Editor’s note: We requested the contracts, compensation packages and performance reviews of the top nonelected executives at eight government agencies. This story is about those organizations’ compliance with Colorado’s open records laws, not the records themselves. That would be another story.
Ever wanted to know how well a public official is doing in their job? Or what they spend taxpayer money on? You’re entitled to that information, and for good reason.
In 1913, future Supreme Court Justice Louis Brandeis wrote a piece in Harper’s Weekly titled “What Publicity Can Do,” in which he lambasted the obfuscatory workings of big banks and called for legislation that would mandate transparency.
“Sunlight is said to be the best of disinfectants,” he wrote.
Brandeis’ opening salvo was a nod to James Bryce’s 1888 “The American Commonwealth,” in which the scholar wrote that “Public opinion is a sort of atmosphere, fresh, keen, and full of sunlight, like that of American cities, and this sunlight kills many of those noxious germs which are hatched where politicians congregate.”
It is Bryce and Brandeis’ postulation, a simultaneously aspirational and yet foundational element of America’s republic, that inspires Sunshine Week, which begins today. The week is an opportunity to shine a bright light on the importance of public records and the laws ensuring government business is conducted before the public.
“Government affects people in their everyday lives,” said Jeff Roberts, the executive director of the Colorado Freedom of Information Coalition, which works on behalf of new media and the public to ensure transparency in the state.
To celebrate Sunshine Week, The Durango Herald conducted an audit of eight public agencies subject to the Colorado Open Records Act. The law guarantees that anyone may access almost any record maintained by a public agency upon request, subject to a few, narrowly construed exceptions.
The Herald asked a third party who is not associated with the paper to file the CORA requests because, as Roberts pointed out, an inquiry from a member of the public may be treated differently than one from a known journalist.
And sunshine laws are for everyone, not just journalists.
The paper filed identical requests seeking the contract, compensation and benefits of the organization’s top nonelected executive; the request also asked for the last three months’ worth of expense reports filed by that person, as well as their most recent performance evaluation. The Herald sent this request to La Plata County, all three municipal governments in the county, the Durango and Bayfield school districts, Fort Lewis College and the Durango Fire Protection District.
The request to each agency asked for “most recent performance evaluation” of the organization’s top executive, “any contract and policy detailing the compensation” of that person, “expense allowances and benefits afforded to that same individual,” and expense reports they had submitted in the last three months by that person.
“That, to me, sounds like you’re asking for what is their current contract and their current compensation,” Roberts said.
Not every organization saw it that way. In some cases, the particular way in which raises are given to top officials meant the documents provided in response detailed only an employee’s compensation when they were hired – and not the raises they have received since.
Under CORA, agencies have three working days in which to respond to a request. An organization may, with explanation, take an additional seven days to respond under extenuating circumstances.
Nearly all of the agencies audited responded to requests within three days. The employee at Durango School District 9-R who handles CORA requests was out of the office when the request was filed, and the district superintendent herself responded on a Sunday – Monday was the third working day – to request an extension.
All eight organizations responded within seven days.
“That’s good to see that,” Roberts said. “I think delays are pretty common.”
Three organizations – FLC, Bayfield School District and the town of Bayfield – released full, unredacted performance reviews for the individual in question. Durango School District released 15 separate documents tracking Superintendent Karen Cheser’s compliance with various policies and redacted only evaluations of Cheser’s interpretation of the policies, but included the evaluation of her compliance with them.
Across the board, Cheser’s work was found to be in compliance with district policies and goals.
One of the challenges of the open records law, Roberts has previously noted, is that it can sometimes take the backing of a lawyer to gain access to records. The custodians of those records, on the flip-side, often have teams of lawyers and the responses to requests are generally reviewed before they are released.
The result? An unexacting request may not produce what the requester is seeking, at times because the custodian must also interpret vague language.
The city of Durango and La Plata County government opted to release contracts detailing the compensation of the organization’s managers at the time of hire, 2020 and 2017 respectively, and not the most current contract. In both cases, organizational spokesmen said the documents provided responded to the request within the letter of the law.
“If you ask for apples you get apples,” Durango spokesman Tom Sluis said. “You guys need to start asking for apples and not fruit.”
The 2017 contract with County Manager Chuck Stevens details $152,500 in annual compensation, while the statutorily obligated annual publication of county salaries lists his 2024 earnings at $238,000. Durango City Manager José Madrigal’s 2020 contract listed a salary of $210,000, but Sluis said the request was not worded specifically enough to encompass his current compensation.
The city released a news flash on its website when top contracted officials, including the city manager, received raises in December.
One of the oft-invoked justifications for denials or heavy redactions is the personnel file exemption, which directs records managers to withhold the details of a public employee’s personnel file. There’s good reason for that, Sluis said.
“It’s always a tricky situation with public employees, because they are public servants, but at the at the same time, they do deserve, you know, a little bit of privacy,” he said.
La Plata County spokesman Ted Holteen echoed that sentiment and noted the county would err on the side of caution when personal details of an employee were involved.
However, courts have narrowly construed the definition of a personnel file to include an employee’s home address, phone number and personal financial information and other information of a similar nature. Performance “ratings” – but, critically, not “reviews” – are specifically listed as an item that the public is entitled to inspect.
The county redacted the ratings of “needs improvement,” “successful” or “exceptional” for Stevens’ performance in individual categories. It left unredacted a single data point: overall, Stevens’ performance was “exceptional.”
The city redacted the written review of Madrigal’s performance in various categories, but included ratings in each category. Madrigal was found to exceed expectations in all categories but community collaboration and engagement, where he met expectations.
Records custodians are also entitled to charge a requester $41.37 per hour for retrieval and redaction fees after providing one free hour of labor. The charges help offset what can be laborious and time-consuming retrievals. But they can also be a major barrier in accessing public records.
Durango School District 9-R charged the Herald $67 – three hours of work total – for redactions on the documents provided. It charged a rate of $33.50 per hour for the work, which was the cap until the Colorado Legislature raised it to $41.37 last year. 9-R was the only entity that charged to fulfill the request, however the district also provided 32 individual documents in response – far more than any other records custodian.
“Transparency isn’t just a buzzword for us – it’s how we build trust with our families, staff, and community,” 9-R spokeswoman Karla Sluis said in an email. “We believe people deserve clear, accessible information about their public schools, and we work hard to provide that.”
Two organizations, Durango Fire and the town of Ignacio, did not have any written performance review of their top official (custodians are required to provide access to records – but not create records that do not exist).
Ignacio’s records custodian did not explain why there was no written review of Town Manager Mark Garcia and neither she, nor Garcia were available for comment.
DFPD Board President Karen Barger said it was simply easier for the district’s volunteer board of directors to conduct a review orally in executive session. The minutes of that meeting reflect only that the review took place, and the board then approved a 7% raise and a $1,750 bonus for Chief Randy Black, who now makes $187,000 according to his contract.
The meeting minutes do not reflect any public discussion of the review or the raise beyond the vote.
“I think the public should get a discussion about why the fire chief deserves a raise,” Roberts said. “If they (the board) come out of an executive session and immediately do something like that without a discussion in public, it makes you wonder if they made that decision in an executive session, which is not supposed to happen.”
Barger, in response, said the discussion, rather than a written review, was the most efficient way to gather the input of many people.
“That man is under review every single day in the public eye, and I think that there's very little that isn’t already completely and fully in front of everyone – everything from a new building that’s going up to how they respond to the public when there's a call,” she said.
The Herald conducted this audit by asking a third-party who is not associated with the newspaper to file the requests.
“A lot of the time when a beat reporter may ask for records, maybe they’ll get them quicker than a member of the public would get them,” Roberts said. “But the public also should not have to wait an exceedingly long time to get public records.”
His organization, CFOIC, represents both members of the media and the general public and recognizes that public records, while invaluable tools often used by members of the media, are for every member of the public.
However, a bill, SB25-077, would draw such a distinction between journalists and the general public with respect to CORA response times. Requests from members of the media would have to be fulfilled within the existing three-day period with a possible seven-day extension. Requests from the general public would have to be fulfilled within five working days, with a possible 10-day extension.
That revision, along with other provisions in the bill, are intended to ease the burden that records requests can place on custodians. It’s not an entirely unreasonable bill, Roberts acknowledges, but it is a shift away from transparency.
“We wish there was more of an effort to expand access (rather) than restrict it,” Roberts said.
rschafir@durangoherald.com
