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Mayor and Board of Trustees Dear Mayor and Trustess, I am an attorney licensed to practice law in Colorado, and my clients are interested citizens of the Town of Monument and surrounding area. Our interest is in the Transit Mix Batch Plant Final PD Site Plan. You heard this matter on February 28, 2000 at which time a motion to approve the site plan with conditions including a limitation on water consumption was voted down 3 to 4. I was the third speaker at that hearing. I have been informed that you went into executive session March 6, 2000 to discuss legal questions pertaining to your action of February 28th. My concern is that the Colorado Open Meetings Law [CRS 24-6-402(4)] may not have been followed. This law applies to you as a "local public body" and requires an announcement in open session of the "topic for discussion" in executive session and "the affirmative vote of two-thirds of the quorum present" in open session before going into executive session. The minutes of the open session must contain the motion and vote. If this procedure was not followed, the validity of the executive session is questionable. If there had been a vote as required, there might not have been an executive session. The Open Meetings law also provides that no adoption of any proposed policy, position, resolution, rule, regulation, or formal action shall occur at any executive session that is not open to the public. Because it is the declared policy of the state that "formation of public policy is public business and may not be conducted in secret", any discussions beyond the purpose of receiving legal advice from your attorney on specific legal questions is not allowed. If executive session discussions move beyond legal technicalities and into the propriety and merits of actions, the legal justification for closing the session ends. By a copy of this letter to the City Manager and Town Clerk I am asking that they preserve all recording tapes that were made of the executive session and of all materials that were handed out or discussed. The Transit Mix final PD site plan was a quasi-judicial matter. While I am not familiar with your rules of procedure, it remains a quasi-judicial matter, and if reconsideration of the matter is being discussed, reasonable notice and an opportunity to be heard must be accorded to the Monument citizens. This requirement of fundamental fairness means that you must follow your rules on giving notice before you can again hear the matter. If you follow Robert’s Rules of Order, then reconsideration can only be entertained by the Mayor if such motion is made by one of the Trustees who voted with the majority in disapproving the site plan and the motion must have been made before the meeting was adjourned. If you are considering a motion to reconsider on the basis that you have been advised that either you did not vote on a main motion or that you must adopt a main motion denying the site plan, then you are being ill advised. Bailey’s motion was to approve with conditions and with a water consumption limitation. It was seconded by VanKekerix. This constituted the main motion to approve. Each trustee then commented or asked questions about the motion, after which a vote was taken on the main motion. It failed 3 to 4. The meeting was then adjourned. The comments that were made in opposition to the main motion constituted findings that clearly justified the no vote. These reasons were tape-recorded and should be reflected in the minutes. These findings are based on competent evidence in the record of proceedings, and no other motion is necessary to deny the approval of the site plan. Local decision makers are not held to strict legalistic findings. See, Sundance Hills v. Arapahoe, 534 P.2d 1212. Fundamental fairness is a prerequisite of government. Closed secret sessions to discuss more than legal advice given in response to specific legal questions are unfair and unlawful. Procedural maneuvering to undo clear acts of the trustees undermines confidence in government. Should you have any questions, please call or write me. Sincerely, James G. Colvin cc: City Manager Town of Monument
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Updated Thursday, July 13, 2000 © Copyright, 2000- 2004. All rights reserved. The Coalition of Tri-Lakes Communities, P.O. Box 1763, Monument, Colorado 80132-1763 |
