A Larimer County judge heard arguments Friday morning in Estes Valley Voice’s case challenging Estes Valley Fire Protection District’s refusal to provide a recording that would illuminate its governing board’s handling of chief Paul Capo’s hiring.
The lawsuit, brought under the state’s open meetings law, seeks a recording of an Oct. 9 executive session of that board of directors, during which Estes Valley Voice and its publisher and editor, Patti Brown, allege that Capo was chosen for the job.
“If what appears to have occurred in that fourth executive session meeting actually did occur, then there can be no question that the entirety of that recording must be released,” Steve Zansberg, a Denver-based lawyer representing the Voice and Brown, argued.
Zansberg told Eighth District Judge Juan Villaseñor that the specific offense to the state’s so-called Sunshine Law occurred when the fire district board decided in private to negotiate terms of employment with Capo. “[T]hat decision was not discussed in public, and that’s what the open meetings law prohibits,” he said.
Zanberg conceded that the board of directors could appropriately discuss the financial parameters of any potential employment offer that might be extended to an undetermined candidate because those issues fall under the open meeting law’s exemption for terms of negotiation. “Yes, those types of things would be acceptable,” he said. “But the decision with whom they would be negotiating is not that.”
He urged Villaseñor to order the fire district to also release the parts of any recording that memorialized comments from those who interviewed candidates for the fire chief position and that provided the board of directors with their reactions to those interviews. “[T]hat’s the discussion of what led up to a decision and the public is entitled to know the entire discussion among board members and discussion that they received,” Zansberg claimed. “Discussion of public business doesn’t have to be by the board members. It’s a discussion to the board members as well.”
The Denver lawyer, a principal at the firm Zansberg Beylkin LLC, emphasized that the question whether board members reached consensus before the Oct. 9 executive session is irrelevant.
“[T]hat suggests that the entire process of interviewing three candidates, hearing from the members of the interviewing panels, was all predetermined and not necessary,” he said. “But that’s beside the point. Much more importantly, it’s an erroneous understanding of what the open meetings law protects. What the open meetings law protects is the people’s right to understand the basis for public policy decisions, not limited to an active back and forth debate among members of the panel [or] the voting.”
Zansberg also told Villaseñor that no “magic words” have to be evident in the recording of the executive session to find that a decision was made in secret. “As described by the other party here, who is privy to the recording the discussion indicated,” he said, “Mr. Bross told all members of the district that evening or the next day that they had deliberated and reached consensus.” And, Zansberg continued, “if that’s correct, then I believe all of the discussions that constituted deliberations and an indication of consensus.”
He referred to Ryan Bross, the EVFPD board president who notified firefighters later on Oct. 9 or on Oct. 10 that Capo had been hired.
Joshua Weiss, a Denver lawyer who is a partner at the firm Brownstein Hyatt Farber Schreck LLP, argued that the fire district’s directors were in a unique situation because all of the candidates were already employees and Capo was already serving as the interim chief.
“The successful candidate was already serving as an interim fire chief and so any objective viewer might say that candidate has a leg up on the others,” he said.
Weiss also asked the court to read the open meetings law in a manner that does not prevent a public entity from acting in response to a consensus that formed before an executive session.
“It cannot be the case that the open meetings law requires that the moment people think there’s a shared opinion that they must, you know, plug their ears and not say another single word,” Weiss argued. He added that “at least some of the board members” already “preferred” Capo before the Oct. 9 executive session, but that “in furtherance of their fiduciary duties, they still engaged in a very fulsome discussion of all three candidates.”
Weiss also urged Villaseñor to disregard public communications after the Oct. 9 executive session indicating that Capo had been hired as chief. “What people say outside of the meeting does not change as a matter of what happened inside the meeting,” he said.
Weiss also seemingly asked the court to indulge EVFPD on grounds of its modest footprint. “The Estes Valley Fire Protection District is a small five person board composed entirely of volunteers that was trying to do the right thing at every step of the process here,” Weiss said.
EVFPD’s legal team also included Jason Dunn, who served as U.S. attorney for Colorado during the first Trump administration and between 2018-2021.
“The most important role of the media is to serve as a public watch dog of public power, and the reason we have sunshine laws is to make sure the public’s business is done publicly and not behind closed doors and in secret,” said Brown in an interview after the hearing.
“Neither I, as a citizen-taxpayer, or the Estes Valley Voice, as a news firm, have a problem with who was chosen to be the new fire chief. The problem is with a backroom process. The problem is the decision was not done with public accountability. The fire district board never gaveled out of executive session and took a public vote to hire Paul Capo. No one made a proper public motion. There was no second, no public discussion or deliberation, and no vote,” said Brown.
“It doesn’t matter if it’s a hiring decision, or a land purchase or whatever, the public’s business that involves public taxpayer money needs to be done in public with accountability and transparency,” said Brown.
Villaseñor said he would take the case under advisement. He did not say when he would rule.