By Jeffrey A. Roberts
CFOIC Executive Director
Elbert County commissioners violated the Colorado Open Meetings Law by approving new contracts for the county administrator and county attorney in private, a group of residents alleged in a letter sent Wednesday.
Drafted by freedom-of-information attorney Steve Zansberg, the letter asks Commissioners Chris Richardson, Dallas Schroeder and Grant Thayer to rescind the two contracts and acknowledge they are “legally invalid” because they “were the product of decisions made outside of any properly convened and open public meeting.”
“Doing so would obviate the need to bring this matter to a court of law and have a judge declare the BOCC’s decisions made outside of a public meeting unlawful,” it adds.
The commissioners defended the legality of the contract changes for County Manager Shawn Fletcher and County Attorney Bart Greer during a town hall meeting on July 17. According to the Elbert County News, Richardson referenced a provision in the open meetings law regarding the “day-to-day oversight of property or supervision of employees by county commissioners.”
“We feel that the process followed was appropriate and does not differ from that followed by the county over the past seven years I have been in office,” he told Colorado Politics.
But the provision cited by Richardson and later Greer at a July 24 meeting only exempts county commissioners from the open meetings law’s 24-hour public notice requirement when a county employee “is being supervised, on a day-to-day basis,” says the letter drafted by Zansberg. “And, whether or not notice of the meeting is required, no decision can be made by a majority of the BOCC outside of a public meeting.”
Zansberg, who is president of the Colorado Freedom of Information Coalition, wrote that a 2015 Colorado Court of Appeals’ opinion “makes it unmistakably clear that determining and ‘setting [the] rates of compensation’ of a county employee is not ‘day-to-supervision,’ but is ‘the formation of public policy’ that must be conducted in a properly noticed and convened executive session.”
The open meetings law declares that it’s “a matter of statewide concern and the policy of this state that the formation of public policy is public business and may not be conducted in secret.”
While the commissioners could have discussed the employment contracts in an executive session for “personnel matters,” they still would have been prohibited from taking action or adopting a position during such a closed-door meeting, the citizens’ letter notes. And under C.R.S. § 24-6-402(8), “any decision that is made by a local public body outside of a properly noticed and open meeting is legally invalid, as a matter of law.”
Salaries for Fletcher and Greer were increased to $220,00 each and their contracts extended to Jan. 1, 2027, according to a July 12 Elbert County News story.
The citizens represented by Zansberg include former Elbert County Commissioner Robert Rowland, Kenneth Cardwell, Jill Duvall, Jim Duvall, Chris Hatton, Nic Meyer and Bob Ware. They asked for a written response from the commissioners by Sept. 4.
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