We have said it before, we will say it again: the public’s business must be done publicly

“Sunlight is said to be the best of disinfectants.” U.S. Supreme Court Justice Louis Brandeis, Harpers Weekly, 1913.

Leadership at Estes Park Health doesn’t seem to understand what a public record is or what is required by the State of Colorado’s open meeting laws.

In the last few weeks, EPH has denied access to specific financial records, the official recording of the public portion of a recent meeting, and the name of a consultant or contractor paid to provide reports.

None of those things is private information for a publicly funded government institution supported by property tax money.

Through a Colorado Open Records Act request, the Estes Valley Voice asked for “all information about all legal fees paid by EP Health to all of its attorneys to defend the CORA lawsuit brought by the Estes Valley Voice to obtain the Letter of Intent signed with UCHealth in October.”

In that case, the court ordered EPH to pay the Estes Valley Voice the legal fees it incurred in filing and managing the case.

The response to the formal CORA request for the hospital’s legal fees to its attorneys was: “EPH does not maintain any public records responsive to this request.”

What? EPH doesn’t maintain financial records of what they have paid, why, or to whom. If that’s the case, EPH officials are committing malfeasance. The legal fees paid to defend the actions of the hospital’s Board for not complying with the State’s open records laws are public records subject to disclosure. And the Sunshine laws require those records to be provided within three days of a request.

Not only that, but the hospital has not paid the amount due as required in the Larimer County District Court’s July ruling. Instead, EPH asked the court to reduce the fees to $5,000. However, the court has ordered that payment of $8,827 plus $454 for court costs, for a total of $9,281, is due to the Estes Valley Voice’s attorney for the publication bringing the show cause action against the Park Hospital District.

Estes Park Health has also denied the Estes Valley Voice’s request to provide the audio recording of the public portion of a board meeting conducted on July 29 because it “was an executive session.” However, the agenda for that meeting states that before entering the executive session, the board accepted “public comments on items not on the agenda,” and “general board comments on items not on the agenda.” The request was denied because “the meeting was an executive session and the recording is not subject to public inspection.”

The hospital board is fully aware that those two items, noted as occurring before the board adjourned to its executive session, are not protected under the open meetings act. Those are the only portions of the meeting for which the recording was requested.

Estes Valley Voice would have asked to see written minutes of the meeting, except we have previously been told that no written minutes of meetings that also include executive sessions exist, even though the board continues to approve those minutes at regular board meetings.

Representatives of the EPH board have told the EVV that written minutes of meetings are not necessary because they consider audio recordings sufficient substitutes. In the interest of public accountability and transparency, audio recordings of all public portions of all board meetings should be posted on a board’s website.

Over the past several years, the EPH Board has operated in secrecy, holding more than 250 closed-door executive session meetings and playing hide-the-ball with CORA requests for documents that should be accessible to the public.

And now that the clock is ticking on the acquisition of the hospital by UCHealth—expected sometime in October—the EPH Board is playing run out the clock.

Estes Valley Voice made a CORA request for the name of the law firm, research company, or consultancy that conducted the study that former board chair David Batey referred to in his remarks at the public meeting before the Attorney General on July 31. The EVV also asked for a copy of the report that Batey referred to, which he said the Board used when deciding to pursue the affiliation.  

Guess what that response was? “Request denied. We remind you that a mere request for information does not constitute a request for a public record subject to public inspection pursuant to the Colorado Open Records Act.”

These answers are examples of rope-a-dope, the boxing strategy of tiring an opponent to the point of fatigue, which EPH uses to avoid talking about the public’s business.

The responses mirror those provided when Estes Valley Voice asked not once, not twice, but three times for the Letter of Intent signed in October, between Estes Park Health and UCHealth.

It took seven months, the filing of a show cause petition with the court, and conferences between attorneys and the judge to receive the ruling that EPH must pay $9,281 for failing to follow the State’s sunshine laws. This is in addition to their own fees, which they are refusing to disclose to the public.

On June 6, the attorney for the Estes Valley Voice and Estes Park Health met in a conference call with the Larimer County District Court Judge in the show cause matter to discuss why Estes Park Health had refused to release the Letter of Intent to the public for seven months. During that conference, the attorney for Estes Park Health told the court, “If we went to a hearing, we could not prove that, (sic) that the denial was proper.”

How much did it cost to defend the indefensible? What a terrible waste of taxpayer money and public trust on the part of the Estes Park Health Board members. From the get-go, the Board’s decision to deny the Letter of Intent was flat-out indefensible, and they knew it.

The role of the media as a watchdog of government and a defender of democracy

The First Amendment protects the press because it plays a vital role in democracy. The media’s role is to be a watchdog, not a lapdog of government, to ask hard questions, and provide that information openly and transparently to the public.

The Park Hospital District, which does business as Estes Park Health, is a special district, a form of local government considered a political subdivision of the State of Colorado. It is a taxpayer-funded organization created by voters, and the Board is answerable to the voters, not to UCHealth, which is not only a private organization but the largest health care corporation in the state.

With the acquisition perhaps just six weeks away, readers shouldn’t ask why they should care about documents or payments made by EPH. Instead, the public should continue demanding that those who spend publicly provided money account for their actions.

Anything less is a dereliction of everyone’s responsibility and duties when a publicly elected board goes rogue, no matter when the transgression occurs.

It is way past time for the public’s business to be done publicly at EPH. Enough with fearmongering – “don’t say anything that could jeopardize the ‘affiliation.’” “Are you trying to derail the deal?”

For crying out loud, this is not an “affiliation,” as members of the former board billed it. This is an out-and-out acquisition.

The Board of EPH has sold the facility to UCH for $1 a year for the next 50 years, and the taxpayers of the Park Hospital District cannot hold a referendum to dissolve the special district if this deal does not turn out in our favor.

UCHealth will make all policy decisions, not the publicly elected Park Hospital District Board. That Board will be denuded of all policy authority and charged only with setting and collecting the mill levy and handing that money over to the largest medical corporation in Colorado.

Right now, that is about $4.5 million a year. As property values increase over the years, the amount of property tax collected can also be expected to increase.

That is taxation without representation.

Is UCHealth a well-respected healthcare system? Yes.

Will the Estes Park community be well served by UCHealth running a local clinic, emergency room, and a hospital? Probably.

However, there is no guarantee that UCHealth will continue to operate the facility as an inpatient hospital.

For the foreseeable future, will the facility function as a doctor’s office, an emergency room, and an outpatient clinic where you can set an appointment with your primary care provider or certain specialists who come up from down valley, have your blood work drawn, get an X-ray or other diagnostic scan, and possibly have some minor outpatient procedures done? Probably because EPH will be a funnel for business to UCHealth hospitals and clinics down the hill.

But will it function as a 24-hour hospital, 7 days a week, 365 days a year? Realistically, there is no guarantee, and there probably can’t be, and the community is naïve to think otherwise. And the community cannot seriously believe that UCHealth will bring back inpatient pediatrics, labor and delivery care, home hospice care, or the senior living center. Those ships have sailed.

The practice of medicine and the system of insurance reimbursements are different today than they were in 2020, before COVID; they are different than they were in 2010, before Obamacare was signed into law; and they are different than they were 50 years ago in 1975, when the Elizabeth Knutsson Memorial Hospital, now Estes Park Health, opened its doors and “Dr. Welby, M.D.” was one of the most popular shows on television.

However, the way this deal is structured, Park Hospital District taxpayers will be committed to paying a mill levy to UCHealth for the next five decades.

Last summer, the Estes Valley Voice asked the hospital’s public information officer what the average daily inpatient census was, and we were surprised to learn that it was 4.1 patients.

From an economy of scale perspective, how does a 23-bed hospital with all of the necessary built-in overhead operate with a census of only 4.1 patients, even with 101% cost-based reimbursement from Medicare and 115% of the fee schedule payment for professional services billed to Medicare Part A?

A final slap in the face to the community

One of the hospital Board’s most recent actions that raises serious concerns is the public letter supposedly written by the Board repudiating the position of one of its elected members, Tom Leigh, who penned a critical opinion piece calling for a pause in the acquisition process on July 29.

On Aug. 6, the public information officer of EPH sent the Estes Valley Voice a rebuttal to Leigh’s critique labeled “FOR IMMEDIATE RELEASE: Letter from Park Hospital District Board of Directors.”

The problem with this public letter was that it was not voted on publicly by the members of the EPH Board as a body.

If more than two members of the EPH Board conferred, in person or via phone or email, including in a daisy chain, to draft the letter and then directed the hospital administrator and public information officer to release it as a decision on behalf of the Board, that action would be a violation of the State’s open meetings law.

Publicly elected boards cannot make decisions in executive sessions or in private, off-the-record backroom meetings. They must gavel into a properly noticed open, public meeting and make decisions on the record and in front of the people who elected them.

In the case of the Aug. 6 letter, this did not occur. Unlike Leigh’s July 29 commentary, which he wrote as an individual board member, the Aug. 6 letter was sent to the Estes Valley Voice on an official Estes Park Health email address by the hospital’s public information official under the banner “FOR IMMEDIATE RELEASE: Letter from Park Hospital District Board of Directors.”

The Park Hospital District Board members who participated in drafting and releasing this letter violated the public’s trust.

The purpose of the State’s Sunshine Laws is to ensure the public’s business is done with transparency and accountability because, as the Washington Post’s official slogan says, “Democracy Dies in Darkness.”

The media and the electorate must work together to hold the government and publicly elected officials to the rule of law, or we all lose.