to Section 2-568 of the Code to clarify
the kind of information that should be considered to be confidential.
• Specify the circumstances under which confidential information can be disclosed by
an officer or employee of the City.
• State that an alleged violation of Section 2-568(b)(1) by a member of the City
Council should be reviewed by the City Council's ethics review board rather than
being prosecuted in Municipal Court as a misdemeanor criminal offense; and
• Add a provision allowing the Council, by a two-thirds vote, to determine that a
Councilmember should not receive confidential information or attend executive
sessions pertaining to a particular topic if the Council first determines that the
Councilmember has a conflict of interest with regard to that topic.
Ordinance No. 110, 2002, Amending Chapter 2, Article VI, Division 1 of the City Code
Pertaining to the Rules of Procedure for Alternate Ethics Review Boards.
Under Section 2-569(d)(I)c. of the City Code,an alternate ethics review board is to be convened by
the Council if a complaint is filed with the Mayor which alleges an ethical violation on the part of
four or more Councilmembers. This ordinance would amend the procedures of such a board in the
following respects:
• The opinion and recommendation of the alternate ethics review board would be final
and would not be submitted to the City Council for review or adoption by the
Council; and
• City Council and City staff would be required to make available to the alternate
ethics review board all information in the possession of the City that is reasonably
necessary to the board's investigation, unless the release of that information is
prohibited by state or federal law. In reviewing and discussing such information,the
board would be required to abide by any local, state or federal confidentiality
requirements that might limit or prohibit the release of such information to third
parties.
Ordinance No. 111,2002,Amending Section 2-26 of the City Code Pertaining to Meetings of
the City Council.
This ordinance would clarify that an electronic mail communication among City Councilmembers
should not be considered a"meeting"of the City Council unless a quorum or three or more members
of the Council or Council committee (whichever is fewer) arrange in advance to simultaneously
participate in such communication, as in a "chat room" setting. The reason for this proposed
amendment is that"meetings"of the City Council that are attended by four or more Councilmembers
are subject to public notice requirements. Such requirements would be impractical if applied to e-
mail communications. The public's interest in knowing the subject matter of e-mail communications
D71n
y ITEM NUMBER: 38
atisfied by reason of the fact that a-mails are"public record"within the meaning of the Colorado
en Records Act, subject to the privileges and exceptions contained in the Act.
addition to the amendments to the City Code that would be made by these ordinances, City staff
is continuing to process two other recommendations that emerged from the Council retreat. These
are:
• A protocol for going into and coming out of executive sessions, which will include
admonitions about the permissible scope of,and procedures for, executive sessions;
and
• An e-mail policy which will include not only procedures for creating and maintaining
e-mail communications but also guidelines for the kinds of e-mail communications
that are appropriate for Councilmembers.
These topics will be discussed at the City Council Governance Committee meeting on July 16 and
draft policies on these subjects,as approved by the Committee,will be subsequently presented to the
full Council for its consideration.
Attached to the Agenda Item Summary is a report from the City Attorney describing in greater detail
the subjects addressed in the ordinances and proposed policies.
ORDINANCE NO. 109, 2002
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING SECTION 2-568 OF THE CITY CODE
PERTAINING TO ETHICAL RULES OF CONDUCT
WHEREAS, Section 2-568 of the City Code contains various rules of conduct governing
officers and employees of the City; and
WHEREAS, certain questions of interpretation have arisen with regard to such provisions,
and the City Council believes it to be in the best interest of the City to amend Section 2-568 of the
City Code so as to eliminate any ambiguity with regard to its provisions; and
WHEREAS, in particular, the City Council wishes to:
• clarify that a member of the City Council is an "officer or employee" of the City
within the meaning of Section 2-568 who is subject to the ethical rules of conduct
contained therein;
• add a definition of "confidential information" to Section 2-568 so as to clarify the
kind of information that should be considered to be confidential;
• specify the circumstances under which information received in confidence can be
disclosed by an officer or employee of the City;
• state that an alleged violation of Section 2-568(b)(1)by a member of the City Council
should be reviewed by the City Council's Ethics Review Board rather than being
prosecuted in Municipal Court as a misdemeanor criminal violation of the Code;and
• add a provision allowing a majority of the Council,by a two-thirds vote,to determine
whether a Councilmember has a conflict of interest for confidentiality purposes.
NOW, THEREFORE,BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That Section 2-568(a)(3) of the City Code should be amended so that the
definition of"officer or employee" contained therein shall read in its entirety as follows:
(3) Officer or employee shall mean any person holding a position by election,
appointment or employment in the service of the city,whether part-time or full-time,
including em x 't '1`"� `.'
g k' a member of any authority,board,
committee or commission of the city.
Section 2. That Section 2-568 of the City Code should be further amended so as to
include a new subparagraph (a)(2) which shall read in its entirety as follows, with the existing
subparagraphs (a)(2) and(a)(3)to be renumbered as (a)(3) and (a)(4) accordingly:
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Section 3. That Section 2-568(b)(1)of the City Code is hereby amended so as to read in
its entirety as follows:
(b) Rules of conduct.
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g[ yRAn officer or employee shall not
disclose-cruse information received in confidence as an
officer or employee to advance the financial or personal
interests of the officer or employee or others.
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shali-snch confidential information . disclosed by the jj officer or employee
diselostim, injure the financiat interests of the eity—
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Section 4. That Section 2-568 of the City Code is hereby further amended to the addition
of a new subparagraph(b)which shall read in its entirety as follows,with the existing subparagraph
(b), as amended herein in Section 3 above, to be relettered as subparagraph (c):
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Introduced and considered favorably on first reading and ordered published this 16th day of
July, A.D. 2002, and to be presented for final passage on the 20th day of August, A.D. 2002.
Mayor
ATTEST:
City Clerk
. Passed and adopted on final reading this 20th day of August, A.D. 2002.
Mayor
ATTEST:
City Clerk
. ORDINANCE NO. 110, 2002
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 2, ARTICLE VI, DIVISION 1 OF THE CITY CODE
PERTAINING TO THE RULES OF PROCEDURE FOR THE ETHICS
REVIEW BOARD AND ALTERNATE ETHICS REVIEW BOARDS
WHEREAS, Section 2-569(d)(1)b. of the City Code establishes procedures whereby
complaints alleging ethical violations on the part of City Councilmembers or board and commission
members may be submitted to the City Council Ethics Review Board; and
WHEREAS,Section 2-569(d)(1)c.of the City Code calls for the establishment of an alternate
ethics review board in the event that a complaint is filed with the Mayor alleging a violation of any
ethical rules of conduct by four or more Councilmembers; and
WHEREAS,said Code section provides that the ethics review board will render an advisory
opinion and recommendation regarding such complaints; and
WHEREAS, questions have arisen about the procedures for such an alternate ethics review
board; and
WHEREAS, the City Council wishes to clarify certain aspects of the operating procedures
. to be followed by the ethics review board and by alternate ethics review boards when reviewing such
complaints.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That Section 2-569(d)(1)b. of the Code of the City of Fort Collins is hereby
amended so as to read in its entirety as follows:
b. Upon receipt of any such complaint, the City Council shall decide by
majority vote whether to submit the complaint to the review board for
an advisory opinion inion
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scT � " t . In the event that such
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complaint is not submitted to the review board, the City Council may
decide what, if any, other action pertaining to the same is appropriate.
•
Section 2. That Section 2-569(d)(1)c. of the Code of the City of Fort Collins is hereby
amended so as to read in its entirety as follows:
C. In the event that a complaint is filed with the Mayor under the
provisions of this subsection which alleges a violation on the part of
four(4)or more Councilmembers,such complaint shall not be referred
to the Council for review but shall instead be submitted to an alternate
review board. Said board shall consist of any remaining
Councilmembers who are not named in the complaint and as many
members of city boards and commissions as are necessary to constitute
a seven-member board. Said board and commission members shall be
selected at random by the City Clerk within ten (10) working days of
the date upon which the complaint is filed with the Mayor. Any board
and commission members selected by the City Clerk who elect not to
serve on the alternate review board shall immediately so notify the City
Clerk, who shall thereafter select as many additional board and
commission members as are necessary to constitute the seven-member
board. The procedure utilized by the alternate review board for
reviewing the complaint and rendering an advisory opinion and
recommendation shall be as provided in subparagraph(e)below, p(
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i8Y 'e.
Section 3. That Section 2-569(g)of the Code of the City of Fort Collins is hereby amended
so as to read in its entirety as follows:
(g) Compliance with the applicable provisions of the Charter and Code and the
provisions of state law,as well as decisions regarding the existence or nonexistence
of conflicts of interest and the appropriate actions to be taken in relation thereto,shall
be the responsibility of each individual Councilmember or board and commission
member s": WrI�' _. `OWIWA .11 n
opinion adopted by the City Council under subparagraph (e) of this Section shall
constitute an affirmative defense to any civil or criminal action or any other sanction
against a Councilmember or board or commission member acting in reliance thereon.
Introduced and considered favorably on first reading and ordered published this 16th day of
July, A.D. 2002, and to be presented for final passage on the 20th day of August, A.D. 2002.
Mayor
ATTEST:
City Clerk
Passed and adopted on final reading this 20th day of August, A.D. 2002.
Mayor
ATTEST:
Is City Clerk
• ORDINANCE NO. 111, 2002
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING SECTION 2-26 OF THE CITY CODE PERTAINING
TO MEETINGS OF THE CITY COUNCIL
WHEREAS, Chapter 2,Division II of the City Code contains certain provisions pertaining
to meetings of the City Council and imposes various requirements related thereto; and
WHEREAS, a question has arisen as to whether e-mail communications among
Councilmembers constitute a"meeting" of the City Council within the meaning of Section 2-26 of
the City Code; and
WHEREAS, the City Council believes that the public's interest in gaining access to e-mail
communications is satisfied by the fact that such communications constitute public records within
the meaning of the Colorado Open Records Act; and
WHEREAS,the City Council wishes to adopt a rule with regard to e-mail communications
among Councilmembers which states that such communications constitute a "meeting" of the City
Council only when Councilmembers arrange in advance to participate in the communications
simultaneously, as in a "chat room" setting; and
WHEREAS,the establishment of regulations governing the conduct of meetings of the City
Council is a matter of purely local concern.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that the definition of"meeting" as contained in Section 2-26 of the City Code is hereby
amended so as to read in its entirety as follows:
Meeting shall mean any gathering of a quorum or three (3) or more members,
whichever is fewer, of the City Council or any Council committee, at which any
public business is discussed or at which any formal action may be taken but shall not
mean any chance meeting or social gathering at which the discussion of public
business is not the central purpose Eli [`
tiie
Introduced and considered favorably on first reading and ordered published this 16th day of
July, A.D. 2002, and to be presented for final passage on the 20th day of August, A.D. 2002.
Mayor
ATTEST:
City Clerk
Passed and adopted on final reading this 20th day of August, A.D. 2002.
Mayor
ATTEST:
City Clerk
REPORT
TO THE
FORT COLLINS CITY COUNCIL
REGARDING CONFIDENTIALITY,
EXECUTIVE SESSIONS, AND
RELATED TOPICS
City of Fort Collins
July 16, 2002
By: Stephen J. Roy, City Attorney
• TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . 2
III. CONFIDENTIAL COMMUNICATIONS AND DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . 5
A. ATTORNEY-CLIENT COMMUNICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. THE CONFIDENTIALITY OF WRITTEN DOCUMENTS . . . . . . . . . . . . . . . . . . . . 6
IV. EXECUTIVE SESSIONS: PRIVATE COUNCIL MEETINGS . . . . . . . . . . . . . . . . . . . . . . . 8
A. LEGAL BASIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B. PROTOCOL FOR GOING INTO AND COMING OUT OF EXECUTIVE SESSIONS . 9
C. HOW EXECUTIVE SESSIONS CAN BE AVOIDED . . . . . . . . . . . . . . . . . . . . . . 10
D. EXCLUDING A COUNCILMEMBER FROM AN EXECUTIVE SESSION . . . . . . . . 10
V. E-MAIL COMMUNICATIONS AND THE OPEN MEETINGS AND OPEN RECORDS LAWS 12
A. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. OPEN MEETINGS LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1. E-MAIL UNDER STATE OPEN MEETINGS LAW . . . . . . . . . . . . . . . . . 13
2. LOCAL OPEN MEETINGS LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
C. E-MAIL AS A PUBLIC RECORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
VI. DISCLOSING CONFIDENTIAL INFORMATION AND RELATED LEGAL ISSUES . . . . . . . 15
A. LAWS PROHIBITING DISCLOSURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
I. STATE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2. LOCAL LAW AND REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 16
a. CITY CODE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
b. CITY COUNCIL HANDBOOK . . . . . . . . . . . . . . . . . . . . . . . . 17
•
1
VII. THE CITY'S ABILITY TO ENFORCE SEC. 2-568 OF THE CITY CODE . . . . . . . . . . . . . 18
VIII. HOW BEST TO ENFORCE LOCAL CONFIDENTIALITY RULES: THE ETHICS REVIEW
BOARD AND ALTERNATE ETHICS REVIEW BOARD . . . . . . . . . . . . . . . . . . . . . . . . . 19
A. THE ETHICS REVIEW BOARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
B. THE ALTERNATE ETHICS REVIEW BOARD . . . . . . . . . . . . . . . . . . . . . . . . . 19
IX. ENDNOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ATTACHMENT"A"
ATTACHMENT"B"
ATTACHMENT"C"
ATTACHMENT"D"
ATTACHMENT"E"
ii
I. INTRODUCTION
The issues addressed in this report arose as a result of allegations and questions relating to
City Council executive sessions and the extent to which Councilmembers are obligated to
maintain the confidentiality of information discussed in executive sessions.
These issues and allegations were initially to be addressed by an Alternate Ethics Review
Board that was established by the City Council on January 15, 2002. Shortly after the
Alternate Ethics Review Board was convened, however,Councilmember Eric Hamrick filed
a civil action in the Larimer County District Court challenging the constitutionality of the
City Code provision that requires the officers and employees of the City to maintain the
confidentiality of such information. The work of the Alternate Ethics Review Board was
then put on hold by the City Council,pending the outcome of the lawsuit. Shortly thereafter,
the lawsuit was settled by the parties and dismissed without prejudice by the District Court
under the terms of a settlement agreement executed on March 4, 2002. (Attachment "A").
As part of the settlement agreement, the City Council agreed to "hold an open facilitated
meeting to discuss the use of executive sessions, confidentiality requirements and
expectations of executive sessions, procedures to be used to disclose confidential matters
received by members of the Fort Collins City Council and any other matters"(except certain
personnel matters specified in the agreement).'
In light of the terms and conditions of the settlement agreement,the Alternate Ethics Review
Board submitted a report to the City Council,dated February 15,2002,in which it presented
a list of related issues that it recommended the City Council address. (Attachment `B").
The City Council began its discussion of these various issues on March 25, 2002. During
the course of that discussion, it identified those legal and policy matters that it believes
warrant additional discussion, and asked for a report from the City Attorney's Office on the
legal standards and principles related to those issues.
Toward that end,this report contains information from a legal standpoint about the following
topics:
♦ Confidential Communications and Documents
♦ Executive Sessions: Private Council Meetings
♦ E-mail Communications and the Open Meetings and Open Records Laws
♦ The Legal Consequences of Disclosing Confidential Information
♦ The City's Ability to Enforce Sec. 2-568 of the City Code
♦ How Best to Enforce Local Confidentiality Rules: The Ethics Review Board
and Alternate Ethics Review Board
•
2002 Retreat Report + 1
II. SUMMARY OF CONCLUSIONS AND
RECOMMENDATIONS
The following is a summary of the conclusions and recommendations contained in this
report. These conclusions and recommendations are submitted as a basis for further
discussion at the continuation of Council's retreat on May 14, 2002. The City Council is,
of course, free to accept or reject any or all of these recommendations.
♦ Executive Sessions
• No major changes in policy are recommended, because: (a)
adequate safeguards exist under both State and local law to
appropriately limit the use of executive sessions and regulate
the manner in which they are conducted, and (b) these
limitations and regulations have been regularly observed by
the City Council. However, to ensure that this adherence to
proper procedures continues with future councils,it might be
useful to develop a standard procedure for regularly
reminding Councilmembers and staff members to strictly
observe all relevant laws and regulations pertaining to the
manner in which executive sessions are conducted.
• The City Council may wish to amend the City Code to state
that it can, by majority vote, exclude an individual
Councilmember from an executive session when it believes
that a Councilmember has a conflict of interest in the subject
matter of the executive session, even if the Councilmember
has not filed a conflict of interest disclosure statement.
♦ E-mail Communications.
• Under State law, e-mail communications constitute a "meeting."
Under local law, they probably do not. Unless the City Council
wishes to consider the exchange of e-mail as a meeting that is subject
to public notice requirements, Chapter 2, Article II of the City Code
should be amended to explicitly state that e-mail communications do
not constitute a "meeting" except when the communications are
exchanged simultaneously in a"chat room" format.
• E-mail is a public record that is subject to the provisions of the
Colorado Open Records Act.
2002 Retreat Report + 2
♦ Proposed Revisions to the Citv's Procedures and Laws Pertaining to
Confidential Information.
• Maintaining Attorney-Client Communications.
The City Attorney's office is ethically obligated to
maintain the confidentiality of all information related
to its legal representation of the City. The attorney-
client privilege is held by the City organization and
can be effectively waived only by majority vote of the
City Council. The City Attorney's Office can,
however, with the approval of the City Council, limit
confidentiality to substantive opinions, advice and
recommendations and make public all information
that is purely factual or administrative in nature.
• Penalizing the Disclosure of Information. That
portion of Sec. 2-568(b)(1) of the City Code that
prohibits the disclosure of confidential information
under certain circumstances arguably imposes too
severe a penalty for disclosures that may be
inadvertent or insignificant. If Council agrees with
this assessment, Sec. 2-568(b)(1) should be
. decriminalized and amended so as to specify the
limited kinds of confidential information that can be
disclosed, i.e., information regarding allegations of
criminal misconduct or serious malfeasance on the
part of City personnel. The relevant portions of the
State criminal code should be used rather than the
City Code if criminal prosecution appears warranted
by serious, inappropriate disclosure of confidential
information.
• Application of Ethical Rules to Councilmembers.
All of the ethical rules of conduct contained in Sec. 2-
568 of the City Code apply to Councilmembers.
Although I believe that this is already true, there is
some contention to the contrary. Therefore, the City
Council may wish to amend Sec. 2-568 to clarify that
all of the provisions of this section do apply to
Councilmembers.
• Role of the Ethics Review Board. The Council
Ethics Review Board is the most appropriate City
•
2002 Retreat Report + 3
mechanism for reviewing alleged violations of ethical
rules by Councilmembers,including alleged breaches
of confidentiality. Council may wish to amend Sec.
2-569 of the City Code pertaining to the Board of
Ethics to clarify that the Board does have the authority
to review allegations that Councilmembers or
members of a City board or commission have
inappropriately disclosed information received in
confidence.
• Role of the Alternate Ethics Review Board. The
Alternate Ethics Review Board is a viable entity for
independently reviewing complaints against four or
more Councilmembers, and should be retained.
However,Sec.2-569(d)(1)(c)of the City Code should
be amended so as to: (1) clarify that an opinion and
recommendation of an Alternate Ethics Review Board
is final and not subject to review or revision by the
City Council, and (2) specifically authorize the
Alternate Ethics Review Board(as well as the regular
Ethics Review Board) to access any and all
information in the possession of the City that may be
reasonably necessary to fully investigate the issues
presented for its consideration, subject only to such
confidentiality requirements as may be imposed by
State or federal law or regulations.
2002 Retreat Report + 4
III. CONFIDENTIAL COMMUNICATIONS AND
DOCUMENTS
The following is a discussion of the most common types of confidential information
encountered in the local government setting.
A. Attorney-Client Communications.
There are two sets of rules or legal principles relating to confidentiality in attomey-client
communications. The first is contained in the Colorado Rules of Professional Conduct.
These are the ethical rules approved by the Colorado Supreme Court for attorneys in
Colorado. These rules prohibit a lawyer from revealing any information.relating to the
representation of a client unless the client consents after consultation or has impliedly
authorized the disclosure ofinformation in order to carry out the representation.' The lawyer
must also avoid conducting professional attorney-client discussions in the presence of
persons to whom the privilege does not extend.' The second set of principles is found in a
State law regarding the attorney-client testimonial privilege.' While the ethical rule of
confidentiality mentioned above exists without regard to the nature or source of information
or the fact that others may share the information, the attorney-client privilege is an
evidentiary privilege which prevents the lawyer from testifying about the communications
without the consent of the client.' A lawyer has an obligation to advise the client of the
• attorney-client privilege and to assert the privilege unless it is waived by the client' The
privilege can be asserted by corporate clients, including governmental entities, as well as
individuals.' The client "owns"the privilege, and only the client can waive it.'
The purpose of the attorney-client privilege is to encourage full and candid communication
between a client and attorney by protecting from disclosure communications by or to the
client that are made for the purpose of securing legal services, a legal opinion, or assistance
in some legal proceeding.' The attorney-client privilege covers only confidential matters
communicated by or to the client in the course of gaining counsel, advice or direction with
respect to the client's rights or obligations. Thus,not every conversation between an attorney
and client is protected from disclosure; only those conversations had for the purpose of
securing legal services,a legal opinion,or assistance in some legal proceeding are protected.
Confidentiality in attorney-client communications is important for a couple of reasons. The
first reason is that a client in need of legal services must feel free to provide solid factual
information to his or her attorney about the subject matter of the consultation, without fear
of disclosure or reprisal. The provision of such information is essential to a sound legal
opinion. The second reason for confidential attorney-client communications is that legal
advice given by an attomey to a client, if publicly disclosed, can be used against the client.
Because of these concerns, the attorney-client privilege has been codified in most states,
2002 Retreat Report + 5
including Colorado, in both the rules of evidence and the rules of professional conduct for
attorneys.
B. The confidentiality of written documents.
The City Charter states that all City records must be made available for public inspection,
subject only to reasonable restrictions.10 The City has historically used the Colorado Open
Records Act (the "Act')" as the basis for the "reasonable restrictions" referenced in the
Charter. The Act lists several privileges that may attach to written communications in the
public sector. Some of these privileges have also been recognized in Colorado case law.12
These privileges include:
♦ documents that constitute "work product," i.e., advisory or deliberative
materials assembled for the benefit of elected officials, which materials
express an opinion or are deliberative in nature and are communicated for the
purpose of assisting such elected officials in reaching a decision within the
scope of their authority;"
♦ documents that are subject to the common law governmental or"deliberative
process" privilege, if the material is so candid or personal that public
disclosure is likely to stifle honest and frank discussion within the
government;14
♦ documents which, if publicly disclosed, would, in the opinion of the official
custodian of the document, do substantial injury to the public interest 15,
notwithstanding the fact that the documents might otherwise be available for
public inspection;16
♦ documents that are required to be kept confidential by any State statute,
federal statute or regulation, rules promulgated by the Supreme Court or by
the order of any court, or any joint rule of the Senate and the House of
Representatives pertaining to lobbying practices;"
♦ medical, mental health, sociological and scholastic achievement data on
individual persons;`
♦ personnel files, which are generally defined as: home addresses, telephone
numbers,financial information,and other information maintained because of
the employer-employee relationship, and other documents specifically
exempt from disclosure under the Act or any other provision of law.
"Personnel files"does not include applications of past or current employees,
employment agreements, any amount paid or benefit provided incident to
termination of employment, performance ratings, final sabbatical reports
2002 Retreat Report + 6
required under section 23-5-123, C.R.S., or any compensation, including
expense allowances and benefits,paid to employees by the State,its agencies,
institutions, or political subdivisions.19
♦ letters of reference;20
♦ trade secrets and confidential commercial, financial, geological or
geophysical data furnished by or obtained from any person;21
♦ library and museum material contributed by private persons to the extent of
any limitations place thereon as conditions of such contributions;"
♦ addresses and telephone numbers of students in any public elementary or
secondary school";
♦ library records disclosing the identity of a user as prohibited by §24-90-119
of the State statutes;`
♦ addresses, telephone numbers and personal financial information of past or
present users of public utilities, public facilities or recreation and cultural
services which are owned and operated by the State, its agencies, institutions
or political subdivisions;21
• ♦ any records of sexual harassment complaints and investigations, subject to
certain exceptions;26
♦ records submitted by or on behalf of an applicant or candidate for an
executive position as defined in the Act who is not a finalist;21
♦ any record indicating that a person has obtained distinguishing license plates
or an identifying placard for persons with disabilities;'-' and
♦ veterinary medical data, information, and records on individual animals that
are owned by private individuals or business entities but are in the custody of
a veterinary medical practice or hospital.29
2002 Retreat Report + 7
IV. EXECUTIVE SESSIONS: PRIVATE COUNCIL
MEETINGS
A. Legal Basis.
The State statutes, City Charter and City Code all authorize executive (private) sessions to
be held by the City Council. Article II, Sec. 11 of the City Charter lists the basic purposes
for which executive sessions may be held by the City Council:
♦ to discuss personnel matters;
♦ to consult with attorneys representing the city regarding specific legal
questions involving litigation or potential litigation and/or the manner in
which particular policies,practices or regulations of the city may be affected
by existing or proposed provisions of federal, State or local law;
♦ to consider water and real property acquisitions and sales by the city; or
♦ to consider electric utility matters if such matters pertain to issues of
competition in the electric utility industry.
The provisions of Chapter 2, Division II of the City Code expound upon those purposes.
(See Attachment "C".) Sec. 2-31 of the Code explains in more detail and, to some extent,
further limits,the purposes for which executive sessions can be held. The Code provisions
also contain detailed information about the procedure for going into an executive session,the
kinds of actions that may and may not be taken in executive session, the tape recording
requirements for executive sessions, and other requirements.
Like the City Code, the Colorado Open Meetings Law authorizes executive sessions for
specific purposes,and it establishes rules regarding the manner in which executive sessions
may be convened and held. To a large extent,the State and local laws governing executive
sessions are very similar. However, there are some significant differences, both in the
purposes for which executive sessions can be held and in the kinds of actions that can be
taken in executive session.
The following is a summary of the basic procedural rules that apply to executive sessions
of the City Council under the City Code:
♦ A motion to go into executive session must be made at a regular or
special meeting of the City Council since a two-thirds(2/3)majority
vote is required to go into executive session and no formal action of
2002 Retreat Report + 8
• the City Council can be taken except at a regular or special meeting
of the Council.30
♦ The motion to go into executive session must include a specific
citation to the provisions of the City Code that authorize the City
Council or a Council committee to meet in executive session and
must 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 held."
♦ The purposes for which an executive session may be held are limited
to those specified in 2-31 (1) through (4) of the Code.'
♦ All executive sessions must be tape recorded except for those
discussions that constitute privileged attorney-client
communications.12 Any person may seek access to the tape recording.
That access can be granted by the consent of the City Council or by
court order." Any person seeking access to the tape recording of an
executive session through the district court must show grounds
sufficient to support a reasonable belief that the City Council has
engaged in substantial discussion of matters not enumerated in Sec.
2-31 of the City Code or that the City Council has taken final
legislative action in the executive session in violation of Sec.2-3 I(b)
of the City Code. If a court finds,after a private review of the record
of the executive session, that the City Council committed either of
these errors, then the tape recording of that portion of the executive
session must be made open to public inspection."
♦ The tape recording of each executive session must be retained for at
least ninety (90) days after the date of the executive session."
B. Protocol for Going Into and Coming Out of Executive Session.
Except for the provisions of law referenced above, the City has not adopted any formal
procedure or protocol for going into or coming out of an executive session. Mayor Pro Tem
' While the term"personnel matters" is not defined in the City Charter provision pertaining
to executive sessions, it is more specifically explained in the provisions of Sec. 2-31 of the Code. These
provisions limit the kinds of personnel matters that may be discussed in executive session to those that are
specifically listed. Also,the City Code specifically states that personnel matters do not include 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 discussions of personnel policies that do not
require the discussion of matters personal to a particular employee.
2002 Retreat Report + 9
Bertschy has provided a checklist for executive sessions used by the City of Brighton
Colorado, for the making of a motion to go into executive session (Attachment"D"). The
checklist contains admonitions encouraging Councilmembers to strictly observe the law
relating to executive sessions and to confine discussions to the permitted topics. Although,
in my experience,the Fort Collins City Council has scrupulously observed such regulations,
the use of a similar checklist would help ensure that this remains true for future councils.
C. How Executive Sessions Can Be Avoided.
At its retreat on March 25, 2002, the City Council asked how executive sessions might be
avoided. Although certain boards and commissions of the City are required to meet in
executive session when discussing particular kinds of matters',the City Council is under no
obligation to meet in executive session. Instead,it is the Council's decision whether to avail
itself of the opportunity to discuss permitted topics in executive session, or whether to
discuss them in open meetings. Some may wish to do away with executive sessions
altogether. However,as noted above in Section III. A.,attorney-client communications can
occur in an open meeting only with the consent of the City Council after consultation or only
when such public discussion is impliedly authorized by the City Council.36 Therefore,if the
City Council wishes to eliminate executive sessions for the purpose of receiving legal advice,
it is important that this decision be formally approved by a majority of the City Council.
If the goal of avoiding executive sessions is to foster more public discussion, that may or
may not be the practical effect of abolishing executive sessions. For example, there is no
State or local law that prohibits Councilmembers from meeting one-on-one or two at a time
with each other or with members of City staff and, in this fashion, holding"mini-executive
sessions." Therefore, careful consideration should be given to this possibility and whether
the practical consequence of abolishing executive sessions would really be to foster more,
or less, open government.
D. Excluding a Councilmember from an Executive Session.
The City Code states in Sec. 2-568(b)(1) as follows:
...No officer or employee who has filed a statement of conflict of interest with
the City Clerk under Article IV, Section 9 of the Charter shall knowingly
elicit,accept or inspect any confidential information pertaining to the subject
matter of such conflict of interest.
A Councilmember who has such a conflict of interest is required by Article IV, Section 9
(b)(3) of the City Charter to file a conflict of interest disclosure statement and refrain from
voting on, attempting to influence or otherwise participating in such decision in any manner
' For example,the Citizen Review Board. See, Sec.2-71(d)(2)
2002 Retreat Report +10
as an officer or employee. A Councilmember filing such a disclosure statement cannot then
participate in an executive session on that subject, whether the purpose of the executive
session is to receive legal advice or some other purpose. This is because executive sessions,
by definition, involve the receipt of confidential information by the City Council.
A problem arises when a Councilmember declines or neglects to file a conflict of interest
disclosure statement. Presently,the City Council has no explicit authority under the relevant
provisions of the City Charter and City Code to make a determination that a Councilmember
has a conflict of interest, although such authority may be inherent in the powers of the City
Council. Therefore,there is no clear procedure for excluding that Councilmember from an
executive session unless the Councilmember voluntarily recuses him or herself.
To further complicate matters,the City Attorney has an ethical duty not to represent or advise
Councilmembers whose individual interests may be at odds with the interests of the City
organization. This is because the Colorado Rules of Professional Conduct state that a
municipal attorney represents and owes allegiance to the municipal corporation as a whole
and not to any of its individual constituents." When it is apparent that the organization's
interests are adverse to those of the constituents with whom the lawyer is dealing,the entity's
lawyer must explain the identity of the client to the organization's directors, officers,
employees, members, shareholders and other constituents. The lawyer is prohibited from
representing or advising constituents whose interests are divergent from those of the
organization unless he or she reasonably believes the representation of both the constituent
• and the organization will not be adversely affected, and both the individual constituent and
the organizational client consent after consultation.i1
This means that if an executive session is held by the City Council for the purpose of
receiving legal advice on a subject that involves divergent or adverse interests,the individual
Councilmember whose interests are divergent from or adverse to those of the municipal
corporation cannot be privy to the discussions between the attorney and the municipal
corporation, even if that Councilmember has decided not to declare a conflict of interest in
the matter.
In order to address this situation, the City Council may wish to amend the City Code to
authorize the City Council,by majority vote,to exclude from an executive session discussion
a Councilmember that the Council believes has a conflict of interest, even if that
Councilmember has not declared a conflict of interest.
2002 Retreat Report +I 1
V. E-MAIL COMMUNICATIONS AND THE OPEN
MEETINGS AND OPEN RECORDS LAWS
E-mail communications raise questions under both the open meetings and open records laws.
For that reason,a brief discussion of e-mail communications seems appropriate,even though
the topic was not specifically selected for further discussion at the Council retreat.
A. Background.
The use of e-mail as a means of communication within the City organization has been on the
upswing over recent years, and for good reason. E-mail has several advantages in the
exchange of information and advice between staff and Council.
First, e-mail provides an opportunity for all affected constituents of the organization to
receive information and advice in a timely fashion. While the distribution of hard copy
memos can occur only periodically, e-mail communication can occur instantaneously.
Second,e-mail messages allow for a prompt exchange of follow-up questions and additional
information that enable staff and Council to fully develop the facts necessary to a meaningful
opinion or recommendation.
Third, e-mail allows for all affected parties to be privy to the same information at the same
time.
Fourth,e-mail lends itself to a more informal style of communication. This, in turn, fosters
"bottom line" opinions and recommendations that are often more difficult to achieve in a
formal, hard copy format.
There are a number of policy issues that Council may wish to discuss related to e-mail
communications, such as whether it is appropriate to test one another's position on public
policy issues through e-mail. The issues discussed below, however,are limited to the legal
issues regarding e-mails, namely: (1) whether e-mail communications constitute a
"meeting"that is subject to local and/or State open meetings laws, and(2)whether a-mails
are public records that must be made available upon request for public inspection. Attached
are two articles from the International Municipal Attorneys Association that address those
issues. (Attachment "E").
2002 Retreat Report +12
B. Open Meetings Laws.
1. E-MAIL UNDER STATE OPEN MEETINGS LAW.
At least one court in another jurisdiction has determined that,even in the absence of specific
legislation on the subject, e-mail communications constitute a meeting, under that State's
open meetings laws.39 Although no Colorado appellate court has addressed the question of
whether e-mail communications constitute a public meeting, the State legislature has done
so in two separate sections of the Colorado Open Meetings Law. First, that law defines a
meeting as "any kind of gathering, convened to discussed public business, in person, by
telephone, electronically or by other means of communication."" (Emphasis added.)
Second, it specifically states that:
If elected officials use electronic mail to discuss pending legislation or other
public business among themselves,the electronic mail shall be subject to the
requirements ofthis section. Electronic mail communication among elected
officials that does not relate to pending legislation or other public business
shall not be considered a "meeting" within the meaning of this section."
(Emphasis added.)
The Open Meetings Law requires that all"meetings"of a quorum or three or more members
of any local public body, at which any public business is discussed or at which any formal
action may be taken are open public meetings.42 It also states that full and timely public
notice is required prior to any such meeting at which the adoption of any proposed policy,
position, resolution, rule, regulation or formal action occurs, or at which a majority or
quorum of the body is in attendance, or is expected to be in attendance."' Taken literally,
then, the State law could be read to require that any e-mail communications among four or
more Councilmembers that relate to City business must be preceded by full and timely notice
to the public.
2. LOCAL OPEN MEETINGS LAW.
The City's open meetings law is different from the State law on this subject in two respects.
First, although the City Code, like the State statute, defines a"meeting" as a"gathering"of
councilmembers, it does not specifically include gatherings that are convened
"electronically.i" Secondly,the City Code does not contain any specific provision stating
that e-mail communications constitute"meetings." Because of these differences between the
state and local law, a strong argument can be made that, under the City Code, e-mail
communications among Councilmembers do not constitute a meeting that is subject to the
requirements of the City's open meetings law unless the communications occur in a "chat
room" setting, since that is the only setting in which the communications occur
simultaneously and might fairly be considered to constitute a"gathering." In other instances,
when an e-mail is sent to all Councilmembers or any other distribution list, the e-mail
2002 Retreat Report +13
message is arguably �_ndistinguish=Ie from re_�iar mail i-. hat a resp:nse iay -e
forthcoming from one person on the iistribution 2 or se-era'. :r none? and he resipons:�i
may be minutes, hours or days apart Thus-there ;i ao _�ihen: ' in mose �uatioins.
Unless the City Council wishes to crosider the changt of ---mail z5 a m-ting*that 1
subject to public notice regtmemem- Chaptt:r =. Artick-Il o'he City Cole shrauld b=
amended to clarify the City's position zith regard t,his issue an xplici ly sure thaw-ma= i
communications do not constitute _ "meeting" except *-he- he oBmmuscati&s a= Q
exchanged simultaneously in a`chat-oom7 fdrma_ 1'
C. E-mail as a Public Record. 1 .14
E-mail communications among Couyilmembers ::_nstituw pub=e rect*ds tha are Aubjec
to the requirements,exceptions and p-vileges kpec=ed in$te C"; raddPt)pen Recoils Ac_ 12,
since there is no conflicting local The tAct felines spub_c reccirds" to'inchide th= 6
correspondence of elected officials ex Lpttod*e\:--tthatsuchc_rresp® denczfallsi;vith_ tI
a particular exception or privilege.` The teem "_orresponden:z' is.'in tur- def;6ed r
include communications sent via ele:-onic mail." )ne notable_xception to-ais rule is e- �
mail that has no demons-5able connec_on to the ex` se offuncti ms required•_r authorize'
by law or administrati%e rule and tha= -'oes not ins:_-e the recei:r or expendi=e of�publj:
funds." This kind of purely personal=-mail is not:public reco- HovOever. _1 those tha t
discuss public business are public recrds, and the-. are subject t: publii; inspw tiontmles_
they fall within a specific exception c privilege u-c the Act.
2W Retreat Report +1=
VI. THE LEGAL CONSEQUENCES OF DISCLOSING
CONFIDENTIAL INFORMATION.
Both the State statutes and the City Code contain provisions that penalize, under certain
circumstances, the unlawful disclosure of confidential information by a public official or
employee.
A. Laws Prohibiting Disclosure.
1. STATE LAW.
One State law that penalizes the improper release of confidential information is the Colorado
Open Records Act itself. That law states that any person who willfully and knowingly
violates its provisions is guilty of misdemeanor criminal offense,and such a violation could
include the willful and knowing release of information that is required to be kept confidential
under the Act."
There are other laws in the State Criminal Code that also penalize the release of confidential
information. One of these is the law prohibiting the misuse of official information. This is
described as follows:
. §18-8-402 Misuse of official information.
(1) Any public servant, in contemplation of official action by himself or
by a governmental unit with which he is associated or in reliance on
information to which he has access in his official capacity and which has not
been made public, commits misuse of official information if he:
(a) Acquires a pecuniary interest in any property, transaction, or
enterprise which may be affected by such information or official action; or
(b) Speculates or wagers on the basis of such information or
official action; or
(c) Aids, advises, or encourages another to do any of the
foregoing with intent to confer on any person a special pecuniary benefit.
(2) Misuse of official information is a class 6 felony.
Additionally, if there is a local rule or regulation that prohibits the release of confidential
information,the violation of that rule or regulation can constitute a separate violation of the
. State Criminal Code under either of the following two sections:
2002 Retreat Report +15
§18-8-404 - First degree official misconduct.
(1) A public servant commits first degree official misconduct if, with
intent to obtain a benefit for the public servant or another or maliciously to
cause harm to another, he or she knowingly:
(a) Commits an act relating to his office but constituting an
unauthorized exercise of his official function; or
(b) Refrains from performing a duty imposed upon him by law;
or
(c) Violates any statute or lawfully adopted rule or regulation
relating to his office.
(2) First degree official misconduct is a class 2 misdemeanor.
§18-8-405 Second degree official misconduct.
(1) A public servant commits second degree official misconduct if he
knowingly, arbitrarily, and capriciously:
(a) Refrains from performing a duty imposed upon him by law; or
(b) Violates any statute or lawfully adopted rule or regulation
relating to his office.
(2) Second degree official misconduct is a class 1 petty offense.
2. LOCAL LAWS AND REGULATIONS.
a. City Code.
The City Code contains one provision dealing with this subject, namely, Sec. 2-568(b)(1).
That section states as follows:
(b) Rules of conduct.
(1)An officer or employee shall not disclose or use information received in
confidence as an officer or employee to advance the financial or personal
interests of the officer or employee or others, nor shall such confidential'
information be disclosed by the officer or employee if, in the judgment of a
2002 Retreat Report +16
reasonably prudent person, such disclosure would, at the time of disclosure,
injure the financial interests of the city. . .
Pursuant to Sec. 1-15(a) of the City Code, violation of any provision of the City Code or
Charter is a misdemeanor offense punishable by a fine orjail or both. Therefore, violation
of Sec. 2-568(b)(1) would be a criminal offense under the City Code.
b. City Council Handbook.
The subject of executive session confidentiality is also discussed in a handbook for
Councilmembers prepared by the City Manager. That handbook states on page 13 as
follows:
Executive Sessions
Executive Sessions are closed meetings called by a two-thirds vote of the
present and voting Council for the purpose of considering personnel matters,
legal matters, or water or real property sales or acquisitions. Such sessions
may be held during the course of a regular, special, or adjourned Council
meeting. No formal action may be taken in an executive session. Matters
discussed in Executive Session should be kept confidential. (Emphasis
added.)
Because the provisions of the Council Handbook are not adopted by ordinance, they do not
have the force of law. Thus, to the extent that the more general, "softer" language of the
Handbook may be inconsistent with the provisions of Sec. 258(b)(1) of the Code, the City
Code provision prevails.
2002 Retreat Report +17
VII. THE CITY'S ABILITY TO ENFORCE SEC. 2-568 OF
THE CITY CODE.
Considerable attention has been directed to the provisions of City Code Sec. 2-568(b)(1).
Particular questions that have arisen are: (1) whether this section improperly restricts
Councilmembers from publicly disclosing information that the public has a right to know,
and (2) whether its criminal enforcement provisions are too stringent, at least as applied to
disclosures that may be inadvertent or inconsequential.
The United States Supreme Court has held that elected officials are entitled to receive the
widest latitude to express their views on issues of policy,49 and federal law encourages
statements by public officials regarding the misuse of public funds, wastefulness and
inefficiency in managing and operating governmental entities.50 Similarly,under Colorado's
so-called "Whistle Blower Law,"the people of Colorado are entitled to information about
the workings of State government in order to reduce the waste and mismanagement of public
funds, to reduce abuses in governmental authority, and to prevent illegal and unethical
practices." While that law does not specifically provide protection to activities of a city
councilmember, it announces a general State policy that places a value on revealing
information that sheds light on inappropriate or wasteful governmental practices.
In view of the concerns about Sec. 2-568 (b)(1), the City Council may wish to amend that
Code provision in two respects. First, the way in which it limits disclosures could be
reversed. Instead of prohibiting only certain kinds of disclosures,the Code provision could
prohibit all disclosures of confidential information except those that disclose the waste or
mismanagement of public funds, the abuse of government authority, illegal or unethical
practices of government, or gross inefficiency in managing and operating the government.
Because the public interest is so strong in allowing these kinds of "whistle blower"
disclosures, they should be permitted, regardless of the consequences to the City or to
individual persons. On the other hand,the City Council could likely prohibit all other kinds
of disclosures because of the strength of the City's countervailing interests in preserving the
efficient operation of City affairs, maintaining the working relationships among
Councilmembers and City staff,protecting the financial interests of the City, and protecting
the citizens whose confidential information the City is required by law to protect.
Second, violations of Sec. 2-568(b)(1) could be decriminalized. As a legal matter,
decriminalizing the rule would help relax the level of scrutiny applied to a review of its
constitutionality. And,as a practical matter,decriminalizing the Code provision would have
two other beneficial effects. First, it would reserve any criminal prosecution for the most
egregious kinds of violations,namely,those addressed by the State Criminal Code. Second,
it would leave the criminal prosecution up to an entirely independent authority(the District
Attorney), thereby further insulating the prosecution from any undue, local political
influence.
2002 Retreat Report +18
• VIII. HOW BEST TO ENFORCE LOCAL
CONFIDENTIALITY RULES: THE ETHICS REVIEW
BOARD AND THE ALTERNATE ETHICS REVIEW
BOARD.
Several questions have been raised regarding the Council Ethics Review Board and the
Alternate Ethics Review Board, both of which are established under Sec. 2-569 of the City
Code.
A. The Ethics Review Board.
The Ethics Review Board (the `Board") was established by the City Council in 1989,
primarily to provide a mechanism for peer review of questions or concerns about conflict of
interest questions. For a number of years, the Board was used extensively for this purpose.
It is also empowered under Sec. 2-569(d)(1) of the Code to deal with complaints brought
against Councilmembers regarding ethical behavior. Therefore, it is an appropriate
mechanism for reviewing alleged violations of the rule of conduct which prohibits the
disclosure of confidential information under certain circumstances.
B. The Alternate Ethics Review Board.
• The formation of an Alternate Ethics Review Board is called for under Sec. 2-569(d)(1) of
the City Code when a complaint is filed with the Mayor that alleges an ethical violation on
the part of four or more Councilmembers. In that situation,the complaint is not referred to
the City Council for review but is instead submitted to an Alternate Ethics Review Board
consisting of as many members of City boards and commissions as are necessary to
constitute a seven member board,the members of which are selected at random by the City
Clerk.
The Code states that, in reviewing a complaint and rendering an advisory opinion and
recommendation, the procedure utilized by the Alternate Ethics Review Board is to be the
same as that utilized by the regular Ethics Review Board,which is set forth in subsection(e)
of Sec. 2-569 as follows:
(e) In performing its review and investigation of any complaint or inquiry
submitted in accordance with subsection (d) hereof, the review board shall
afford all affected Councilmembers or board and commission members an
opportunity to present their interpretations of the facts at issue and of the
applicable provisions of law before rendering its opinion and
recommendation. The review board may also request such additional
materials or information from city staff or members of the public which it
2002 Retreat Report +19
considers reasonably necessary or helpful to its deliberations. After
investigation,the review board shall forthwith issue an advisory opinion and
recommendation to the City Council, which shall immediately thereafter be
filed with the City Clerk and be available for public inspection. Said opinion
and recommendation shall be placed on the agenda for the next special or
regular City Council meeting,at which time the City Council shall determine
whether to adopt the same. Any Councilmember ,having a personal or
financial interest in the opinion shall refrain from participating in any
deliberations of the City Council regarding the same.
A procedural question has arisen about the functioning of the Alternate Ethics Review Board
that probably should be clarified, namely, whether the Board's advisory opinion should be
reviewed and accepted by the City Council in the same manner as opinions and
recommendations of the regular Ethics Review Board. Because the Alternate Ethics Review
Board functions only when four or more Councilmembers have a conflict of interest in the
matter to be reviewed by the Board, it does not seem appropriate for an advisory opinion of
the Alternate Ethics Review Board to be subject to review by the City Council. Instead,the
Code should probably be amended to state that the opinion of the Alternate Ethics Review
Board will stand on its own merits and will not be subject to review or revision by the full
Council.
Finally,both the regular Ethics Review Board and the Alternate Ethics Review Board should
be specifically given access to any and all information in the possession of the City that may
be reasonably necessary to fully investigate the issues presented to them for their review.
This requirement should be imposed upon City personnel subject to any other confidentiality
requirements that may exist under State or federal law or regulations Absent any such State
or federal confidentiality requirement,however, the Alternate Ethics Review Board should
not be dependent upon the City Council's approval,on a case-by-case basis,in order to access
all of the City documents and other information that are reasonably necessary to fully
investigate complaints against four or more Councilmembers, when those complaints have
been submitted to the Board for review.
2002 Retreat Report +20
IX. ENDNOTES
1. See, Exhibit A,paragraph 3.
2. Rule 1.6, Colorado Rules of Professional Conduct. .
3. Comment to Rule 1.6, Colorado Rules of Professional Conduct.
4. §13-90-107(1)(b), Colo. Rev. Stat.
5. §13-90-107(1)(b), Colo. Rev. Stat.
6. Comment to Rule 1.6, Confidentiality of Information, Colorado Rules of
Professional Conduct.
• 7. A v. District Court, 550 P.2d 315 (Colo. 1976), cert. denied, 429 U.S. 1040
(1977); In re: Lindsey, 158 F.3d 1263 (D.C. cir. 1998).
8. Losavio v. District Court, 533 P.2d 32 (Colo. 1975).
9. Losavio, at 34.
10. Fort Collins City Charter, Article IV, Sec 5.
11. §24-72-201, et. seq., Colo. Rev. Stat.
12. For example, the common law deliberative process privilege is acknowledged in
City of Colorado Springs v. White, 967 P.2d 1042 (Colo. 1998).
13. §24-72-202(6)(a)(II)(A) and §24-72-202(6.5), Colo. Rev. Stat.
2002 Retreat Report +21
14. §24-72-204(3)(a)(XIII), Colo. Rev. Stat.
15. §24-72-204(2)(a), Colo. Rev. Stat.
16. §24-72-204(6)(a), Colo. Rev. Stat.
17. §24-72-204(1)(a), Colo. Rev. Stat.
18. §24-72-204(3)(a)(I), Colo. Rev. Stat.
19. §24-72-204(3)(a)(II)(A) and §24-72-202(4.5), Colo. Rev. Stat.
20. §24-72-204(3)(a)(III), Colo. Rev. Stat.
21. §24-72-204(3)(a)(IV), Colo. Rev. Stat.
22. §24-72-204(3)(a)(V), Colo. Rev. Stat.
23. §24-72-204(3)(a)(VI), Colo. Rev. Stat.
24. §24-72-204(3)(a)(VII), Colo. Rev. Stat.
25. §24-72-204(3)(a)(IX), Colo. Rev. Stat.
26. §24-72-204(3)(a)(X), Colo. Rev. Stat.
27. §24-72-204(3)(a)(XI)(A), Colo. Rev. Stat.
28. §24-72-204(3)(a)(XII), Colo. Rev. Stat.
2002 Retreat Report +22
. 29. §24-72-204(3)(a)(XIV), Colo. Rev. Stat.
30. Fort Collins City Code Secs. 2-27 and 2-31.
31. Fort Collins City Code Sec. 2-31(a) and §24-6-402 (4), Colo. Rev. Stat.
32. Fort Collins City Code Sec. 2-33(b) and §24-6-402 (2)(d.5)(II)(A) and (B), Colo.
Rev. Stat.
33. Fort Collins City Code Sec. 2-33(c).
34. Fort Collins City Code. Sec. 2-33(c).
35. Fort Collins City Code. Sec. 2-33(e) and §24-6-402(2)(d.5)(I)(E), Colo. Rev. Stat.
36. Rule 1.6, Colorado Rules of Professional Conduct.
37. Rule 1.13(a), Colorado Rules of Professional Conduct.
38. Rule 1.7, Colorado Rules of Professional Conduct.
39. See, Wood v. Battle Ground School District, 27 P.3d 1208 (Wash. App. 2001)
40. §24-6-402 (1)(b), Colo. Rev. Stat.
41. §24-6-402 (2)(d)(III), Colo. Rev. Stat.
42. §24-6-402 (2)(b), Colo. Rev. Stat.
43. §24-6-402 (2)(c), Colo. Rev. Stat.
2002 Retreat Report +23
44. Fort Collins City Code Sec. 2-26.
45. §24-72-202 (6)(a)(II), Colo. Rev. Stat.
46. §24-72-202 (1)(c) and (1.2), Colo. Rev. Stat.
47. §24-72-202 (6)(a)(II)(B), Colo. Rev. Stat.
48. §24-72-206, Colo. Rev. Stat.
49. Bond v. Floyd, 385 U.S. 116, 136 (1966)
50. American Federal Law Reports, 108 A.L.R. Fed. 117, §6 (1992); Weeks v. Bayer,
246 F.3d 1231 (9" Cir. 2001).
51. §24-50.5-101, Colo. Rev. Stat.
2002 Retreat Report +24
• SETTLE.%fE\T
A.\D
MLTC"AL RELEASE AGREEm_z\T
THIS SETTLEME\T.A\DNiLT aL RE,LEASE -AGREE\lE\-;r ce .:,.:
' _002. by and between the Ctn of Fort ColiiCall C:
ns and six a ;,e
Collins City Council(Council),Fort Collins Cin Council'\Member Eric C- Hamn,'- i-a - c ,. and
the Fort Collins Alternate Ethics Review Board (Board)• as and for set;le aen; aid release of;
each pane may have against the other path..
'WHEREAS, a dispute initially arose among members of the Fort Collins Cite COCn.'i
regarding appropriate use of executive sessions, and appropriate disclosure of confidentialinformation by members of Ciry Council, and
WHEREAS, Fort Collins ethics codes irregularities were alleged amone City Council
Members and were subsequently referred to the Cin•"s
non city council members, and Alternate Ethics Review Board comprised of
WHEREAS. after the formation of the Board a declaratory action titled "Hamrick v. Cite of
Fort Collins, et. al. was tiled by Hamrick as cue number 01 CV 112. in Lanmer County District
Court, and
WHEREAS- all parties to the lawsuit stated above desire to settle both the :natter of the
alleged ethics irregularities and the District Court action byand throug
and h the terms contained herein,
«-HEREAS. the parties wish to reduce their understanding and agreement to %%sting.
NOW THEREFORE. in consideration of the mutual covenants, terms and conditions
contained herein. the adequacy of which is acknowledged by and benveen the parties, the parries
a ree as follows: -
1. The parties agree to immediately di
in Lanmer County District smiss. without prejudice• the pending lawsuit filed
Court entitled Case No. 0! CV 112. by author.zing their counsel to
execute the joint stipulation for dismissal attached hereto and incorporated 'herein as Exhibit A.
The parties hereby agree and stipulate that t:
LLl
are here5vjointiv withdrawn by the Council and Hamicktwiihouhics tprejudicearities 7eThe B and a ebferred to the y
consents to and expressly grants the withdrawal of all issues preyiousivpresented to the Board in this
master and the Board stands dissolved.
3 The parties agree that the parties shall hold an open facilitated meeting to discuss the
use of executive sessions. confidentiality requirements and expectations of executive sessions,
• procedures to be used to disclose confidential matters received by members of the Fort Collins City
Council and any other matters except as provided in paragraph 4.
Attachment "A"
3. All parties assent and expressly agree that any and all information re_cr i
Fischbach's 2001 review shall not be disclosed or discussed at any o^en meeting ore;aen�
in a Council Executive Session for the purpose of future review s.
This instrument constitutes and contains the entire a_reem:n; W ur,,.-r;,andin_ o.'
parties and the subject matter herein between the parties and supersedes and replaces ali oner negotiations and all agreements proposed or otherwise,whether written or verbal.ai 1 concernin E:;:^.e
subject matter hereof. No parry, nor any agent or attorney therefor. has made any p,-omise.
representation, or warranty whatsoever, express or implied. not contained herein.
6. ?neither the process of negotiating or the act of executing this agreemer.; is intend; ;o
be nor shall at any time be deemed, construed, or treated in any respect as an admission of habiiity
or of the legal validity of any claim asserted by any party hereto or otherwise.
7. In entering this agreement,the Parties represent that they freely and willin-ly enter this
agreement. The parties agree and state that they are under no duress, coercion, ove:,eaching or
undue influence, and agree to the terms of this agreement. The terms of this agreement have been
completely read and are full% understood and voluntarily accepted.
S. Each party hereto acknowledges that they and or their respective counsel have
participated in or had the opportunity to participate in the drafting, preparation and review of this
agreement and,therefore,no part hereof shall be construed against any pare•based upon the identity
of any person who purported to be the drafter of such language.
9. This agreement shall become effective upon execution.
0\ BEHALF OF THE CITY OF FORT
COLLINS A\-D ITS COUNCIL .tifEMBERS
Ray Martinez. ``favor
Bill Bertsch_ , avor Pro-
t
� - Ku- I:astein/Cotutnernbe
Jo rr a F/tcnoach, For Collins CityManager ArTy harp, Cwouncil Member
-4;;rLST: CTucl, ��a�Council Member
Wanda M. Kra;icek, City le
Kkren Weitkunat, Council Member
• .-ILPPROVED AS TO FOR_\I: O\ BE?i.aLF OF COt1C
e I / HANIRIC�
Richard P. Brad}. Special/Counsel for Fo
Collins City Council E' ` =''ti ck. Co
oo
ta
Jos_pn \. ae Ltsmes. Special Counsel for
ernate EthtcsRc%ie%A Board Jo' Walke,. Attorne fog C.ca;:i
Member Harinck
4LTER'c%T1AICS Rj�4��' BOARD
Ross Cunniff. Chairperson '
�Jlry1� ✓� !n-1/f,�
Brian P. Carroll
Romola Fritz
\ C
1 Ken,Gordon, l
c �\
J\ e Lis ka-Smith
I .
IL? asseiirtk -
:may'
Wiftiam Rutledge. Jr. J
4
ALTERNATE ETHICS REVIEW BOARD REPORT
THE ALTERNATE ETHICS REVIEW BOARD RECOMMEND__Tc?_„
COL-NCIL ADDRESS THE FOLLO`v' ENG ISS[:ES:
1. That information discussed during a For. Collins Cite Council exe u;ive sessio ;<
considered confidential? Is it all information conveyed at the session. or does an elected
ofricial have a privilege to discuss some such information in public at the time that a decision
is made on the issue(s)discussed or with the public in anticipation of sucit decision"' Is;he:e
a precedent for release of some such information in For. Collins? Can this standard be
codified? If not, is this standard unconstitutionally vague?
�. How can it be determined whether information has been disclosed for personal or financial
gain of the accused or others? Are political interests considered "personal" interests, and if
so. does this violate the First Amendment? Do the definitions of Article rV, Section 9 of the
Fort Collins Charter apply (directly or by analogy) to determine what is a forbidden
personnel interest and what is excluded? Are there any criteria that would help decide this
in future cases? If not, is this standard unconstitutionally vague?
3. How can it be determined whether or not the disclosure injured the financial interest of the
Ck-, of Fort Collins? Are costs of investigating or litigating a claim of breach of
confidentiality included, and if so,does this violate the First Amendtnen;. since the standard
becomes meanin_less? Are there any criteria that would help decide ;his in future cases?
If not, is this standard unconstitutionally vague?
4. A councilmember is an "officer" within the meaning of the Fort Collins Charter definitions
(article \III) and thus under the conflict of interest provisions of the Charter. Article IV,
Section 9. Does this mean that aiGouncilmember is an"officer"under the Fort Collins ethics
code. Section ' 6S of the Fort Collins Code'
Legal Conclusion: The charter and the code must be read it nari materia (i.e.. together),
since the code provides the method of enforcement of the conflict of interest provisions of
Charter Article IV. Section 9. Therefore. counc;lmemb.rs should be treated as "officers"
under the For, Collins Code and especial]% Section -5oS, the ethics code. which requires
contidentiaiw, of "information received in confidence." The code should be amended by
addition of a cross-reference to avoid any ambiguity in the future.
K C.4.4D vissucsZ.iq
Attachment "B"
6. Is there a state statute that also regulates re
here in light of the gr lease of;entidea ia: into-^a io;^ D,e,
e_ter specificity OI �eCllOn -56 A_,I^
preempt the state statute or no: as the Cin Council wishes. ne .o�.
Does the use of the verb "should" on page 13 of the City Council Handbook c,nce- t;,`
confidentiality of executive session discussions alter the duty set forth ir. Sec:ior. r
Leeal C_ odor. No, but the handbook should be amended to parallel the I;;�n ;,,�
language of the code.
8. Is Section 2-568 unconstitutionally vague? This needs a full legal anah sis. 'See auestiors
1-3 above.
9. If a councilmember - "whistle blower" deems release of information from an executive
session discussion to be in the public interest and deems that the release would not harm the
city, is he or she permitted to release it? Oris there an elected official privilege or immunity
from prosecution for doing so? What statutory or constitutional doctrines support such a
whistle blower" privilege? Special Counsel to the board (the Boulder City Artomev•s
Office) will give a legal analysis of this question, as a point of departure.
10. Is there a Colorado state statute that supports disclosure in this situation? '.done has been
found as vet.
1 I. Does an elected official have a conflict of interest under Colorado state law, Section 31-4-
404, C.R.S., or Article Ib', Section 9 of the Fort Collins Charter concerning a City Council
executive session discussion of allegations that he or she revealed infonnation conveyed
during an executive session? What is the conflicted official's duty in such circumstances?
In deterrrtinmg this issue.note that Section 2-4w; of the Fort Collins Code. Paragraph(b)(1),
prohibits obtaining an% confidential information relating to a matter on which an official has
a conflict of interest. The code should cleariv mandate declaration of a conflict and require
recusal in these circumstances. ;The current code may be adequate to do so.
1' Section 2-31 of the Fort Collins Code. concemin: -executive sessions."may Or may not be
a "rule or procedure pertaining to ethics."within the jurisdiction of the ethics review board
set forth in Section '_-569 of the Fort Collins Code. This should be clarified by code, one
way or the other.
1= Altematiyely. the Citv Council may deem the remedy of district court release of the
audiotape.pursuant to Subsection 2-33(d)of the Fort Collins Code,together with the parallel
]ang' a_e of Subpara_aph '4-6-403(2)(d.5)(I) (C). C.R.S.. to be an adequate and exclusive
remedy for abuse of the executive session privilege. If so. Council should so declare. and
K CAADa-issueelAlq .� �.
zprc;ical way to refer such Questions to the tour.should be codi:ied. _„
desire to have a role in making a prelimina.n de;e.-min::ion e'
breach of the limitations on executn a sessions. but o .e. o -
substantial delay will be tolerated b� the tours. Thus. v;siiance a;
ar. expeditious and effective independent re%,iew by the Cit% is !he ' es:
adverse court decision. -
14. In ligh
this ethics recieA: board. what is the appropriate pr
t of the Fort Collins Code "conflict of interest"process that led to the ar pot.,.-;e ,
ocess to yet the necessa, a,r.:iden;ial
information to the board to allow it to function in breach of confidentiality cases. %%ithout
returning to the same Cite Council that declared the co'
of iateres;' And
. what
safeguards of confidentiality are required, if an%' This procedure needs to be codified.
15. The City Council should consider the adoption of a quasi-judicial procedure, based on the
State Administrative Procedure Act, to deal with procedural issues for all Quasi-judicial
boards, including without limitation the issue of subpoena power. The quasi-judicial status
of the Ethics Review Board sho d be afft-med and supported.
Ross unniff, 7
Chair ate
'2 ,> o l—
Jo�de ai- es. III.
pecial Coyffsel/ Date
K.CAAD,-m.,s_.Ajq 3
§' 18 FORT COLLINS CODE
fd,If the City Clerk upholds any such Protest and
deter'rrlxtes that anv Councilmember lacks one (1) or Sec. 2 _8. Regular meetings.
more quaill5cations for Office required by the Charter, (a) Regular meetngs of the C:,, Coun;il st:_.: h m :
the affected Co�un�ilmeber(s) shall be so noted in held on the firs[ and th d Tue d vc ;: ric^
writing and said COKC11member shall immediately, unless any such resularly schedued mer:;n :< -ca
upon the mailing of such cite, forfeit his or her of- celed by' a maiorin vote Of the C::c C,urc:1 If ary
Tice, whether or not he or sh_ }i4's taken the oath of such meenng date is a national hoIida%. the re_cil;
office, and the vacancy therebv creaid shall be file,
i meeting shall be on the preced;,c >!,,nda
in the manner described in Article %,Il . crion 7 of meeting shall commence at cOP p.m. The Gn G r..
the Charter. eil mac adioum anv regular meetin, to a lase: dax
(Ord. No. 25. 1998, 3•I 7-98; Ord. No. 129, 1999, ma)ority cote of its members.
8-17-99)
Secs. 2-19-2-25. Reserved. (b) The place of such meeting shall be the Council
Chambers of the Cin Hall unless the City' Council. by
majorit m
y action of a quorum of its mebers, directs
that a meeting be held elsewhere.
DIVISION 2. MEETINGS (Code 1972,
§ 2-1(.4); Ord. No. __„, 199p. § 1. 3-13-90;
Ord. No. 75, 1997, 5.20-97: Ord. No. 161. 1999. 11•
Sec. 2-26. Definitions. 16-99)
Charter reference—Meetings.quorum.ezecunve session.An 11,
For purposes of this Division. the following words, 4 I[.
terms and phrases shall have the meanings ascribed to Sec. 2-29. Special meetings.
[hem in this Section:
al meetings of the
Counci/co.zrmiaee or committee of the City Coun- held at am� time on call of the Mayor
or a majority of
• CV shall mean any number of Councilmembers estab- the City Council. Notice of such call of meeting shall
lished as a committee by formal action of the Ciry be given by the Cin Clerk in writing to each member
Council to perform any function related to the con.- of the Ciry Council at leas[ twenn-four (24) hours
duct of ciry business.
before the time scheduled for the meeting. Such notice
;t!eerme shall mean any gathering of a quorum or shall set forth the time and place of the meeting and
three (3) or more members, whichever is fewer, of the the purpose in calling such meeting. Such notice shall
Cir; Council or anv Council committee, at which any be served on the members of the City Council by per-
public business is discussed or a[ which any formal socially delivering a copy to each such member.
action may be taken but shall not mean any chance (b) If any member of the Cin' Council has given
meeting or social gathering at which the discussion of written notice to the City Clerk that such member will
public business is not the central purpose. be out of town for a period and nor available for City
(Ord No 22, 1990. § 1. 3.13-90: Ord. No. 91. 1992, Council meetings. then notice of such special meeting
§ 1. 9-15-92)
need not be served on such Cm• Councilmember.
Sec, 2-27• Official meetings.
(U Notwithstanding the foregoing provisions, no
No formal anion of the Cin' Council shall be taken additional notice of anv special meenng shall be re-
e.xcep: at a regular or special meeting called and held %&-no i to be gn'en to am• member of the City Council
un-
in accordance a lth the provisions of[his Division. who is present special
a regular meeting of the City y the
!Code 1972, § 2.2; Ord. No. 22. 1990 cil when such specal meeting was scheduled by the
Ord No. 91. 199_, 92 §§ 1 -- 3.13-90: Gn Council.
Charter reference—N, eungs.lquorum. -xccuus'e session. qrt II, (Code 1972. § 2-
I(B): Ord. No. __. 1990, § 1. 3-13-90;
§ I; Ord. No. 91, 1991, 1. 8•
§ 6-91: Ord. No. 91, I992, § 3.
9-15-92)
Charter reference—Special meetings,An II. § I I.
•
Sup, No 5o
158
Attachment"C"
ADWNISTR4Ti0\
Sec.2-30. Meeting agenda. Sec. 2-31. Executive sessions.
(a) The City Manager shall, in consultation with (a) The Cin• Council. and any comminee e: :r
the Mayor and the Ma-vor Pro Tern, prepare the City Council. may, by rwo-thus (2 31 maronty
agenda for all regular and special meetings of the City of those members'
ember present and voting. held an exrcu-
Council. The agenda shall include all items requiring tive session .upon announcement of the topic for drs-
Ciry Council action. Whenever possible, there shall be cession in the executive session. which announcemer.:
submitted with the agenda all facts necessary for the shall include a specific citation to the provision of th:s
City Council to properly study the item and make a Section that authorizes the Council or Council! coin-
decision. To this end, the City Manager may include mince to meet in executive session, and shall idennf
his or her recommendation on items to be considered. the particular matter to be discussed in as much detail
(b) The agenda for City Council meetings �- as possible without compromising the put;ose for
may which the executive session is to be held. Said execu-
clude a consent calendar. Matters of a noncontro- tive session may be held only at a regular or special
versial nature requiring City Council action, including meeting and only for the purpose of considering any
ordinances, may be placed on the consent calendar of the following matters:
portion of the agenda, provided that the title of any
ordinance placed on the consent calendar shall be read (1) Personnel matters restricted to those described
prior to action by the City Council on the consent cal- in subparagraphs (a) through (d) below. Except
endar. Any City Count.utnember, the city administra- as provided in subparagraph (c) below,
tion. anv citizen or any interested parry may request at "personnel masers" shall not include
any time prior to action by the Ciry Council on the discussions concerning any member of the Ciry
consent calendar that an item be removed and consid- Council or members of city boards and
ered as a separate item by the City Council. Prior to commissions, or discussions concerning the
action by the City Council on the consent calendar, appointment of persons to fill such positions, o
the presiding officer of the City Council shall advise to discussions of personnel policies that do not
persons present of the right to request removal of any require the discussion of matters pe-,onal to
item for separate consideration. If a request is made to particular employees:
remove an item from the consent calendar, the item
shall be removed and the presiding officer shall place a. Matters involving the hiring, appointment,
such item on the agenda for that meeting at an appro- dismissal, demotion, promotion, assign-
priate place for separate action. After removal of all ment and discipline of city personnel, and
items for which a request was made for removal, the the review and discussion of the
City Council shall consider the remaining items on the performance and proposed compensation
consent calendar by one (1) motion. The vote of each and benefits of the City Manager, City
Ciry Councilmember on the motion shall be consid- Attorney or other direct City Council
ered that Ciry Councilmember's vote on each individ- employees.
ual item on the consent calendar.
(Code 1972, § 2-2(A): Ord. No. 22, 1990, § 1, 3.13-90;
Ord. No. 91. 1992. § 4. 9-15-92: Ord. No. 178, 1993,
1-4.94)
Supp. No 62 158.1
"-' FORT COLL:\5 CODE
b. Consideration of complaints or charges g (4) Consideration of efe c utilin marers : -
against individual ciry personnel, provided matters rertaLn to tssue5 of c:mre:::::n :r
that such matter shall nor be considered in electric utii[n indusn—,
executive session if the individual con-
cemed requests that the maner be consid. (b) No final legislance action shall be taken by
eyed in open sessimr
on. cin• in executive session. such fma! kgisiame aalon
C. Consideration of actual or hypothetical may be taken only-in an oven meeting
situations involving potential conflicts of
interests with individual Councilmembers (c) Executive sessions shall be closed to t:^.e cent-a:
or city board or commission members, public, but the Cin' Council mac permi: an rers:n ;-
provided that no executive session shall be group to attend such sessions.
held for the purpose of concealing the fact (Code 1972• § 2.2($), Ord No. 22, 19QC. §§
that a member of the City Council or of a 90: Ord. No. 92. 1991, 8-0-91: Ord. No. 93. 1�9', '.1.
cin board or commission has a Financial or 97: Ord. No. 223, 1998, 12.15-98. Ord. No. 131. 200 1.
personal interest in the purchase, acquisi• §1. 9.4-01)
[ion. lease, transfer or sale of any real, per. Charter reference—Exea:oee session..?.rt 11 § 1 I
sonal or other property interest from the Crossreference—Personnel.pensions aric re;trement.Ch :1
cin. Sec.2-32. Open meetings/notice.
d. Consideration and discussion of strategy
matters relating to negotiations with em- (a) Except as otherwise provided in § 2-31. all
ployee groups including unions. meetings of the City Council and all meetings of Cin
(2) Meetings with the City Attorney or other anor- Council committees shall be open to the public. Any
neys representing the city regarding litigation or meeting of the City Council at which any formal
Potential litigation involving the city and/or the action could occur or at which a majority or quorum
. manner in which particular policies, practices or is in attendance, or is expected be in attendance,
regulations of the city may be affected by shall be held only after full and ri timely notice to the
existing or proposed provisions of federal, state public. No formal action shall be taken el any City
or local law. Council committee except at a meeting held after full
and timely notice to the public. For the purpose of
(3) Consideration of water and real rope these provisions, adopting a regular meeting date and
property
and sales be the city, restricted too consid-
filing a statement with the Cin Clerk shall be consid-
eration of arpraisals and other value estimates ered full and timely notice. In the case of meetings
and the consideration of strategy for the timatacqui s held on call or irregularly, the filing of a notice of the
ion or sale of such propene. meeting with the Cin Clerk at leas[ twenty-four (24)
hours before the time of such meeting shall be full and
timely notice. The Cin• Clerk shall make all such no-
tices available to all interested members of the public.
Stipp No b:
158.2 IThe next page is 1591
ADMEMSTRATION
(b) No ordinance, resolution, rule, regulation or action shall be open to public irspection. No
Other formal action Of the City Council, and no formal portion of the record of anv executive session c:
action of a City Council committee, shall be valid Ciry Council or Ciry Council committee shall be errs
unless taken or made at a meeting that meets the for public inspection or sub
ie to _a;o e c u ac,
requirements of Subs2(C): Ord. N above. adminisrrative or iudicial proceedms. except upon the
(Code 1972, § 2-2(C): Ord. No. 1; rd. §§ 1.4. 3•I3- consent of the C;n' Council.
90; Ord. No. 91, 1991, § _. 8•6 91; Ord. No. 91. 1992, —
§ 5, 9-15-92: Ord. No. 120, 1999. § 1. 8.3-99) (d) Anv son seeking access to the aud:;
Person
Editor's note--§ 2.32.a amended by Ord. No. 120, 19".pas an recording of per executive session under this :rc;;n
effective date,rune pro runt,ofseprembw 25. 1992.
shall, upon application to the dis^.a coup. sho.�
Sec.2-33. Minutes of meetings, grounds sufficient to support a re-,. -able belief ilia;
the City Council or City Council committee engaged
(a) Except as provided below with regard to execu- m substantial discussion of any matters not enumer-
rive sessions, minutes shall be maintained of all regu- aced in §2-31 or that the Ciry Council took final legis-
lar and special meetings of the City Council and of all lative action in the executive session in violation of§2-
meetings of City Council committees, and such min. 31(b). If the applicant fails to show grounds sufficient
utes shall be open to public inspection. The minutes of to support such reasonable belief, the court shall deny
Meetings at which executive sessions are held shall the application and, if the court finds that the applica-
reflect the topic of discussion at the executive session. tion was frivolous, vexatious or
shall award court costs ands Or Brous dless,Othe court
pre-
(b) An audio recording shall be made of all discus- °ailing Party. If an vexatious
app and shows grounds sufficient
p e-
sions that occur m an executive session of the City to suppon such reasonable belief, the applicant cannot
Council or a Ciry Council committee; provided, how• be found to have brought a frivolous, vexatious or
ever, that no recording shall be required of the pan of groundless action, regardless of the outcome of the in
an executive session discussion that constitutes a camera review.
Privileged artomev-client communication, so long as
the audio recording of the executive session discussion (e) The record of an executive session of the City
reflects the fact that no further record was kept of the Council or City Council committee recorded pursuant
discussion based on the opinion of said attorney that to subsection (b) of this Section shall be retained for at
the discussion constitutes a privileged attomev-client least ninety (90) days after the date of the executive
communication. session.
(Ord. No. 22, 1990, §§ 1, 5, 3.13-90; Ord, No. 91,
(c) If a court finds, upon application of a person 1992, § 7, 9-15.92; Ord. No. 131. 2001, §2, 94.01)
seeking access to the audio recording of an executive
session of the City Council or a City Council commit. Sec, 2.34. Place of posting.
tee in accordance with the provisions of the Colorado
Open Records Act, and after an in camera review of The information Desk bulletin board in the lobby of
the record of the executive session, that the Ciry City Hall West, esi La Pone Avenue, shall gnatedas the proper plac c and the
same hereby is desi
Council or Ciry Council ;ommittee engaged in sub- e for the
stannal discussion of any matters not enumerated in posting of public notice of any meetings of the City
§2-31 or that the Ciry Council took final legislative Council or Ciry Council committees for which public
action in an executive session in violation of§2-31(b), notice is required to be given by the provisions of the
the portion of the record of the executive session that Code. The posting shall include, where possible, in-
reflects the substantial discussion of matters not enu- formation about the availability of agenda materials.
merared in §2-31 or the raking of final legislative (Ord. No. 91, 1992. § 8, 9.15.g2 Ord. No. 111, 1995,
§ 1, 9-5-95)
Supp. No. e2
159
§246 FORT COLLIN'S CODE
Sec.2-35. Removal from meetings. Ara• e17dence shall mean an evidence reiat:r._ :.
The City Council shall have the power to cause the`proposal or appilcduon witch uas ;tie vile:::
persons to be removed from a Ciry Council meeting of final decision b} a board. ,o ^.. -_sic;,r. or other
a City Council co mmr[tec meeting if an 8 sion maker and which seas no; precemed a: he hca-
B 5 person fails ing before such board. commission or other declslor.
to comply with the requirements of the presiding maker. �\
officer in maintaining order during the meeting. _
(Code 1972. § 2.2(C): Ord. No. 22. 1990, §§ 1,4, 3-13- Parrv-in,rrrrcresr shall mean a -::S,r. 11 is or
90; Ord. No. 91, 1991, § 2, 8-6-91; Ord. No. 91, 1992, zation which has standing to appear the find: dectst,n
§ 5, 9-15-92; Ord. No. 120, 1999. § 2, 8-3-99) of a board, commission or other decision maker Sac❑
Secs. 2-36-2-45, Reserved. standing to appeal shall be limited to the foil1%�in,.
(1) The applicant..
DIVISION 3. APPEALS PROCEDURE- (2) Any pain'holding a proprietan or possessor%
interest in the real or personal property which
Sec. 2.46. Definitions. was the subJ4ct of the decision of the board,
\ commission onother decision, maker whose ac-
The following words, terms and phrases, when used tion is to be appealed;
in this.Division. shall have the meanings ascribed to (3) qny person to whom or organization to which
them in lass Section:
the city mailed notice of the hearing of the
Appe!/ani shall mean a party-in-interest who has board, commission or other decision maker;
taken an appeal from a board, commission or other decision maker he City Council by the (4) Any
filing of a Person who or'organization which sent
t
notice of appeal. written comments to the board, commission or
other decision maker prior to the action which is
Applicant shall mea ,the person who or organiza. to be appealed:
tion which submitted tha. application to the board,
Commission or other decisii maker whose decision (5) Any person who appeared before the board,
has been appealed. \ Commission or other decision maker at the
Find/ decision shall mean the\aFtion of a board, hearing on the action which is to be appealed;
commission or other decision makenby a vote of a (6) The Ciry Council as represented by the request
majority of is members when no furth rehearing of a single member of the Ciry Council.
available before such board, commission� earingl other de. §Cross reference—Definitions and rules of construction generally,
1.2
cision maker: provided, however, that a recolrimenda- (Code 1972. § 3A.2: Ord. No. 67, 1993, §.\l, 7.20-93;
tion to the City Council from a board, commission or Ord. 53, 1997,
other decision maker shall not be considered as a"utal § 2, 3-15-97)
decision of that board. commission or otherdecision Sec 2-47. Certain appeal
s to be taken to City
maker. Council, \
Appeals taken from decisions made by any of the
following boards, commissions or other decision mak-
'Cross references—.Appeals from the Liquor Licensine.Authonry, ers shall be taken to 'the City' Council in the manner
§ 3-36. appeals from the Building Re%iew Board may be heard by set forth in this Division:
the Ciry Council. § 5-312, appeals from the degsion of Elie dry regarding alarm permits to the Cin'Council. § 15-30 appeals from
the determinations of the Building Review- Board regarding alarm
permits m the Gn Council.§ 1541(b).disapproval of pawnbrokers
license mac be appeaied to the Gn Council. § 15.265(c),applicant
for license regarding places of entertainment may appeal the
decision to the C'm Council. § l5.208, appeals from the denial of
the secondhand dealers license m the Ciry Council, § I5-31g(d);
appeals for denial of a license for a mobile home park may be
appealed Eo the Ciry Council,§ I8.3(d).
Supp No 62
160
Tu.; 12:20 Pli 0iTY!0,!BRIGhTON -P1; sc.
13RIGHTON CITY COLTNCIL
EXECLMW SESSION MOTION FOR.'YI
(Note. 213 quorum present must vote yes)
I MOVE TO GO INTO EXECL"ITVE SESSION:
(laaguage in bold-face is for inclusion in the motion as applicable; if the stated purpose of
the executive session is legal advice, do not combine it with any other purpose):
For a conference with the City Attorney for the purpose of receiving legal
advice on specific legal questions under C.R.S. Section 24-6-402(4)(b);
_jor the purpose of determining positions relative to matters that .may be
psubject to negotiations, developing strategy for negotiations, - and/or
instructing negotiators, under C.R.S. Section 24-6-402(4)(e);
To discuss the purchase, acquisition, lease, transfer, or sale of real, personal,
or other property interest under C.R.S. Section 24-6-402(4)(a);
• For discussion of a personnel matter under C.R.S. Section 24-6-402(2)(f) and
not involving: any specific employees who have requested 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 the discussion of matters
personal to particular employees;
For discussion of a matter required to be kept confidential by the following
federal or state law, rule, or regulation:
under C.RS. Section 24-6-402(4)(c);
For discussion of specialized details of security arrangements or
investigations under C.R.S. Section 24-6-402(4)(d);
For consideration of documents protected by the mandatory nondisclosure
provisions of the Open Records Act under C.R.S. Section 24-6-402(4)(g);
Other (specify):
AND THE FOLLOWING ADDITIONAL DETAILS ARE PROZ'IDED FOR
IDENTIFICATION PURPOSES (Presiding officer may ask Attorney/staff to provide
the details):
2
Attachment "D"
MAR-26-2002 TUE 12:20 PM CITY10PBRIGHTON FAX NO, 3^3
BRIGHTON CITY COLTNCII.
A_NNOUNCEIMENT NO. i
(Beginning of Executive Session)
ANNOLTNCEbIENT TO BE MADE BY PRESIDING OFFICER AT THE BEGLNNLNG
OF THE EXECUTIVE SESSION (MAKE SURE THE TAPE RECORDER IS TURINED
ON; DO NOT TURN IT OFF DURING THE EXECUTIVE SESSION UNLESS SO
ADVISED BY THE CITY ATTORNEY)
It is (date), and the time is For the record, I am
the presiding officer, . As required by the Open Meetings
Law, this executive session is being electronically recorded.
Also present at this executive session are the following persons:
This is an executive session for the following purpose:
(repeat the language of the motion, including the statutory citation)
I caution each participant to confine all discussion to the stated purpose of the
executive session, and that no formal action may occur in the executive session.
If at any paint iu the executive session any participant believes that the discussion is
going outside the proper scope of the executive session, please interrupt the
discussion and make an objection.
3
ttw-26-2002 TLc 12:20 PN C1TY!0r!ER1G.1T0N ;rg NC. .2
BRIGHTOIr CITY COUNCIL
ANNOUNCE.ME.'�T NO. 2
Before Concluding Executive Session)
ANNOUNCEIv E'T TO BE MADE BY THE PRESIDING OFFICER B=FORE
CONCLUDING THE EXECL7I'�7E SESSION (WHILE THE TAPE RECORDER IS
STILL ONv
I hereby attest that this recording reflects the actual contents of the disCUSSinn at the
executive session and has been made in lieu of any written minutes to satisfy the
recording requirements of the Open Meetings Law.
_:I will hand the tape to the City Attorney to retain for a 90-day period,
t _
OR
Attorney was the subject of the session and was not present at the session)
I will retain the tape in my possession for a 90-day period.
The time is now and we now conclude the executive session and
return to the open meeting.
(turn off tape and return to open meeting)
4
MR-26-2002 TUE 12:20 FM CITMPBRIGRTON FAX NO. 303 6:E 2.4;
BRIGHTON CITY COUNCIL
ANNOUNCEMENT NO. 3
(Beginning of Executive Session—Legal Advisement)
ANNOUNCEMENTS TO BE MADE AT THE BEGLNN2IG OF AN EXECUTIVE
SESSION FOR LEGAL ADVICE, OR FOR THE DISCUSSION OF LEGAL ADVICE
DURING AN EXECUTIVE SESSION WHOSE STATED PURPOSE IS A SUBJECT
OTHER THAN LEGAL ADVICE
(make sure Announcement No. I has been made first)
By Cif} Attorney: _
t
As City Attorney, :t is my opinion that the discussion of the matter announced in the
motion to go into executive session constitutes a privileged attorney-client
communication. I am therefore recommending that no further record be kept of
this executive session.
By Presiding Officer:
The City Attorney has recommended that no further record be kept of this
executive session. The time is now and I am turning off the
tape recorded at this time.
(turn off tape recorder at this time)
(If the attorney-client communication has finished, but the executive session continues,
TURN THE TAPE RECORDER BACK ON)
By Presiding Officer
The time is now and I have turned the tape recorder back on
because the privileged attorney-client communication is finished.
(AT THE END OF THE EXECUTIVE SESSION, MAKE SURE ANNOUNCEMENT
NO : IS ?MADE BEFORE TURNfNG OFF THE TAPE RECORDER)
S
nAt-26-2CD2 TUE 12:21 FM CI7Y!0F!8RIGnT0N cps; !;G, _ : -, -
BRIGHTON CM COCNCII.
AX- OL:NCEIVIENTNO. 4
(Returning to Meeting After Executive Session)
STATEIvIBNT TO BE MADE BY THE PRESIDAG OFFICER UPON R`TL'R\'NC
TO THE OPEN N METLNG
The time is now . and the executive session has been concluded.
The participants in the executive session were:
For the record, if any person who participated in the executive session believes that
any s#bstantial discussion of aay matters not included in the motion to go-into the
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 concern for the record.
Seeing none, the next agenda item is. . .
6
r
• r r. r
rr r
�•� � ui•( 7.
& w
t
To: 'Coun•cil
Members
Re: You 've e Got E- mail !
; Mess y
g •a
Think Before Y _ _
ep �Y
ou R
Attachment "E" •• '�
i
Asa means of giving and A Council Member's
caving information. the ben- Home E-mail is Not important ir,,,•n• %%Z%
efits of e-mail to council an Electronic Castle ctl MiCtr , •i:.•i::,'
members are obvious—no more phone In Arlington, Texas. a often recencic their home r-m.ui con:muc„
tar,: no more Fusc signals:and no more made a public information request to could be the ,urn;r or .r %7_-
ansaenne machines. A bust- consn[u- the Cin frr. among other th;n_s. ail If manon request IT the%con;a:r .i, .-,
ent can unlr_e e-mail to send a a pamcu.- ;ouncil memi•rr's home e relate; m.t[trrs F:: r
comment, ask a simple question. or mail. The �:n, pursuant to the ptoce- te, ,h.....
expound at length on marrers of inter- lures set our in the Texas Fubki Intor- wvnc; c,•r.:r.:ter- a:i;
esr to the constituent. However, many manon Act.requested a;ecermmarion to. c,,un;:. r:I'MrIr;
elected officials and their constitu• from the Texas Acwrnev Grn4ral. c,wnni :urm'rrr• 10 Or.::nr
ents do not know that their communi• Under the Texas statute.[he term•pub- relate; r-ma:;
cation ma} be created as public tutor• lic mtarmation"mean: mrn:brn •n.•:,:; ,u•, rite, ::: ; :- ,';•
matron. even if a message is sent to luh,n,rhrc:pnca;c
an official's home e-mail address. Information that is collecteJ. a,- cin duecrone,. on bu,;ar•
Likewise, elected officials mac not sembled, or maintained under a on „frier sralwnrrv. Fin.ilh.
realise that e-mail communications law or ordinance or inconnection member, mi_h; be well .eddied t,, dt,.
among each other mac he a violation of with the transaction of official ,-r c I t their� � , e:: .,nnturnn chat it the
open meetings laws. As reliance on business: constituent communicate, with cite
electronic mail increases.it is important (1) by a governmental bodv:or member by e-matt the messa_•e> c,,ul;
for elected otnctais and [heir attomevs (2) for a governmental body and be.considered public intnrmation ,uh-
to tonsi;er the application of public the governmental bode owns Ircr to the public iniormanon law,.
information laws, open meeting re- the information or has a right
guirements. and document retention of access to It. Applicability Of Open
practice,to electronic mail.This article
Meetings Laws to E-mail
discuses[ho•r Sue:.the appican.,n of The - iineton council member was u,-
these larks rko e-mail.and conciujes vvich ing hc: home computer e•mad acc,wnt ci instil berm can
reate legal problem,
practice rips. to interact with constituents and oth• that are un:,lue to council member.
• ers. No city funds were used to pay for Certain e-mail communications
Applicability of Public the e-mail account or the home com- genre-
Information Laws purer equipment. t However, the Texa, t fed by council member and sent
o oilier council members mac violate
to E-mail Attorney General ruled that the home 111ca1 nr ,rate open meenri laws."
\tans. it nor cir[ually all. public in. e-mads were public records and must be The vviJespre,id use of electronic mail
tvm,irion laves now aspic to elearroni- disclosed. The opinion relied in part ha, made it reLmvrk easy for council
tail•; _•rr.e:ated ;ocumenrs. Since upon the council member 6•;m, her member,
home e-mail address on a council hum• r„ communicate e or all
r-mail communication, are aform of and mranr.mcousk with come or all
elecrnmicalk <_•rnerareJ documents, ness card ' In Texas, the Artornec Or their co Ilra_ues.Thus,e-mail creates
n,ur,cii member rive; to understand General', public mnormanon Jetrrmi-that a tremrndo u, potential and tempta-
some of the r-mail avmmunica• nation has the force of Lnv, unlr„ov rr• non for .uh>tannrr diseussn,ns of
non thee enrrate or re;rnr ;,col; turned lit ,i court. The Gn ha, no%, cite-hu,ine,, related topics to occur
become the •uhlec: of a public intor. tiled a I,iusuit •rekm-, ro recerc the kcirh,our the public's knowledge or
u Ptten ;rere,t, I"r like
rhrc h enother Arromec General', ruline.`
continued on page 12
and
rezeiv e. r.b,enr conrran ,tarunon or Jay B.Doegey ties beer,the Gtv Lttcrnev of Arlington.Texas,since
7uJictal direcri on. requests should be !?Br, tie was an Assistant CtD '•
analc:e; and har ied in the same , o,.omev of Corpus Chem. Texas,
r }rOT '_o 77 to 1 BBc He iS;tie Chair a'!NrAS Ethics Section and serves
uav chat a request tot a printed or e.
on IMIA's Awards Cc-m,,tee i❑ 1996, he reserved IMLA's
wntren document is handled. The ( Distinguished P lit
u uC Serv,te by z Local
same ,core of arrhabi;in and excep• Government Aitcrnev Awa!tl ahc as also
Pons 6kuo arnh. r the
upon the been des!Craied as ar IML.'. Lr,-a
Precise vc„r;;tic of nce puhhc rotor- Government Fellow
manon law, for the localin. When Elizabeth Lutton!saSentor :Tornevwi,n
council member- use the same equip- the City of Arlington,Texas Sne Is Board CerDSed oy the Texas Board
men( and r-mail address for both per- of Legal Specialization in Laocr and Employment Law. She is also a
sonal use and cnc business, thev may graduate of Texas Tech University with a Doctor of Jurisprudence
be creating unanucipared difficulties degree and a Master's in Business Administration degree.
for themselves. The authors wish to acknowledge the assistance of Jeanene
McIntyre and Don W King, Jr
Januir /Fe tw-._' ,' 1b1 43, No I 11
THINK BEFORE
tT the cammunican_n u.e.. „hetnrr the i•^•� -
`OL REPLY communicatlJn L• CJnf:dr,•e.: m.17
COr,^,nyg,i.rem,D,30e ;f intormation" b% !a%% 1 an4 ,",. [ IL• >L'rle:: :, ;^�. ...
medium. is it hat usuuii•. ..etrrm:nes s;arutc f,,c he
apphcabilav or the Ln, county: r:rm- • C.+u;i,•c .
mail
^time:tc ob>zn e. u"t;ar makes e• i f - -
bzrs h,a be gore 3u:I, 'cc and as-t mail so pOtentrahy [rJublesonte is that sistance on the applipbli:rt. reaul:e- e- �....`.. ..... `
i r has he nrormal::c of a teiephone. menu. an mztho or c , rcr. .rc .. r rnri;.incr .,,. ..
Ho-e -era [t [s much easier to create a " `"•
with the record, retention is„, of e-1113: :,•.n. ::a::.i:i.•r..
icri o;rice' amone a sign ticant poi• the locality. A local recurs- re:ennnn s••rnn: ; , a;i;;•er, ,;.., _,uon of the cote council sirl be ,rJ,nance or poiiz% can eo ; L•ne _..creanng an electronic council member wac toward stmpin-rig [hr rr,,:es, b, rc '[:.'^,r;: ;.. .:,: ,•_•c.. _
Jiscnbution list. because e-mail creates s'a:•�r`
assigning retention responii•ilr[e• ro
a verbatim recurJng or an entire series .c""•tic-• -
Particular person:. For example. teren- us'nc e-mau it,
of communications. it can provide non responsibility for a-mail sent n, _•roup>smoking gun'•evidence u(open meet- + r the entire
or from aa' staff can he assicneJ to r 'tics v;nianons. Council members of the city council r:^,r.,u,n ;
i the ntt• staff member, rather rnan a ,•t •, L••01.1 Ji.tribu;i,•n ;,.r
I shouh . therefore. «ear e-mail as it « tin co i neil member.!f cotrespondenc, of r-m.uh to,ill. or a
,were a recordeJ anJ trancribeJ role- rb .,: nJ
I with constituents it other are-ref.teJ duals.council memhen.Empha.cr
Phone cal!. Council memhen should
electronic common:cau,n. ,ire con- that the ii,nv of emalj aL•c. be aware that some open meetings siJereJ public information b, h". bons channels should hemmh anJ
laws apple to communicnions of less
hen such communican„cis can be thn,ueh the cite staff. rather rhan
man a Ju,,rum otme ate council (..c.
o saved in electronic riles or place' in .i brn,ern council memhen.
c,,una! c0mmr,tcr<1. In aJJrtion,
trCuncu memi•tr, sh,+uiJ also avoid pier hle faller arrr i[ i, comtr[cJ C,msricuou>ivlahelallconfidential
in trn;i,+nalk mce:ac n vino of Iz» to wn«en hard cope form. The pr,,rer arr,rnrv-client communication,
rs items for retention and the time ent to council members, 1[ mate it
than a quorum for the purpose of cir- perm will be eocerneJ by the recto- helpful to mserr a code such as
cumcrnnne the open meetings laws.'
non schedule. m the subiect line in order to mire
Acc,+rJmci•.. council memhen are best
a .'i.c t,• eSC,u<e caunnn ,then Ji- re,iJly idenntc pnvdegcJ commu-
reaicc,•mmumcatinc,c:thtell,)" c0 Practice Tips nrannna.
tin- Municipal arn,rne%s sh„ul,l c„n•,Jrr rr„_ram,ome records retention tile,
u: mcrtbrr• ,•utaJc of an ,•r,n meet, imrlemennne the L•16.,c n; rrc,,m-
°' -h' :J. :-. c.!. rek u,-on on for council members to electn,ni-
ri:..ex;_nr ^rr[n;rrc? 'rc (awr, mendatiom. call, tilt mes,wes.entanJrecmveJ.
Pr%ide _'u,J,Iines to co
rr.immr. Important Information of in- until mom•
At the „n•rt. educate anJ Inform bro„[yrr.r t„,,rhrr;,+until members. n„hich irems must he rc[ameJ
c,+uncil member- r„r r .unplc. tor rrc,+rd• retention purposes and
Applicability of Records rro`'de .in orientan,n r.,r nc„ „hrh owns mac he delete) (e.g .
Retention Laws to E-mail Countil member: , n :hr r„:ennui; T'r"a mtssages ar messages or no
Gr•iJe, the c„mriiancr arPlteabilir: „t the „Fen nice[- ,i'r<t.mnre„radmmuvanyeyalur.
pr,+hlrms [hat nee.public nt,,rm,ition.,n,i record• JcpenJn_ upon
n the proyisu,n> of
P .,•until mr:nbcc tin- retention .rarurr• my re:,,
Jt- the .• ectr, nic rJ, retention statute for the
rcn mccrnes acid public c,,mmunieanun> ,mJ rlc:r mIc.lic 1„c,dini.
turther problems are eenemteJ Jocurril • Pro%iJv cite :raft to pr,perk man•
cre.ireJ be the arnccan,,n ,a records • If ro.able. rhr I„call c „ a_•r ,rlcc[n+mcalh' file and Jis , t
%renu„n Lin,. t„ c!ecrr,nlc c,,mmuni- �rnmenr p
hould provide .i .pra,+lk It Ic-m,ui Ci,mmunieanon,tora,un-
,n M,,.t :tie, arc •ublccr [„ ia,vs rJ computer .inJ e-mail aJJre,, col mrmi•tr,,
r a; tc,�u!rc that cite J„cumtnts be
krr: foot .o certain rc[rnnon enuJ to each council member t,� br �-awn„n c,•uncil member, about
P e.Nclu,ieely used for tin-related tr.In.nrtrnc information that upn,-
�,�unni members may nor be aware business.
th,n m,�>r rcc„rJ- r hibttcJ be public information stat.
cienti,n Lnc, con Council members should,i,,,IJ h.r, ute• ir.,m hemp Jisclo,eJ. For ey-
tain no exception ror e-mail.- Once ng private e-mail aJJrt �c•tin ,,ri,. ampie.one.rate recently prohibneJ
actin mt,ecmnc im„rmaiat „t e-mail
often causes user to creditsuch a,mmu• vial council member IracrheaJ, the Jiscl„,tire if a[i:rn email ,
stationery, official correspondence, dresses except undereertaincircum=
nications lightic.such that they can be or business cards. stances.'
mmediately discarJed or trashed • Program disclosure languace to au.
• Caution council members that once
after read;nc. As in the case of the tomaticallc appear in e%ere c„until
rubiic ;tit„rman,,n Lin,,. [nr c,�n:rot.+( an r-mail J„current is created, it
member-gentrateJ rcplc messace.
cununucd tin yoga ?V
12
(Banks-Baidwin
n uFpl ': Okla xat. THM( BEFORE `
tin.71:.51 §'4.4.1 i_'i 1 Cum.�upr.is CTe 1 OL, REPLY
Re11 Srac§19'.41,1 - :an::ntµd�,,>^ -
11.95 k Pa. tat.Ann.Tic. '
. 6'§661 R.L Gen ILau5;3;.'-; 1'�1 mac continue to ex:<rmJetinirehu :`
:urf:):S.C.CadeA. rthinthememonc •r ,,,-
'rn §3�i-3.119;6�:S.D. mailwmmun¢au,:. ;hou�hcn• 'Cod,Ged Laws Anr.. §1-:,-; ) be coin uter ^,ace tern "driezr ` ;,i❑
1'.,, sup p [echmaans in the rcrn; ,,f irziea:,o
7enn.rCade.inr..§ (1999).Tex.Rec. n
CI% =tat .Ann. Godr W'."I i'3;' Cum. Notes
?upp.)!Lltah Code Ann. §63-'-3,11 i'Otil
=uPP 1:\ S[a:.Ann -n. I. lee.e.g.. Tex.Goc't Code.inn. : J::,
` .Tit.l §3 i-t_"I Cum. =.Tes.Goc' - -
up;J: ,\a. CodeAnn. §:._-3-:; t_�`'`): [CaieAnn. g :._..._,a' ,\emor.:::l �
\Y'ash. Rec. Cade Ann. §4'.0'62 (',J:): ;'1 ' Tex.Anb Gen,Ka.OP
dl
W%li.Code.Ann.§'96•1.1 11995,;\Y ts.Srat.
Ann 1!P$li_::I Cum.:uF, ):u'ca 5._[a:.§ In of Arlineron c.)oho.C
\fa
I`. :ee. a C; Ark. Cade Ann °'- o. o.See.e.g..Arc. Rev._tat § 35_431 ;i!.Tex.Go,
G _
(1990 Repi.li Cal.Anr..Gcn�'r Code l§6 j'.,e) At!:.Rec.Star. c_ , ; 'ar'.tin :• ..
§3 43l f_.l� �� 111.Acc'c G 9S'
1 Cum.'Su ': - It,i' t 19S9). � rn ,l !.xir
§I 15)(:]:1Rev.).Del�CurieStar Ann.
d.Tex.Goc'tCode.4nn.§ji1.1431\'em„n 11.N1.Comm.on�,enG,,, r. \IL .i,`.: ;--
§IC:",d111' R,r.). jd.Ann.CoieS[am and AO•.Jj6(_l.
Got'c §IG6i 1`cl (1999 Rerl.1: \i,ss. Code 9.N t''A�&Cult.Ae.LawIConsol.";!1; 311E C,'MP, :;a„
Ann.§:5.6i-3iF1(19;');KeH.Fec.Srat.§S;• Star. §41-13n
l.C\1); 53 Pa.Cons. Star. Ann. § liS' ,\C rst ::::'.:' 4n: Rc,1'C'(16) (1909 Supr.1; S.C. Code Ann. §43?I (West 30.�13. _ P' Con..
§30-4•',(c)(1976);%-,.Cude.inn. §'.i-341 `ut
1,^^.Tex.Gov't Code Ann. §§j5',136 and 5i'.13 M
I:Ji:Repl.l. 1
19.R.I.Gen.Lain;§3S-'.'i411,1 GSi Su
see aiso Colo.R-,:Star. Ann§';.,_•_, prJ:
cl
i'.RI SES ""nrredf"romPage ?i tons ord,nanlc ,till_'.R.LGen.Lau:;' _ I , ,�„ � not tncnitc
Alas �F 'I;:ai i' -•_.-u,^F). creden \a'ls to make sure the% were misconduct withic concern in (hrcech cp,I ceiiJrp.vt�f
Cann. Gen. tar.'Anr.. §i-'I iH113)(E) valid, anq dens- access to those ,e,ch- ment is s eech addressing out sufficIe credentials. -This uould public concrm." (Internal quotes and
U'l Rec.). O a matter at
• '3. Idaho Cade §9-3#;Bt_) ('C I Cum. Provide an a yuate balance between acanonsamit[eJ.IThrcuunremandeJ
SuFF I. protecting
'{.Cal.Ann.Got, •; rest n[s fmm danerrous the case to the Jistrict court to
�C�JF :6_ {Ir (lli_,�1 imposters and Ptemounine Jrrer-
Cum. Sup, ': Orr. Rec. -iar. §19'.5.1t3ha) discourse." lasaue; r\HoiamA�qulhoal aJ erse rmplrn'rt n Branton action Branton
CL'-T,
or.
'5 \L•-n:,,ca , _ lr.Of City of El Paso, F.3J 19S
_an:a �eG,um% HJU>,n� ,I� -� uth t. Ctt. ni Dalias. ''' E3d
LS. Disrrmc Coat.\\1 Cit. _tt l). 73cn t 5th
9c..";:-H.i iS IDec. 1 i. 199;1 CI\ \,.. Cm -'ht'l 1.
tunruH,h heJ S eech on
orimon 1. P Police
-6 2- ,;,n \ \f. - Cross Burning Law
`:ac. Ann. s1;-'.i1F1 Misconduct Protected Cum.Suer 1, The Fifth Circuit has held that ,in.in. Violates h mSt Amenrdm theStair (\tr•
4'IL'S. 13: (1975)
405 C.S. 'a' c lot{,. temal affairs mvestr- %'e ott,cer'> al- curia ha> held that a \',rgima Statute
U Cen! G, leeed ex parre communication with a th,,r pmh,kir, the burnm:
Cum. Surr.1, hearins ,fficer a protected F.nr and makes xich hum,n_� ofacross.
G' aeA"" §5 I` :iall!qu Amendn-ntspeech. BrantonhaJh prima facie rvi-
4Rec l ern drnce of;in intent n,intimidate a per.
L,Jr"°r `5` I S-""a)t l c rmploteJ c the Dallas Police p
Ge ` 9 4 Rev I cr Depart- son or im,u ocAnn.§SJIS 72ia1(19o{Ret..1 ment ,nice la;;, utth 1` e penon,, violates the
Cd, Rr% S:at a an exemplar. ueal Amandmenr. BL> k r.
tin. ;.,_-' 413Shal sen,cerecord. hewasass Common.
!' ,_tied a, m- uraitF. 55 i S.E.'J _
%esn�ate an internal c,mplainc i•erurrn con.,,hdated case>' \'a. '_O01).The
=. Joe Rrv. S:ac `!o' a45111 ,10051. into
ru'o „thcers. At the dose of the hear- burnine,u IteJ a crass-
i,:mi•u,. ! ^ F;,: ;-;- et al Gcc of C,,. ino, Branton went to the put of,i Ku Klux Klan rally.
Icrh G;. 199j1 sun- mana:er assistant an h the rn,pern owner'.rr rnhcr .vticrr re.t (who had the final authorct% and an drrcm t 2rtrn„- Perm,ssam
�t:rJ at a Jruc in determining the hearing's outcomes )arJ or an
..;ai. Jeien•e cnunv ' P homing ,n the
ri requested and ni•tamnd and mf„rmed him of false statement, %ard of that
:•, Rlc .,. African-Amrrrcan person
,^ 't!cer emriutmenr nice.
•u;rrs town 4 c, nave a rntac, interest of a made b% one of the officers at the heir• trrmeJlnte state a n �1rrscn[. An m-
."nsc:tunrnai J,mens,on in certain peranai Ine. After the hearing concluded, the the era re.sr The \llat..court upheld
nrrrmanan in their personnc: tiles and en- Police chief relieved Branton of her du- Court, cirine R.q b' t Jt l Supreme 505
titled to mluncm'e relief regwnog the an. ties and responsibilities as investigator U.S. 377 (!oo�
to Provide notice to them prior to releasing and supervisor. The court found
information contained in [heir ersonnel 1. found that of aa,�Vas
tUes to the ruHLc l M
P 1-1hile speech pertaining to mremal a c ntenr-based pmh h,nsm tinopee
personnel disputes and workin¢conJ,.
continued on Page 31
ok
V �Govef omen [ 4�1_ Aw
the so' ns
.0" "
;
r.
-The Times, Thee:ire a' C an in'
9
Trends In
: : A OpenY icord '
-c AY 'fit V' sY3 � •�` Ot
1penr
'o+�" ti t jiendaIl D. Van Weck
4 ttl t, t
.•1.A. .�F. �-�`I` +�^ _ 'Y ~�v s� Y" �f[ !.� mow. _ -I)
--...a-..�..aa.....-�''.t_�_ c'" _"lfl9�•�_.....:av�.e�.,c � +.:e�.�r.e.�z...�.�.. a.a�._
The explosive increase in the use of per. Out of the thirty-five states surveyed for this an;cle s
sonal computers and handheld PDAs
(personal data assistants) to access the majority limit the application of the open meetings ia:•.s
Internet and e-mail has produced a dramatic meeting of a quorum of the public body. There appears be :increase In the means and methods of holding
council and other elected body' meetings, and defnite trend of reducing the number of people required
in the types and numbers of public records that
are now in the public domain. This article will present in order to constitute a "meeting" of a public body.
examine trends in open meeting and public
record laws, and how they have evolved to several states now specifically address this ex-
meet the challenges of the electronic age. ception by prohibiting the practice.'
There are some Indications of a trend I,,-
What Constitutes a "Meeting"? wards decreasing the scope of open meetrrn_s.
Every state In the United Stares has adopted Florida, the long-time bastion of openne,s in
some form of open meetings lawn all of which government, recently took a huge step in this
have a singular purpose of informing the direction. A Senate committee endorsed rule,
public concerning government operations. to allow committees to meet !n secret to discus,
The analysis of open meetings trends in the security issues and to Leer rotes cor.tident:.ii
electronic age begins with a discussion of what for at least five years.' Under the rule,the Pre,i-
constitutes a "meeting." since generally, all dent or -he Senate is granted the "sole discre.
meetings of public bodies held for the purpose tion"to close meetings in which lawmakers di,-
of formulating public policy are required to cuss "measure: to address sec:nty. espion.ice.
be open to the public. sabotage, attack and ,ether acts of terronsm."
Outofthethrr-five states surveyed for this Records of the mect;ngs, including tote,
article,a small maionty limit the application of taken, would be confidential. unless the rresi-
the open meetines laws to a meeting of a quo• dent of the Senate decided otherwise."
rum of the.public body.- There appears to be a
definite trend of reducing the number of people "Electronic" Meetings
required to be present in order to constitute a Improved telecommunications technology '..as
rune"of a public body. Four states consider enabled us to maintain communication frcm
a"mernne"to consist of three people or a quo- remote locations. Surprisingly, the statutes in
rum of the bodv.whichever is less.`A small num- a majority of the states surveyed fnr this
ber of states have determined that only two article either specificalk prohibit the use of
people are required to constitute a"meeting"of teleconferencing for the purpose of holding
a public body.'A growing number of stares meetings.'., or are silent on the use of tele-
has decided that "any meeting or gathering" conferences.' In those states that permit
of members of a public body constitutes a members of a public body to meet by telecon•
meeting for purposes of the Open Meetings ference," the most common requirement is
Act.' Other states look to the nature of the comprehensiveness: that the members attend-
meetine. Wisconsin lain requires that "con- ing by wag of conference call be able t, .sir
structive meetings"be open to the pubhC Con- all of the discussion occurring at the ml
srrucrive meetines occur when a "significant" and that all members of the body present at
number of members gather together to discuss the meeting site.alone u ith the public in aaen-
public business; a "significant number" means dance, be able ni hear the absent member,
the number of persons that is required to stop conunucd on page ti
ar, action. iThis can be as low as one person,
if the body consists of four members).
One creative approach to holding discus- Randall D. Van Vleek is the General Counsel to the
dons that may not be considered meetings is New Mexico Municipal Leaaue, wriere he provides advice
what can be called "playing the part of Noah." on municipal issues to 102 mcordoraied municipalities.
In those states that require a quorum of the pub- He has served as President of the New Mexico Mum-
lic body be present to constitute a "meeting." cipal Attorneys' Association. He is Chair of the P,,!icy
there is no prohibition against marching the Advisory Committee and a member of the Program
governing body members in "two by two" for Planning Committee of IMLA. Randy was recently
briefings. If no votes r decisions are made designated as an IMLA Local Government Fellow, and
in these "two by- two" gatherings. the Open is a frequent speaker and panelist at seminars and
Meetings Act is not offended.' However, conferences throughout New Mexico.
Jar. ar IFer++uar. ",-' lbf 43. No 1 7
GOVERNMENT LN THE SU\SHWE connnucd;, rr p.:;c aonal ir,forc.aa:r. :.. .. .n - . ...
entiry defendant. ...._ ..,.i..e> s
A growing number or jurisdic- the changes have stgnaiej a move to• pursuant to the icat A ,
tions—ten states currently—permit at- ward more openness in.oyemmenc Although state ,:acute: ate
tendance at public meetings by means alh silent on the issue of
of a-triad or web cam." The statutes au. a, Juvenile Criminal Records of documents in.these circumsranccs .:
thori-ing such attendance employ It was previously virtualiy Impossible fe3eta! magistrate in New Mcv;.• r...
language broad enough to encompass to obtain any information from pubis; rJled:rat a cos , an at records was n,:
electronicmedtaoram sort.'°However, sources concerning juveniles. Today. required ro - oduce recor1I in Ina:
electronic communication is not with- the trend appears to be that the public case, discos en :r. [he itngation endcd
out its downside. It is now possible for has a right to know the activities the' in June, and the custodian received a
two or more people to communicate youth of America are involved in. re.:uesi for records under the FJ1A :n
through instantaneous e-mail. Under Of the states surveyed, only three had October.The maeisrrace ruled teat ;tie
most state laws, this communication specific provisions concerning arrest Federal Rules of Gvil Fraedurc had;hc
constitutes a meeting subject to the records or criminal records kept on ju- force of taut and the discovers ot,ier in
open meetings laws. Similarly, there veniles. In Alaska, records pertaining the case qualifted as an exception to the
are literally thousands of "chat rooms" to juveniles are deemed confidential Inspection of Public Records Act. no-
set up in computer senors throughout unless disclosure is aurhorce.l by tably the "otherwise provided be lain'•
the Internet. Instantaneous e-mail and law.:'Similarly, the freedom of infor- exception.�o The magistrate judge
charting are tempting ways in which manon legislation in Connecticut spe• also cited federal cases invoking the
member of public bodies can attempt cifically provides that arrest records of federal FOIA. in National Labor RcU-
to circumvent open meetings laws, juveniles (including any investiga• tions.Board v. Sears Roebuck,:' the
but depending upon the number of
members participating in the conver•
One creatiJ( p n tbOt tAa
sct aon, a _a:herinc of member, of a " .a M9�,.VQ y not
public bock in a;hat room would most 6e.go ii ;'playing the
cerrainly be viewed as a meeting. :r
no r cum of the
Inspection of Public Records T there is no
Every state has adopted sonic sort of
statute providinc for public access to, �l(0 MI. ing body members
hM
or public i❑sreaion of, Government �.tyyQ
docuincnts.- iliesc laws all have one
thine in common. a public pour} put- ton riles) are not open to the public.=- United Scares Supreme Court held
pose or maintaining opennos in goy- Idaho,on the other hand.provides that that parses cannot use a FOIA request
emmentbygranungacccsstnthedocu- juvenile criminal records are open to to conduct discovery not permitted
meats of public bodies. The beannin, the public if the charge would be a under the rules of civil procedure and
point in the analysis of these la"<a the criminal offense if committed by an court orders. Similarly, the Court held,
definition of"public record." The ma- adult." However, freedom of intorma- in L'naca Sryms t. Weber Aircraft Corp.,-"
jonty of statutes provide that pubic Zion acts in Calitornia and Oregon that the FOIA is fundamentally de-
records include "mints, as well as re- have no specific pro%sions for juyentles, signed to inform the public about
cordings, films, tapes, or daaa compila- and make the name, dare of birth, aacncv action, and not to benefit pn-
uons ••recardless of the form" held bc, phcsical description.residence.oixura. %ate lincants. Of the state FOIAs
or on behelt or. the public ennn and tion and other biographical iniorma- reviewed for this article, only one had
relating to public business.' Rhode non of anv person arrested open ro a provision dealing with this partieu-
bland has one of the most detailed inspection by the public.- tar issue: North Dakota law specifically
definitions of "public records.** It spe- pro%tdes that public records requests
citrcally inciudes e-mail messages, bur b. Litigation Issues made by parties to lawsuits must com•
excluder from the definition e-mail. \tort stare court systems have estate- ply with applicable discovery rules.-`
to or trom elected orticials with, or re- lished ales concerning discover. of
lacing to, their consticuenrs." as "ell information from the adverse side. c. Privatized Public Services
ae the corretlpondence of, or to. elected Practitioners have been able to use There has been a developing trend in
• orticials in their odicial capacities." freedom of information acts IFOIA>) municipal operations towards pnva•
as a sword in their litigation efforts. ti_auon of certain traditional public
Trends and Tendencies Typically, the issue arises when a liti• functions,such as water and sewer sys-
The past few years have witnessed some gant either misses a discovey deadline terns,hospital facilities,and correctional
interesting changes in the treedom of or the period for discovers• expires. institutions. The emerging issue is to
information arena. For the most part. The litigant realces the need for adds- what extent the records of these pri-
m
vate entities will available for public Florida response.discussed above. may §5•i= :::: nip'
inspection. One could certainly argue foreshadow a reversal of the openness- :L:i=SI':F an Sra: Ann. °-=t:i -
that the records are entitled to some an-government trend. Municipal law w Rev. =tat. Ann. ;c. . • ::: • --
measure of protection, since these are practitioners will want to pay close 'urp.)� La. Rev. S;a: Ann .;_ 5
private entities, and protection of attention to upcoming legislative 5e5- Md Ann Cde SO
. _
trade secrets and ocher proprietary in- lions for evidence of changing am Mass. Gen. Laws Ann Ch. 30 §:^
am" Mass.
Sup:•.4 Mich. Comp Law• An.r
formation is essential for their busy rudes towards open government. M;nn S;a; A_
ness survival. On the other hand, the :;C; . Mont. Code Ann. §:• ::: t:\:`
functions involved are clearly govem- Notes Ne%. Rev §:::„:; :;\': N.! S:x
mental functions, the openness of I. Ala.Code §13A•14-2 (1904 Repl.). Alas. Ann. §1:4 NA! Scar. Ann. : 1:
which is generally acknowledged Star.§44.62.310(Nov.2000):An:.Rev.Star.- 15-I12C01 CUM- Supp ':N.Y CL,S rub,Or.,
and provided for under most FOLAs. §35.431.01 (20%X Repl.); Ark. Code Ann. Law§I'1(IQ;-1;N.C.Gen.Sint.§143-r Ic c
Georgia has at least partially ad- §25-19-1Y ('_C:1 Rep1.1: Cal. Ann. Govt. 1009): Ohl" Rev Code §!:L.::
g F Code 1511123 CS'1 Cum.Supp.):Colo.Res. Supp.):Ok:3. Star. Ann. Ttt. :c
dressed this situation by prohibiting a Scat §74-6.401 (2001);Conn.Gen.Stat.§1- Cum.Supp.!:.�e.Rev.Stat.§10:.e::
public entity from placing records in :25 (2CX Rev.); Del. Code tit_ :9 §10004 Pa.Cons.Stat.Tit.c5 UN i:C\`.RA O'en
the hands of private persons or entities (,997 Repl.);Fla.Scat.Ann.§286.111 (2cY11; Laws§4:46-3(3 Cl Supp.`..S.C.Code Ann.
for the purpose of avoiding disclosure Ga. Code Ann. §50.14.1 (1994 Rev.): Haw. §3C•4.60 1.197,61. S.D. Codified Laws. Ann.
under the inspection of a public records Rev. Star. §92.1 (1993 Repl.); Idaho Code §L25.1 C001 SuppA Tex.Gov't.Code Ann
act.', In the last legislative session, §67.2340(2000); 5 ILCS LO/I (ZL%X): Ind. §551.001 (_'CC: Cum. Supp.); Utah.Cade
the State of Georgia passed, and the Code Ann. §5.14.1.5-2 (2XI Repl.); Iowa Ann §5:-4-6 CNI Supp.);Va. Code Ann.
Governor signed, H.B. 279. It makes Code Ann.§21.2(2001):Kan.Star.Ann.;5• §:.:•3 0;(2LW Repl.):Wyo.Star.§16.4.4C3
records received or maintained by a 4318 (1997); Kv. Rev. Scat. Ann. §61.805 (2XI).
(_001 Cum.Supp.):La.Rev.Scat.Ann.§42:5 3.Mavor and City Council of El Dorado y.El
private person, firm. corporation, or (1990)-Me.Rev.Stat.Ann.Tit.1 §40:t20.'I Dorado Broadcasting Co.. 544 S:W.2J '06
other private entity•in the performance Cum. Supp.); Md. Ann. Code SG §10.501 (.Ark. 1970; Alas.Star. §44.61310 (:c\'0);
of a service or function for, or on be. (1999 Repl.); Mau. Gen Laws Ann. Ch.30 Colo.Rev.Stat. §24.6.402(:)(bl CNN);Va.
half of. a public agency open to disclo. §23B(2001 Cum.Supp.);Mich.Comp.Lawv lode Ann. §:.1-341 C0.\Repl.).
sure to the same extent as records Ann. 115.261 (1994); Minn. Star. Ann. 4.Ark.Op.Arty•.Gen.No.96.067;Fla.Star.
held by the agency itself." Arguably, §13D.01 (2000); Miss.Code Ann. §25.41.3 .Ann. §2S6.C11 (2C01): Idaho Code §67-
this would prevent the deliberate (2001 Cum.Supp.);Mo.Rev.Star.§610.010• ±341(5) CNX); R.I. Gen Laws W-46-2(c
transfer of records for the of 030 (2000); Mont. Code Ann. §2.3•'_01 (2001 Supp.); Tenn. Code Ann. §5.44-
purpose (20:!);Neb.Rev$tat.184.1412(20MCum. 1C:(b)(H(A) (1999Repl.).
circumventing the law, but protect Supp.)tNev.Rev.Smc.§'41-020(�,XV);N.H 5.Me.Rev.Star.Ann.Tir.1 §402(2001Cum.
records kept in the ordinary course of Rev.Star.Ann.§91•A•:2(2CYl Cum.Supp.); Supp.) Miss. Code Ann. §25.41.3(b) (2XI
business of a contractor doing busi- N.J. Scat. Ann. 410:4.7 (1993); N.M. Scat. Cum.Supp.):N.H.Rev.Star.Ann. §91•A•'_,
ness with a public entity.'- Ann.§ 10-15-1 ( OCI Cum.Supp.);N.Y.CLS 11 (2000 Cum.Supp.); Vt. Scar, Ann. Tit. I
Pub. Off. Law §1C3 (19S7); N.C. Gen. Stat. §310 ("01 Cum. Supp.); Rev. Code Wash.
d. Records ,IMade Confidential. §143.318.9(1999);N.D.CemmmCode§44- §4:.30.00(2) (2000); Wis. Stat. Ann.
Upon Request 04-19 (2001 Cum. Supp.): Ohio Rev. Code 419.8'_(D QM1 Cum.Supp.).
At least two states have legislated the §1-I. (_Ot1 Supp 1:Okla. Stat. Ann. Tit. 6. State ex rel. Newspaper. Inc. v. Showers•
means by which individuals can have `5 4303 (2001 Cum. Supp.):Ore. Rev. Stat. 395 N.W. :d 154 (Wis. 1967) (interpreting
certain information shout them de- §192.62C(1995):Pa.Cons.Stat.Ti-65§2C3 Wis.Scat.Ann.§19.52(2).Wisconsin law pro.
CXX);R.I.Gen.Laws§4. 46-3(_l,Suppl.; vides that a"meeting'is the convening of the
clared confidential. Colorado law per- S.C.Code Ann.§30.4.60(1976); S.D.C,di• members of a governmental Lady for the pur-
mits an individual to have his or her fied Laws.Ann §1-25-1 (2XI Supp.);Tenn. psesofexernsme the responsibilities,author-
address exempted from all public records Code Ann. §544.10 (1999 Repl.); Tex. try,power or Junes delegated or vested in the
if the individual can show that he or Gov't. Code Ann. §551.001 (2,002 Cum. body iemphasisadded).The court held that a
she, or an immediate family member, Supp.); Ptah Code Ann. 552.4-6 (200I
meeting of lour members of a hdv was suffr
will be exposed to criminal harassment. Supp')'V t.Stat.Ann.Tit. 1 §31:(2001 Cum rent to meter the Wisconsin Open Meetings
or otherwise placed in danger ofbodi- Supp.): %a. Code Ann. §2.:-3;,; (2JJ0 Act ••inall respects"because:(1)the meeting
Iv harm." .A similar provision is con- Rep1.); Rev.Code Wash. §4_.30.030 (2l'C); was held to discuss the capital budget, and
p s IX'.\'a.Code§6.9.A-2(_LXV);Wu.Stat.Ann. therefore. held for the u g
tained in an Oregon act. ' §19.5:t^XI Cum.Supp.);Wyo.Star.§16-4• the responsibilities,author power orrdut es
403 (_011). delegated or vested in the body; 2 g 1 that pas-
Conclusion :. Them-one states out of the 35 surveyed. sage of the budget proposal required a two.
There has been a dramatic trend inre- Alas.Star.§44.62.310(Nov.2000hAn:.Re%. thirdsvoteoftheladv:and(3)thatfourmem-
cent years towards in govem•openness Stat. §38.431.01 (2000 Repl.l: Cal. Ann.
p Gov't. Code §11123 (2001 Cum. Supp.);
bets of the body were sufficient to delta[am
meet. Amendments to open meeting Colo. Rev. Stat. 124.6.401 (2001); Conn. proposal regarding the capital budget. 396
and public records acts,as well as litiga- Gen.Stat.§I-225(2000 Rev.);Del.Code Tit. N.W 2d at 166.
tion,have opened government,in some 29 110004(1997 Repl.);Ga.Code Ann.§50• 7.Wis.Star.Ann.§19.82(2001 Cum.Supp.).
cases to the point of absurdity." The 14.1 (1994Rev.);Haw.Re%.Stat.§92-1 (1993 8. Except in Arnona: Ariz. Rev. Star. §38-
events of September 11. 2001, and the Repl.);5ILCS 12011 (2000);Ind.C Je Ann. continued an page 28
January/Febn.ary 2CO2 Vol. 43, No, 1 9
GoV'ERNMENT IN THE SUNSHINE continued prom page 9
431.0 ni
1 (20C1 Repl.); California: Stockton Supp.)ldoesnotrultouteiectrocmeetings): 'nr. -`'
Newspapers v. Stockton Redeveiorment \lane.Cad[Ann.§:•3-_21t:S11;N..1.Srat. Res o;;: -
'y.ill Cali AFF.3d 95 sCai.App.3 Disr. Ann. §1::4.7 (1993): Ore. Rev. S;a: ;z-7 `-ii . •r New Jerse}': A.J. Scat. Ann. §11:4.11 c , , a-
s19_.67.IU (19.a1 tprobabiv cayered is Co.11te,i aws An..
;
(1993):and OMo:Stamexre!.CmcuuunPac Baas. supra note 14), S.C. Code Ann. §3:- -
v. City of Cincinnati. 66S N.E.:d 9C3 4-20id) (1976); Utah Code Ann §5: `<nn` v,�- Css,� cc.
(Oh.1996). ?(2)la) (2001 Sapp.); Rec. hoar \\ash
9.Op.Arm Gen.J-66-655-51 (Alaska):Ark rn i ca: : Ann 7:
Op. A[ty. Gen. 96.067: Ea. Star. Ann. Ia.See.e.g..Kan.Scat-ALtm.75.4317ai!9971 \, CoJ< Ann
1286.011 (2001): Ky. Rev. Scat. Ann. ('mtettng" means am' gaehenng. asstmbir. \Ca>- ,Res Coj, Ann ;: :, -o'
§61aiJ.C) Q0C1 Cum. Supp.) Marxsen c. teiephone call or anv other means of mterac. \l:\a. arAnn.
Board of Directors.MS.D_°.No.5.591 A.'_d rive communication): Kc. Rev Star. Ann. An... >!0.3;,25: Cara �upF ' 'a s•6o7 IMe. 1991); Moberg v. Independent §61.S15(I) I20C1 Cum. Supp.) (`meenn€'
School Dut.No._'51.336 N.\Y'.2d 51J(Mtna means all gatherings of even kind. including I ';Vt. r c. Ark C,Vc Ar.
1953), Muds. Code Ann. §25-41-3(b) (_ll videoteleconferences.regardlessofwherethe (I"oRcp!.).Cal.An- C•j,.„
Cum. Supp.); Nec. Rev. Scat. §2}].aC) meeting is held);Mont.Code Ann. §2-3-202 'XI Cum. SuFF'• Conn Oer.
(2cw)' t2XI) ("meeting"means the convening of a §L:St S l t-'XI Res Lb:.C,de A:•J:
1C. Leslie Clark. State Serge Panel totes for quorum of the constituent membership of a 11997 Re,.!.MJ.An.. Co.
Seaet Meeorgs, Records. TaE kf.iml HEa�__, public agency or association described in §:- Gov't §1:-011W (!oa9 Rep1 t. M;
October'_5.2001. 3-203.whether corporal or by means of elec- '=.§:5-of-3tb)t 197-');Neb.Re%.S;.
11.StateofFloridaSenatelule 1.43,adopceJ ironic equipment); Ore. Rev. Scat. 1 1202(16)'(1999 Supp.); S.C_ CoJc
October'5,211. §192.6700) (1995) (any meeting, including i §30-4.201c) (1976);\'a.Code Ann
§_
12. 236 Op. Atty. Gen. 50 (Alabama): Ga. an executive session,of a governing bOJ$of a Cuts Repl.).
Cute Ann. §50-14-1(r) (1994 Rev.l (autho- public Ludy which is held through the use of 19.R.I.Gen.Laws OS-2-2(})(0 t:S!
reed only for boards with statewidelurisdic- telephone orother electronic communication seedsoColo.Rev.Scat.Ann.§24-72-5.
(ion): Mass. Gen Laus Ann. Ch.39 §:3A should be conducted in accordance with ORS.
(2C01 Cum. Surp.l: Ohio Rev. Code 19:.6N through 192.690); S.C. Code Ann. =:.R.I Gen.Laws§38.2-2(4)(0t_2XT
(2001Surp.); Tex. GovrCode §30.4-20(d)(1976)(using the same language 2!.A!�.Scat. §09.25.120G) (:Xv).
Ann. §551.125(b) (2001 Cum. Supp.) (only as Montana). :'_. Conn. Gen. Scat. Ann. §I•_'10(b!
in emergency situations);and Va.Code Ann. 17.Ala.Code§36.12.40(1991 Repl.);Alas. (21i1 Rey.).
O43.1 (gal Repl.) (nor authon_ed for Scat.§}0_25.110(2LV0);Arc.Re%.Scat.Ann. 23. Idaho Code §9-340BQ) (2001
govemmentalbodies)_ §39-121 (2001 Supp I; Ark. Code Ann. Supp.).
13. AZ. CO. CT 2, Hl. ID. IL (Am. Gen. §25-19-I0I (1996 Repl.); Cal. Ann. Gov't -4.Cali Ann.Gov'r Code§6254(f)(l)
saes OK).IN,KS,LA•ME.\ll.ND,NH.NY. Code §6:52 (:001 Cum. Supp.); Colo. Rey, Cum.Supp.);Ore.Rev.Star. §19_'.5C'.
ND,OK.RI. \T, W1.WY Scat. Ann.§24.72.201 (2001); Conn. Gen. (1995).
14. Alai. Scar 944.6:.31" tNo% -'2� 01,Ark. Star. Ann.§I.210 t_001 Rev.); Del. C,.Jc :5. Muntoya v. Santa Fe County H,
CuJe Ann.§:5-lu-I:6 i'; ! Repi.t,kv Rrc Ann. Tit. 29 §10X3 (1997 Repl); Fla. S;a:_ Authorim U.S.District Court,NM Cl
Scat. Ann. §61.n25 t2001 Cum. Supp.): ktd. Ann §119.01 t'_J0I); Ga. Code Ann 90.954 LH/DJS (Dec. 11. 1997)(unput
O11i Mar..,-:a o-is OP.Arty.Gen.Sepr '_6, §50.16.70 t 1994 Rec.);Haw.Rrc.Scat.§92F- opinion).
199; (\lla.); Mo. Rec. Star §01'L'I2.230 11 (19-131. Idaho Code §9-33e (:;21 Cum. _e. Id., citing N.M. Seat. Ann. §14 :
C2:2): \lout. Code Ann. §2-3-_:I C2v 1; Surr ): 11I. Comp. Star. Ann. 5 ILCS 14J 1 (20.1 Cum. Supp.).
Nrh. Rev. Star. §�4,1412(2) C:�: Cum. Cd.J!: Ind. CoJe Ann. (20111i. '�.4oa U:7.4_'I C.S. 792 (1985).
`uFF.I; A G.0 Man: ! Question :3: N.), Iowa CoJeAnn.§__'.1 (2001);Kan.Scat.Ann.. 2 (198{).
`ta; Ann §10:4 ( ); K.M. Scat. §45-215 r:JJJI: Kc. Rey. Star. Ann.§ol.67; _9. N.D. Cent. Code §44.04-18(5)
Ana?::-15-1(CI 1:001 Cum, Surr.l; N.C. ('XI Cum. Surp.1, La. Rec. Scat. Ann. Tit. Cum. Stipp.).
Grc. Scar §143.3 iS.131al(1999): Ore. Rec. 44:31 C3'I Cum.Su I Me.Rev.Star Ann 3,.Ga.C,de Ann. 00-1 -70(a)(191)
:!-o7:(21 (19941, Ba6ac c Ferracl- !9p4 ., PA ' 31.Ga Code Ann.§50•1d-10(a)(1994
Tit I.4a( \1J Ann.Cute State Gods 32.Ga.Cute Ann.§50-15-70(a)(1994
c.sn.L \1ili \tkrtt. BJ.. 613 A. :J 551 (Pa. §I0.012 0999): Vitas. Gen. Lawn Ann. cn.
C. i t2c\'I Cum.Supp );Mich.Comp Liu
C�dc Ann.§3,-4-6:t 1970);S.D. oe§l > 33 Colo Rev.Slat.Ann.§24.1L_'0}t 1
Laws Ann. g1.15-1 t_211 Surr.l Ana ;75�.492 t19911: Minn. Star .inn. l_c,ll.
-rr.n. C.dc Ann. §5-44-I,'� (1999 Rep!.): Ann.
5C14 . . t . 34. Orc. Rrc. Scat, §192.445(U(1995
st�..i 1-...1 \li». Code Ann S_a olI 35. See. c.g. Kallstrom et. al. v. City
'.rah G,Jc.inn. §5:-4.01:::! Surr.!: Rcc. (197:1; Mo. Ann. Star. §109.1d'y ('_JJJ);
-•' r \'a>n §4:.32.:3.(:J;:):u'. \a.Cwr hunt.Cole Ann.§2-o-10I I_'hU:Neh.Rrc. lumhu,. 13o F.3d 1055 loth Cit. 1990
i2 \lane start ae ,c dercover police officers testified at c
1. en ie,rruvde Srar §04-I_01 (1999 Supp.);Nec.Rev.Stat. trial:defense counsel requested and obi..
free number 10 a1J ruhlic paroarauon. §'31).'1; (210-2); N.H. Rev. Star.Ann. §91- from the tin the officers' employment
i, Ark. Op. A[n'. Gen. No. 44-107: Colo. A(-SOCum.Surp.):N.J.Stat.Ann.§47:1A- officers found to have a privacy mere.
rc. Sta:. §:4.6-4s':(2)(d)IIII) t_0X'1); loud 112:4Y Cum. Supp.); N.M.Scat. Ann. §14- cumicutional dimension in certain per n.);1.Ky.(2v. St;Kan.Scar.Ann.(1) 2-1 (-XI Cum. Supp.I; N.Y. CLS Pub. off. information m their personnel files an,
Ky.Rev. Star.Ann. §61.80it11 Law §84 (1987); N.C. Gen. Scat. §132•I tided to injunctive relief requiring the
_,,,,I Cum. Supp.); Md. OtvLk Manual at 7 (1999); N.D. Cent. Code W-04-18 QOCI to provide notice to them prior to relea
Ness. Cute Ann. §25-41.3(b) (2001 Cum. Cum.Supp.);Ohio Rev.Code Ann. §149.43 information contained in their person
files to the public.)NL