City Council appoints new councilor through public vote
Special meeting Friday night comes after council was informed Tuesday, Dec. 15, that it violated Colorado Open Meetings Law
Craig city councilors publicly appointed David Bruce Cummings on Friday night in a special council meeting just three days after being informed they violated Colorado Open Meetings Law by holding a secret ballot vote at the Dec. 11 meeting.
In Friday’s meeting, Councilman Steve Mazzuca made the motion to nominate Cummings to fill the vacant seat of Tony Bohrer. Councilor Bohrer seconded the motion.
When voting on the motion of Cummings as the nominee, Councilor Chris Nichols voted “no,” while Councilors Andrea Camp, Mazzuca, Hess and Bohrer voted to approve the motion along with Mayor Jarrod Ogden.
Council then voted on officially appointing Cummings. Votes stayed the same for the appointment. However, in a meeting with a member of the Craig Press on Wednesday, Mayor Ogden stated that the secret ballot vote to nominate was 4-2 in favor of Cummings. On Friday, the vote read 5-1. It’s unknown which councilor changed their vote from the Dec. 11 meeting, which is why votes should happen in public.
Prior to the vote Friday night, City Attorney Heather Cannon addressed the violation, stating that it was not city council’s intention to try and deceive the public.
“City council cares very deeply about the transparency to their constituents,” Cannon stated. “Quite frankly, they chose to utilize the secret ballot, not for its secrecy, but for its empathy, serving no other purpose than to avoid any hard feelings based upon votes they may cast. There was no malice or intent to deprive the public of information, and to assert otherwise is false.”
Cannon went on to state that she still believes the relevant portion of Colorado Open Meetings Law, CRS 24-6-402(2)(d)(IV), reads clearly that council has the ability to cast a secret vote for purposes of an election of leadership of a local public body. However, after reading the initial article, Cannon determined there could be an argument against the secret vote, leading to the decision to hold a special meeting Friday to vote publicly.
“The city believes that proceeding with a public vote to fill an impending vacancy assures the public that we take seriously the spirit and actual text of the Open Meeting Law; we’ve heard their concerns,” Cannon stated.
Attorney Steven Zansberg — who for more than two decades has represented media companies, online publishers and individuals in defending claims based on content, fighting subpoenas, and seeking access to government information and proceedings — stated that Cannon is interpreting the law incorrectly.
“What the mayor says is that the council specifically asked the City Attorney Heather Cannon to confirm that they were authorized by law to conduct the vote by secret ballot, and that they relied upon her legal advice so stating,” Zansberg said. “No one can dispute that, as the recording of the public meeting fully confirms that is what happened.”
“What the city council and Ms. Cannon need to do is acknowledge her error — which I fully believe was an honest mistake,” Zansberg added. “Neither she, nor the city council, intended to violate the law. No such intent is needed — even faultless good faith violations of the Colorado Open Meeting Law, based on mistake of fact or mistake of law, are violations nonetheless.”
Both Zansberg and Jeffrey Roberts, who is the executive director of the Colorado Freedom of Information Coalition, stated that the section of the statue that reads “a vote to elect leadership of a state or local public body by that same public body may be taken by secret ballot” refers strictly to leadership on boards, such as the mayor, not for a city councilor.
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