EPH Board may be violating open meetings “Sunshine” law

Even though advance notice of executive sessions has been provided on the Estes Park Health (EPH) website it appears the five-member board may have violated Colorado’s Open Meetings Law by gathering in near-weekly executive sessions over the past two years.

• The Open Meetings Law, often referred to as the “Sunshine Law,” that was initiated by the people of the state in 1972, allows public bodies such as EPH, to hold an executive session only at a regular or special meeting. Although posted, every executive session conducted by the EPH board has been held as a stand-alone meeting.
• According to Chair David Batey, no minutes of executive sessions have been taken even though the entire EPH board attending regular meetings officially accepts minutes from executive sessions.
• There is no indication that any executive session was electronically recorded as required by law.
• There is no way to discern whether the appropriate number of members attending stand-alone executive sessions voted to enter executive session, because Batey said, “On the advice of EPH Legal Counsel, Executive Session attendance is confidential information.”
• Because Batey will not provide information about attendees at executive sessions, including whether a legal representative from Hall, Render, Killian, Heath & Lyman, attended any meetings with the board it cannot be determined whether any conferences with an attorney to receive advice on specific legal questions has occurred at executive sessions as allowed.

In addition to process issues in calling executive session meetings, three specific agendas related to 2024 business of the district are suspect for their contents. The Dec. 14, 2023, and Jan. 2, 2024, executive session agendas call for discussing the 2024 budget. It wasn’t until Jan. 8, 2024, that the budget, proposed mill levy, and appropriation of funds resolution were formally introduced, and approved by the board.

Batey said, “The EPH budget may be discussed in Executive Session “for the purpose of determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators” (see Section 24-6-402(4)(e) C.R.S.” 

A significant portion of prepared motions to enter executive sessions fully meet state standards by naming and quoting the law’s pertinent section. However, attaching “strategic initiatives, quality initiatives,” and “relationship with the foundation” could be considered dubious or merely coincidental, particularly when strategic and quality initiatives appear on agendas and are discussed during subsequent regular meetings, and when the Estes Park Health Foundation is a completely separate organization from EPH.

The topic of strategic initiatives appeared on five executive agendas prior to reports on the subject being presented at the Jan. 31, 2024 regular meeting. The subject appeared on an executive session agenda on April 2, 2024, prior to the regular board meeting on April 3, 2024. Four executive sessions in May included discussions on strategic initiatives, as did a subsequent regular board meeting on May 29, 2024.

Quality Issues were scheduled to be discussed during closed sessions in April, May and June. Infection protection and quality strategic initiatives were subjects during the June 26, 2024 board meeting.

Why EPH Foundation activities and workings would be of interest to the EPH board as it seeks an affiliation with another organization “is hard to explain,” said Kevin Mullin, president of the Foundation. While the Foundation partners with EPH to obtain philanthropic support, it is a separate 501(c)(3) nonprofit corporation governed by a volunteer Board of Directors. Mullin said he’s never been contacted by the EPH board for information in its quest.

“I’m aware of the agendas. That’s the extent of what I know. I do not know why we would be of such interest,” Mullin said.

Batey deferred from offering an explanation as to why strategic initiatives, quality initiatives and the relationship with the EPH Foundation would be executive session topics, saying, “Further defining the Executive Session topics would disclose Executive Session information that is confidential.  The information required by State statute to enter Executive Session is stated when entering the session and is found in the public agenda. For example: “Pursuant to Section 24-6-402(4)(e) C.R.S. for the purpose of determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators, with regard to Affiliation with a 3rd Party, EPH Strategic Initiatives, EPH Quality Initiatives, the relationship with the EPH Foundation, and pursuant to Section 24-6-402(4)(b) C.R.S. to conference with an attorney for Estes Park Health for the purposes of receiving legal advice on specific legal questions.”       

However, the phrase “to conference with an attorney for the purposes of receiving legal advice on specific legal questions” may not meet state standards either, because no specific legal topic is listed, a specific detail the Colorado Court of Appeals says is mandatory.

How many board decisions may, or may not, be made during executive meetings is unknown. However, most recently seen have been three specific instances—naming of officers, repeatedly telling the public that a non-disclosure agreement had been executed, and that Estes Park voters only approved the board of directors negotiate a medical center affiliation, not a buy-out, sale of assets or other distribution of district holdings, with another institution—that could indicate some decisions, or positioning statements, may have been made outside a public meeting or unilaterally.

At the July board meeting, naming of officers and committee members was listed as an action item. However, no vote was taken on those appointments; they were announced, with the disclosure that “we discussed” who wanted what positions.

When asked at what meeting the board authorized signing a non-disclosure agreement Batey said such authorization was unnecessary. “Vern Carda, EPH CEO, signs Non-Disclosure Agreements, an operations function, not a Board function.” Minutes from 2024 do not reflect a motion, second and vote approving that the board enter into a non-disclosure agreement with any institution pending further negotiations of potential affiliation.

How EPH positions its mission to find new ownership skirts the edges of the ballot language voters approved to allow the board to seek an ownership solution. In all public presentations and on regular board meeting agendas, every reference to a potential change uses the term “affiliation.”

And while the word, “affiliation” may not be as jarring as others that could be associated with a change of ownership of Estes Park Health, the issue approved by voters May 2, 2023, does not include the word, “affiliation.”

The ballot language approved by voters said, in full, “Without imposing any new tax or increasing any tax rate, shall Park Hospital District, doing business as Estes Park Health, be authorized to enter into one or more agreements, constituting a multiple fiscal year financial obligation within the meaning of Article X, Section 20(4)(b) of the Colorado Constitution, with one or more nonprofit healthcare providers concerning the ownership, operation, and maintenance of all or any portion of the District’s hospital and other healthcare and related facilities and assets, including the lease or other conveyance from the District of real and personal property, and to pledge all or any portion of the District’s revenues pursuant to such agreements?”

When asked if EPH was pursuing negotiations of a non-ownership management contract with one or more nonprofit health care providers, or is EP Health/the Park Hospital District pursuing a sale of the district’s hospital and other health care and related facilities and assets, Batey said, “this question requests confidential information covered by a Non-Disclosure Agreement.”

Further, when asked how property owners will be taxed in the future, Batey repeated the phrase, “this question requests confidential information covered by a Non-Disclosure Agreement.”

Executive Sessions Details

According to Colorado Revised Statutes 24-6-402 outlining regulations pertaining to meetings of public subdivisions including special districts, executive sessions may only be held at a regular or special meetings, and no adoption of any proposed policy, position, resolution, rule, or regulation is allowed to occur at an executive session with the exception that the review, approval and amending minutes of an executive session not open to the public can occur at those sessions.

During a public meeting a motion and a second must be made to enter into an executive session, and two-thirds of the board must approve the vote.

There are many clauses dealing with allowances for executive sessions in Colorado statutes, but only five are particularly pertinent for EPH. All calls for an executive session must include identification of the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized. Among the topics allowed for discussion during an executive session are:

• The purchase of sale or property.
• Conferences with an attorney to receive legal advice on specific legal questions, however as C.R.S. 24-6-402 states, “the mere presence or participation of an attorney at an executive session is not sufficient to satisfy this allowance.”
• “Determining positions relative to matters that may be subject to negotiations, developing strategy for negotiations; and instructing negotiators.”
• Personnel issues.
• Details of security arrangements or investigations.

A complete copy of C.R.S. 24-6-402 covering executive meetings regulations can be found in the C.R.S. 24-6-402 – Meetings (2023) (public.law).