City of Boulder Ballot Question 2D: Executive Sessions

Ballot Question 2D would allow certain types of meetings to be held in closed sessions. But before it goes into effect, voters get to decide if they like this idea or not.

At its simplest, City of Boulder Ballot Question 2D would define circumstances allowing City of Boulder officials to discuss certain specified types of matters in “executive sessions,” basically meetings that are not open to the general public. 2D would also define required procedures the City must follow before holding an executive session. These issues will be discussed in greater detail below. The Boulder City Council referred 2D to the ballot, it would amend the Boulder City Charter, and it would pass with a simple majority.

The city currently has a section in its City Charter allowing executive sessions under very limited circumstances, and has had other executive session Charter sections in the past. Passing 2D would add a new section to the Charter with eight specific situations under which Council could enter into executive session, plus one general allowance for situations not specified in 2D but allowed under state law.

Colorado state statutes authorize executive sessions in Colorado Revised Statute 24-6-402 (3), and much of the language in 2D is very similar to some sections in the state statutes. The specific allowances from 2D are listed in full below, and they would be part of a new City Charter section 21 if 2D passes:

1. The purchase, acquisition, lease, transfer, or sale of any real, personal, or other property interest; except that no executive session shall be held for the purpose of concealing the fact that a member of the local public body has a personal interest in such purchase, acquisition, lease, transfer, or sale;
2. Conferences with an attorney for the purposes of receiving legal advice on specific legal questions;
3. Matters required to be kept confidential by federal or state law or rules and regulations. The specific citation of the statutes or rules that are the basis for such confidentiality before holding the executive session shall be announced
4. Specialized details of security arrangements or investigations, including defenses against terrorism, both domestic and foreign, and including where disclosure of the matters discussed might reveal information that could be used for the purpose of committing, or avoiding prosecution for, a violation of the law;
5. Determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators;
6. Personnel matters except if the employee who is the subject of the session has requested an open meeting, or if the personnel matter involves more than one employee, all of the employees have requested an open meeting. This shall not apply to discussions concerning any member of the local public body, any elected official, or the appointment of a person to fill the office of a member of the local public body or an elected official or to discussions of personnel policies that do not require the discussion of matters personal to particular employees;
7. Consideration of any documents protected by the mandatory nondisclosure provisions of the “Colorado Open Records Act,” part 2 of article 72; except that all consideration of documents or records that are work product as defined in C.R.S. § 24-72-202(6.5) or that are subject to the governmental or deliberative process privilege shall occur in a public meeting unless an executive session is otherwise allowed pursuant to C.R.S. § 24-6-402(4);
8. In addition to interviewing finalists in a public forum, interview finalists in executive session. The council may instruct personnel and representatives to begin contract negotiations with one or more candidates in executive session, including the necessary process to prioritize, for the purposes of negotiation, one or more finalists after required public forums have been completed; and
9. Any other discussion allowed by C.R.S. § 24-6-402, as amended, to be held in executive session.

2D also sets requirements for holding an executive session, paraphrased below for brevity:

• At least two-thirds of Council must approve holding an executive session
• The City must announce the topic of discussion, and cite the portion of the ordinance that authorizes an executive session for the meeting’s purpose
• The City must identify the “particular matter” for the meeting in “as much detail as possible without compromising the purpose”
• Executive sessions must only happen during regular or officially noticed special meetings
• Council members cannot hold a binding vote in executive session

Readers can find the 2D text in full at this link.

Richard’s Take

I will probably vote for 2D, but I can understand why people might have skepticism or at least healthy mistrust of executive sessions.

To me, the sections listed in 2D seem to be reasonable situations that can justify executive sessions. This would include negotiations, personnel matters, sensitive security concerns (don’t freak out, but Boulder has places that could be targets for terrorism or mass violence), material legitimately defined as confidential, and limited instances of legal advice.

Just for illustration, it could easily be a disadvantage for the city to show its hand in a negotiating situation when a competitor doesn’t have to, like in a land deal.

I’ll also recommend considering that Council or individual members would risk some damage to their public reputations if they authorize executive sessions excessively or needlessly – and conversely Council members who oppose going into executive session could raise as much holy hell as they can muster, which might be good for their reputations. Also, there are safeguards built into 2D, in that at least two-thirds of the Council would have to vote in favor of going into executive session; the general matter at hand would have to be identified; and final binding votes on matters discussed in an executive session would still need to happen in a public meeting.

My old friends from the journalism world might not love my likelihood of voting for 2D, but I’ve worked in both worlds – journalism where individuals and news outlets at least want access to every tidbit of information possible, and governance where officials might risk some damage to processes or even legal situations if the wrong types of information become public. By writing this, I’m definitely not saying executive sessions should be used to cover up malfeasance.

Switching from journalism to the public sector was a bit of an eye-opener for me. I’d ask readers to quickly imagine their lives with little privacy, where even your emails are considered public information and you can’t have certain types of private conversations even if it’s the best course of action. I’ve spent several long days at work poring through thousands of someone else’s emails to fill Colorado Open Records Act (CORA) requests. Nonetheless, the state has its “Sunshine Law” defining what meetings must be open to the public with adequate notice, CORA has been established for decades, and I filed Freedom of Information Act (FOIA) requests with the federal government when I was a journalist.

Public officials have no (legal) choice but to live with the law, but laws can get amended to adjust structures and procedures, and whether these adjustments are in everybody’s best interests should be subject to full debate and scrutiny. I still believe the ratio of discussions should be heavily, heavily, heavily tilted toward being held in public, but I don’t think that means 100%, and state law seems to agree. But voters don’t have to agree on 2D, and as I said earlier, I won’t blame anyone for skepticism or mistrust.