Aurora refuses to release recording of unannounced, secret meeting by council committee

AURORA | Before and immediately after a trio of judges ruled that a 2022 closed-door vote by Aurora’s City Council violated state law, a council committee met four times in secret, despite the same law requiring it to inform the public about its meetings ahead of time. 

This week, the Sentinel asked a district court judge to compel the city to release an electronic recording of the one unannounced committee meeting that was recorded on the grounds that the group once again violated the state open meetings law.

“Under settled Colorado law, when a public body unlawfully closes a public meeting to the public in violation of (the Colorado Open Meetings Law), no (Colorado Open Records Act) exemption applies to the recording of the public meeting,” an April 16 court filing by First Amendment attorney Steve Zansberg reads. “It simply must be disclosed.”

Zansberg and the Reporters Committee for Freedom of the Press are providing legal representation for the newspaper.

Aurora’s Council Appointee Evaluation and Compensation Committee reviews the pay and performance of top city officials as well as complaints of harassment and misconduct brought against those officials or against council members.

Its role subjects it to the Open Meetings Law, which requires that a “local public body,” including a city council or council committee, provide the public with “full and timely” notice of any meeting attended by a majority or quorum of members.

This includes posting agenda information in a publicly-accessible location or online in advance of the meeting. The City of Aurora satisfies the requirement by publishing agendas for the council and other city entities subject to the Open Meetings Law on its website.

The group is made up of the mayor, mayor pro tem and the chairperson of the council’s Management and Finance Policy Committee — currently Mike Coffman, Dustin Zvonek and Curtis Gardner, respectively. It’s also the only council committee permitted by the council’s self-authored rules of procedure to meet behind closed doors, with the caveat that “all applicable aspects of the state Open Meetings Law … are followed.”

According to state law, local public bodies may convene in private during an otherwise public meeting — a circumstance known as an “executive session” — only when certain criteria are met, including telling the public beforehand about the executive session, the topics to be discussed during the session and what legal justification they have for closing the meeting to the public.

“The law is there to make sure there are guardrails on when they can go behind closed doors,” said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition. “You use the procedures and the law to do it properly. And then the public has a better understanding and some trust in why you needed to do that.”

Courts have further interpreted the Open Meetings Law to mean that, when a local public body fails to live up to the standards set by the state for making the public aware of a closed-door meeting, it cannot use the fact that a discussion happened in executive session to withhold records of the session, which are normally exempt from disclosure, from the public.

In late January, the Sentinel received a tip that the committee had met without publishing an agenda or otherwise informing the public ahead of time on Oct. 13, Nov. 14, Dec. 18 and Jan. 18.

Though the meetings were, in practice, entirely inaccessible to the public, they also included executive sessions that dealt with “personnel matters” involving officials appointed by the council, according to meeting agendas that weren’t published until after the Sentinel began asking questions of the city.

City spokesman Ryan Luby said agendas were prepared for the four meetings but not published ahead of time due to a “misunderstanding.”

“​​Internal workflow procedures and responsibilities transitioned between one group of city staff to another group around the time the public-facing meeting agendas ceased publication last fall. A misunderstanding during that transition led to the issues you discovered,” he wrote in a Jan. 31 email.

“Consequently, staff now tasked with posting the agendas will be retrained in how to post the agendas properly and reminded how critical it is to ensure the agendas are published in a timely manner in accordance with state law. There will also be increased checks and balances in place internally to ensure these issues do not occur again.”

The four agendas that were posted online soon after the Sentinel contacted the city did not cite any legal justification for entering into executive session, and the only agenda items listed were “FORM #3” and “DRAFT: FORM #3.”

A few days later, modified agendas were published on the city’s website citing a section of the Open Meetings Law that allows local public bodies to enter executive session to discuss personnel matters. Luby also wrote that the same issue was brought to the city’s attention by employees in the City Attorney’s Office a few days before the Sentinel’s inquiry.

The committee has met twice since January. Both meetings included executive sessions addressing personnel matters. In February, the agenda and a link to the meeting were made available ahead of time — Coffman, Gardner and Zvonek recessed into executive session as soon as the meeting began.

The Open Meetings Law also requires that local governments electronically record executive sessions and preserve the recordings for at least 90 days. When the Sentinel formally requested the recordings of the four committee meetings, a city staff member wrote in their reply that the three most recent meetings were “inadvertently not recorded.”

As for the recording of the October meeting, the staff member did not address whether the city recorded the meeting but instead cited the section of the Open Meetings Law pertaining to the 90-day retention requirement.

The law does not prohibit local governments from keeping recordings of executive sessions beyond the three-month retention period. When asked to clarify whether the City of Aurora still possessed the recording of the October meeting, the staff member acknowledged that it did.

Ultimately, three weeks after the Sentinel filed its request, City Clerk Kadee Rodriguez formally declined to release the recording, referencing sections of the Colorado Open Records Act that allow cities to withhold records if they are “so candid or personal that public disclosure is likely to stifle honest and frank discussion within the government” and if their release would cause “substantial injury to the public interest.”

“Appointed city employees have a legitimate expectation of nondisclosure of the withheld requested records, as the records involve employment evaluations and candid discussions containing personal opinions related to city appointed officials,” Rodriguez wrote in her Feb. 23 letter denying the Sentinel access to the recording.

She also referred to the part of the Open Meetings Law allowing local public bodies to meet in executive session to discuss personnel matters and said sharing the records would “invade the constitutional right to privacy of the individuals involved.”

In a court document asking a judge to affirm the city’s position that the recording of the October meeting is exempt from disclosure, Corey Hoffman, a third-party attorney representing the city, argued that the committee isn’t a “local public body” distinct from the council, and that since the October meeting was only attended by two committee members, and two people wouldn’t form a quorum of the entire council, the meeting was not a public meeting.

State law defines “local public body” as “any board, committee, commission, authority or other advisory, policy-making, rule-making or formally constituted body of any political subdivision of the state.”

Council rules have also stipulated that the Council Appointee Evaluation and Compensation Committee must abide by the Open Meetings Law for at least 12 years, based on current and archival rules documents provided by the city.

“It is indisputable that the (committee) is a ‘local public body’ of the city of Aurora, a political subdivision of the state, requiring that it comply with COML,” the April 16 filing on behalf of the Sentinel says. “No provision of CORA permits the City to withhold that public record … even if one or more exemptions might have applied to that record if the CEC had properly convened an executive session.”

Roberts said following the rules concerning closed-door meetings is about respecting the limits put in place by the public’s representatives at the state level.

“It’s not that hard; government bodies in Colorado do it every day,” he said. “If you disregard the Open Meetings Law, and you say, ‘Well, we’re going to meet, we’re going to close the door, and we’re not going to release the recording,’ then obviously the public is going to wonder what is actually happening in their government.”

The Sentinel chose to litigate the matter while waiting on the Colorado Supreme Court to decide whether it will consider a petition by the city asking it to weigh in on the December ruling by three appellate judges who found that Aurora’s City Council violated the Open Meetings Law during a prior executive session in 2022.

State law prohibits local public bodies from making decisions or taking formal action behind closed doors.

Regardless, during an executive session dealing with the allegation that Councilmember Danielle Jurinsky violated Aurora’s City Charter and council rules by calling then-police chief Vanessa Wilson “trash” on a talk radio show and urging Wilson to replace her deputy chief, council members voted to terminate the disciplinary process that another member had initiated against Jurinsky.

The Sentinel was tipped off to the events of the executive session and requested an electronic recording in March 2022. A few months later, after Rodriguez denied the newspaper access to the recording, the Sentinel filed a lawsuit asking Arapahoe County District Court judge Elizabeth Beebe Volz to order the city to hand it over.

Volz ruled against the newspaper in September 2022, finding that the city had “cured” the Open Meetings Law violation by including information about what was discussed in private in a subsequent meeting’s agenda packet.

She also determined that the direction given by council in the form of a “roll call” did not rise to the level of “formal action” that the law prohibits from taking place in executive session.

But in December 2023, Colorado’s Court of Appeals found that Volz erred in her ruling, affirming that the council had violated the Open Meetings Law and demanding that the city release the March 2022 recording. The city has since opted to appeal the case to the Colorado Supreme Court, which has yet to decide whether it will take the case up.

Invoices obtained from the city in response to a records request indicate that, from April 2022 through March 2024, the City of Aurora incurred more than $40,000 in expenses, including hiring outside attorneys, to fight the release of the 2022 and 2023 executive session recordings.

Luby wrote in an email that attorneys’ fees in the two cases are being paid for out of the city’s general fund.

Editor’s note: Reporter Max Levy is named along with the Sentinel as a counter-plaintiff in the newspaper’s filings against the City of Aurora.