On April 26, The SUN received an email from PAWSD Board Director Glenn Walsh, revealing that a quorum of PAWSD directors (three or more) discussed public business through a chain of emails that were not within the scope of the public arena. Discussing public business outside of a public meeting or public work session is illegal.
Further emails were acquired by The SUN through a CORA (Colorado Open Records Act) request submitted to PAWSD, asking for all emails dating April-June 2013 regarding the issue of a proposed rate increase for PAWSD customers.
PAWSD staff sent all emails concerning the rate increase during the requested dates to The SUN via the district’s attorney, Jeff Robbins.
According to Robbins, “Director Vega and Director Adams have indicated to me that they do not have documents responsive to the request.”
Robbins also stated, “I also will forward one email from Director Bunch that he maintained that was responsive to the request.”
Directors Mike Church and Walsh responded directly to The SUN’s request. Walsh forwarded maintained emails directly to SUN staff.
Church indicated that he deletes emails frequently and could not respond directly to the request as he no longer had access to his emails from last year. Church did write an email response disclosing what he could remember about discussions and actions that took place regarding the April 2013 rate adjustments.
Based upon the emails forwarded or sent directly to The SUN, an outline of PAWSD Board discussions and actions are as follows.
On April 26, 2013, PAWSD staff emailed out information to the board provided by Fernando Aranda, displaying tables of four different rate adjustment options calculated for both a 0.4-percent and 1-percent annual growth.
The email from staff informed the board that all four adjustment options “achieve the same financial goals for the scenario of no treatment plant replacement in 2020.”
Where the plans differed were in how much the rates would increase for PAWSD customers each year.
The adjustment options emailed to the board ranged from a gradual increase each year from 2014-2022, to an upfront 31.8-percent increase (for the 0.4-percent growth option) or a 24.2-percent increase (for the 1-percent growth option) in 2014.
The information emailed out to the board by staff was within legal perimeters. The discussions of that information between the board that followed, via email, was not.
Colorado Sunshine Laws define a meeting as, “Any kind of gathering convened to discuss public business, in person, by telephone, electronically or other means of communication.”
The laws also state, “All meetings of a quorum or three or more members, whichever is fewer, at which public business is discussed or formal action might be taken are open [to the public].”
Three members is a quorum for the PAWSD board.
On April 29, 2013, Bunch, chairman of the board, sent an email to all board members (Adams, Church, Vega and Walsh), along with staff, stating, “I vote for Option 4 in the .4% growth scenario but it might be nice to see that 2014 bump spread into 2015 as well.”
Bunch recently clarified during the League of Women Voters PAWSD candidate forum, held April 29, 2014, that, “unfortunately what I said was ‘I vote for number four.’ It wasn’t a vote — you don’t vote by email. All we were trying to do was zero in the rate study.”
On April 30, 2013, PAWSD Manager Ed Winton emailed PAWSD Special Projects Manager Renee Lewis, “Do you know if the Directors have read Fernando’s rate information? If they have, what do you say we conduct the phone poll so we can get the information back to him so he can start his process?”
Lewis responded a few minutes later, “I haven’t and I think that should be a Shellie [Peterson, business manager] action because that is her issue of responsibility; thus, she can answer any questions they may have (and will). She can report to me for the record via email the results of the poll.”
Winton’s email was then forwarded to Peterson and Bunch, to which Bunch replied, “Start the phone poll please.”
In an email to The SUN April 29, 2014, Church wrote, “I recall after Allen sent all board members an email suggesting a rate hike of option 4 in the amount of 31.8% that I deleted it out of anger. I could not believe customers were thrown under the bus without an open meeting on rate increases.
“Staff then called my home and left several messages that Chairman
Bunch was having them call to get my position on the rate increase he was for. This was in my opinion lining up votes for an upcoming open meeting ... I just don’t operate that way and did not answer any calls or emails it was disgraceful.”
Walsh also reflected on the phone poll in an email sent to The SUN, PAWSD Board members and several other people April 26, 2014.
In his email, Walsh stated, “When both Director Church and I refused to take part in the online ratification of Director Bunch’s rate hike preference he was quite angry. Had staff calling us to get our agreement. Tried to dress us down at the next public meting for being unresponsive to these attempts to push this increase outside of a public meeting.
“This is all public record/Open Meeting legitimate: Entire board communication, including staff, regarding massive future rate increases,” Walsh went on. “Sorry but I won’t provide ‘cover’ for these under-the-radar moves. Didn’t then; won’t now.”
On May 3, 2013, Vega emailed members of the board, “I think that 0.4% is likely too pessimistic to use but that 1.0% may be too optimistic.
“In any case, I am inclined to option #3 because it offers the softest touch to the rate payers.”
On May 6, 2013, Peterson emailed the board and staff, writing, “Ed and I had begun to phone poll to determine what rate of growth the Directors wished Fernando to base the rate revenue requirements on so that he could continue to develop actual rate scenarios for you to consider on May 14th.
“Glenn and Roy had not had the opportunity to consider Fernando’s memo. I left a message for Mike and have not heard from anyone as of this afternoon,” Peterson’s email continues. “Allan and Burt indicated that would prefer to use the .4% growth. Allan was in favor of the 4th option thereunder and Burt preferred a more gradual approach with the 1st option.”
Peterson then offered in her email to either facilitate a phone conference for the directors to discuss the options, or to delay the rate presentation from May 14th to May 28th, 2013.
On May 6, 2013, Peterson emailed Winton stating, “I have received no other word from any Director regarding the ‘phone poll’ that we were supposedly undertaking.”
Peterson then said she felt inclined to postpone the presentation “so that the Directors will possibly come to some consensus on growth at the meeting on the 14th.”
On May 7, 2013, Walsh emailed Vega directly discussing the proposed rate increases. Walsh questioned the process by which the proposed rates were calculated, stating that many other factors needed to be first considered, such as the 10-year capital budget, Dry Gulch and operational savings from seasonal plant shutdowns, before rate increases could be decided upon.
Walsh also emailed Church directly on May 7, 2013, forwarding Bunch’s April 29, 2013, email “vote for Option 4,” with the explanation, “Here is it. The rubberstamp for a 32% increase next year. And have to be lectured about open meeting law from this guy who ‘votes’ for 32% increases via email.”
On May 12, 2013, Walsh emailed Church directly to discuss growth rate facts and percents, stating that Walsh was, “Trying to get Roy to see that growth assumption doesn’t matter it is only a ten year guess.”
Walsh chose to include email correspondence between two directors in his response to the CORA request, writing in an email to SUN staff May 3, 2014, “If the ‘conversation’ is established then its continuation over the next few days could be seen as a continuation of that conversation, even if it doesn’t take place amongst three or more directors.”
The SUN contacted PAWSD attorney Robbins and Steven Zansberg, attorney for the Colorado Press Association and the president of the Colorado Freedom of Information Coalition, asking for their opinions about Walsh’s comment on the continuing conversation and about the PAWSD rate adjustment emails.
Zansberg agreed with Walsh’s rationale to an extent, stating in an email to The SUN, “The ‘continuation’ of the earlier conversation, by emails between only 2 members of the board constitutes a ‘meeting’ under the definition ... [of the Colorado Sunshine Laws], but it is not clear whether that ‘meeting’ must be open to the public under the quorum requirement.
“Several states have said that a ‘serial meeting’ or ‘walking quorum’ — discussion by fewer than the quorum in a series of daisy-chained, one-on-one discussions — violates the open meetings law,” Zansberg explained. “So, the argument can certainly be made that the continuation of the prior discussion constitutes a further extension of the earlier illegal non-public ‘meeting’ between three or more board members.”
Zansberg also stated, “the emails themselves are unquestionably ‘public records’ which you have a right to inspect.”
Robbins gave his opinion on the matter and disagreed with Walsh on the subject of the continuing conversation, writing in an email to The SUN, “even if an email meeting involves three or more directors and public business is discussed, if later, two directors continue that discussion, those emails would not be in violation of the open meetings law because they did not involve a quorum of the Board.”
When asked to remark upon the PAWSD emails in general, Robbins said, in his opinion, the two emails from Bunch and Vega, while addressed to the entire board, were sent to “offer advice from those two Directors to the staff about the appropriate growth rate assumptions, which advice is not itself a violation of the Open Meetings law.”
Robbins went on to state, “I would also note that no actual decision was reached by a quorum on the Board in emails, rather this matter was placed on the May 14th agenda. During that meeting, I understand that the Board undertook a public discussion at a duly noticed meeting concerning the Rate Study.”
Robbins concluded by saying, “while I do not believe the two emails constituted a violation of the Open Meetings law, even if they could be construed to be a violation, the violation was cured by the May 14th meeting and the action taken therein. Colorado Off-Highway Vehicle Coalition v. Colorado Board of Parks and Outdoor Recreation, 292 P. 3d 1132, (Colo. App. 2012).”
The case Robbins cites refers to the ruling of the Court of Appeals in 2012 in which it was held, as quoted in the Colorado Municipal League’s (CML) explanation of Sunshine Laws, “that a state or local public body can cure a prior OML violation by holding a subsequent meeting that fully complies with the OML and does not involve the mere ‘rubber stamping’ of earlier decisions made in violation of the OML.”
The CML also states that, “The OML does not expressly address whether subsequent action by a public body can ‘cure’ past OML violations.”
According to an official copy of the May 14, 2013 PAWSD Board meeting minutes, “The Board discussed 2013 Rate Study Assumptions ... Following a lengthy discussion in which the Directors discussed their positions on the potential future growth rate within the District, the Board reached a consensus that 0.8% would be a reasonable estimated growth rate for purposes of the 2013 Rate Study.”
Zansberg provided The SUN with a copy of an article written by James G. Colvin II, published in Colorado Lawyer, detailing Colorado’s open meeting and public records laws and how those laws specifically address email communication.
According to Colvin, in 1996 Colorado specified, “if elected officials use e-mail to discuss public business ‘among themselves,’ the electronic mail is subject to the Open Meetings Law.”
Colvin’s article goes on to inform that as of 1997, “state agencies and political subdivisions with electronic mail systems must adopt a written policy on monitoring electronic mail specifying the circumstances under which it will be conducted and stating that correspondence of employees in the form of e-mail may be a public record.”
PAWSD directors do not use a PAWSD-specific email system; instead, each director maintains their own personal email address. Monitoring electronic public business discussions between PAWSD board members becomes difficult when each director uses a private account. Thus communication between the PAWSD Board Members can only be truly examined if a member of that board, who is part of such a communication chain, makes that information public.
Colvin recognizes the struggles of maintaining personal privacy while attempting to monitor legality when he writes, “Whether or not to monitor e-mail is a major policy decision involving employee privacy issues, but may be the only way to ensure that e-mail is used for legitimate purposes.”
“Elected officials are not ‘equipped’ as official custodians to determine whether e-mail communications ‘might be public records’,” Colvin states, thereby highlighting the need for the monitoring of electronic correspondence by outside entities.
“Elected and public officials have a duty to the citizens to conduct government in accordance with the law ...”Colvin’s article concludes.
The SUN received more emails than are referenced in this article in response to its CORA request sent to PAWSD. Some of the emails received were not directly relevant to the rate adjustment discussion; however some of those emails exposed other chains of communication in which all directors were included.
PAWSD directors violated the law by engaging in electronic discussions in which all directors were included, even if not all directors responded.
It is important to note that information may be distributed by staff to directors, such as the rate table or board packets; however, no discussion of that information may occur between a quorum of directors outside of a public meeting.
shanti.johnson@pagosasun.com
