By Christopher Pike
A tentative legal settlement was arrived at on Tuesday between the Ouray Plaindealer Newspapers (OPN) and the Ouray County Board of commissioners over alleged abuse of executive session privileges as proscribed by the Colorado Open Meetings Laws. While the legal language is still “in the process,” the two parties are in agreement at press time that the county has mitigated the OML requirements after conducting a two-hour public feedback session on May 22, which was followed by a re-appointment in open session of Ted Collins, Carl Cockle and Bob Luttrell to the County Planning Commission on Monday, replacing Carey Skoumal, Alan Staehle and Howard Greene exactly as before. (Commissioner Don Batchelder voted against the appointments as a block, maintaining that Skoumal should be retained due to his lengthy residency on Log Hill and “historical perspective”).
The litigation stems from an April 3 closed session meeting in which the selection process was allegedly conducted by the county commissioners and County Administrator Connie Hunt, County Land Use Administrator Greg Moberg and County Attorney Mary Daganhart, involving ten applicants (including the three incumbents) in closed executive session. Mullings had maintained that the discussion and decision-making process should have occurred in open session under Colorado law; and on May 10 had filed his complaint in district court.
The publisher, David Mullings, said the BOCC settlement provides that the county pay $6,000 in attorney expenses, with Mullings picking up the $560 filing fee. However the BOCC is still at present holding to their position that they were not in violation of the OML, though the BOCC did agree by resolution on May 12 to “conduct its business as permitted and required by law and will be vigilant in its efforts to ensure that all meetings are conducted in compliance with the Colorado Open Meetings Law.” And it also agreed to release the tape and promptly added to its regular commissioner meeting agenda a one-hour session to allow OCN “as well as any other interested persons, to discuss with the board the Planning Commission appointments.” According to Mullings on Wednesday morning, “They practically did meet all of the conditions, including rescission, and had an honest open dialogue and paid the bulk of the attorney’s fees. They did take extraordinary steps.”
The fast-paced controversy appeared to be headed for a vigorous court battle on May 17 when Mullings amended his legal complaint alleging that while the session tape had been released, the appointments were nonetheless improperly noticed; that the meeting agenda did not indicate the appointments were going to be considered in executive session; that the planning commissioners are public officials, not employees, and as such did not qualify under the COML “personnel” exemption; that the BOCC arrived at the decisions in closed session and were merely “rubber stamped” when the board returned to open session,; and that a proposed policy change regarding suspension of the $200 per month stipend to P&Z members also should have been aired in open session.. Mullings had claimed that the “actions that are taken improperly in an executive session are void and of no legal effect.”
The Monday feedback session provided the general public an opportunity to offer comment and posit questions to the commissioners about the quality of the criteria for selection of P&Z members, and concerns of partisan influences and conflict of interest due to the representation from the real estate and development industry. Some said that they had listened to the closed session tape recording and were repulsed by some of the personal remarks made about the incumbents, including a reference to “problem children” and did not believe the commissioners were objective. “I do disagree with your choices and the process you used, criteria and uneven use of criteria and your assumption that this is a diverse and representative board,” said Ridgway resident Tom McKenney.
Carl Cockle, a real estate agent with ORI in Ouray, joins Brian Kolowich, a realtor with ReMax in Ridgway who has been sitting on the board for over three years. They will sit with Luttrell, an alternate, who has been a developer for 50 years. Local rancher Ted Collins, the third appointee, listed banking and real estate “transaction” experience in his letter application. Cockle defended his appointment and challenged “accusations” of impropriety amongst the candidates. “The insinuation that I am pro-growth is outrageous. I am a realtor. The chances of voting for a development are very nil. I know this county upside down and backwards. I know how the regulatory agencies worked. I will not disrespect those rules.” Said Carol Garard of Ouray: “The perception that the BOCC is pro-growth is not apparent to me.”
“With regard to these three planning commissioners that have reapplied, I feel like, rather than singling any of them out as being the problem per se, I perceive that the dynamic as a whole has become the problem,” said Heidi Albritton, Board of County Commissioners chairperson. Albritton alleged that Howard Greene, who presented a lengthy analysis of the withdrawn XPUD open lands law proposed earlier this year by Elk Meadows resident John Kuijvenhoven, was too activist. “He is one of the hardest working; I felt he was being consumed because of the P&Z; I just felt to have an individual so intensely committed to a particular point of view, for that to be their primary concern. As an activist of a local group (Ridgway-Ouray Community Council) apart from being a commissioner. He takes everything so intensely personal and I feel he is on a personal crusade. There is a need to find compromise.”
Luttrell, who was a focal point for BOCC criticism for being selected without having been interviewed, said he was away on a long-planned trip, which is why he was not available for an interview with the BOCC. The often emotionally charged questions and comments to the BOCC addressed whether political partisanship played a role in the selection of Cockle and Collins, who are currently serving as Secretary and Treasurer of the Ouray County Republican Party, respectively.
ROCC president Ken Lipton, who applied for a seat on the P&Z, said Monday’s discussion was a “sanitized version” of the executive session and that ROCC “has argument with the shadowy process and unprofessional manner in which the selection took place. ROCC questions the judgment, fairness, and the ability of this BOCC to represent the interests of all County residents manifested by its clearly biased and politically based selection of new PC members and its apparent distaste for any manifestation of leadership and critical thinking relative to sensible land use planning.”
Several supporters of the selections by the BOCC commented that the suit was ill-conceived: “I think that this group is responsible; you’ll have every intent to respect the letter of the law. This lawsuit is a frivolous suit and waste of taxpayer’s money,” said David Hamilton.
Ridgway town Planning Commission member Kelly Anderson asked Commissioner Albritton what she meant by a need to “shift the dynamic” of the board. Albritton replied: “There is always going to be the hot button in P&Z and land use related business. Something wasn’t working. The process was confused, in addition to perceived problems.. It was not one person’s fault. On the subject of P&Z disfunction former Log Hill resident Steve Slade said “I’ve attended many meetings. Disfunctionality is an issue of the previous P&Z board and resulted from a lack of guidance from staff and not having county counsel at those meetings for so long. There were dead end roads, no guidance. So take responsibility for that.”
A representative from the San Juan Corridors Coalition, Sara Coulter, called the appointments problematic: “Further, Commissioners and the County Attorney seem oblivious or indifferent to the legal violations involved in these appointments. In addition to the alleged violation of the Sunshine Law, they have appointed people with blatant conflicts of interest. The key issue in defining a conflict of interest is not whether the person has an agenda or strong opinions but whether they can in fact or in appearance gain financially from the advice that they give the BOCC (Sections 31-4-404, 24-18-109, and 24-18-201 et. seq., C.R.S). Apart from their honesty, hard work, or what other merit’s the individuals might have, they have a conflict of interest if they are an active developer or real estate agent. This should immediately make at least two members ineligible. Since Commissioner Westfall was appointed by the head of the Republican Party and not elected by the voters, she should feel a special obligation to seek and respond to the wishes of the citizens or, failing that, at least to play a secondary role. Instead, she has been an activist and controlling appointee. Commissioner Albritton, for her part, does not seem to know what non-partisan means. She consults the Republican Party but not the Democratic Party or other relevant non-political groups when she needs to fill a vacancy on the Planning Commission.”