Essay by Ed Quillen
Politics – June 1998 – Colorado Central Magazine
THE OLD SAYING is that “You can’t fight City Hall,” but I’ve been doing it anyway, with a lawsuit filed on April 28 against the City of Salida.
It was never my life’s ambition to take our mayor and city council — some of them friends — to court. But as I learned, that’s the only way to enforce the Colorado Open Meetings Law, also known as the Sunshine Law.
The story is complex and political, and I don’t know it all — that’s one reason for the lawsuit.
Since taking office this January, Salida City Councilwoman Monika Griesenbeck has been asking a lot of questions about city operations and finances. Along the way, she’s offended some people, including at least one city employee.
Greisenbeck is one of the two councilors who represent Ward Two in Salida, where I live. And when I’ve had a question about her actions on the council, I’ve just called her — her number is in the book, and she seems serious and conscientious about representing her constituents and their concerns.
For concerns I have that I don’t think she can resolve, I can go to a council meeting and complain in public. Or write a letter to the editor of the local newspaper, or compose a newspaper column, or an essay for this magazine. I’ve done all of those things at one time or another.
At any rate, I make my grievances public and attach my name to them. Let’s face it: I criticize public officials all the time, and I consider that one of my rights and responsibilities as an American. As far as I’m concerned, that’s how it’s supposed to work.
If we don’t like how public officials perform their public duties — whether it’s President Bill Clinton in the White House, or Governor Roy Romer in the State Capitol, or Sheriff Andy Taylor of Mayberry — we can call or write them, and when that won’t serve we can make our differences public, either through the media or at public meetings.
But other people don’t see things that way, I guess. Greisenbeck was out of town on April 20 when the Salida City Council, after its regular public meeting, went into “executive session.”
Apparently, they discussed problems they’d had working with Greisenbeck, and decided that they should schedule a meeting to talk about this with her. Just how they reached this decision is not clear from the records, since they’re not supposed to make decisions in executive session, and there’s no record of such a decision in the public meeting.
At any rate, on April 23, Greisenbeck received a memorandum which said there would be a meeting at 7:30 p.m. on April 28, where the council would discuss “various allegations of your potential inappropriate behavior and actions as a council member. These involve potential bid rigging with a bidder for the meter project and other inappropriate allegations of dishonesty by various city departments (meters inventory etcetera), demands for employees not to attend public meetings, claims of finance department incompetence.”
(Although it’s certainly not clear from the syntax, subsequent events have shown that the memo meant to say that there were complaints that Greisenbeck had made inappropriate allegations that various city departments were dishonest — not the other way around. And no, Greisenbeck is not a part of the finance department; instead she allegedly claimed the finance department was incompetant.)
Now, if a councilor who represents my ward in my city’s government has been attempting to rig bids, or is kicking people out of public meetings — that’s serious. Bid-rigging might be a felony, and I don’t want somebody in office who conducts secret meetings.
But Monika said the charges were baseless, and she wanted a public hearing. So did I, whether Monika wanted one or not. The conduct of our public officials, when they conduct public business, is something the public should know about. We have to be able to judge their conduct when we vote.
On Monday, April 27, I talked to Ralph Taylor, our mayor, and asked him if this meeting on Tuesday night about Monika would be public. “It will be,” he said. “Since if Monika wants it public, then I guess it has to be.”
So far, so good. Allegations had been made against a public official, and these allegations would be addressed in public. Everything was working the way it was supposed to work in an open democracy.
Imagine how I felt the next day, the day of the hearing, when I learned that a notice had been posted at city hall: “Agenda: Executive Session to discuss personnel matters.”
As I read the Sunshine Law, a “personnel matter” might be a policeman upset about too much overtime or the like — an elected public official wouldn’t be “city personnel.”
Nor do I consider “bid rigging” a “personnel” matter, or even a “personal” matter, for that matter.
BUT I’M NOT A LAWYER. So I called Ernest Màrquez, who is. His specialty is criminal law, not open-meetings law, so he said he’d have to do some reading. He called back half an hour later, and said that as he read the Open Meetings Law, the Monika hearing had to be public.
I offered him a small fee if he would come to the meeting with me that night and explain that to the city council.
“But I don’t know that it would make any difference,” he advised, “since they’ll probably listen to their own attorney, who apparently wants this done in executive session.”
“You’re right,” I agreed. “Al Sulzenfuss will come up with something from the Code of Hammurabi justifying the Divine Right of Kings, and they’ll go right ahead and have their secret meeting. So what can we do?”
Ernie explained that the only remedy the law offered was for me to seek an injunction — as a citizen and resident of Ward Two in Salida, and also as a writer, journalist, publisher, and officer of a publishing company.
If I wanted to take that route — the only route available for enforcement of the Colorado Open Meetings Law — then we needed to move immediately, since the executive session was scheduled to start in a few hours.
“Let’s go for it,” I said.
And here I need to say that I am forswearing lawyer jokes for at least a month. Ernie has plenty of other work that better fits his legal knowledge and experience, and yet, when he saw an injustice about to occur, he jumped in with both feet.
I also need to point out that it was mostly happenstance that I, and this magazine and its corporate entity, Central Colorado Publishing Co., initiated the suit.
I am sure that if Merle Baranczyk of Arkansas Valley Publishing Co. and The Mountain Mail, and Bill Murphy of KVRH Radio, had known what I knew at that time, then they would have done exactly what I did then. Both joined the suit as soon as they were aware of it on Wednesday morning, and indeed, Merle asked me why I hadn’t called him on Tuesday. (There wasn’t time, or I would have.)
We media types take the Sunshine Law quite seriously. I’ve had my differences with Merle and Bill over the years, and probably will in the future — for one thing, we compete for attention and advertising dollars. But we all believe that public business should be conducted in public, and that we cannot fulfill our responsibilities to our readers and listeners if public business is conducted in secrecy.
That’s how I came to sue the city. The injunction was granted that afternoon by Robert Freeman, a magistrate in Frémont County. Normally this would have gone before District Judge Ken Plotz, but he recused, saying he knew me too well to be ruling on an issue where I was the plaintiff.
This inspired some angry stomping around my office, with me grunting “What’s the point of knowing a judge if he won’t hear your case?” But it does speak well for Ken’s integrity on the bench.
A HEARING ON THE INJUNCTION was held on May 4 before District Judge Julie Marshall. This was the hearing that would have been held on April 28, if there had been time, and Judge Marshall agreed with our position: Any hearing concerning the conduct of a public official should be conducted in public.
The city had ten days to ask for another hearing, and as I write this, I don’t know what course the city will take. The City Council did vote on May 4 to fight Judge Marshall’s ruling, but I hope the council will soon decide to quit opposing the Sunshine Law.
During the court hearing, the city argued that a complaint about Monika came from a city employee, which makes this a “personnel matter,” and therefore exempt from the Open Meetings Law unless the city employee also consents to a public hearing.
But a city employee finally came forward at the May 4 council meeting and stated her complaints about Monika in public. Monika responded in public. The sun rose the next morning. City Hall did not crumble into ruins. City police still patrolled the streets. In other words, airing these allegations in public caused no discernible harm to the city’s ability to conduct its business.
Keeping public matters private and holding secret meetings, however, could have many dire consequences.
For example, many of the allegations against Councilwoman Greisenbeck concern accusations that Greisenbeck has made during city council meetings.
At council meetings, Greisenbeck has repeatedly questioned the price of certain items on the city’s meter bills, and the overall budget and bookkeeping practices of various departments. Greisenbeck, however, made her objections in public. And the city council, the city administrator, and our city department heads have always had ample opportunity to refute those allegations.
Obviously, some people feel Greisenbeck’s queries have been excessive. But to imply a council member should not question the bookkeeping practices or the bills incrued by various departments could seriously hamper any meaningful dialogue by all council members.
(And furthermore, if in the future it’s deemed inappropriate for council members to question the competence and veracity of city employees, I and a few other local curmudgeons will be the only ones left to do it.)
BUT THERE’S another possible problem if the city’s arguments prevail. Suppose an entire council is on the take — accepting bribes, rigging bids, etc. A city employee discovers this and makes a complaint.
If the hearing were private, the council could vote to exonerate itself, and nobody would be the wiser.
As a matter of public policy, I believe that the public must hear the allegations and responses concerning elected officials. We voters hire them, they’re directly accountable to us, and we must have the information necessary to judge their conduct in office.
Further, public hearings on public matters, while often abrasive and divisive, benefit the community. Rumors fly in small towns, and the rumors are often much worse than what really happened. Conducting business in public means the rumors are minimized.
As a Jeffersonian republican type, I believe in limited government, and a strong open-meeting policy furthers this end. If a government is involved in something that would embarrass its officers if the matter became public knowledge, then it’s probably something the government shouldn’t be doing.
And finally, the city should set a good example. We citizens are supposed to stop at stop signs, whether or not a cop is watching. We are supposed to water our lawns at appropriate times, whether or not a policeman is nearby. We are supposed to keep our dogs from barking excessively, and our children from trespassing, whether we’ll be caught or not — because it’s the right thing to do.
In much the same spirit of civil responsibility, our cities should strive to obey the Sunshine Law as a matter of principle. They should not force people to sue in order to get the city to obey the law. Nor should our local representatives look so zealously for reasons not to do business in public.
I’m fortunate because I have access to attorneys, and several media pulpits to preach from. But a lot of citizens aren’t in that position. Yet the Sunshine Law is there to protect all of us.
This lawsuit has consumed time and energy that I would prefer to devote to other, more profitable, pursuits. We didn’t get the bills out for the May edition on time, and the subscription renewal notices were likewise retarded.
I had to beg for more time to complete an article for another publication that was due at the end of April, and I haven’t had time to write my usual monthly column for the Writers on the Range syndicate. And hey, I need the money.
But I mention this, not only to whine, but also to point out that a lawsuit is not something anyone should take on without due consideration. Avoid them if there’s any other way.
Sometimes there just isn’t.
–Ed Quillen
