03 August 2009

Secret Meeting Tapes To Be Released

The Colorado Independent Ethics Commission is the board charged with enforcing Amendment 41, which on its face, prohibits public servants in Colorado and people closely related to them from accepting most gifts. The idea is to increase transparency and reduce undue influences from lobbyists and other special interests. Amendment 41 has been construed by the Colorado Independent Ethics Commission and the courts, however, to be a mere civil bribery ban, because a nexus with a potential to influence official conduct has been implied into the law.

The overwhelming share of the Colorado Independent Ethics Commission's business (about 85%) takes place in closed sessions. The Commission's five members are appointed by the governor, both chambers of the General Assembly, the Colorado Supreme Court and the commission itself.

The Colorado Independent, an online magazine that does original reporting (full disclosure, it is a successor to Colorado Confidential, for which I used to work), sued to get fuller disclosure of those closed sessions.

It won its lawsuit filed pursuant to the Colorado Open Meetings Law. Now, as a result, meeting audiotapes will be released. Disclosures of the matters to be considered in executive sessions have also become far more detailed, in part due to litigation by Colorado Ethics Watch, a public advocacy group focused on transparency and political ethics, which has also been a key player in litigation over the Colorado Independent Ethics Commission, and has a good working relationship with the Colorado Independent.

The commission isn't pleased:

"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 commission has "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 [the commission's lawyer] simply stopped the recording during those discussions."

How proceedings that take place almost entirely behind closed doors can enhance public confidence in legislative ethics is a problem that the commission hasn't offered an answer to. The fear, of course, is that secret meetings could be used to hide corruption or political bias. The commission does have good company. The vast majority of judicial complaints, for example, are also handled privately.

1 comment:

Ernest said...

Andrew, thanks for the link to our coverage, but I have to correct a misimpression here.

The Colorado Independent has indeed sued the ethics commission to force release of executive session recordings, contending the meetings were convened illegally and the record shows the commission held forbidden discussions in secret, but that lawsuit is still under way, the judge hasn't ruled on anything yet.

The commission has agreed to release some recordings, including two meeting's worth that don't include any of the material it wants kept confidential, and is busy redacting another five meetings' worth, which it plans to release later this week. The lawsuit seeks all the recordings.

Chief Judge Naves could rule as early as the week of Aug. 17 whether the commission met its burden to prove it convened its meetings according to legal requirements. If not, he could order the release of records of those meetings, including the redacted portions the commission wants kept secret.

A subsequent step in the lawsuit could be an "in camera" review of the recordings by the judge, where he listens to the meetings to determine if the commission deliberated or reached decisions in secret, which Colorado law forbids.

In any case, watch The Colorado Independent on Tuesday. We'll be posting nearly six hours of executive session recordings released by the commission.

-- Ernest Luning