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Open door does not an open meeting make

by Bill Knowles
WALSENBURG- When SWEPI — Shell Oil — received permits for both drilling and land use last month, many in Huerfano County questioned the way both the county and Shell managed the deal.
One of the allegations that came up was about a meeting between representatives of SWEPI and county officials that occurred early in May following a regular county commission meeting. It’s a meeting some see as a violation of Colorado’s Open Meetings Law (COML).
Three Shell representatives — Larry Kinnard, Carolyn Tucker, and Michelle Phillips — went into the county commission meeting room following the Wednesday meeting of May 11. About 90 minutes later, they were seen leaving the courthouse. When asked about the meeting two weeks later, County Administrator John Galusha said, “It was an open meeting. The door was open and anyone could have come in and listened.”
The door may have been open and anyone could have entered the commission chambers and listened to the dialogue between Shell Oil and the Huerfano County Commissioners. However, according to Christopher Beall of Levine Sullivan Koch & Schulz, a law firm that represents media companies like newspapers, an open door does not an open meeting make.
When asked, the commissioners either had no recollection of the meeting or no comment.
According to an email sent by Beall to the Huerfano World Journal, “Under the Colorado Open Meetings Law, any discussion of public business by a local public body must be preceded by a written notice that gives the public at least 48-hours advance warning of the intention to discuss a topic.” The exemption from this notice requirement is for two limited categories: “day-to-day oversight of property” and “supervision of employees.”
Beall’s email continues, “The meeting was between representatives of an oil company that is involved in energy exploration and extraction in the county. So it is unlikely that the discussion involved the oversight of county property or dealt with ‘day-to-day’ issues.”
In that context it was a violation of the COML for the county commissioners to conduct their discussion with the Shell Oil representatives without first posting a public notice giving advance warning of the general nature of the topic to be discussed. The fact that the “door was open” does not absolve the commissioners of their violation in this case. And if the door had not been open but closed, that would have been a separate and distinct violation of the COML’s requirement that all meetings must be “open to the public at all times.”
The next issue is that there were three county commissioners at the meeting which establishes a quorum, which means that the body could have taken action. Whether it did or not, it is still required by the Colorado Open Meetings Law that a local public body is to promptly create minutes of every public meeting, if it is one at which the body has taken action or could take action. With a quorum the commissioners could have taken action.
According to Beall’s email, “…a local public body is empowered to take action whenever it has a quorum. However, some local public bodies have imposed upon themselves various bylaws or operating rules that restrict the kinds of meetings at which action can be taken. So it does matter, in this instance, whether the county commission had already (gathered) in a session at which it was empowered to take action, such as a regular county commission meeting, prior to the (Shell Oil) meeting.” And since they had been in a meeting where they could take action, then the commission is required to include in its minutes of the regular commission meeting a set of notations that speak to the discussion with the Shell Oil representatives.