HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 11/05/2019 - RESOLUTION 2019-105 EXPRESSING SUPPORT FOR LEGISLAAgenda Item 11
Item # 11 Page 1
AGENDA ITEM SUMMARY November 5, 2019
City Council
STAFF
Tyler Marr, Deputy Director, Information & Employee Services
Judy Schmidt, Legal
SUBJECT
Resolution 2019-105 Expressing Support for Legislation by the Colorado General Assembly Regarding
Executive Sessions and Electronic Communications Under the Colorado Open Meetings Law.
EXECUTIVE SUMMARY
The purpose of this item to consider a resolution requested by the City Council supporting potential legislation
by the General Assembly supporting potential legislation by the Colorado General Assembly that confirms and
expressly permits the City and other cities, town, or municipalities to hold executive sessions to consider
matters pertaining to issues of competition in providing telecommunications facilities and services. These
matters could include negotiations, strategic planning, pricing, sales and marketing, development phasing in
addition to any other matter allowed under the Colorado Open Meetings Law or the Colorado Open Records
Act. The Resolution also supports potential legislation clarifying the extent to which use of electronic mail by
elected officials to discuss pending legislation or other public business among themselves is considered a
“meeting” under that Law so that elected officials can effectively use this now common-place communication
technology within appropriate transparency requirements and other reasonable limitations.
STAFF RECOMMENDATION
None - this Resolution is presented at City Council’s request.
BACKGROUND / DISCUSSION
Under “Other Business” at the October 15, 2019, City Council meeting, Council directed staff to draft and
present for consideration a resolution supporting potential legislation by the Colorado General Assembly
expressly authorizing the use of executive session for municipalities considering matters pertaining to
competition in providing broadband internet and related services.
At a special election on November 7, 2017, City voters approved an amendment to the City Charter adding a
new Section 7 to Charter Article XII (“Section 7”). The City Charter is the organic law of the City, extending to
all local and municipal matters, and defines the home-rule authority of the City under Article XX of the
Colorado Constitution.
This new Section 7 authorizes the City Council and any board of commission established by Council under
Section 7 to go into executive session to consider “matters pertaining to issues of competition in providing
telecommunications facilities and services authorized in Article XII, Section 7 of the City Charter, including,
without limitation, matters subject to negotiation, strategic planning, pricing, sales and marketing, development
phasing and any other matter allowed under Colorado law”.
The existing Colorado Open Meetings Law does not expressly include authority for such executive session.
Agenda Item 11
Item # 11 Page 2
The City believes that Section 7 authorizes executive session for this topic as a matter of home-rule authority
under Article XX of the Colorado Constitution, notwithstanding that executive session for this purpose is not
expressly recognized in the Open Meetings Law.
Legislation could be introduced in the General Assembly to confirm the City’s home-rule authority by adding
this basis for an executive session to the list of statutorily authorized reasons for executive session in the
upcoming legislative session, along with any other conforming statutory changes. The proposed Resolution
expresses Council support for such potential legislation and authorizes City staff to support and/or participate
in legislation by the General Assembly in a manner consistent with Council’s Legislative Policy Agenda and the
findings of the Resolution.
In addition, the Open Meetings Law also provides in C.R.S. Section 26-6-402(2)(d)(III) that use of electronic
mail by elected officials to discuss pending legislation or other public business among themselves is subject to
the requirements of that Law. It would also be helpful if the Colorado General Assembly could consider and
further clarify the extent to which use of electronic mail by elected officials to discuss pending legislation or
other public business among themselves is considered a “meeting” under the COML so that elected officials
can effectively use this now common-place communication technology within appropriate transparency
requirements and other reasonable limitations.
CITY FINANCIAL IMPACTS
Legislation clarifying the City’s authority in this area could avoid potential litigation and related costs.
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RESOLUTION 2019-105
OF THE COUNCIL OF THE CITY OF FORT COLLINS
EXPRESSING SUPPORT FOR LEGISLATION BY THE COLORADO GENERAL
ASSEMBLY REGARDING EXECUTIVE SESSIONS AND ELECTRONIC
COMMUNICATIONS UNDER THE COLORADO OPEN MEETINGS LAW
WHEREAS, the Colorado Open Meetings Law (Colorado Revised Statutes [“C.R.S.”]
Sections 26-6-401 to 26-6-402) (“COML”), in particular C.R.S. Section 24-6-402(4) regarding
executive sessions, lists the purposes for which a local public body can hold an executive
session, none of which are directly applicable to issues of competition inherent in providing
telecommunications facilities and services by a city, town or municipality in competition with
private sector service providers; and
WHEREAS, in addition, the COML further provides in C.R.S. Section 26-6-
402(2)(d)(III) that use of electronic mail by elected officials to discuss pending legislation or
other public business among themselves is subject to the requirements of the COML; and
WHEREAS, as a home-rule municipality under Article XX of the Colorado Constitution,
the City’s Charter, adopted by the people of the City of Fort Collins, is the organic law of the
City, granting it authority over all local and municipal matters, and superseding within its
territorial limits and other jurisdiction any Colorado statutes conflict therewith; and
WHEREAS, at a special election on November 3, 2015, City voters authorized the City
to provide high-speed internet services, including, without limitation, high-bandwidth broadband
services, telecommunications services, and/or cable television services (collectively,
“Telecommunications Facilities and Services”) within the City’s growth management area; and
WHEREAS, at a special election on November 7, 2017, City voters approved an
amendment to the City Charter adding a new Section 7 to Charter Article XII (“Section 7”)
granting to the City Council certain powers related to the City providing Telecommunication
Facilities and Services, including the power by ordinance and without a vote of the City’s
electorate, to authorize the City’s Electric Utility to provide Telecommunications Facilities and
Services; and
WHEREAS, on January 16, 2018, City Council adopted Ordinance No. 011, 2018
implementing the authority granted in Section 7 by authorizing the City’s Electric Utility to
acquire, construct, provide, fund and contract for Telecommunication Facilities and Services;
and
WHEREAS, paragraph (d) of Section 7 and City Code Section 2-13 both grant to the City
Council and any board or commission established under subsection (e) of Section 7, the authority
to go into executive session to consider matters pertaining to issues of competition in providing
Telecommunications Facilities and Services, including, without limitation, matters subject to
negotiation, strategic planning, pricing, sales and marketing, development phasing and any other
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matter allowed under Colorado law (the “Telecommunications Executive Session
Authorization”); and
WHEREAS, none of the purposes for which a local public body can hold an executive
session set forth in the COML are directly applicable to issues of competition inherent in
providing Telecommunications Facilities and Services by a local government in competition
with private sector service providers, which providers are not subject to the COML; and
WHEREAS, as a home-rule municipality under Article XX of the Colorado Constitution,
the City’s Charter, adopted by the people of the City of Fort Collins, is the organic law of the
City, granting it authority over all local and municipal matters, and superseding within its
territorial limits and other jurisdiction any Colorado statutes in conflict therewith; and
WHEREAS, as a home-rule municipality, the City of Fort Collins is specifically
empowered by Section 6 of Article XX to legislate upon, provide for, regulate, conduct, and
control local and municipal matters, including the powers set out in Sections 1, 4, and 5 of
Article XX and all other powers necessary, requisite or proper for the government and
administration of its local and municipal matters, including a variety of matters set forth in
Section 6; and
WHEREAS, Section 1 of Article XX specifically and expressly empowers the City, as a
home-rule municipality, to “add to, maintain, conduct and operate water works, light plants,
power plants, transportation systems, heating plants, and any other public utilities or works
…local in use and extent, in whole or in part, and everything required therefore….; and
WHEREAS, Ordinance No. 088, 2018 established the City’s Telecommunications
Facilities and Services as a unit of the City’s Electric Utility and it constitutes a “public utility or
work” that is “local in use and extent” and authorized under Section 1 of Article XX of the
Colorado Constitution; and
WHEREAS, the Telecommunications Executive Session Authorization is a valid exercise
of the City’s home-rule authority under Article XX of the Colorado Constitution as set forth
above; and
WHEREAS, although the City Council believes that its home rule authority authorizes
the executive sessions as described herein, the City Council finds that it is in the best interest of
the residents of the City and consistent with the City’s Legislative Policy to support potential
legislation by the General Assembly that confirms and expressly permits the
Telecommunications Executive Session Authorizations and the corresponding ability of the City
and other cities, town, or municipalities to effectively and competitively provide local
telecommunications facilities and services such as high-speed internet and ancillary services to
residents of their jurisdictions; and
WHEREAS, it would also be helpful if the Colorado General Assembly could consider
and further clarify the extent to which use of electronic mail by elected officials to discuss
pending legislation or other public business among themselves is considered a “meeting” under
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the COML so that elected officials can effectively use this now common-place communication
technology within appropriate transparency requirements and other reasonable limitations.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes any and all determinations and
findings contained in the recitals set forth above.
Section 2. That the City Council finds that it is in the best interest of the residents of
the City and consistent with the City’s Legislative Policy to encourage and support potential
legislation by the Colorado General Assembly to amend the COML to affirmatively authorize
any local government body to go into executive session to consider matters pertaining to issues
of competition in the provision of telecommunications facilities and services to their residents,
including without limitation matters subject to negotiation, strategic planning, pricing, sales and
marketing, and development phasing of such facilities and services, together with other statutory
changes necessary to effectuate this authority, including but not limited to changes to the
Colorado Open Records Act.
Section 3. That the City Council finds that it is in the best interest of the residents of
the City and consistent with the City’s Legislative Policy to encourage and support potential
legislation by the Colorado General Assembly to clarify when an email exchange among elected
officials constitutes a “meeting” subject to the requirements of the COML, including possible
identification of a safe harbor within which elected officials can communicate by electronic mail
without constituting a meeting in order to preserve and enable the use of this effective and now
common-place technology within appropriate transparency requirements and other reasonable
limitations.
Section 4. That City representatives, including the City Manager and City Attorney
(and their respective staffs, as appropriate), are authorized to suggest or support legislation by the
Colorado General Assembly consistent with the findings set forth in this Resolution.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 5th
day of November, A.D. 2019.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk