Question of Aurora open meeting law violation moving to court review

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AURORA  | Attorneys for Sentinel Colorado say a district court judge will determine whether to make public the recording of a closed city council meeting where members discussed and ended the censure process of a fellow council person.

The Sentinel and statewide free-press experts and attorneys contend the meeting violated state open meeting laws, and that the decision to end the process of censure against Councilmember Danielle Jurinsky occurred during an illegal, secret vote among lawmakers.

“The facts of the case speak for themselves as to the legality and appropriateness of handling such a public matter in private,” said Sentinel Editor and Publisher Dave Perry. “The censure of an elected official demands the public’s attention, and the public was wrongly deprived of that opportunity by holding this meeting and making a crucial decision in secret.”  

Aurora city attorneys have defended the closed meeting and said no formal action was taken by lawmakers when they decided to curtail the censure process against Jurinsky.

City council members approved a measure Monday night that essentially allows a judge to listen to a recording of the March 14 city council meeting and determine whether it should be made public. It was unclear at press time when a court review of the recording would occur.

Attorneys for The Sentinel said they’re confident that at least part, and likely all, of the recording will be released because the city did not meet criteria for holding the meeting in secret.

“Because the action taken behind closed-doors, and in secret, was in violation of the (Colorado Open Meetings Law), the record of the discussion, the recording, and all other meeting materials must be made available for public inspection,” attorney Rachael Johnson said in previous demands to the city.

According to prior reporting from The Sentinel, a majority of Aurora’s City Council agreed in private in a closed session at the beginning of their March 14 meeting to dismiss a censure process pending against  Jurinsky. 

Sentinel attorneys argue that the agreement, taken during a roll call by the mayor during the closed meeting, constitutes an illegal vote. 

The city council also gave direction to city staff to work with Jurinsky’s attorney to reach a settlement to pay her legal fees.

City legal officials have argued that the roll call was an effort to solicit opinions about the censure process but no actual vote occurred, despite the agreement halting the censure from going forward. According to Councilmembers Juan Marcano and Alison Coombs, Mayor Mike Coffman asked individual council members whether they supported the process continuing, and after a majority said they did not, the city attorney said the process would be formally halted.

Steve Zansberg, a Denver attorney who specializes in media law and president of the Colorado Freedom of Information Coalition, told The Sentinel that the vote needed to be public to be legitimate and was a “flagrant, black-and-white, open-and-shut violation of the Open Meetings Law.”

The censure was initiated by Marcano regarding Jurinsky’s comments on a regional conservative talk radio program in January, where she called former Aurora Police Chief Vanessa Wilson “trash” and called for her and deputy chief Darin Parker to be removed from their posts.

Marcano accused Jurinsky of violating a council regulation that requires members to act “in a professional manner” toward city staffers as well as a section of the charter that bars council members from meddling in the appointment of employees who fall under the authority of the city manager.

Jurinsky described the censure attempt as an infringement on her First Amendment rights and retained attorney David Lane, who warned that she would consider suing Marcano and the city if the censure process wasn’t halted by March 4, later pushed back to March 14.

Sentinel reporter Max Levy originally sent a records request to the city March 18 asking for a recording of the portion of the executive session pertaining to Jurinsky’s censure. In a March 22 message, Aurora City Clerk Kadee Rodriguez denied the request, saying that the recording “is privileged attorney/client communication and is exempt from disclosure.”

In her letter, Johnson disputed that claim. She said the city violated open meeting laws by failing to disclose the subject matter of the legal advice to be discussed in executive session, which would not be a violation of attorney-client privilege in and of itself.

Additionally, based on The Sentinel’s reporting of what took place during that private meeting, Johnson said it does not appear that the city council was actually discussing privileged information during the executive session, but was instead discussing whether to shelve the censure process. This is a violation of open meeting law, she said.

The city also violated open meeting law by taking a roll call vote while in executive session to determine whether Jurinsky’s censure process should go forward, Johnson said. Under Colorado law, elected officials are not permitted to take formal action while in executive session.

She pushed back on the city’s assertion that the city council is allowed to “give direction” to staff in executive session as long as they do not formally vote, citing a Colorado Supreme Court ruling that directing a public body to take action during a closed session constitutes a formal action and is a violation of transparency laws.

“In light of all of the above, under both the COML and the (Colorado Open Records Act), the Council’s actions with respect to the March 14 executive session were unlawful and its decision to prevent my clients from inspecting the recording of that session is unfounded,” Johnson said.

Since the meeting issue became public, Jurinsky has indicated she may seek a censure effort against Marcano for disclosing information to the media. 


Aurora censure process changing

The Aurora City Council voted April 25 night to change the process by which council members can censure each other.

The new resolution, which passed 6-4, will do away with the fact-finding attorneys that previously had the power to investigate allegations of misconduct during a censure process and will leave the decision in the hands of council members.

As before, a two-thirds vote of the city council would be required to convict a council member of violating the city’s charter or council rules and impose censure.

Any member of city council can place a censure resolution on the agenda, and the city attorney would work with the council member to draft the resolution. Under the new rules the council member must provide at least 10 days notice in advance of the meeting where the censure vote will take place.

The new process will give the city council more control, something that council members who reportedly voted to dismiss the censure expressed a desire for, also removing current requirements that involved attorneys.

Councilmember Dustin Zvonek said during a March 28 meeting that the proposed new censure process would provide for a public hearing, which is a feature of the existing rules, and called the existing procedures a “kangaroo court.”

Crystal Murillo, Juan Marcano, Ruben Medina and Alison Coombs voted against the measure. 

At a study session in March, Coombs, Marcano and Medina voiced concerns about the new rules giving whoever has the majority on council too much power. Coombs reiterated some of those sentiments.

While saying that she appreciated “getting the lawyers out of the process,” she was concerned about giving council members the sole authority to make censure decisions.

“All you have to do is have a majority,” Coombs said. “And if the majority of people want to see you avoid consequences for your actions even if you’ve done wrong, then they can just excuse you.”

Timeline of events

Jan. 27, 2022 – Councilwoman Danielle Jurinsky appears on KNUS host Steffan Tubbs’ talk radio show to discuss public safety in Aurora. During their conversation, she refers to then-Police Chief Vanessa Wilson as “trash” and describes a meeting with Wilson where she encouraged the chief to replace her deputy chief, Darin Parker.

Jan. 28, 2022 – Councilman Juan Marcano sends a letter to Jurinsky formally initiating the censure process. In the letter, he accuses her of violating the City Charter and council rules based on her Jan. 27 comments. The letter was also provided to City Attorney Dan Brotzman, Mayor Mike Coffman and other City Council members.

Feb. 23, 2022 – Jurinsky’s attorney, David Lane, shares with The Sentinel that the city has hired an outside firm to look into Marcano’s allegations. Lane is prepared to take legal action on Jurinsky’s behalf if the censure proceedings aren’t halted by March 4. The City of Aurora issues a statement to The Denver Post about the status of the censure process, which says in part that “(a) public hearing on the matter has been set for Mar. 30 in the City Council chamber at 6:30 p.m.”

March 4, 2022 – Lane tells The Sentinel he’s talked with city lawyers and to expect that the matter of holding a public censure hearing will be decided by March 14.

March 14, 2022 – In an executive session convened before the Aurora City Council’s regular meeting, a majority of council members vote to dismiss the censure proceedings pending against Jurinsky and to settle the matter with her legal counsel. Witnesses at the meeting said attorneys present did not offer legal advice and were precluded from discussing matters of fact in the case. 

March 15, 2022 –  Marcano tells The Sentinel he has grave concerns about the legality of the council’s actions in closed session. Lane confirms that the city council decided to dismiss the case in the March 14 executive session. Councilmember Alison Coombs later tells The Sentinel also that she’s concerned about the legality of the March 14 meeting and decision.

March 18, 2022 – The Sentinel demands recordings of the meeting through a CORA request and is denied.

March 21, 2022 – Aurora’s City Council holds a regularly-scheduled study session, which includes an update delivered by Brotzman, who publicly acknowledges that the council in a closed meeting “gave direction” to city staffers to terminate the censure process.

March 28, 2022 – Aurora’s City Council votes 6-4 along party lines to reimburse Jurinsky’s attorneys for their representation of her during the censure process. According to city code, the city council must first hold a public hearing regarding the censure allegations, and that defendant must be acquitted of the censure charges before lawyer fees can be reimbursed. Neither the hearing nor the adjudication occurred.

April 13, 2022: The Sentinel through attorneys threaten to seek court action to gain access to the March 14 executive session meeting and was rebuffed again.

April 18, 2022: Aurora lawmakers give a tentative OK to changes in the censure process.

April 26, 2022: Aurora lawmakers finalize the censure process changes.

May 5, 2022: The Sentinel and city attorneys meet to discuss The Sentinel’s demand for access to the March 14 meeting recording.

May 9, 2022: Aurora City Council is slated to consider waiving requirements on The Sentinel to show cause, effectively allowing a judge to listen to the recording and determine whether the March 14 meeting recording should be made public.

 

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sugar
sugar
3 months ago

All because CM Jurinsky could not control herself. Her lack of self control (like getting up and leaving a
Council meeting when the conversation didn’t suit her.”) is painfully obvious.

She needs to get a grip.

Phil Welch
Phil Welch
3 months ago
Reply to  sugar

Elect a Karen, get Karen behavior.

(With apologies to all actual Karens, my bad boo but that’s what it means now)

Doug
Doug
3 months ago
Reply to  Phil Welch

Not clear of you meaning

Doug
Doug
3 months ago
Reply to  sugar

She needs to resign. Unsuitable for elected office.

Dean
3 months ago

What we don’t know, was this “secret” meeting videoed? What exactly is a judge going to look at? The concept of this whole turmoil boils down to, is the Meeting…I repeat -the Meeting. What is a judge going to care what is on the video one way or the other? The Aurora lawyers that made the decision to withhold the information are more at the center of this side show than CM Jurinsky. The Colo Supreme Court should be investigating their own charges and look into lawyer ethics. Thats what the Sentinel should be complaining about.

Phil Welch
Phil Welch
3 months ago
Reply to  Dean

The meeting(s) was/were about the censure of Jurinsky, the firing of Chief Wilson, the hiring of another out of touch old repug, direct from the good old boys club, and the public parroting of the anti-reform police union talking points.

Are you honestly pitching the notion this had no effect on or importance to our city?

Bob
Bob
3 months ago
Reply to  Phil Welch

You make some strong presumptions what the meeting or meetings had as topics to discuss. Something the staff writers are also in the know, or should have a copy of the CORA all the things you mention may be there. That will be interesting discovery. What we have not seen is any evidence of the Sentinels request, a denial notice from the city. Any copy of the Sentinel’s lawyer letter, nothing.And the Sentinel is pushing this to the max, but leaving out critical facts along the way.

Phil Welch
Phil Welch
3 months ago
Reply to  Dean

The meeting or meetings was/were about:

-Parroting talking points from the anti-reform police union
-Firing Chief Wilson without cause
-selecting an interim chief straight out of the good old boys network
-Illegally setting policy to be delegated to the city manager
-Circumventing censure’s existing independent status so that any currently ascendant 2/3 could render the process a partisan joke
-PAYING CM JURINSKY 16K IN TAX MONEY FOR PERSONAL LAWYER FEES- ARE YOU KIDDING ME

Now if you don’t see why open meeting laws matter and directly affect the community we live in I can only wonder why you think a judge will be uninterested.

This is clear cut, open abuse. Our city is sick with a pseudo-conservative, antidemocratic cancer. It’s heartbreaking.

You understand power structures outlive their creators right? Imagine a progressive council with this kind of over reach. You’d be 💩 your depends.

Dean
3 months ago
Reply to  Phil Welch

It sounds like you were at the meetings. Not to be resetting your agendas angle but, my point, which you missed is this meeting(s) as you say are being protected by Aurora lawyers. Whatever was going on is a serious breach, (I agree with you) a judge doesn’t need to parse it out. The lawyers are the ones that decided to protect the meetings records. Now, the question is, did the city lawyers follow the law on CORA request, or instead follow the wishes of council? Did any on council receive a copy of the CORA to approve or refuse production? Or was this only the advice of city attorneys? If a council person, had anything to do with fooling with the public records process, we do have problems in city hall. Termination is in order, if that’s the case. Are we clear Phil?

Joe Felice
Joe Felice
3 months ago
Reply to  Dean

No, we are not clear. That’s why this judicial oversight is needed.

cammy1938
3 months ago

thecity attorneys sid what council wanted them to say

Doug
Doug
3 months ago
Reply to  cammy1938

Which side?

Doug
Doug
3 months ago

Fox in charge of the hen house:
“Aurora censure process changing
The Aurora City Council voted April 25 night to change the process by which council members can censure each other.

The new resolution, which passed 6-4, will do away with the fact-finding attorneys that previously had the power to investigate allegations of misconduct during a censure process and will leave the decision in the hands of council members.

As before, a two-thirds vote of the city council would be required to convict a council member of violating the city’s charter or council rules and impose censure.”
And that is the conservatives majority at present.

Joe Felice
Joe Felice
3 months ago
Reply to  Doug

Isn’t it sad that everything boils down to political demagoguery, instead of doing what’s right?

Joe Felice
Joe Felice
3 months ago

It is good to obtain this oversight, for the sake of the citizens. The current Council apparently needs guidance because some think they are not bound by the law.

Bob
Bob
3 months ago
Reply to  Joe Felice

Joe, Monday night this council voted to accept a judges opinion.
“The current council” as you state above voted for this judges ruling. Who are you referring to that did not vote to accept the motion? I did not see anyone voting to preclude further investigation.