Until last October, I had never filed a lawsuit. I have given testimony in a few hearings, and I was once a juror in a first-degree murder trial (the defendant was found guilty and is serving the rest of his life in prison), but as for taking anyone to court, I never had a reason to do so.
Over the past several years, I have covered the Estes Park Police Department and the Estes Valley Fire Protection District as a reporter and editor for two publications. I have watched as boards and administrators made decisions to sever relationships with a police chief and a fire chief. These were difficult processes to watch unfold. Controversial things take a toll on staff morale and the community’s confidence.
Last October, I was covering a meeting of the EVFPD’s board of directors when I realized that the board had violated the State’s open meetings law.
The board exited the public meeting and entered a closed-door executive session to discuss the candidates for the chief’s job. Rather than concluding the executive session and gaveling back into a public meeting where formal motions are made and votes are on the record, the board decided behind closed doors to extend an employment offer to a candidate for the position of chief.
I asked the board chair for clarification about what had occurred. Surely, I was confused.
I was told that, indeed, a decision had been made during the executive session. The board chair said the board “came to consensus” in executive session, and they did not think they needed to go on the record to vote on hiring the chief.
By law, decisions of government boards, such as our local fire district, must be made on the record in meetings open to the public.
I asked that a recording of the executive session – required by law – be made public. The board refused. I then made a Colorado Open Records Act request for the recording so it could be made public.
The board again refused the CORA request on the grounds that it was a “private discussion” and that the board had promised confidentiality to the people in the executive session. The board did not have the authority to offer that promise to the people it had invited into the executive session (which also made the meeting not an executive session but a board meeting by invitation only, which in itself was a violation of the state’s open meeting law).
At that point, the Estes Valley Voice turned to the Colorado Freedom of Information Coalition for guidance and consulted with Steve Zansberg, an attorney specializing in the State’s open meeting and open records laws.
The Colorado Sunshine Laws
Those laws—called Sunshine Laws—ensure that government conducts the public’s business publicly, with accountability to the voters. The statutes were enacted to ensure that no one uses government power or money for their own advantage.
A board can meet in executive session for several reasons, including to discuss specific, legally defined matters that require confidentiality, such as the purchase or sale of real property, conferences with attorneys for legal advice, personnel matters of named employees, discussions involving specific students, matters required to be kept confidential by other laws, security details, or the development of negotiation strategies.
The session must have a proper public announcement and a supermajority vote, and it is limited to the specific topics announced. Then, the board must meet in an open, public session to make decisions on the record.
The state’s Sunshine Laws apply to the Colorado State Legislature, the boards of county and municipal governments, public schools, and special districts, such as our local fire district, our two sanitation districts, the recreation and park district, and the hospital district.
The rules apply to publicly elected and appointed members, whether they are paid, receive a stipend, or serve as volunteers.
The state’s Sunshine Laws do not apply to private businesses and nonprofit organizations, but government boards must act transparently and with accountability to the public.
Sometimes, public officials break rules not out of malicious intent but out of ignorance. Sometimes, rules are broken because elected officials do not think the rules apply to them or because the rules are cumbersome, and it is easier to slide them to the side and assume no one is looking or really cares. Or that it’s just not that big of a deal.
This is why a free (of government interference) press serves as a watchdog and reports on the actions of government and elected officials. Journalists attend meetings, ask hard questions, and report on what happens.
While many public meetings are uneventful and quite a few are boring, some are filled with discord and drama.
Most government boards are charged with their organization’s policy and fiscal oversight. Decisions are made based on state laws, organizational policies, and the good judgment of elected and appointed officials. And while most decisions are not terribly controversial, some are, especially when millions of dollars of taxpayer dollars are involved and questions arise about whether a new facility should be built or whether land should be bought, sold, or rezoned.
The process of representative democracy in America happens through the people we elect and appoint to sit on various boards – from Congress to the Statehouse to the County and Town, all the way down to local boards – who make decisions for us.
By state law, those decisions must be made publicly and on the record, not privately in executive sessions out of the public’s eye.
Accountability, transparency, and fiscal solvency
In the case of the fire district, the Estes Valley Voice, a public benefit corporation, sued to have the record of the executive session concerning the hiring of the fire chief released.
To be clear, we did not oppose the choice of who to hire, nor were we opposed to our firefighters.
We opposed the closed-door decision because it violated the state’s open meeting law.
The court ruled that the fire district board violated the law and required that the recording be made public.
Then, the Park Hospital District directors decided to withhold a Letter of Intent signed in October with UCHealth detailing the hospital’s acquisition by UCHealth, the state’s largest healthcare corporation.
Eighteen months earlier, area voters gave the hospital board the go-ahead to affiliate with a nonprofit healthcare organization because EPH was in severe financial trouble.
Estes Park Health has not been alone in its financial struggles. According to the U.S. Department of Agriculture’s Economic Research Service, “between 2005 and 2023, 146 hospitals in rural U.S. counties closed or were converted to non-acute care (meaning they stopped providing general, short-term, acute inpatient care). Of the 146 hospitals, 81 shut down completely. The others underwent ‘conversion,’ a term that describes when a hospital stops providing inpatient services but still offers services such as primary and outpatient care or treatment of emergency cases.”
The practice of medicine, the cost of providing medical care, and insurance reimbursements have changed dramatically since 1975, when Estes Park Health, then known as the Elizabeth Knutsson Memorial Hospital, opened its doors. Fifty years ago, “Dr. Welby, M.D.” was one of the most popular shows on television. Back then, most doctors operated independent private practices and had hospital admitting privileges. Today, doctors are employees of mega healthcare corporations that own the doctors’ offices, the outpatient clinics, and the hospitals.
When EPH began to look for a healthcare system that could provide a path forward, it took 18 months to get the hospital’s finances in shape so negotiations could proceed. In 2023, the hospital had an operating loss of nearly $11 million, following an $8 million loss in 2022.
The EPH board decided to cut unprofitable services, including in-home hospice and home care. This came on the heels of shuttering the hospital’s 52-bed nursing home, Estes Park Health Living Center, in 2021.
When the nursing home began closing, it only had 15 patients, and operating losses were projected that year at about $1.4 million. The directors of EPH signed a 15-page resolution about the closure that outlined the fiscal challenges, which stated, “While EPHLC may have been the right size in 1984 when it was created, it is currently too small to be financially viable in the current competitive nursing home environment 36 years later.”
In a scene reminiscent of Princess Leah’s impassioned holographic plea, “Help me, Obi-Wan Kenobi, you’re my only hope,” the community has desperately wanted to find an institution that will “save” the hospital. Being about an hour’s drive to a hospital down valley is a legitimate concern for the nearly 12,000 residents of the Estes Valley, 40% of whom are 60 years of age or older.
Having EPH acquired by UCHealth may offer many administrative and employee benefits, including cost savings on ordering supplies, purchasing equipment, staffing, continuing education training, and employee health insurance. No one is arguing that.
But there are no guarantees. UCHealth cannot guarantee that it will continue to operate the new iteration of EPH—UCHealth Estes Valley Medical Center—as an inpatient hospital. It may, for a while, but unless the daily bed census increases, will UCHealth maintain the facility as a general, short-term, acute inpatient care facility?
Last summer, the Estes Valley Voice asked EPH’s public information officer about the hospital’s average daily bed census. The answer: 4.1 patients. It is reasonable to ask about the economies of scale of running a hospital with a daily average of only 4.1 patients.
Perhaps the number of patients admitted will increase after UCHealth takes over. However, after a year, maybe two, UCHealth may find that it can care for patients more efficiently and economically at one of its down valley hospitals than to staff the Estes Park facility 24/7, 365 days a year, as an inpatient hospital.
Economic decisions do not come with guarantees
The decision to keep the hospital open or close it may be similar to the decisions made by EPH to close the nursing home four years ago and shut down in-home hospice and health care two years ago.
The decision will come down to an economic one faced by the 146 hospitals in rural U.S. counties that have closed or been converted to emergency rooms and clinics with non-acute care.
There are no guarantees, and there can’t be.
Can the people of the Park Hospital District hope to have an emergency room? Probably. A building with doctors’ offices where they can get some lab and clinic services? Probably.
However, keeping EPH open as an acute care hospital cannot be guaranteed, and we cannot enter this acquisition assuming it will “save” the hospital.
Is the deal with UCHealth a good one? Possibly. Time will tell.
The pubic has a right to know about the decisions made in its name
For seven months between October and May and in more than 250 executive sessions over the past two years – we have all but lost count – the people of the Estes Valley were denied details about what their elected officials were doing with their property.
As a result, they did not have an opportunity to raise informed questions and get honest, transparent answers in public forums, especially as the hospital board moved its meetings to a small boardroom in the hospital and began to meet online with inadequate audio and video technology that does not allow the public to hear or see the proceedings easily.
In addition, in a “big brother is watching” move, community members must register to watch the meetings so the hospital board can monitor who is watching them.
The bottom line is that the public’s business must be conducted publicly. Private companies can operate privately, but government institutions and elected officials must operate openly and transparently, and they should bend over backwards to serve their constituents. Estes Park Health is a special district, a political subdivision of the State of Colorado, subject to the Colorado Open Records Act.
Sunshine Laws governing open meetings and records must be followed, and the public and the media should not be hindered in their requests to access public records.
When government offices and officials shut down public access to what is being done in the public’s name, they make the relationship with the public adversarial. In an effort to protect the public’s right to know, all elected and appointed public board members should attend a mandated, annual in-service training on the state’s open meeting and open records laws.