Steamboat’s McConnell challenging whether Senate appointment vote was legal
Former congressional candidate says vote should have been public; lawyer calls it 'an open question'
January 24, 2011
Steamboat Springs — Former U.S. congressional candidate and Steamboat Springs resident Bob McConnell is challenging the legality of a vacancy committee's Jan. 3 secret ballot that gave Hayden Republican Jean White a seat in the state Senate.
Attorney Chris Beall, who provides legal counsel to the Steamboat Pilot & Today and the Colorado Press Association, said arguments presented by McConnell in a mass e-mail sent Sunday could have "some persuasive force" in a courtroom.
"There is no case that establishes whether a partisan vacancy committee is subject to open meetings law," Beall said. "So it's an open question."
McConnell said today that he's not planning any legal action related to the ballot process, in which the state Senate District 8 vacancy committee selected White to replace her husband, former state Sen. Al White, in the state Legislature. The selection occurred at the Moffat County Courthouse and required five rounds of voting to reach a majority of the committee, which included the district's executive officers and Republican Party chairpersons from counties in its Northwest Colorado boundaries.
Seven members of the nine-member committee voted Jan. 3. Jean White, an executive officer for the district, recused herself. Eagle County Republican Party Chairman Randy Milhoan was hospitalized and unable to vote.
McConnell was one of six candidates vying to complete Al White's term. Al White left his seat to become executive director of the Colorado Tourism Office.
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Vacancy committee members have released the tally for each candidate in each round but have not specified which members cast which votes.
McConnell said the votes should have been made publicly but said he's "just raising the question" about whether the vacancy committee violated open meetings laws.
"I'm not in this to undo what was done," McConnell said today. "But I think we need to fix the process. I'm putting the Republican Party on notice that a bunch of us are upset about that."
Vacancy committee Chairman Phil Vaughan, of Garfield County, said the state Republican Party specifies the use of secret ballots for vacancy appointments.
"That's very clear in the Colorado Republican by-laws," he said.
McConnell ran for Congress as a Republican last year but lost in the primary in August to Cortez businessman and state legislator Scott Tipton, who went on to defeat incumbent Democrat John Salazar and win a seat in the U.S. House of Representatives.
When Al White announced his departure from the state Senate, McConnell threw his hat in the ring for the seat. Shortly after the seat went to Jean White, McConnell announced his departure from the Republican Party, also in a mass e-mail.
He said he's now registered as unaffiliated.
McConnell expressed how he felt about the vacancy process in Sunday's e-mail, which took the form of a newsletter titled "A Conservative Voice." McConnell said secret ballots are "one of the most insidious tools of the trade" in a broken political system.
"As we saw recently in the dog and pony show that was the SD 8 vacancy committee, the secret ballot protects good old boys from accountability and allows them to perpetuate the back door deals that have nearly destroyed the Colorado GOP and indeed, this country," McConnell wrote.
Vaughan said whether the secret ballots violated open meetings laws is a question for attorneys and reiterated that he simply was following rules established by the state GOP.
"That was my job as chairman," Vaughan said. "I don't make state law."
Beall said the question at the heart of the matter is not whether secret ballots are permissible.
"The real question is whether a vacancy committee is a body that is subject to open meetings law," Beall said.
Colorado's Sunshine Law imposes strict regulations on public and private entities that have been delegated a governmental decision-making function.
Beall said the distinction lies in whether the vacancy process constituted a representative body seeking to enact the will of its constituents.
"It's unclear to me whether a vacancy committee functions in that way — whether committee members are representatives or direct voters," he said.
Beall said it would be permissible for McConnell to bring a lawsuit to Moffat County District Court seeking a declaratory judgment that the secret ballots violated open meetings law.
"He would have to prove both that secret ballots are illegal and that the vacancy committee is a public body," Beall said.
He speculated that should such a situation arise, the defendant likely would file a motion to dismiss the case, on grounds that the vacancy committee is not a public body.
The fact Jean White is serving in the state Senate could spur the litigation to move faster than normal, Beall said.
Beall said McConnell could ask for a preliminary injunction prohibiting Jean White from that service.
McConnell did state a potential for litigation in the Sunday e-mail after alleging that Colorado politicians have "hidden behind" the Republican Party's by-laws.
"If this by-law is not changed, we will take the party to court under the state open meetings law, and we will win," he wrote.
McConnell said he plans to continue sending the mass e-mail newsletters, likely once a week. He said he's felt a need to challenge the secret ballot process since the vacancy arose.
"I'm just raising the question," McConnell said. "Kicking the can and saying, 'We've got to fix this.'"
— To reach Mike Lawrence, call 970-871-4233 or e-mail mlawrence@SteamboatToday.com