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Does Basalt have an executive session issue?
Town embroiled in lawsuit for the past couple of years
executive session
A screen shot taken from a Grassroots TV broadcast of the executive session portion of the Basalt Town Council meeting on Dec. 11. The council was very clear in articulating its reasons for going into this particular executive session, using language that appeared in the meeting agenda and articulated by Town Attorney Jeff Conklin: “That the Town Council enter Executive Session for a conference with our attorney for the purpose of receiving legal advice of specific legal questions in accordance

Basalt has been embroiled in a legal suit the past couple of years over the issue of executive sessions at Basalt Town Council meetings. And a former Basalt Town Council member has indicated that one reason he stepped down from town council was because of the number of executive sessions.

So the question periodically comes up about whether or not Basalt Town Council operates too much in private.

Basalt resident Ted Guy heads a group of concerned citizens who filed suit against the town over, among other things, four meetings that took place from April to August in 2016, the executive session portions which they did not feel were properly noticed to the public.

“I am the public face of the concerned citizens of Basalt that filed the lawsuit,” confirmed Guy. “At the time we filed the lawsuit, they were basically having executive sessions every council meeting.”

During the five-month time period beginning in April to the end of August 2016, the Basalt Town Council held seven executive sessions in 10 meetings, and all of the sessions were noticed with the proper Colorado state statute, but there was no accompanying information detailing the reasons for the executive sessions.

That, in Guy’s opinion, runs counter to both the letter and spirit of Colorado’s Open Meetings Law. 

“They need to be as specific as they can,” says Guy. “It’s not only personnel matters, but personnel matters regarding a specific person. They weren’t doing that. They were just saying ‘we’re going to have an executive session,’ and they were filing it under Colorado revised statute such and such.”

Looking at the notices for the Basalt Town Council meetings during the timeframe Guy mentioned shows that all of them do list the state statute without listing any additional information.

On Jan. 10, 2019, Eagle County District Court Judge Russell Granger cleared the town of most of the allegations over open meetings law. Granger did rule for Guy on one portion of one executive session, but stated the town did comply with the open meetings law regarding the other executive sessions during the April to August 2016 period.

The Colorado Open Meetings Law, 24-6-402(4), C.R.S. (2007), allows local governments and state bodies to adjourn public meetings and meet in private to discuss sensitive matters like personnel decisions, legal discussions with attorneys, land acquisitions or improper behavior. The law has been revised over the years, and currently states that, in addition to the state statute being given for the reason to meet in private, the public body should also give as much detail as possible without compromising the purpose for which the executive session is authorized. Often, what gets disclosed is a matter left to town attorneys.

Former Basalt Town Council member Mark Kittle has been critical in the past of Basalt’s town attorney over the number of executive sessions at town council meetings and what was being discussed in the executive sessions.

In 2017, he was so incensed by Basalt’s use of executive sessions when he was on council that he began getting up and leaving the meetings, boycotting the executive sessions. That year he walked out of the March 13 and April 10 Basalt Town Council meetings in protest.

“We had to have all these executive sessions, sometimes twice a month,” says Kittle. “I’m like, this is silly. We should be more transparent. It’s a public office. I don’t know that we should be keeping secrets unless it’s litigation with somebody or a staff member and salary. I didn’t see a need for it, so I just boycotted every time they had an executive session.”

Kittle decided not to seek reelection and thus ended his tenure on the Basalt Town Council in May 2018. During 2017 — the period when Kittle was most critical about the number of executive sessions — Basalt Town Council held 13 executive sessions out of 24 noticed town council meetings. Many of the meetings involved town personnel issues, including the interviewing, hiring and negotiating the contract of a new town manager, Ryan Mahoney.

The number of executive sessions, and the reasons given for making those portions of meetings private, vary from town to town in the Roaring Fork Valley.

From the beginning of 2017 to April 2019, Basalt Town Council had 21 meetings that included an executive session, with only eight between Jan. 1, 2018, and the present.

By comparison, during that time frame, the Aspen Town Council held 20 executive sessions; Snowmass Town Council held 14 executive sessions; and Carbondale’s Board of Trustees held seven.

In examining the notices for executive sessions in Basalt in 2017, they do make reference to the specific Colorado state statute, and all of the sessions we viewed followed up with specific reasons for the executive sessions. Many of them had to do with personnel matters, including the hiring of Mahoney, who took up his duties in June 2017, or the annual review of ex-Basalt Town Attorney Tom Smith; litigation involving past Town Manager Mike Scanlon; legal discussions over land acquisitions and legal discussions over lawsuits.

By comparison, the city of Aspen’s noticing of executive sessions offers a mixed amount of information. Sometimes they give a specific reason for the session; sometimes they give the specific statute under which they are meeting and no additional information.

Snowmass Village also offers very little specific information beyond citing the state statute. Very few of the notices offered in Snowmass Village from 2017 to the present include specific reasons for the executive sessions.

On the other hand, the town of Carbondale not only had the fewest number of executive sessions, but also included information that made their notices of executive sessions easy to determine the subject matter being discussed. 

“Executive sessions have been used to discuss personnel issues, discussion of the sale of town-owned assets and to discuss TABOR-related issues,” Mahoney confirms. “I have not observed any issues with regard to the use of executive sessions since beginning work with the town.”

According to Mahoney: “Executive sessions are a tool to be used by councils when it is legally appropriate to discuss a topic out of the public realm. This may include issues around personnel that allow an employee’s private information to remain private.  Another example is during a negotiation when it would undermine the negotiation process to make the council’s direction public.

“As a general matter, the town has reviewed communication practices by council members and actively arranged for ongoing education on these issues,” Mahoney continues, when asked about the lawsuit against the town for violating open meeting laws. “We will continue to do so by reviewing with our town attorney the town’s policies and procedures regarding communications to ensure compliance with the state’s Sunshine Laws."

According to Guy, his group of anonymous concerned citizens has until May to file an appeal of the January decision.