(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.

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

(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.

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

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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.

Judge Stephen Schapanski’s ruling comes in a case brought by The Colorado Independent, the Fort Collins’ Coloradoan and the Pueblo Chieftain, which argued the university violated state open-meetings laws in its search for a chancellor.

On request of the media organizations, Schapanski first considered whether there was sufficient reason for him to review the complete May 5 meeting recording to decide whether the board’s discussion should be entered as evidence in the case. CSU fought against the “in camera” review and lost.

Today’s order to release an additional 95 minutes of the board’s recorded discussion on Blake’s candidacy — in addition to the hour already made public — comes as a result of the “in camera” review. Schapanski methodically dismissed arguments made by the university attorneys — arguments the Colorado Independent characterized as “lawyerly” when they were filed.

The CSU attorneys claimed that the May 5 private executive session did not violate state open-meeting laws because the board was merely discussing legal matters and that Blake had recused himself a few days earlier from his position as vice chairman of the board.

“The Court finds that the Defendant Board did deliberate on the candidacy of Mr. Blake for the Chancellor’s position during the May 5, 2009 executive session. The Court further finds that such deliberation does not constitute the Defendant Board’s receiving legal advice from its attorney on a specific legal question… Since Mr Blake was a member of the Defedant Board at the time of the May 5, 2009 executive session, the Court finds that the Defendant Board’s deliberation of Mr. Blake’s candidacy could not properly be closed to the public, and that any such deliberation in executive session violated [the state's open meeting laws].”

The judge described the board’s public meeting as merely perfunctory, saying it was a formality held to codify the Blake hiring, which had been decided upon in secret.

The [recording] makes it abundantly clear that the Defendant Board adopted the proposed position of selecting Mr. Blake as the sole finalist for the Chancellor’s position during the May 5, 2009 executive session. … The public vote, without any further discussion or deliberation, was nothing more than a “rubber stamp” of the decision already made in executive session.”

Michele McKinney, spokeswoman for the Board of Governors, said in a terse statement: “The Colorado State University System Board of Governors is reviewing the judge’s order and will be considering its options in the next few days.”

The Court will deliberate in coming weeks on the larger issue of whether the CSU Board of Governors violated state transparency laws.

If CSU loses the court battle, it will likely have to pay the media organizations’ attorneys fees at a time when the university is suffering major budget shortfalls and laying off staff and faculty across departments.

CSU is being sued by The Colorado Independent, the Fort Collins Coloradoan and Pubelo Chieftain for violating state open-meeting laws. Larimer County judge Stephen Schapanski earlier ordered CSU to turn over the meeting recordings so that he could review them in chambers to determine, in part, how the court should proceed.

Before Schapanski could do so, however, CSU filed a motion arguing that the plaintiffs sued before asking for the recording and that the plaintiffs’ lawyers failed to do the proper paperwork to allow the judge to listen to the recording. CSU is asking that, for those reasons, the judge throw out the case.

The motion, filed late Wednesday, was just the latest of the “lawyerly” arguments put forth by the CSU defense team in a case that is really about widespread suspicion of insider-dealing and cronyism in the hiring of Blake to head the public university. As chancellor, Blake will command a, as yet undisclosed, tax-funded salary and will significantly influence how the university spends its large tax-based budget.

In papers submitted to the court yesterday, lawyer for the plaintiffs Christopher Beall said the CSU attorneys are stretching legal reasoning in the motions, hoping something will stick and running up costs. Beall said CSU’s requests are mere delay tactics.

“The net result… of the defendant’s unreasonable and frivolous position is to increase the cost of this litigation.”

The Coloradoan:

CSU’s lawyers argue that because chancellor-select Joe Blake temporarily recused himself as the vice chairman of the board during deliberations about his candidacy, the board broke no laws in discussing him behind closed doors.

[In response to a] lawsuit filed by the Coloradoan [the Pueblo Chieftain and the Colorado Independent] lawyers for CSU deny the Board of Governors broke the law… The response was filed shortly before midnight Monday and asks a judge to throw out the suit because there is “no genuine issue of material fact.”

[...]

The suit also accuses CSU of breaking the law by failing to post a comprehensive notice specifying what the board would be discussing during several meetings.

CSU argues that because board members and their attorney didn’t know exactly what they would be talking about before the meetings, they provided as much information as was reasonably possible.

Blake is set to be hired as chancellor of the CSU system in June. He was the board’s vice chairman until late May and helped create the standalone chancellor position when Larry Penley quit the historically conjoined president/chancellor position in November.

In its response to the suit, CSU also argues that because the board took the votes to name Blake the sole finalist in public, it didn’t break the law.

The board first took the votes during closed session, then came out of the executive session and retook them publicly and without explanation or discussion. The board released a partial recording of that meeting after the media organizations sued.

CSU was forced to turn over recordings of the May 5 closed-door meeting to Larimer County Judge Stephen Schapanski. Schapanski is set to rule on the case later in the month.

The historic administration building at Colorado State University. (Photo/Jason Kosena)

Spurred by news of events surrounding the search over the last month, Colorado Ethics Watch, Colorado Common Cause and New Era Colorado have asked the CSU governing board to restart the search for chancellor candidates, opening up the process to students, faculty and the community and working to restore integrity to the search.

“Nothing short of restarting the process will restore integrity to the search and to the hire,” said Colorado Ethics Watch Director Chantell Taylor speaking for the coalition. The three groups have never before formally worked in concert on an issue.

“In discussion this week, we came to the decision to take action. We decided to try to stop the clock, to stop the process from going forward because we felt that that was something CSU could actually do.”

The groups reportedly sent their request to the governing board as well as to Joe Blake specifically. Blake is vice chairman of the board and was selected for the chancellor position on May 5 by the board’s search committee in an insular process that many observers — including CSU faculty and students, state lawmakers and members of the press — have criticized as vulnerable to closed-door dealmaking and cronyism.

Blake voted with the board in December to create the new standalone chancellor position. He has admitted to weighing a run for the position for months, and rumors of his candidacy echoed across CSU campuses and in the halls of the Capitol as the candidate search proceeded. On April 29, four months into the search, Blake met privately with the board’s lawyer and with Board Chairman Doug Jones, who has worked with Blake at the Denver Chamber of Commerce. Blake submitted his application for the chancellorship that same day and was selected sole finalist a week later during a closed-door executive session of the board in what appears a clear violation of state open-meetings laws.

Blake’s selection came on the same day lawmakers in Denver were set to vote on a bill that would have set transparency guidelines on university leadership selection in the state and for the CSU chancellor search in particular. The sudden announcement of Blake as sole finalist “ended the urgency” to try to pass the new law, according to House Majority Leader Paul Weissmann, the bill’s sponsor.

Taylor said she is reassured by CSU’s initial response. University spokeswoman Michele McKinney communicated with Common Cause’s Jennifer Flanagan, saying she would “follow up with the board office” to distribute the groups’ request.

“If we get a response from CSU, that’s a first step. It would be on the radar,” said Taylor. “Our issue is not with Joe Blake. The point is to establish a process with guidelines — for the communities involved but also for the search committees, for the [public university] boards in the state. That way we all know the parameters. Guidelines will just strengthen the process.”

CSU is currently being sued by The Colorado Independent and two newspapers — The Coloradoan in Fort Collins and the Pueblo Chieftan — for violating Colorado’s open-meetings laws.

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** Edit Note: An earlier version of this story reported that CSU’s McKinney spoke with Colorado Ethics Watch Director Chantell Taylor. She did not. She emailed with Common Cause’s Jennifer Flanagan, as reflected in the version above.

It’s the latest news to come dribbling out of the CSU board rooms since the controversial chancellor search ended with the sudden May 6 announcement of Blake as the sole finalist for the position.

But there will be more news to come.

The Colorado Independent, the Coloradoan and The Pueblo Chieftain have sued CSU for violating state open-meeting laws by discussing Blake’s candidacy in closed-door executive session. Attorneys for the plaintiffs say state law prohibits public bodies from meeting in private to discuss their own members. The lawsuit concerns the May 5 meeting after which Blake was named the sole finalist and the April 29 executive session between Blake and Board Chairman Douglas Jones.

As Vice Chairman of the CSU Board, Blake played a key role in the decision arrived at in December to create a stand-alone chancellorship at the university. He did not, however, join the search committee formed to nominate candidates for the position. Committee members were prohibited from applying for the chancellorship.

As the Colordoan reports, although Blake did not submit his application for the chancellorship until the end of April — the day of his secret meeting with Board Chairman Jones — legislators had been hearing that Blake was a top candidate for months. Fellow board member Pat Grant nominated Blake for the chancellorship earlier in April. Both Grant and Jones are former board members of the Denver Metro Chamber of Commerce, which Blake has headed for the last decade.

This latest information — concerning Blake’s timely closed-door meeting with Board Chairman Jones — fuels perception that the Blake selection was on some level a pre-determined conclusion orchestrated from the inside, exactly the kind of maneuvering lawmakers are seeking to prohibit when it comes to filling major tax-funded positions that come with the power to guide major public institutions like a state university.

The secretive CSU chancellor search riled lawmakers and observers who demanded greater transparency in the process. Frustrated leaders in the state legislature eventually introduced a bill requiring the CSU board to open up the process. The congressional leaders abandoned the bill, however, the same day the CSU board made its surprise announcement that the search was over and that Blake was the sole finalist.

Join the AM 760 livestream at the “Listen Up” link.

Bonus track: The Coloradoan’s Bob Moore is chatting now about the open meetings lawsuit filed by the Fort Collins-based paper, the Pueblo Chieftain and the Colorado Independent last week against the Colorado State University Board of Governors. We have requested a Larimer County judge review recordings of board meetings to determine whether violations occurred during its secretive, closed-door selection of the CSU system chancellor.

The suit filed in Larimer County District Court Wednesday requests that a judge review audio recordings of board meetings held on April 28-29 and May 5 to determine whether violations occurred when board vice chair Joe Blake’s application for the chancellorship was discussed by fellow board members.

Colorado Open Meetings Law allows boards to go into a properly announced executive session to discuss personnel issues, such as the appointment or hiring of a state employee. However, the law prohibits closed-door meetings when discussions involve a member of a public body, like the system’s board of governors.

If a judge determines a violation has occurred, the media consortium demands that any and all recordings of the three meetings be made public.

The contentious and highly secretive chancellor selection process has been the focus of a two-week Colorado Independent probe following an initial investigative inquiry of questionable financial and management decisions by then-CSU President and Chancellor Larry Penley.

Penley subsequently resigned mid-semester under a cloud of suspicion and a $389,000 golden parachute.

The CSU System Board, led by Blake and Chairman Doug Jones, announced shortly after Penley’s resignation that the previously dual position would be split into two separate roles: a Fort Collins campus presidency and a system-wide chancellorship to over see the land grant university’s flagship northern campus, CSU-Pubelo and its global campus for online learning.

Amid weeks of rampant rumors of likely applicants, including retiring U.S. Sen. Wayne Allard and a host of recently defeated state politicians and former White House officials, CSU announced Tuesday that fellow board member Joe Blake was its one and only pick for chancellor — fueling further concerns that Open Meetings Laws could have been breached.