Article Contributed on: 6/30/2009 1:09:43 AM
Open Letter to: Mayor Lange, Members Benker, Hansen, Levinson and McCoy,Longmont City Council, I am writing as a friend of the City expressing my concern over contingent liabilities the Council may have inadvertently exposed the City to with its secrecy making policy decisions on public business falling under the purview of C.S.R. 24-6-401.
Implicit in the statement explaining the decision to appeal the Weld decision is the fact the public policy was formulated in secret executive session. The Sunshine Law says no resolution, rule, regulation, ordinance, or formal action of a Home Rule City Council shall be valid unless made at meetings of two or more members of Council at which any public business is discussed or at which any formal action may be taken is declared to be open to the public at all times.
The June 24, 2009 announcement of appellate action against the Town of Firestone required a resolution or decision and commitment of funding of which there is no apparent public declaration of intent on file prior to the decision making process 6/24/09. Circumstantial evident points to a decision being made to appeal without public declaration of the purpose of the executive session wherein the decision was made and it appears budget funds appropriating funds for legal expenses were made in a blanket 2008 request that may or may not have been discussed in public. However, the case law is quite clear that piggy backing new decisions on past Council decisions violates 24-6-401.
This is serious business, any citizen in the State can file an action asking the Court of record to issue injunctions to enforce the purposes of section 401. In any action in which the court finds a violation of this section, the court shall award the citizen prevailing in such action costs and reasonable attorney fees. Council's failure for over a year and a half to put all communications between members on public record, i.e. email avoided the mandatory requirement of 'open to public at all times'. Subsection (9) establishes mandatory consequences for such violations of the Open Meetings Law, entitling plaintiffs to their costs and attorney fees incurred in bringing an action to force a public body to comply with the law. Van Alstyne v. Housing Auth. of City of Pueblo, 985 P.2d 97 (Colo. App. 1999), There are many in the public who believe the costs for Council's Firestone folly should be paid out of the Council members' own pockets, not the tax payers if you are following comments to news stories.
This has the potential of bringing litigation against the City by anyone in the state of Colorado. Open Records violations bring strict liability rules to bear so lack of intent or knowledge is not a defense. This new risk is probably more that most members bargained for originally. In fairness to them, I recommend Council make a serious effort to bring itself into compliance with the Open Records Act to mitigate potential losses the City faces in contingent liabilities. Start with a stay on the appeal of the Weld County Court. I believe it is an imperative Council make full disclosure of all facts comprising the formulation of the City's annexation actions in Weld County the past 15 months, open all correspondence in Council's pursuit of legal action against the Town of Firestone.
Where policy decisions were made on Firestone policy, please disclose, who said what, who voted what in the formation of subsequent actions that are at issue today over whether the law was obeyed in the formation of the Firestone litigation policy and funding. Financial and legal decisions that went into the decision to appeal the Weld judgment Full disclosure must include the contingency reserve the City should be setting up to handle the second phase of litigation. Given the successful actions by land owners against the City and County of Boulder there is a common nexus with those cases, 4-C and CITY OF MONTEREY v. DEL MONTE DUNES AT MONTEREY, LTD. et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 97-1235. Argued October 7, 1998-Decided May 24, 1999 has the City Attorney advised you the State Liability Insurance may not cover council members if they lose a 42 U.S.C. 1983 action against themselves for abuse of power under color of office?