CFOIC president: Englewood council violated Sunshine Law by deciding to hire city manager behind closed doors

By Jeffrey A. Roberts
CFOIC Executive Director

The Denver suburb of Englewood announced the hiring of a new city manager on its website last Friday, more than a week before the City Council is scheduled to vote on the appointment during a public meeting.

A city spokesman said that Englewood officials followed the Colorado Open Meetings Law (OML) “to the letter.” But the OML, also known as the Sunshine Law, expressly prohibits the “adoption of any proposed policy, position, resolution, rule, regulation or formal action” during a closed-door executive session.

With the City Council set to vote Sept. 2 on the hiring of Eric A. Keck as city manager, and no previous public meeting at which Keck’s hiring was discussed or voted upon by council members, how could the city announce on its website that “Englewood Mayor Randy Penn and Mayor Pro Tem Linda Olson state that they are very proud of this council’s hard work to come to full agreement in the hiring” of Keck? “He will replace current City Manager Gary Sears, who will retire August 29,” the announcement says.

“The council’s posting on its website, that they’ve reached full agreement, is an admission that they’ve violated the Open Meetings Law,” said Steve Zansberg, a First Amendment attorney and president of the Colorado Freedom of Information Coalition. “They simply cannot come to full agreement in the hiring of Eric Keck outside of a public meeting.”

sunshine lawCourt rulings, Zansberg added, also make it clear that a public body is prohibited from “rubber stamping” a decision made during an executive session at a subsequent public meeting. The City Council met in executive sessions Aug. 11 and Aug. 12 to interview and discuss city manager candidates.

Keck, former city administrator of Post Falls, Idaho, was one of six finalists announced Aug. 7. In response to questions about the appointment from the CFOIC, Englewood Deputy City Manager Michael Flaherty said the council will vote on Keck’s hiring “in an open meeting” on Sept. 2. “The announcement (on the city’s website) is pending the vote,” he said. “The council has to approve it formally.”

Flaherty said “no formal action has been taken during executive session in the recruitment or selection” of the new Englewood city manager and that the process was conducted under the requirements of C.R.S. 24-6-402(3.5), the section of the Sunshine Law that relates to search committees charged with finding candidates for the position of chief executive officer.

But the OML does not allow a search committee or a full city council to eliminate candidates from a list of finalists during a closed-door meeting, or to decide which one they will hire, Zansberg said, citing a 2011 ruling by a district court judge in Larimer County. “The law is clear that informal decision making behind closed doors is not permitted,” he added.

In 2010, the Loveland Reporter-Herald contested the Loveland City Council’s use of executive sessions to consider finalists for its city manager’s job. After listening to executive-session recordings, Judge Devin Odell determined that council members violated the OML by discussing “both the process of adopting a position and formal action and the actual adoption of that position and formal action, namely the decision to eliminate one of three candidates from further consideration for the position of City Manager.”

Odell ordered the public release of 40 minutes of executive-session recordings. The city and the Reporter-Herald announced a settlement in which Loveland paid $25,000 of the newspaper’s legal costs (in addition to the city’s own legal defense costs).

Some Englewood residents have been frustrated with their city’s process for selecting a new city manager because nearly all of it has occurred during closed-door executive sessions.

“It was not an open process,” said Laurett Barrentine of Englewood Citizens for Open Government. “The city council never encouraged anybody in the community to get involved and give their input.” When she and others complained, Barrentine said, the city opened a reception so that members of the public could meet the candidates.

Flaherty said the candidates’ reception was always noticed as a public meeting.

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