By Jeffrey A. Roberts
CFOIC Executive Director
In a new filing, the Aurora Sentinel lays out multiple reasons why it believes the Colorado Court of Appeals should reverse a judge’s ruling and order the city of Aurora to publicly release the recording of a closed-door meeting at which council members ended censure proceedings against a fellow councilor.
The newspaper contends the council did not “cure” a violation of the Colorado Open Meetings Law at a subsequent meeting, despite the ruling by Arapahoe County District Court Judge Elizabeth Beebe Volz last September.
It also argues councilmembers not only failed to properly announce the March 14, 2022, executive session during which they discussed the proposed censure of Councilmember Danielle Jurinsky, they took an illegal roll-call vote during the meeting and waived any claims of attorney-client privilege when Jurinsky — an “adverse third party” — stayed in the meeting.
“It is well established that public bodies cannot meet in secret to discuss the public’s business,” says the Sentinel’s brief, prepared by Rachael Johnson, a Colorado-based attorney with the Reporters Committee for Freedom of the Press. “… Here, the Council took deliberate steps to evade public scrutiny of its decision on whether to censure an elected official.”
Reporter Max Levy requested the meeting audio and video under the Colorado Open Records Act — and the Sentinel later sued for the recording — after learning the council had decided the censure issue in an executive session convened to receive “legal advice.”
After listening to the recording in private, Volz determined the city council violated the open meetings law by failing to publicly announce the topic of the confidential meeting with enough specificity. But the judge later decided the city had “cured” the violation by discussing the censure during an open public meeting two weeks later, and she did not release the recording.
The brief drafted by Johnson argues the council did not cure the violation, as permitted by a 2012 Colorado Court of Appeals opinion. Instead, the council’s action on March 28 “merely amounted to a rubber stamping” of the decision it had made in secret on March 14.
“The subsequent meeting did not involve the type of rigorous public input or redeliberation of its final decision to end the censure process of Councilmember Jurinsky as set forth” by the appeals court in its 2012 decision, the brief says.
The Sentinel contends the judge also should have also found councilmembers in violation of the open meetings law for Mayor Mike Coffman’s poll of members during the executive session — a vote that effectively ended the censure proceeding against Jurinsky and dismissed the charges against her.
“These decisions were improperly made in a closed executive session in violation” of the law, Johnson wrote, noting that the open meetings law prohibits the adoption of policies, positions and “formal action” in executive sessions. “… A settlement of a legal claim can only be viewed as formal action.”
The newspaper’s brief also asks the Court of Appeals to review whether the executive session recording was appropriately withheld from Levy on grounds it contained privileged attorney-client communications.
The presence of Jurinsky and her lawyer — “parties adverse to the Council” because Jurinsky had threatened a lawsuit — waived the attorney-client privilege, the brief says, as did public statements made to the Sentinel by two councilmembers about what had occurred in the executive session.
The censure process against Jurinsky stemmed from comments she made on a radio talk show about then-Police Chief Vanessa Wilson and the deputy chief. Councilmember Juan Marcano accused Jurinksy of violating a city charter prohibition against councilors involving themselves in employee issues under the city manager’s authority.
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