A district court judge decided La Plata County Commissioners did not violate the state open-meeting law while conducting a search in January for a new county manager.
Judge Jeffrey Wilson issued a ruling Monday stating commissioners did not adopt a “proposed policy, position, resolution, rule, regulation or formal action” during two executive session, closed-door meetings in January.
The Colorado Open Meetings Law prohibits a public body from taking formal action or adopting any position in an executive session.
The Durango Herald sought release of audio recordings of those meetings for public inspection because the newspaper had reason to believe the county may have violated Colorado’s open-meeting law when it decided not to hire any of the finalists and to reopen the search.
Steve Zansberg, attorney for the Herald and the Colorado Press Association, called the judge’s ruling “disappointing and unexpected.”
He said, “Unfortunately, this ruling will inevitably embolden this particular public body that has been told they can make this type of decision without violating the open-meetings law.”
Wilson came to the decision after reviewing transcripts of the two executive sessions held Jan. 6 and Jan. 9. During those closed-door meetings, the commissioners directed county staff members to scrap the five finalists the board was considering for county manager position and begin the search anew.
Commissioners later voted unanimously to refuse the Herald’s request to release meeting tapes based on a recommendation from County Attorney Sheryl Rogers.
Commissioners’ discussions involved personnel matters that are exempt from the open-records laws, Rogers wrote in a letter to the Herald. She also wrote that the decision not to hire any of the county manager candidates was “inaction” while the “direction to County staff to continue a job search is not formal action, but rather a continuation of the same course of conduct.”
Commissioners said they were pleased with the ruling and said it affirmed the legality of their actions.
“I never felt like we had broken the law or conducted ourselves in a matter of which was unbecoming or inappropriate in the manner of open government or transparency,” Commissioner Bobby Lieb said.
The Herald’s decision to go forward with a lawsuit after it was denied access to the executive-session recordings was “ludicrous and over the top,” Commissioner Wally White said.
“I would hope Herald doesn’t waste everyone’s time and money when there are more important issues to be reported on,” White said.
Lieb agreed the Herald’s approach was “unfortunate,” but said cases such as these help to push ongoing interpretations of the state’s open-meetings law.
“In many regards, the open-meetings law can be a bit gray and, quite honestly, there was grayness associated with the question that was put upon us,” Lieb said.
Zansberg, in an email Monday, wrote that the commissioners “acknowledged before the court that they had decided in those closed-door meetings not to extend an offer of employment to any of the finalists they were considering for the county manager positions. We believe that by making that decision, the Board adopted a position,” he wrote.
Because the decision came from a district court, rather than an appeals court, the decision has only “persuasive authority” on other similar cases around the state, Zansberg said. If the Herald decided to appeal the judge’s ruling, a decision by an appeals court would have a “binding precedent” on subsequent cases involving the same matter.
The law allows the plaintiff several weeks to decide whether to proceed.
Herald publisher Richard G. Ballantine, in an email Monday afternoon, wrote, “We share our attorney’s disappointment in Judge Wilson’s decision, and we’re considering whether to appeal.”