Leaked memo shows split opinion between Met Rec attorneys

Violation of open meetings law?

By Mark Reaman

A response from the former attorney for the Gunnison County Metropolitan Recreation District, Tom Mullans, indicates that based on the information he was told, he believes the board violated the Colorado Open Meetings Law at its November 2018 meeting. However, the district’s current attorney believes otherwise and disagrees with that conclusion.

The Crested Butte News this week received an anonymous letter that included what appears to be a copy of former Met Rec attorney Tom Mullans’ response to questions sent to him by the board in late November and early December.

Mullans told the Crested Butte News he could not comment on whether the memo received by the News was his. “I cannot confirm that,” he said by phone on Monday. “What I provide the board as an attorney is confidential.”

The Crested Butte News had asked several times that the Mullans memo be made public but the board had followed the advice of its current attorney, Marcus Lock, and denied the requests. Lock has reasoned that because of the potential of legal action threatened between board members and staff over the last several months, the memo should not be made public.

Lock responded to the News this week that the Mullans memo appeared to be authentic but he did not agree with its conclusion. “In his memorandum, Mr. Mullans offered his belief that the Board violated the Colorado Open Meetings Act approximately four months ago at its November 2018 meeting because the Board discussed certain personnel matters in open session, and Mr. Mullans thinks that ‘personnel matters should be held in executive session.’ I disagree with Mr. Mullans that the Board violated the Colorado Open Meetings Act. In my opinion, the Board did not violate the Colorado Open Meetings Act,” Lock stated in his email.

Based on the memos received by the News, Mullans had responded to a request for clarification from the board about whether it was proper to discuss a change in job description in open session rather than in a closed-door executive session. The board asked about a statement made by a board member at the November meeting concerning the “ability and suitability of staff members to meet the operation of the District going forward because of the potential increased mission…”

The board member made a motion to develop a “Transition Plan” going forward but no action was taken on the motion and it was withdrawn. Mullans was also told that a Met Rec staff member had alluded to the possibility of taking legal action against the board and some of its directors.

“I believe that the Board violated the Open Meetings Law at its last meeting,” Mullans wrote in the copy of the memo received by the News. “The Open Meetings Law concerning personnel matters … states that personnel matters should be held in executive session with certain exceptions. Those exceptions are 1) To discuss general personnel policies; 2) The employee who is the subject of the executive session has requested an open meeting; 3) The personnel matter involves more than one employee and all of the affected employees have requested an open meeting; or 4) To discuss any member of the governing body or the appointment of any person to fill the office of a member of the governing body.

“I don’t believe the discussions fall into any one of the exceptions,” Mullans continued. “Certainly there is more than one employee being discussed but the fact that there are only two employees of the District and comments were made concerning both staff, the employees were obviously identifiable. Discussion about terminating old staff should have been held in executive session. Now that the matter was brought up in public session the only remedy is to make sure that any further discussions are held in executive session. Executive sessions must be listed on the Agenda with the general topic which in this instance can be ‘personnel matters.’”

The board has held such executive sessions at meetings in 2019.

Lock, however, wrote in an email that in his opinion, “…the Colorado Revised Statutes provides that a Board ‘may hold’ an executive session to discuss certain matters, such as personnel matters, upon the affirmative vote of two-thirds of the quorum present, the specific statutory citation authorizing the executive session, and the identification of the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized.

“The express language of the statute—providing that a Board ‘may hold’ an executive session—gives the Board the option, but not the obligation, to enter into an executive session,” Lock continued. “Moreover, if there is not an affirmative vote of two-thirds of the quorum present to enter into an executive session to discuss a certain matter for which an executive session is authorized by statute, then the discussion of that matter (if any) must necessarily occur in open session.”

Met Rec board chairperson Dave Clayton said Lock’s response to the paper represented his opinion on the leaked memo.

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