Monday, Governor Ritter issued an executive order requiring his cabinet members and senior staff to submit conflict of interest disclosure reports by 25 October. The new order replaces a similar standing order issued a decade ago by the governor’s predecessor, Bill Owens, who sought to increase transparency with the order and guard his administration from investigation and scandal. The Ritter cabinet failed to comply with the Owens order for nearly three years.

Ritter’s new order comes in response to an open records request filed by the conservative Independence Institute in September. The Institute’s request sought access to the the Ritter Administration conflict of interest reports. Last week, however, the Institute reported that of the 15 members of the Ritter cabinet only one had filed any disclosure information. John Stulp, head of the Department of Agriculture, reportedly filed letters with the governor stating potential conflicts of interest.

Jon Caldara, head of the Independence Institute, predictably called the governor out on the misstep.

“If Governor Ritter wants to overturn an executive order that brings a higher level of transparency and ethics to his administration, he’s certainly free to do so, and face the political consequences.”

Director of state watchdog group Colorado Ethics Watch Chantell Taylor told the Colorado Independent that Ethics Watch had been looking into the matter when Ritter released the new order yesterday.

“It was a concern,” she said. “But there was no penalty built into the Owens’ order to punish non-compliance. So what could be done, at best, was that public exposure would bring the administration into compliance.”

And that’s what happened, she said. The Independence Institute investigation likely spurred the executive order.

“We’re glad the new order includes disclosure and we hope that going forward we’ll see full compliance.”

Taylor said the only significant update to the Owens order is that the former executive office board of ethics is eliminated by its omission and that’s because the state has created the Independent Ethics Commission in the years since the Owens order was issued.

Like the Owens executive order, the Ritter order, D021 09, (pdf) references Amendment 41– the “touchstone” of which, according to the new order, was that “public officials and government employees must not violate the public trust for private gain.” Ritter’s order applies to “employees in the governor’s office” as well the administration cabinet members.

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The Colorado Independent Ethics Commission meets behind closed doors for an executive session at its Denver headquarters. (Photo/Ernest Luning)

The state’s top ethics panel has turned over to the Denver District Court copies of all the notes and other records made during five secret meetings a judge said were held in violation of Colorado Open Meetings Law. The judge plans to review the notes and decide whether they should be made public in response to an open records request and lawsuit filed by The Colorado Independent.

Earlier this week, Chief Judge Larry Naves ordered the Colorado Independent Ethics Commission to release unedited recordings made during seven closed-door meetings the commission held from January to May after finding the ethics commission didn’t follow state law when it met in secret to discuss ethical questions posed by public officials. In addition, Naves said he wanted to review any notes made during five meetings the commission didn’t record — including four meetings when commissioners deliberated on an ethical complaint they eventually dismissed against U.S. Rep. Mike Coffman — to determine whether the written records fall under a “work product” protection that could keep them confidential.

Late Tuesday, the ethics commission released nearly 13 hours of audio recordings it made during more than 46 hours it spent in closed-door meetings between January 14 and May 6 in response to a court order. The new audio files include two hours of conversations government lawyers redacted last month when they handed over almost 11 hours of recordings to the Independent after a court hearing on the open records lawsuit. At the hearing, lawyers with the Colorado attorney general’s office argued some of the recordings should be kept confidential because they were privileged attorney-client communications, but Naves disagreed and ordered them released.

In its lawsuit, the Independent argued any records of the 12 closed-door meeting, including notes and audio recordings, should be released to the public because the ethics commission didn’t follow the law when it convened in secret and that commissioners had discussions Colorado law forbids public officials from having behind closed doors.

The judge also ordered the ethics commission to pay the Independent’s attorneys’ fees. The lawyer representing the Independent, Christopher Beall, has until next week to submit an application to the court detailing charges.

Here’s the notice the ethics commission filed with the court late Thursday:

NOTICE OF LODGING OF PROTECTED DOCUMENTS

The Independent Ethics Commission of the State of Colorado and Jane T. Feldman, in her official capacity as the executive director of the Independent Ethics Commission of the State of Colorado (collectively referred to as the “Commission”), by and through their counsel and in accordance with this Court’s Order dated August 31, 2009, hereby lodges with the Court, for an in camera review, copies of all notes and written records in the Commission’s possession regarding the closed meetings that occurred on February 20, 2009, March 18, 2009, March 31, 2009, April 13, 2009 and April 16, 2009.

The ethics commission was created in 2006 when Colorado voters approved Amendment 41, touted as a measure to increase accountability and transparency in government. The five-member commission considers ethical violations and enforces ethical standards for public officials and government employees. Its members are appointed by the governor, both chambers of the General Assembly, the Colorado Supreme Court and the commission itself.

The Colorado Independent is published by the Center for Independent Media, a non-profit and non-partisan organization that also publishes The Washington Independent in the nation’s capital, and state-focused politics and policy news sites in Iowa, Michigan, Minnesota and New Mexico.

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(Photo/Dpbsmith, Wikimedia)

DENVER — The Colorado Independent Ethics Commission violated the state’s Open Meetings Law when it failed to convene a dozen closed-door meetings held earlier this year according to strict legal requirements, a Denver District Court judge has ruled. Because the ethics panel didn’t follow the law, the court ordered the state’s top ethics panel to “immediately” release all records of any improperly closed meeting, even those the commission claims are protected by attorney-client privilege.

The ruling by Chief Judge Larry Naves was in response to a lawsuit filed by The Colorado Independent in May over the secret meetings. In its lawsuit, The Independent alleged the commission repeatedly violated state law by failing to adhere to required procedures and, once huddled behind closed doors, held discussions the law says the public has a right to hear.

The judge agreed with The Independent’s arguments. He also directed the commission to hand over notes made during meetings the commission didn’t record to decide whether those should also be released. In addition, the judge ordered the commission to pay The Independent’s legal fees.

Late Tuesday, the commission delivered the unedited recordings of the five meetings still in dispute to The Independent’s attorneys.

“Colorado law assumes the public’s business will be conducted in public,” Colorado Independent editor John Tomasic said after the ruling was handed down. “This is most important when we’re talking about the state ethics commission, which routinely wields the power to hold other public officials to account.”

Last month, the ethics commission released nearly 11 hours of recordings of its closed-door meetings but held back two hours of recordings, claiming the conversations were protected communications between the commission and its attorneys.

An attorney for the commission said no recordings exist for five of its closed-door executive sessions, chiefly when commissioners talked about a formal complaint filed — and later dismissed — against U.S. Rep. Mike Coffman alleging ethical misconduct while he was Colorado’s secretary of state.

The ethics commission released unedited recordings from two meetings and made public hours of recordings from another five meetings after government lawyers finished erasing segments the commission wanted to keep confidential.

“Public bodies really ought to sit up and take notice,” said Denver attorney Christopher Beall, who represented The Independent in its lawsuit. “Unless they follow the rules for closing a meeting, they’re going to be required to produce the record of the closed meeting.”

“In such circumstances where a public body has not properly convened an ‘executive session,’ the recording of the closed meeting will be treated as an ordinary public record, subject to disclosure under the [Colorado Open Records Act], because the meeting does not constitute a privileged ‘executive session,’ ” Naves wrote in his ruling.

The public’s business

During the first four months of 2009, the ethics panel met regularly and often in secret — behind closed doors for 42 hours, 15 minutes, and in open session for just 7 hours, 30 minutes — to formulate decisions on ethical questions, only to emerge with rulings ready to be adopted by commissioners in swift, unanimous votes without any public discussion.

Colorado’s Open Meetings Law allows government officials to go into executive session to discuss certain topics, including personnel questions, pending land deals and lawsuit strategies, among other matters, though it requires public officials follow procedures strictly. The law doesn’t allow public officials to deliberate in private or reach decisions without the public watching.

“The default position is, the public’s business will be done in public,” Beall said at the July 31 court hearing on The Independent’s lawsuit. The state legislature has created some narrow exceptions, he said, but “it shouldn’t happen often, and it shouldn’t be a regular occurrence.”

Naves found the ethics commission didn’t “strictly comply” with Colorado law when it failed to adequately describe topics commissioners planned to discuss outside public view.

Before The Colorado Independent published a series of stories about secrecy at the ethics commission, the panel routinely posted public notices describing its executive sessions only as “[d]iscussion pertaining to requests for advisory opinions and complaints filed with the Commission.” The commission announced just once that it planned to discuss the hotly contested complaint against Coffman behind closed doors, even though it met several times before rendering its decision.

The commission also violated the law, Naves ruled, by deliberating on topics the law requires public officials to discuss in public.

From Judge Naves’ order:

[B]ecause of the Commission’s failure to adequately identify the particular matter to be discussed behind closed doors, and because the Commission’s deliberations on non-frivolous complaints, advisory opinions, letter ruling, and position statements were not in any event matters that could properly be discussed behind closed doors, the Court concludes that the entire recordings of the following meetings must be made available for inspection and copying as public records: January 14, 2009, January 23, 2009, February 2, 2009, March 19, 2009, April 6, 2009, April 21, 2009, and May 6, 2009.

Naves also ordered the commission to turn over notes from the meetings it didn’t record — most often on the advice of its attorneys, who cited attorney-client privilege as a reason for shutting off the recorder — for an “in camera” review by the judge. He could decide to release those after determining whether they fall under the “protected work product” shield.

“What is important about the outcome here,” Beall said, “is the court is enforcing the rule even in the context of purported attorney-client communications. The rule requiring compliance with Open Meetings Law is effectively more important than attorney-client privilege.”

A spokesman for a government watchdog group cheered the ruling.

“For the second time this year, a court has found the [Independent Ethics Commission] in violation of Colorado’s open government laws and ordered the IEC to release secret documents and pay attorneys’ fees,” said Luis Toro, senior counsel with Colorado Ethics Watch. “The IEC should be a model of transparency, not a repeat offender, and we hope the IEC will take today’s ruling to heart and operate in a public and accountable fashion.”

In May, Ethics Watch won an open records lawsuit that forced the commission to release documents it wanted to keep confidential, including letters from lawmakers and government employees asking for guidance on ethical questions. Ethics Watch is also the organization that filed the complaint against Coffman and argued its case before the commission.

Moves toward transparency

After The Colorado Independent reported on the commission’s public notices and alleged they were insufficient in its lawsuit — and following the ruling on Ethics Watch’s lawsuit over submissions to the commission — the ethics commission drastically changed how much information it made public. Starting at its June 16 meeting, the commission began describing individual court cases up for discussion and listing complaints it intended to consider. Also, after The Independent published the results of its investigation, the commission began discussing and deciding ethical questions in the open, rather than entirely behind closed doors.

The ethics commission was created in 2006 when Colorado voters approved Amendment 41, touted as a measure to increase accountability and transparency in government. The five-member commission is tasked with investigating ethical violations and enforcing ethical standards for public officials and government employees. Its members are appointed by the governor, both chambers of the General Assembly, the Colorado Supreme Court and the commission itself.

Beall represented The Colorado Independent and two newspapers, the Coloradoan of Fort Collins and the Pueblo Chieftain, in another recent lawsuit over open meetings. Earlier this summer, the Colorado State University System Board of Governors settled that lawsuit by agreeing to release recordings of a secret meeting where the board picked a new system chancellor, as well as paying $19,000 to cover the media organizations’ attorneys fees.

Attorneys for The Colorado Independent have until next week to submit an application to the court detailing fees and costs incurred in the litigation.

A spokeswoman for the commission declined to comment on the court order.

“The ruling [on the ethics commission] is a recognition of the importance the state places on open government,” Beall said. “The Legislature has made it very clear through the Open Meetings Law that closing meetings should be very rare, and when a public body wants to close a meeting, it has to do so in very careful compliance with the rules. If it doesn’t follow the rules, there are consequences.”

The Colorado Independent is published by the Center for Independent Media, a non-profit and non-partisan organization that also publishes The Washington Independent in the nation’s capital, and state-focused politics and policy news sites in Iowa, Michigan, Minnesota and New Mexico.

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The commission agreed to release the recordings during a July 31 hearing in Denver District Court on a lawsuit filed by The Independent that asked a judge to order the panel to turn over the recordings. The lawsuit alleged the commission deliberated and reached decisions behind closed doors — which is forbidden by Colorado law — and failed to follow strict procedures when shielding proceedings from public view.

An attorney for the commission said no recordings exist for five of its closed-door executive sessions, chiefly when commissioners talked about a formal complaint filed — and later dismissed — against U.S. Rep. Mike Coffman alleging ethical misconduct while he was Colorado’s secretary of state.

Chief Judge Larry Naves said he would rule later this month whether the commission can withhold portions of audio recordings its attorneys argue should be protected from public disclosure.

The ethics commission released unedited recordings from two meetings and agreed to turn over hours of recordings from another five meetings after government lawyers finished erasing segments the commission wants to keep confidential.

In all, the ethics commission spent more than 46 hours behind closed doors — amounting to 85 percent of its time spent meeting in the first part of this year, according to an analysis by The Independent — but only recorded just short of 13 hours of those meetings. The recordings released to The Independent amount to just short of 11 hours, suggesting the commission has redacted roughly two hours worth of conversation.

How to listen to the recordings: The recordings are grouped by meetings, which are listed in the left-hand column. Click on the highlighted dates to view the minutes for each meeting, including decisions rendered in swift, unanimous votes after commissioners reconvened in public. There are no minutes on file for the meeting dates that aren’t highlighted.

In most cases, the commission recorded several segments of each closed-door meeting, turning the recorder on and off for breaks and to discuss matters attorneys decided didn’t have to be recorded. The segments are listed in the second column using the commission’s numbering system. For instance, “9011400″ indicates a 2009 meeting held in January (01) on the 14th, and this recording is the first of that day’s files. Subsequent files are numbered 01, 02, and so forth.

Listen to the recordings, which are in the MP3 format, in your browser by clicking on the recording numbers. You’ll be taken to a page containing the file and, in most browsers, an audio player such as QuickTime should open and give you the option to play, pause and scroll through the recording.

The highlighted recordings can be downloaded by right-clicking (or control-clicking on a Mac). Files that aren’t highlighted weren’t released by the commission.

The “Time recorded” and “Time released” columns display the duration of each recording, based on information provided by the commission to the court. In instances where the time recorded exceeds the time released, the commission has redacted a portion of the recording — in almost all cases claiming the conversation is privileged communication between commissioners and legal counsel. Where “NONE” is listed, the commission didn’t record the meeting.

Note: The recordings are often poor quality and hard to hear, sometimes overwhelmed by background noise.

Ethics commissioners held a rollicking discussion in March about a Western Slope imbroglio involving a small-town sheriff, his messy divorce and assorted gossip hitting the headlines. Should we intervene? commissioners wondered aloud. Will there be times when the citizenry is so spooked by local officials — especially those who carry guns and can throw pesky do-gooders in jail — that none dare file a complaint with the ethics commission? What then?

Dismissing the notion the commission should initiate its own investigation based on newspaper reports — at least this time — commissioners agree: they’re no star chamber.

The discussion came to light this week when the ethics commission released recordings from two closed-door executive sessions in response to a Colorado Open Records Act request made three months ago by The Colorado Independent. The news site subsequently filed a lawsuit charging the ethics panel repeatedly failed to comply with strict legal requirements for convening executive sessions, rendering a dozen enclaves not executive sessions but meetings that were illegally closed to the public. The lawsuit is being heard in Denver District Court.

Following an investigation into questions of secrecy surrounding the ethics commission, The Independent’s lawsuit argues the panel didn’t post its meeting topics properly, commissioners were prohibited by law from discussing some of the things talked about in secret and the commission illegally deliberated on questions and came to conclusions before rubber-stamping their decisions in public votes.

In this case, the 10-minute discussion occurred during a four hour, 40 minute executive session when the commission hashed out several ethical rulings, among other topics. The public notice announcing the commission’s intended topics for its March 19 executive session didn’t include anything like an examination of the panel’s powers to initiate its own investigations absent a formal complaint, and the topic hasn’t appeared in the public record since.

Here’s the audio from the second portion of the March 19 Independent Ethics Commission meeting. To download the mp3 file, right-click on the link.

The discussion about the Garfield County sheriff and whether the commission considers itself a star chamber starts at the 35-minute mark. Listen to the recording here:

Here’s what went down:

After discussing a range of other questions for about 35 minutes, the commission turns its attention to a scandal brewing in Garfield County. A number of anonymous phone calls and e-mails have been sent to the commission about the Garfield County sheriff. Curious about the ruckus, the commission’s executive director, Jane Feldman, reports she tracked down some newspaper accounts and learned the sheriff, who is getting a divorce, is apparently having an affair with a staffer he subsequently promoted.

No one has filed a complaint about anything involving the sheriff, Feldman says, but she wanted to inform the ethics commission this story is out there and raise the question: “There is a larger issue to what extent the commission wants to get involved.”

Noting that the commission rules require someone to file a complaint before the panel can investigate or take action, commission chairwoman Nancy Friedman asks, “If we see something covered by every newspaper in the state, at what point do we chose to get involved in something?”

“Never,” says commissioner Sally Hopper.

Commissioner Matt Smith wants to set the record straight. He says he’s been following the story and says “part of the scuttlebutt” is whether what’s being reported in newspapers is accurate. “I think there’s no end to the number of complaints we get involved with if we do pick up allegations in the newspaper,” Smith says. Saying he understands commissioners don’t want to become a “laughing-stock” by ignoring ethical scandals everyone is talking about, Smith urges commissioners to stay out of it unless someone formally files a complaint.

Friedman recounts an instance in New York City — where she worked for years on that city’s notoriously secretive ethics board before moving to Colorado — when the official ethicists finally felt compelled to weigh in on a public scandal that threatened to swallow the metropolis in corruption, despite no one asking the board for a ruling.

“We just decided it would be ridiculous if we didn’t do something,” Friedman says. But it only happened once in a decade, she later notes.

“We could talk theoretically all day,” Hopper says. “Let’s just blow this one off until we get a complaint.”

The commission agrees that there could be situations where “the hazards of filing a complaint are so great” that no one will approach the commission.

Courts can’t take cases until they’ve been filed, says David Joeris, the lawyer with the attorney general’s office advising the commission, noting that this “can be a blessing and a curse.” Likewise, the commission doesn’t have the authority to go out and investigate something until someone has filed a complaint, he advises, adding that the commission can set its rules differently if it wants.

“The danger of a group like this just deciding to go around and catch the guilty bastards is really dangerous,” commissioner Roy Wood says.

Friedman agrees, the ethics commission “would never be a star chamber.”

And with that declaration, the commission breaks for lunch.

Listen to more recordings of the ethics commission’s closed-door meetings here.

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(Dpbsmith, Wikimedia)

The state’s top ethics panel routinely deliberated in private only to emerge with positions ready for adoption in swift, unanimous public votes, audio recordings of the closed-door meetings reveal. The Colorado Independent Ethics Commission also discussed topics in executive session it hadn’t described for the public in detail — or at all, in some cases — as state law requires.

The commission released recordings of executive sessions to The Colorado Independent this week, nearly three months after the news organization first filed a request under the Colorado Open Records Act alleging the secret meetings were illegally closed to the public.

Following a series of reports on secrecy at the ethics commission, The Independent sued, alleging the panel didn’t post its meeting topics properly, commissioners were prohibited by law from discussing some of the things talked about in secret and the commission illegally deliberated on questions and came to conclusions before rubber-stamping their decisions in public votes.

At a hearing on the lawsuit on Friday, Denver District Chief Judge Larry Naves said he plans to rule later this month on whether the commission followed procedures when it convened its numerous executive sessions. If he rules it did not, he could order the commission to turn over the entire recordings requested by the Independent.

The commission on Monday handed over recordings totaling nearly six hours of executive sessions held March 19 and April 21. A state attorney representing the panel said it plans to release recordings of five additional secret meetings — Jan. 14 and 23, Feb. 2, April 6 and May 6 — after government lawyers finish erasing portions the commission wants kept confidential. No recordings exist for five other occasions between February and April when the commission met behind closed doors, the commission’s attorney said at Friday’s hearing.

In its public notices for the March 19 meeting and the April 21 meeting, the commission announced its executive session topics as “Discussion pertaining to requests for advisory opinions and complaints filed with the Commission.”

That description falls far short of legal requirements, argued Christopher Beall, who represented The Colorado Independent at Friday’s hearing. He pointed to a provision of the Colorado Open Meetings Law which states government bodies planning an executive session must identify “the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized.” Beall cited court rulings that ordered recordings released when public notices hadn’t gone into enough detail or accurately described proposed executive session topics.

Colorado Independent editor John Tomasic said the discussions revealed on the recordings “underline the importance of watching the watchers.”

“A judge will decide whether the Independent Ethics Commission bent the rules or broke the law when it convened these executive sessions,” Tomasic said. “But it’s clear from these recordings commissioners engaged in secret discussions Colorado law demands be held in public. We hope the ethics commission continues moving away from the secrecy that has shrouded it for so long.”

Below are the recordings and a description of topics discussed at the March 19 meeting, including links to the official policies that resulted from the closed-door session.

The first recording lasts just 1 second and appears to be only a quick on-and-off of the recorder.

Here’s the audio from the first portion of the March 19 Independent Ethics Commission meeting. To download the mp3 file, right-click on the link. Listen to the recording here (reminder, nothing appears in this recording other than 1 second of background noise):

In the second portion of the March 19 , which lasts 46 minutes, the recording picks up with commissioners considering how to respond to a request to reconsider a complaint they’ve already rejected. The request comes in the form of a motion — more appropriate to a court than this commission — appealing an earlier decision that said the commission lacks jurisdiction on Complaint 09-02, which argued the Gilpin County assessor lacked authority to tax a parcel of land. There’s plenty of discussion about jurisdiction and the peculiar nature of the complaint before the panel eventually agrees to reject it again on the same grounds.

About 15 minutes into the discussion, Jane Feldman, the commission’s executive director and sole employee, discloses that her husband works in the attorney general’s office as head of the Consumer Protection Division. “Jane and I thought she should make a formal disclosure to the commission so that it’s formally on the record,” says Nancy Friedman, the commission chairwoman. Feldman’s husband reports directly to Attorney General John Suthers, Feldman says, adding that she has “never discussed the business of the commission” except what’s in the public record, and has “no intention of doing so.”

A couple minutes later, the commission turns its attention to a draft of Letter Ruling 09-03, about whether nonprofit groups can provide meals to board members who are also public officials or government employees. The ruling answers a pair of requests for an opinion submitted by Denver attorney Doug Friednash on behalf of a group of clients who are involved in a protracted lawsuit challenging Amendment 41. The commission decides commissioner Sally Hopper will make the motion to approve the letter ruling when they return to open session later in the meeting.

Here’s the summary of Letter Ruling 09-03:

CO Const. Art. XXIX does not prohibit a nonprofit, non-lobbyist entity from providing a meal to one of its Board Members who concurrently is a government employee or official, or to his or her spouse or dependent child. The government employee or official, or his or her spouse or dependent child, may accept the meal, provided that it is being provided to all Board Members during a meeting and it is reasonably priced.

At about 25 minutes, the commission talks about a request for an advisory opinion from the governor’s office. Can state troopers accept free admission to events while they’re detailed to provide security for the governor? Friedman proposes answering more than the governor’s office asked by extending what’s allowable to include meals at events when troopers are on security duty. She checked with ethics panels in other states and says the New York board hasn’t considered the question, but “they can’t imagine saying no, as long as there’s no caviar involved.” The commission eventually decides to limit its response to the question that’s been asked.

Two meetings later, on April 6, the commission votes to approve Advisory Opinion 09-03, which allows state troopers to attend expensive events when they’re carrying out their duties. Here’s the summary:

It would not be a violation of Colorado Constitution Art. XXIX for Colorado State Patrol members assigned to the security detail of the Governor, the Lieutenant Governor, or any governor-elect to accept free admission to events with an admission price in excess of $50, when they are attending such events with any of those officials as part of their official duties.

At 35 minutes, the commission talks about a scandal brewing in Garfield County and decides someone has to file a complaint before the panel can act.

Then the commission breaks to eat lunch and stops recording.

Here’s the audio from the second portion of the March 19 Independent Ethics Commission meeting. To download the mp3 file, right-click on the link. Listen to the recording here:

The next recording lasts one hour, 18 minutes, and covers just two topics.

First, Friedman proposes three possible drafts of an advisory opinion about whether administrative law judges can accept payment of membership dues in the state bar association from their employer, and whether the Denver Bar Association’s waiver of annual dues is OK under Amendment 41. Does the offer constitute a “special discount” for public officials, which is forbidden under state ethics law, or is it a gift to the government, which would be allowed?

On April 8, the commission released Advisory Opinion 09-02, dated April 6, Here’s the summary:

It would not be a violation of Colorado Constitution Art. XXIX for an administrative law judge to accept free membership in the Colorado Bar Association from his or her employer. It would, however, be a violation to accept free membership in the Denver Bar Association from the Association.

About an hour into this recording, the commission turns to a longstanding question about whether public officials and government employees can negotiate future employment outside government, or whether that would run afoul of Amendment 41. The commission hasn’t figured this one out yet, but has a lively discussion about the problem.

Here’s the audio from the third portion of the March 19 Independent Ethics Commission meeting. To download the mp3 file, right-click on the link. Listen to the recording here:

The next clip lasts one hour, 13 minutes and is mostly devoted to a question the commission hasn’t answered yet, at least not in public. On the heels of a similar letter from the General Assembly, state Sen. Greg Brophy wants to know whether the National Council of State Legislatures and the American Legislative Exchange Council’s designation as “joint governmental agencies” means the groups can pay for expenses involving conferences or whether that would be contrary to Amendment 41′s gift ban.

After a wide-ranging discussion about the various types of organizations out there, the commission comes to an agreement about a particularly thorny issue: They’ll tackle the Legislature’s question first. It’s a provisional agreement, though, as the ethics commission has yet to issue a public ruling on the question more than five months later.

As the recording concludes, Friedman asks whether there’s anything else commissioners want to talk about in private before leaving executive session. “If not,” she says, “let’s go back into open and vote out — we have two things to vote out.”

When the commission convened in public a few minutes later, commissioners unanimously approved Letter Ruling 09-03, about meals to board members, without any discussion. Moments later, the commission votes — again unanimously — to “reaffirm the IEC’s previous decision” to dismiss Complaint 09-02, the one about the Gilpin County assessor.

After “voting out” both decisions, which were decided hours ago in private, and within five minutes of appearing again in public, the commission adjourns.

Here’s the audio from the fourth portion of the March 19 Independent Ethics Commission meeting. To download the mp3 file, right-click on the link. Listen to the recording here:

The Colorado Independent is published by the Center for Independent Media, a non-profit and non-partisan organization that also publishes The Washington Independent in the nation’s capital and state-focused politics and policy news sites in Iowa, Michigan, Minnesota and New Mexico.

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What does it look like when a government body debates and makes decisions in a closed-door executive session? Pretty much the same as it would in public — which the law requires — except that only the meeting’s participants get to see what went into the decision.

For most of its existence, Colorado’s Independent Ethics Commission retreated behind closed doors to talk about the ethical quandaries it had to decide, only to emerge with fully formed decisions that almost always won swift, unanimous approval in a public vote. It was clear the commission hashed things out in secret — because no discussions about the ethical opinions the panel issued took place in public — but until the ethics commission released recordings of its executive sessions to The Colorado Independent as part of an open meetings lawsuit, it was unclear how this happened.

First, though, why does this matter? Colorado Open Meetings Law requires public officials to conduct business in public, carving out very specific exceptions for topics that can be discussed behind closed doors. In general, the law forbids government bodies from convening in private to make decisions — except about narrowly defined topics, such as lawsuit strategies and negotiating positions on land deals, among others.

“To deliberate behind closed doors and issue a ruling — that’s an obvious, plain and unambiguous violation of the Open Meetings Law,” Denver media attorney Steve Zansberg told The Colorado Independent in an earlier interview. “Even if it’s properly convened, they cannot reach a decision, they cannot adopt a position in executive session.”

Zansberg’s law partner, Christopher Beall, is representing the Independent in its lawsuit alleging the ethics commission repeatedly violated open meetings law.

Near the end of the four hours and 20 minutes the commission met behind closed doors on March 19, commissioners forge toward consensus on an ethical question posed by state lawmakers: Do expenses paid by inter-governmental groups fall inside or outside a constitutional ban against gifts to public officials?

In the fourth clip from the March executive session, the discussion lasts one hour, 13 minutes. It’s almost solely devoted to the lawmakers’ question, which the commission still hasn’t answered yet, at least not in public. The commission considers two requests for an opinion, one from the General Assembly and the other from state Sen. Greg Brophy. Does the National Council of State Legislatures and the American Legislative Exchange Council’s designations as “joint governmental agencies” means the groups can pick up the tab for conferences or is that contrary to provisions of Amendment 41?

Here’s the audio from the fourth portion of the March 19 Independent Ethics Commission meeting. To download the mp3 file, right-click on the link. Listen to the recording here:

It’s a thorny question and one that goes to the heart of a central dilemma the commission has faced trying to interpret the sweeping ethics law passed by voters in 2006. When is a payment considered a gift to the state, which is allowed, and when is it a forbidden gift to the individual public official?

After debating the question for close to an hour, commissioners zero in on decision time.

“We have been worrying over this for probably nine or 10 months now, and it is time to give birth to an opinion,” commission chairwoman Nancy Friedman says. “So let’s just decide where we want to go and get this thing out.”

She puts it to her fellow commissioners. “We have to just make a decision,” Friedman says.

“But we can’t decide!” commissioner Sally Hopper exclaims.

“All we have to do is vote,” commissioner Roy Wood remarks.

Then there’s some back-and-forth about whether the commission wants to answer the General Assembly’s or Brophy’s question, or to tackle one head-on and address the other in a footnote. Maybe the commission can answer Brophy’s question in a letter — which would be subject to a Colorado Open Records Act request but otherwise not announced — and put it in a drawer rather than issuing a public opinion. Eventually, Friedman proposes a solution.

“OK. Everybody agree?” Wood asks. Murmurs of assent.

The commission moves into more detailed discussion about definitions and considers how some other states have handled the question.

As the commission prepares to conclude its closed-door meeting and move back into public session, Friedman asks the commission if they’ve reached agreement. They have.

“Where we are is that we’re just doing those three [particular inter-governmental agencies], we’re answering the General Assembly, and we’ve decided that those three are governments,” she says. “Is that where we are?” Hearing no objection, the conversation plunges ahead.

After some brief discussion, Hopper and commissioner Matt Smith propose a way for the panel to approach the commission’s ruling. They are answered with a chorus of “yeah” from the other commissioners.

Problem solved, decision made. Except that this decision would be either short-lived or still-born — more than five months later, the commission still has yet to issue a public ruling on the question. If the March 19 discussion had taken place in public, someone might have asked what happened to the decision, but since no one outside the commission knew about it until this week, no one has.

Listen to more recordings of the ethics commission’s closed-door meetings here.

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DENVER — Colorado’s top ethics panel agreed Friday to release unedited audio recordings of two secret meetings and plans to turn over redacted recordings of five additional closed-door meetings conducted earlier this year.

The announcement came during a hearing in Denver District Court on a lawsuit filed by The Colorado Independent alleging the Colorado Independent Ethics Commission illegally met behind closed doors a dozen times between January and May.

An attorney for the commission said no recordings exist for five of its closed-door executive sessions, chiefly when commissioners talked about a formal complaint filed — and later dismissed — against U.S. Rep. Mike Coffman alleging ethical misconduct while he was Colorado’s secretary of state.

Chief Judge Larry Naves said he would rule later this month whether the commission can withhold portions of audio recordings its attorneys argue should be protected from public disclosure.

At issue is whether the ethics commission complied with Colorado’s strict Open Meetings Law by properly convening its numerous secret meetings, or, as the lawsuit filed by The Colorado Independent alleges, the commission repeatedly violated the law by failing to follow required procedures and, once huddled behind closed doors, held discussions state law says the public has a right to witness.

“All the commission’s actions were done in good faith,” a lawyer representing the commission, Assistant Attorney General Lisa Brenner Freimann, told Naves. “There was no intent to deceive anyone.”

“We don’t dispute the commission had good faith,” said Christopher Beall, the attorney representing The Colorado Independent. “It just isn’t relevant.”

Panel might seek change in law

Also at Friday’s hearing, the ethics commission’s director said the panel is considering asking the State Legislature to tighten restrictions on what the commission has to reveal to the public following a May ruling that forced the release of letters from lawmakers and government employees asking for guidance on ethical questions.

“The commission was very upset by [Denver District Judge Norman] Haglund’s decision,” said executive director Jane Feldman during testimony Friday on the open meetings lawsuit, “and there have been discussions about seeking changes in legislation because they are very concerned about confidentiality.”

The ethics commission went to court in May to keep submissions to the commission secret, arguing that releasing records to Colorado Ethics Watch would harm the public interest by discouraging officials and others subject to state ethics laws from seeking advice. In an unusually swift decision, Haglund ordered the commission to turn over documents sought by the watchdog group and said concern about a “chilling effect, while sincere, is merely speculation.”

The ethics commission was back in court Friday arguing its closed-door executive sessions — amounting to 85 percent of the time the commission met in the first part of the year, according to a Colorado Independent analysis — were convened properly. Freimann asked the court to let the commission decide how much of the recordings of those meetings to release.

“They can have the entire tape of the March 19 and April 21 meetings,” she said, adding that closed-door discussions in those recordings don’t contain any of “the three very narrow categories we are seeking to protect.”

The ethics commission also plans to turn over hours of recordings from another five meetings after government lawyers finish erasing segments the commission wants to keep confidential.

Freimann argued the commission is forbidden by law from releasing any discussions about complaints alleging ethical misconduct later dismissed as “frivolous,” and the names of people — usually lobbyists — who ask for so-called letter rulings on ethical questions. The commission also wants to keep under wraps instances when its attorneys offered legal advice, though in many cases Feldman simply stopped the recording during those discussions.

Media attorney: Portions aren’t enough

The attorney for The Colorado Independent said releasing only portions of the recordings wasn’t enough. Arguing the ethics commission consistently violated state open meetings laws, Beall asked the judge to decide whether the commission proved its executive sessions were convened according to exacting legal requirements. If not, Beall argued, “then its closed meetings were improper and the records of those meetings must be released in their entirety.”

In particular, Beall pointed to a legal requirement that government bodies planning an executive session identify “the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized.” Beall cited court rulings that ordered recordings released when public notices hadn’t gone into enough detail or accurately described proposed executive session topics.

Before The Colorado Independent published a series of stories about secrecy at the ethics commission, the commission routinely posted public notices describing its executive sessions only as “[d]iscussion pertaining to requests for advisory opinions and complaints filed with the Commission.” The commission announced just once that it planned to discuss the complaint against Coffman behind closed doors, and even then only noted the complaint number.

“In every case, it was possible to provide more detail,” Beall told the judge after questioning Feldman about the public notices for a dozen of the commission’s closed-door meetings.

After The Colorado Independent reported on the commission’s public notices and filed a lawsuit alleging they were insufficient — and following a ruling on Colorado Ethics Watch’s lawsuit about whether submissions to the commission could be kept confidential – the commission drastically changed how it posted executive session topics. Starting at its June 16 meeting, the commission began describing individual court cases up for discussion and listing complaints it intended to consider.

Also, starting at its May 19 meeting, the commission brought its deliberations on ethical questions posed by public officials into the open, rather than discussing them entirely behind closed doors as the commission had done previously.

“We’re opening things up,” said former State Rep. Matt Smith, the commission’s new chairman, at the June 16 meeting.

Feldman testified that, up to that point, commissioners had “just assumed that’s what they should do,” based on the practices of other ethics commissions, including the one in New York City, “where everything they do is confidential.”

Former ethics commission chairwoman Nancy Friedman, an Evergreen attorney, worked at the New York commission before moving to Colorado. Her term on the commission expired last month.

“The first time they discussed an advisory opinion, they went into executive session,” Feldman said, adding she wasn’t sure if an attorney had advised the commission to handle things that way.

“The commission went into executive session to keep confidential what they felt they needed to keep confidential in order to make the commission run and have people feel free to ask for opinions,” Feldman later testified.

Questions on ‘deliberations’ still open

Friday’s hearing didn’t address other allegations made in The Colorado Independent’s lawsuit: that the commission broke the law by conducting deliberations behind closed doors; that members reached conclusions which were subsequently rubber-stamped by the panel with unanimous votes after convening again briefly in public; and that the commission improperly excluded the public from discussions with its attorneys about matters state law required to be conducted in the open.

This week, state open meetings law changes to allow state government bodies to confer with attorneys in private about general legal matters. Previously, only local-government bodies could shield the public from routine legal discussions, while state bodies could only meet in private to discuss “pending or imminent litigation.” The commission regularly retreated to executive session for advice from its attorneys on all sorts of topics, including hours spent discussing and deciding the Coffman case, though almost none of those discussions were recorded.

If Naves decides the ethics commission convened its executive sessions properly, the next step could be an “in camera” review where the judge listens to recordings of the closed-door meetings to determine whether the panel held discussions Colorado law doesn’t allow in secret.

Colorado’s Open Meetings Law allows government officials to go into executive session to discuss certain personnel questions, pending land deals and lawsuit strategies, among other matters, though it requires public officials follow procedures strictly.

“The default position is, the public’s business will be done in public,” Beall said at Friday’s hearing. The State Legislature has created some narrow exceptions, Beall said, but “it shouldn’t happen often, and it shouldn’t be a regular occurrence.”

During the first four months of 2009, the ethics panel met regularly and often in secret — behind closed doors for 42 hours, 15 minutes, and in open session for just 7 hours, 30 minutes — to formulate decisions on ethical questions, only to emerge with rulings ready to be adopted by commissioners in swift, unanimous votes without any public discussion.

State courts have ruled that merely voting in public on questions decided in secret amounts to “rubber-stamping” and is no defense against allegations a public body violated Open Meetings Law, said Beall’s law partner, Steve Zansberg, who also represents media organizations in public-access cases.

In April, the ethics commission handed down a unanimous, 18-page ruling dismissing the complaint filed against Coffman after meeting numerous times in secret and on private telephone conference calls. At one public meeting in March, Friedman announced “deliberations in 08-01 [the Coffman complaint] are in process and a decision will be forthcoming,” though no deliberations took place in public, and the commission issued its unanimous ruling without holding a public vote.

“To deliberate behind closed doors and issue [an 18-page] ruling — that’s an obvious, plain and unambiguous violation of the Open Meetings Law,” Zansberg told The Colorado Independent in an earlier interview. “Even if it’s properly convened, they cannot reach a decision, they cannot adopt a position in executive session.”

Public to hear some discussions

Freimann said the commission will release audio recordings of the March 19 and April 21 executive sessions as soon as copies can be made — within a matter of days — and plans to turn over recordings of another five meetings later, after officials finish redacting portions.

At the March 19 meeting, commissioners met in executive session for 4 hours, 20 minutes — including a brief, unscheduled discussion about personnel matters — and met in public for only 55 minutes. According to records submitted to the court, the commission taped just 3 hours, 19 minutes of its closed-door meetings that day.

On April 21, the commission spent 45 minutes meeting in public and 4 hours, 40 minutes in executive session. The commission only recorded 2 hours, 31 minutes of its private discussions.

While the public notice describing the April 21 executive session was the standard “[d]iscussion pertaining to requests for advisory opinions and complaints filed with the Commission,” Feldman testified commissioners also talked about a lawsuit filed against the commission, as well as conducted a performance review and discussion about Feldman’s salary during that closed-door meeting.

The commission mistakenly failed to record discussions at two executive sessions, Feldman testified, including a Feb. 20 meeting when she said “it may just be in the chaos of the meeting I didn’t properly turn the recorder on” after commissioners finished talking about a topic she said didn’t have to be recorded.

A brief, impromptu executive session about personnel matters at an April 16 meeting also wasn’t taped. “I just forgot to record it,” Feldman said.

The commission did, however, accidentally record about 15 minutes of a Jan. 23 discussion about the Coffman case its lawyer didn’t want recorded. Describing the recording, which the commission’s attorneys have already handed over to the court, Feldman said it winds up with an attorney saying, “Is the tape on? The tape should not be on.” Feldman testified she stopped the recording at that point.

The state ethics commission was created in 2006 when voters approved Amendment 41, sold as a measure to increase accountability and transparency in government. The five-member commission is tasked with investigating ethical violations and enforcing ethical standards for public officials and government employees. Its members are appointed by the governor, both chambers of the General Assembly, the Colorado Supreme Court and the commission itself.

If the court rules against the ethics commission, it would be required to pay The Colorado Independent’s attorney fees, which could come at an especially hard time for the cash-strapped government body. At an ethics commission meeting last week, commissioners decided to cut a proposed second staff position from full-time to just over half-time to comply with an order by Gov. Bill Ritter that state agencies trim budgets by 10 percent in anticipation of a massive revenue shortfall.

Beall represented The Colorado Independent and two newspapers, the Coloradoan of Fort Collins and the Pueblo Chieftain, in another recent lawsuit over open meetings. Last month, the Colorado State University System Board of Governors settled that lawsuit by agreeing to release recordings of a secret meeting where the board picked a new system chancellor, as well as paying $19,000 to cover the media organizations’ attorneys fees.

Colorado Independent editor John Tomasic praised the commission’s recent moves toward more openness and transparency.

“We are pleased the ethics commission has decided to start releasing the recordings we asked for nearly three months ago,” Tomasic said in a statement.

“Here in Colorado, we’re used to the public’s business being conducted in public,” Tomasic said. “Colorado law demands great public access and public oversight of our government, and this is particularly crucial for the government body charged with holding all the others to the highest standards.”

The Colorado Independent is published by the Center for Independent Media, a non-profit and non-partisan organization that also publishes The Washington Independent in the nation’s capital, and state-focused politics and policy news sites in Iowa, Michigan, Minnesota and New Mexico.

Got a tip? Freelance story pitch? Send us an e-mail. Follow The Colorado Independent on Twitter. And we’re hiring.

(Photo/drinksmachine, Flickr)

Six weeks after an investigation by The Colorado Independent found repeated violations of the Colorado Open Meetings Law by the Independent Ethics Commission, the panel charged with enforcing ethical standards among public officials across the state has taken dramatic steps toward greater transparency and disclosure.

At the same time, a lawyer from the Colorado attorney general’s office continues to advise the commission to go into closed, executive sessions to talk about general legal questions despite the Open Meeting Law’s requirement those discussions take place in public whenever state officials meet.

Last month, The Colorado Independent reported the ethics commission spent 85 percent of its time meeting behind closed doors to discuss complaints and requests for rulings on the conduct of public officials and government employees. Included were sessions where a member of the panel reported deliberating on an ethics complaint — since dismissed — against Mike Coffman, the former Colorado secretary of state who won election to Congress last fall.

An attorney who specializes in First Amendment law said the panel didn’t appear to have “strictly complied” with Colorado’s stringent Open Meetings Law, which could render its numerous closed-door, executive sessions “illegal meetings” that were closed to the public.

Since The Colorado Independent published the results of its investigation, the state ethics commission has, for the first time:

• Posted a public notice listing specific lawsuits filed against the commission which commissioners plan to discuss with their attorneys behind closed doors.

• Discussed in public ethical questions under consideration by the panel.

• Recorded votes by commissioners to go into closed, executive session, as required by state law,

• Listed ethical complaints filed with the commission against public officials before convening in private to discuss whether the commission should pursue them,

• Added an agenda item for public comment for its regular meetings,

• Released to the public records the commission went to court to keep secret, including letters from lawmakers and government employees asking for guidance on ethical questions.

New ethics panel chairman sees the light

“We’re opening things up,” said Matt Smith, the ethics panel’s chairman since April and a former state representative from Grand Junction, as the initial public portion of the commission’s June 16 meeting concluded.

Smith had just announced the panel’s intentions to go into executive session to discuss several lawsuits against the ethics commission. For the first time, the public notice posted by the commission — read aloud by Smith — listed specific lawsuits commissioners planned to review, as well as enumerating complaints the panel planned to consider in private.

Colorado law requires public boards to announce “the topic for discussion in executive session, [including] identification of the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized,” according to First Amendment attorney Steve Zansberg.

Among the court actions the panel discussed in private at its June 16 meeting was a lawsuit filed last month by The Colorado Independent by Zansberg’s law partner, Denver attorney Chris Beall, alleging the commission had failed to convene its executive sessions lawfully 16 separate times since January. The lawsuit asks a Denver District Court judge to order the commission to turn over recordings and notes from the closed meetings and seeks a court order “barring the Commission from continuing its pattern of illegal closed-door meetings.”

The state ethics commission was created by voters in 2006 with the approval of Amendment 41, sold as a measure to increase accountability and transparency in government.

As recently as last month, the five-member commission routinely met in secret to formulate policy and adopt positions on questions about ethical conduct by public officials, a practice forbidden by Colorado’s strict Open Meetings Law. The Colorado Independent’s investigation also found the panel didn’t specify topics planned for discussion, failed to record required votes to go into closed-door executive sessions, and in some cases didn’t even convene in public before meeting in private, as the law requires.

Colorado’s Open Meetings Law allows government officials to meet behind closed doors to discuss personnel questions, pending land deals and lawsuit strategies, among other matters, though it requires officials follow procedures strictly. The law places exacting restrictions on topics officials may discuss outside the public view.

Beall is representing The Colorado Independent, the Fort Collins Coloradoan and the Pueblo Chieftain in another lawsuit filed last month against the Colorado State University System Board of Governors for alleged repeated violations of Open Meetings Law during the board’s selection of a new system chancellor.

Since the ethics commission learned of The Colorado Independent’s lawsuit, and following a series of stories by TCI documenting legal questions surrounding the panel’s compliance with the Open Meetings Law, the commission has deliberated in public for the first time on ethical questions submitted by public officials. At its May 19 meeting commissioners finalized a ruling on an official’s inquiry about accepting a fellowship, and at its meeting June 16, commissioners hashed out the legality of government employees accepting prizes.

Previously, the commission went behind closed doors to formulate its position on ethical questions, only to emerge with complete rulings ready to be adopted in unanimous public votes. State courts have ruled that merely voting in public on matters decided in secret amounts to “rubber-stamping” and is no defense against charges a public body violated Open Meetings Law, Zansberg said.

State attorneys inconsistently interpret Sunshine law

Despite the ethics commission’s recent moves toward increased transparency, the panel continues to retreat behind closed doors to get advice from attorneys on topics state law requires be discussed in public.

On two occasions at its June 16 meeting — one involving questions whether a commissioner tried to influence a hiring decision and another over whether the commission could pay professional dues for its executive director — the attorney advising the ethics commission suggested she could give commissioners legal guidance in executive session.

That’s not permitted by Colorado’s Open Meetings Law, Beall said. Not yet, anyway.

“The statute requires that particular discussion has to happen in the open,” he said, pointing to a quirk in the decades-old law that allows local government bodies to get private advice from their attorneys but strictly limits the topics state boards and commissions can discuss with theirs.

State officials can only meet in secret for “[c]onferences with an attorney representing the state public body concerning disputes involving the public body that are the subject of pending or imminent court action,” according to the Open Meetings Law. In other words, it’s fine for state bodies — including the ethics commission — to talk with their attorneys about lawsuits in executive session but other topics are forbidden and must be discussed in public.

“Counsel for [the ethics commission] has been going into executive session to discuss legal questions with counsel,” admitted Mike Saccone, spokesman for the office of the attorney general, which provides lawyers to advise state commissions.

The state attorney advising the ethics commission at its June 16 meeting, First Assistant Attorney General Ilene Wolf-Moore, told The Colorado Independent the commission would be going into executive session to hear advice from her and another attorney on legal questions raised during the meeting. When a TCI reporter objected, citing the statute’s restriction of topics to “pending or imminent court action,” Wolf-Moore simply repeated her statement.

“All of our attorneys general had adhered to the core text of the Open Meetings Law,” Saccone said, while acknowledging that “some had interpreted the statute to discuss other legal matters with their boards.”

Noting that the law is about to change, Saccone described how attorneys in the attorney general’s office have been taking different approaches to the law.

“Prior to July 1, different attorneys had interpreted it in different ways while holding to its core provision,” Saccone said. “Some were interpreting it as applying to attorney-client privilege.”

AG Suthers lobbied to change the law

Beall scoffed at the notion some attorneys with the attorney general’s office were interpreting the law to allow closed-door discussions not permitted by the law. As proof the attorney general’s office has known full well what the law allows — and what it forbids — Beall described how the attorney general has spent much of this year working to get the law changed.

“Attorney General John Suthers acknowledged it was not permissible under the statute to have an executive session to discuss matters with an attorney beyond pending or imminent litigation,” Beall said.

“The attorney general of the state of Colorado knows what the law is now, and that is the reason why he pushed for an amendment to the law,” Beall said. “The fact some of his deputies might be stretching the law doesn’t change the fact the law doesn’t allow them to go into executive session to give legal advice on other matters. It’s real clear, the statute doesn’t authorize it.”

But that’s about to change.

“In two more weeks, it will be legal to do what they did,” Beall said.

On July 1, a revision to the Colorado Open Meetings Law goes into effect allowing state government bodies to get advice from attorneys the same way local government bodies — city councils, county commissions, school boards — have been able to do for years.

In addition, the law will no longer allow state panels to stop recording executive session proceedings when receiving advice from attorneys. Up until July 1, state panels have only been required to record closed-door sessions when discussing other matters. The requirement was put in place so that judges can examine what was said during executive sessions when challenges to the session’s legality arise.

For his part, Saccone said the attorney general’s office is already anticipating the revised law.

“We’re training our people ahead of time, getting together with various attorneys so we’re all on the same page and implementing the new statute the same way,” he said.

(Photo/Monocle, Flickr)

In a lawsuit filed in Denver District Court, the Independent argues the ethics commission failed to convene its executive sessions lawfully 16 separate times and asks the court to order the commission to produce recordings and notes from the meetings. In addition, the lawsuit seeks a court order “barring the Commission from continuing its pattern of illegal closed-door meetings.”

The lawsuit asks a judge to “immediately” issue an order setting a hearing where the commission would be required to explain why it won’t release recordings of its private meetings. In addition, the lawsuit asks a judge to listen to recordings of the commission’s closed-door sessions to determine whether commissioners adopted positions in secret or talked about matters the law requires public officials discuss in public.

The government lawyer who handles legal matters for the commission, Senior Assistant Attorney General James Carr, didn’t respond to a request for comment. The ethics commission’s policy is to decline to comment on pending litigation.

An investigation by The Colorado Independent found the ethics commission has spent 85 percent of its time meeting in secret this year, including self-described “deliberations” on an ethics complaint filed against U.S. Rep. Mike Coffman that alleged he had conflicts of interest when he served as Colorado secretary of state. The commission dismissed the complaint against the Aurora Republican in a lengthy ruling issued after numerous closed sessions.

Routinely, the commission has retreated behind closed doors for hours only to emerge with rulings ready to be adopted in brief public sessions with unanimous, formal public votes. State courts have ruled that voting in public on matters decided in secret amounts to “rubber-stamping” and is no defense against charges a government board violated the state’s strict Sunshine Law, according to the lawsuit.

Two weeks ago, the ethics commission denied a Colorado Open Records Request filed by The Colorado Independent for recordings and minutes of more than a dozen closed-door meetings held this year, saying the records are confidential under Colorado Law. A week ago, the commission denied a second open-records request by the Independent seeking recordings of a private telephone conference the commission held in April after failing to notify the public it planned to meet in secret. In its denial, the commission said the recordings were confidential and the meeting “was duly noticed under Colorado law.”

In the requests, the Independent argued the meetings were illegally closed to the public because the commission didn’t sufficiently specify topics to be discussed, failed to record required votes to meet in secret, discussed topics that aren’t exempt from the state’s strict Open Meetings Law, and in some cases didn’t even convene in public before meeting in private, as the law requires.

Colorado’s Open Meetings Law allows government officials to meet behind closed doors to discuss personnel questions, pending land deals and lawsuit strategies, among other matters, though it requires that officials follow procedures strictly. The law places exacting restrictions on topics officials may discuss in secret.

The state ethics commission was created by voters with the passage of Amendment 41, promoted as a measure to increase government accountability and transparency. The five-member panel is charged with investigating ethical violations and enforcing ethical standards for public officials and government employees. Its members are appointed by the governor, state legislature, Colorado Supreme Court and the commission itself.

The lawsuit was filed by Denver attorney Chris Beall, who is also representing The Colorado Independent and two newspapers, the Coloradoan and Pueblo Chieftain, in an open-records lawsuit alleging a Colorado State University board held illegal meetings when it hired a member of its own board to serve as chancellor.

The case has been assigned to Denver District Court Chief Judge Larry J. Naves as Case No. 09-cv-5109 in Division 6.

The Colorado Independent is published by the Center for Independent Media, a non-profit and non-partisan organization that also publishes The Washington Independent in the nation’s capital, and state-focused politics and policy news sites in Iowa, Michigan, Minnesota and New Mexico.