Are elected officials forbidden by state law from discussing the details of a executive session?
That and other weighty questions regarding the conduct of elected officials arose during the April 25 meeting of the Paonia Town Board of Trustees. During about 45 total minutes of often heated discussion, board members argued whether their newly-adopted "Standards of Conduct for Elected Officials of the Town" was violated during an April 11 executive session, as trustees were warned not to discuss what occurred in the executive session.
Early in the meeting, trustee Suzanne Watson asked during approval of the agenda why a statement she made following the April 11 executive session were excluded from the draft meeting minutes. The minutes stated that "No issues were noted" following the executive session, which began at 10:22 p.m. and was called to discuss items related to a Colorado Open Record Act request.
The portion of the meeting following the executive session was not recorded.
Watson said that following the executive session she stated for the record that she believes violations of the new code of conduct occurred during the executive session. Watson referred to a section of the standards of conduct, adopted April 11, that forbids members of the board from berating, intimidating or belittling others for expressing their opinions, or engaging in speech that is inflammatory, defamatory, demeaning, bullying or threatening.
Watson requested that her comments be included in the meeting minutes.
The problem, said Mayor Charles Stewart, is that if the alleged misconduct relates to the topic of an executive session, "you can't discuss it in a meeting."
Mayor Stewart repeatedly cautioned Watson about lodging accusations against a member of the board, or discussing what transpired during an executive session. Stewart pointed out that town municipal code requires the board to conduct meetings according to Robert's Rules of Order, a roughly 600-page guide to parliamentary procedure. According to Robert's Rules, said Stewart, if a question of order is to be raised, "It must be raised at the time the breech occurs."
Had Watson made a motion for the board to address what happened, it could have been addressed then and there, Stewart told the DCI. He said that it's his interpretation of state statute that the board has an obligation to keep executive session discussions confidential.
Watson said she believes that such discussion would violate state statute, which forbids discussion of elected officials in executive session. She asked for the law forbidding trustees from discussing what occurs in executive session, and questioned Stewart's interpretation of state statute. "Whether or not you think it was correct, it belongs in the minutes," said Watson.
In his final meeting as town attorney, David Marek opined that since Watson made her statement in a public meeting, it should be included in the minutes.
A motion by trustee Bill Brunner to admit the comments into the minutes passed by a 5-1 vote.
"You have to interpret the rules of governing executive sessions," said Marek. In discussing the details of an executive session, elected officials "walk a fine line between what's privileged and what's public."
According to the Colorado Freedom of Information Coalition, it's a First Amendment issue.
Colorado Revised Statute 24-6-402, also known as the "Colorado Open Meeting Law, "does not impose any obligation on members of a local public body to maintain the secrecy of the session," according to coalition executive director Jeffrey Roberts. State statute does not prohibit the disclosure by elected officials of what occurred during a "properly convened" executive session. The First Amendment and the Colorado Constitution also prevent a local public body from enforcing any kind of "gag" rule against such disclosures.
In addition, wrote Roberts in an email, "There's nothing in Colorado's Open Meetings laws about using Robert's Rules of Order."
Trustee Brunner said he also believes numerous violations occurred in the executive session. Brunner requested prior to the meeting that discussion of the "conduct displayed" and "possible application of sanctions related to the code" that occurred during the executive session be placed on the April 25 agenda. He asked Stewart why his request was denied.
Under Robert's Rules, the request is "out of order," since it would require discussion of the details of an executive session, said Stewart. Because it happened in executive session and was brought up at a meeting, "That in itself can result in disciplinary action."
A process exists that allows the board to deal with incidents that occur in both public meetings and executive sessions, said Stewart. That process was not followed. During the April 11 meeting, "no point of order was made," no findings were made by the chair, and no motion to impose a penalty was made by any board member, said Stewart. Any statements made beyond the meeting are "untimely and out of order." If anyone wishes to discuss a violation that may have occurred during the executive session, under Robert's Rules, "That time has passed."
"I appeal this ruling to the board," said Brunner. "If we're not going to discuss what happened during that meeting, our new standards of conduct mean nothing."
After a 3-3 vote, Stewart cast the tiebreaking vote to sustain his ruling to deny Brunner the request.
"I'm not going to take anyone's side on this because I feel like there's been violations all across the board," said trustee Chelsea Bookout. She asked if the board is exempt from its own code of conduct while in executive session? If so, how do they act? And does the board need a separate code of conduct?
"I think we all get heated and I think we all have moment of frustration and anger and all of those things. I think we all need to be adults and treat each other with respect, despite all of that.
"And if we don't," she added, "I think we need to take responsibility for it."