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Gutierrez Attacks Open Meeting Laws
& Colorado Press Association

Loveland - November 18, 2011

Loveland Mayor Cecil Gutierrez believes the public has too much access to the city’s business and asked his legislators for help
limiting what information the press can obtain relative to council votes.  He specifically requested State Legislators oppose any new
legislation expected in January to strengthen Colorado’s open meetings Law (COML. § 24-6-402, C.R.S. 2010) that prohibit secret
voting by elected officials by closing some loopholes in the current law.

Gutierrez brought up his concerns about too much transparency during a taxpayer funded breakfast last Tuesday (November 15)
between the Loveland City Council and State Senator
Kevin Lundberg, State House Representatives B.J. Nikkel and Brian
DelGrosso
.  Representatives for Congressman Cory Gardner and U.S. Senator Mark Udall were also in attendance.  No press
or public attended the breakfast meeting.

Loveland’s Council has not voted (at least not publicly) to lobby against the state’s open meeting laws (often called the ‘Sunshine
Laws’).  Therefore, one colleague of the Loveland Mayor felt Gutierrez’s attack on COML and the Colorado Press Association,
especially failing to distinguish his comments as speaking for himself, was inappropriate given the fact Loveland’s new city council has
not publicly debated or voted on a position regarding the issue.  An agenda for the meeting listed "
Transparency/Open records" as
item number three for discussion under the heading, "
State Issues Affecting Loveland."

LovelandPolitics has obtained a recording of the conversation between Gutierrez and the legislators.  While the breakfast was void of
any press or public participants, an open microphone recorded the Mayor complaining bitterly about the Colorado Press Association’
s involvement in the transparency issue and recent court rulings involving both Loveland and the City of Ft. Morgan.

Gutierrez stated,

“…great political beacons out there that, you know, were all for open and transparent government but I think we got to be
careful of some of the unintended consequences of some legislation…”

When asked for specifics by State House Representative Nikkel, Gutierrez responded,

“Well we just…ah…I think one of the big issues is the..ah..definition of what an employee is”

Councilwoman Joan Shaffer corrected Gutierrez saying only, “personnel” to which he responded,

“Personnel, OK, definition of personnel.  Because one of the major court cases was ours the definition of personnel was
very very vague.  And now with our court case the courts have accepted the new definition…”

Gutierrez said the two most important cases in the State of Colorado on open meetings were the recent Loveland case and the City of
Fort Morgan case.

The second case originated when the Fort Morgan City Council used anonymous written ballots to fill two council vacancies in 2009
during an open public meeting.  The Fort Morgan City Council also appointed a municipal judge during an open and public meeting in
2010 but again using secret written ballots so the press and public could not know how each official voted.  Unlike Loveland, Fort
Morgan’s meetings were public and they never denied conducting a vote.

Loveland’s case was different from Fort Morgan because Loveland’s meeting was closed to the public and they denied even taking a
vote during the secret sessions.  The city later sought declaratory relief from a judge when the Loveland Reporter-Herald, informed by
a rogue member of the council, argued indeed votes had taken place during the closed meetings despite the city’s denials.

After listening to recordings of Loveland’s closed session meetings, a Judge determined the city broke the state’s open meetings law
(COML) by collecting written votes that were read aloud by the Mayor while counting each one during a closed meeting.  The
Loveland Reporter Herald spent nearly $50,000 pursuing the case and presenting evidence with assistance from the Colorado Press
Association.  The City of Loveland settled by paying $25,000 of those fees and releasing the tapes for public review.

Unlike Loveland, the City of Fort Morgan prevailed in their claim the city was within its right to keep the ballots of how each councilor
voted secret.  Last August an appeals court ruled against the plaintiff in the Fort Morgan case, Ronald Henderson, by upholding the
city’s view that private ballots are allowed because that is the method of voting prescribed by the city’s charter.  This ruling wasn’t
well received by the Colorado Press Association and is expected to go to the Colorado Supreme Court next year on appeal.

In the meantime, the Colorado State Legislature is expected to introduce legislation in 2012 addressing the issues being contested in
that case given the amount of public pressure they received to close any loopholes in the COML.  “
We are not at liberty to read
additional terms into, or to modify, the plain language of a statute,
” wrote Judge Lichtenstein in her unpopular decision on Fort
Morgan.

While the COML does require open meetings some exceptions include matters of litigation, negotiations and personnel matters.  
Loveland argued unsuccessfully that selecting a new city manager is exempted for COML because it is a “personnel” matter.   While
the council was acting within its right to meet in private session to discuss the candidates for city manager, they ran afoul of the law
when also voting in secret to remove one candidate from consideration.  

Geoffrey T. Wilson filed an Amicus Curiae brief on behalf of the Colorado Municipal League in the Fort Morgan case stating that
secret ballots were not in violation of COML.  He does acknowledge, however, the public wants open meetings so the Colorado
Municipal League will not publicly oppose any legislation in January intended to clarify the statute by closing loopholes.  Ironically, the
organization that represents Colorado cities is encouraging elected officials to do exactly what Gutierrez did, lobby representatives in a
more private setting.

Other Issues

The Tuesday legislative breakfast included a discussion on new federal guidelines limiting overhead that can be charged to certain
grants along with a conversation regarding the regulation of pawn brokers and the maximum interest they can charge for loans.

EXCERPTS OF LOVELAND'S CITY
COUNCIL MEETING JUDGE FOUND
TO BE IN VIOLATION OF COML

TAPE CHRONOLOGY HIGHLIGHTS

The first tape begins with Councilwoman
Carol Johnson asking Human Resource
Director Todd Gamble how to proceed since
the council could not come to "consensus" on
one candidate.  Gamble suggests they vote to
eliminate one of the three.

3 minutes - by the second tape the council
takes the first vote in private.

City Attorney John Duval:
 I've got every
body's vote so...

6 minutes 40 seconds -
Councilwoman Johnson jokes: "This is why
we need electronic voting," while Duval counts
ballots.

8 minutes - Mayor Cecil Gutierrez recaps
vote tally.

33 minutes 25 seconds Councilman Solt

Councilman Solt "Is there nothing just to
make sure, just to make sure it doesn't look
like we are dragging our heels, is there nothing
that can be said officially to the press that we
narrowed it down to two"

37 minutes and 20 seconds - Colluding To
Hide The Truth They Voted In Private
Session:

Councilman Klassen:  If were asked how
did we vote –

Todd Gamble: You didn’t vote, it didn’t, you
tell em

Klassen Responds: Well excuse me, how
did we (pause) move toward consensus and
how was.

Gamble: You are not talking about the vote…

Klassen: Well I understand that….

Councilwoman Carol Johnson: We all
support the council decision whatever it is

Gamble..I don’t think…you guys talk…

Duval to Council:  You gave direction to
negotiators and ah that this is the direction and
you are able to announce what that direction is.
Excerpts From Colorado Open
Meetings Law (COML)

(2) (a) All meetings of two or more members
of any state public body at which any public
business is discussed or at which any formal
action may be taken are declared to be public
meetings open to the public at all times

(II) The provisions of subparagraph (I) of this
paragraph (b) shall not apply to discussions
concerning any member of the state public
body, any elected official, or the appointment
of a person to fill the office of a member of the
state public body or an elected official or to
discussions of personnel policies that do not
require the discussion of matters personal to
particular employees