By Emile Hallez and Doug Bell
The Jeffco library board is playing fast and loose with the state’s Open Meetings Law, possibly committing several violations in two recent executive sessions.
Several provisions of the law, which restricts closed-door discussions by public bodies to specific topics named in advance, appear to have been breached:
• The board appeared to offer the library system’s executive director position to a candidate on the phone without ever taking a public vote to make the job offer.
• The board discussed topics not covered under the justification given for the secret sessions.
• Board members revealed that they had discussed a candidate for the executive director post via e-mail. A quorum of a public body holding public policy discussions via e-mail is not permitted under the Colorado Open Meetings Law.
Following an open-records request by the Columbine Courier, the library board allowed access to audio records of the two executive sessions, on the advice of the county attorney.
Though several board members said they recalled little about the exact discussions during the two closed meetings, they conceded that parts of the discussions might not have been within the law. But some, if not all, of the apparent violations might simply be a matter of interpretation, some said.
“I know the county attorney has come to a different conclusion about whether we were in executive discussion at the time, and we live by their advice,” library trustee T.J. Carney said. “We thought we were in executive session on the recruitment of an executive director.”
A job offer without a public decision
In an Aug. 25 executive session, board members held a follow-up interview with Cynthia Kolaczynski, their top candidate to succeed former executive director Marcellus Turner. Though board members did not appear to have a contract ready and had not taken a public vote to offer the job to Kolaczynski, the discussion indicates the board had extended an offer.
“I think it’s important for you to know that we are all very anxious for you to say ‘yes,’ because we really enjoyed our interview with you; we like the way you think, and the vitality, energy and forward progression that you would bring to our system,” trustee Ruth Anna said to the candidate.
“Do you think it would be possible for you to make a decision before the Labor Day weekend?” trustee Linda Rockwell said to Kolaczynski during the closed meeting. “We’re prepared right now to talk about anything you’d like to discuss regarding compensation or benefits.”
Topics outside scope of exec session
The Open Meetings Law allows closed sessions to address very specific topics, and only the topic cited before entering the executive session may be discussed. However, two members of the board discussed the library’s budget after the phone interview with Kolaczynski ended.
Specifically, Anna took issue with the board’s handling of its budget and how the budget was likely being viewed by library staff and the county commissioners.
“(It) bothers me because we’re not submitting a sustainable budget. I told you this on the phone. Well, it suddenly dawned on me. Everything finally registered this weekend, and I really feel guilty, because we have not submitted a sustainable budget. Why should the county commissioners give us money, when we are not telling them we can get by without tax increases?” she said. “I’m sorry, but we made some serious mistakes.”
Rockwell said she disagreed with the statement, and no other board members commented further.
Anna, a member of the Freedom of Information Council, said later that she didn’t recall which board members she had been talking to on the phone.
When asked later about the budget discussion, Anna said it was a mistake.
“I think that may be me just spouting off. … That’s called being human,” she said. “It was just making a comment, a personal opinion.”
Public business conducted via e-mails
At the beginning of a Sept. 5 executive session, Rockwell began by noting that an e-mail she’d sent to all trustees seeking their opinions about another executive director candidate had elicited only one reply.
Though all trustees potentially saw the e-mail prior to the meeting, board members disputed whether it could be considered an open-meetings violation. But the law clearly prohibits public business being conducted by a quorum of a public body through e-mail or phone calls.
“Communications of that sort are frequently public, and they’re subject to disclosure,” Carney said. “That’s the way in which this always occurs.”
Trustee Buddy Douglass said the board’s practice of e-mailing members between meetings is rare, though he explained he felt that if the board violated any open-meetings rules, it did not do so intentionally.
“At some point you have give the board the benefit of the doubt,” he said. “If there was a mistake, then so be it. I guess it happens on occasion. … Everybody in the room had the right intention.”
Training planned for board members
Regarding the apparent violations, County Attorney Ellen Wakeman said the library board members likely could have discussed much if not all of what they did in executive sessions, if they’d been called and conducted within the parameters of the law.
Consequently, the county attorney’s office will be providing an open-meetings law presentation to the library board, she said.
“They have now come to the conclusion that they need training on this issue,” Wakeman said. “They said they’re going to set one up.”
Former library trustee Tom Atkins, who has been critical of the board’s use of executive sessions to discuss the library’s budget, agreed with the board that despite making clear its preference for Kolaczynski, such matters can be discussed in private.
“A personnel issue of that kind is part of the intent of executive session in the Open Meetings Law,” he said. “I don’t have a strong feeling. Clearly some personnel issues are suited to be for executive sessions.”
Atkins continues to take issue with executive sessions called for “negotiations” when the system’s budget is being discussed.
“Budget discussions are not appropriate in executive sessions,” he said. “The library board presents its budget, and the commissioners decide what to do. That’s not negotiation.”
Regarding e-mails among trustees, Atkins said he agreed with the board and that such practices are acceptable unless individual trustees reply to an e-mail and include all other members.
“Sending out an e-mail to all volunteers should not be a violation. Where you get into trouble is where people begin to collaborate,” he said.
However, Cara DeGette, president of the Colorado chapter of the Society of Professional Journalists, was unequivocal in her condemnation of the board’s practices.
“You’d think that the library district of all groups would embrace the Open Meetings Law,” DeGette said. “Hopefully they’ll take steps to correct their error.”
She said it’s wise for the county to host an Open Meetings Law presentation for library board members.
“There is confusion among elected officials and even appointed officials about what they need to do to adhere to Colorado’s Open Meetings Law,” DeGette said.