This measure would allow Boulder City Council to hold executive sessions to meet and discuss certain legal and personnel matters, as allowed under Colorado law.
What is an executive session?
Colorado law forbids more than two members of Boulder City Council from meeting to discuss public business outside of an official meeting; that is, one that the public is made aware of in advance and allowed to attend.
The whole council — or even three members or more — can’t meet together privately, ever. That’s unusual for local government; governing bodies throughout Boulder County, including many city councils and the county commissioners, use executive sessions.
Executive sessions allow the entire council to meet and discuss certain matters without members of the public being present. A two-thirds majority of council (six of nine members) must vote to enter into executive session.
The public does have to be informed of the topic of the executive session. Some recent examples of this are in Longmont (“The Mayor, City Manager and City Attorney have requested an Executive Session to discuss: 1) electrification programs and code updates; and 2) the City Manager’s and City Attorney’s Performance Evaluation and Compensation Review,” Oct. 1 meeting) and Boulder County (“Executive Session for Legal Advice,” Oct. 1 meeting).
What could be discussed in executive sessions?
According to state law, executive sessions can be used to discuss:
- The purchase, acquisition, lease, transfer or sale of any real, personal or other property interest.
- Conferences with an attorney for the purposes of receiving legal advice on specific legal questions.
- Matters required to be kept confidential by federal or state law or rules and regulations.
- Specialized details of security arrangements or investigations, including defenses against terrorism.
- Determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators.
- Personnel matters.
- Consideration of any documents protected by the mandatory nondisclosure provisions of the Colorado Open Records Act.
- In addition to interviewing finalists in a public forum, the council may interview finalists in executive session for the following positions: City manager, city attorney, municipal judge and auditor.
Council couldn’t make any policy decision or take any votes while in executive session (although abuses of this are common, as we’ll discuss later).
How does the council discuss such matters today?
City staff meet with council members in groups of one or two to discuss sensitive matters. The city also uses confidential memos.
In a June 20 meeting, City Attorney Erin Poe said individual meetings with staff happen “several times a year.” During that same meeting, councilwoman Lauren Folkerts said they are held “less than a dozen times” per year. In a personal newsletter, councilwoman Taishya Adams estimated that she spent 58 hours in discussions with city staff and fellow council members from January to May 2024, or between 2.5-3 hours per week.
City staff declined to say how often confidential memos were used, citing attorney-client privilege.
Boulder did use executive sessions during its bid to buy the city’s electric utility from Xcel, but voters revoked the privilege in 2017.
Former city council member Bob Yates, in his September newsletter, wrote, “In the handful of executive sessions that I did participate in relating to Municipalization in 2016 and 2017, I don’t believe I gained much. I would have preferred that those discussions had occurred out in the open, in front of the community.” (Yates and Folkerts oppose the measure.)
Would there be any public record of executive sessions?
Yes. Under state law, executive sessions must be recorded, and the recordings must be retained for at least 90 days.
Records from executive sessions will only be released if a judge orders them to be. That means someone must have a reasonable belief that the executive session was illegal (policy was decided, a vote taken, inadequate public notice was given, etc.) and sue to have the meeting’s records made public.
How are executive session records made public?
A judge would review and, if they determined there was a violation, records from any and all portions of the meeting that were illegal would be made public.
Proponents argue this is an improvement over the current situation, where no record of the one-on-one or two-by-two meetings or conversations exist.
Opponents note that lawsuits are expensive and time-consuming, creating a significant obstacle to obtaining records. As government watchdogs, news outlets are perhaps the most obvious organizations to take on such lawsuits. But local media is also not overly burdened with wealth or time; they often lack the staff or money to take on the much bigger and better-funded governments they cover.
Other things to consider:
- Any discussions or portions of executive sessions that fall under attorney-client privilege will not be recorded.
- The measure also contains this provision: “The City Council may permit any person or group to attend such sessions.” That means any person or group — lobbyists, businesses, political organizations, etc. — would be allowed in private meetings, with no disclosure from the city about who was in attendance or why.
- Proponents, including eight of the nine current council members, argue that allowing executive sessions would be a more efficient way of handling matters that are already discussed outside of the public view. While the infrequent meetings might not be burdensome for elected officials, they are for staff, who have to hold five to nine separate meetings for confidential discussions.
- Opponents counter that this inefficiency is the point — once given a tool that makes it easy to meet privately, it is likely to be abused, as we have seen throughout the state. Aurora (2023), Basalt (2020), Denver Public Schools (2023), Glenwood Springs (2023), Del Norte (2024) and Florence (2024) have all been recently been found to have given improper notice for and/or held illegal discussions or decision-making while in executive session. Some of those lawsuits had quick resolutions (three months, in the case of DPS) but others took years: four years in the Basalt suit.
- If a government entity loses an executive session lawsuit, they are responsible for covering attorney and court fees of the person or organization suing them — meaning taxpayers foot the bill.
- State law determines what is allowed to be discussed in executive session. That gives state lawmakers, rather than local leaders or voters, the power to decide when and how that law is changed.
State lawmakers have already successfully narrowed the definition of public meetings for themselves, and attempted to change the law so that people who sue for improper use of executive session would have to pay the government’s court costs and legal fees if their lawsuit failed. That latter measure failed, but it demonstrates a willingness to make it more difficult for the public to watch government business.
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