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Recently I received the text of a proposed ordinance, and to my dismay, it turned out to be something that was actually on the agenda, rather than a piece of satire.
I was not previously aware that Salida needed an Official Secrets Law, but that's exactly what the proposed Section 1-5-7 of the municipal code would become.
Here's an example of what could happen if this law were to pass.
A department head could issue a personnel order that all
subordinates were required to perform oral sex on the
department head at least once a week, at the pain of losing
their jobs. And the department head could stamp this order
confidential.
This would arguably be a personnel
matter,
thereby qualifying as a potential licit topic
for an executive session of the city council. And any city
employee who brought this personnel order to public
attention would be subject to discipline and dismissal, as
well as prosecution in municipal court.
I don't think the city is trying to cover up anything like this -- so why is the city acting as though it is?
That's the big question. But there are many smaller ones that arise from a close reading of the proposed ordinance.
1-5-7 A 1) Confidential information
is, in part,
defined as matters discussed in an executive session of
the City Council lawfully called pursuant to Colorado
Statutes.
The relevant state statute is 24-6-602, commonly known
as the Sunshine Law or the Colorado Open Meetings Law. It
provides that minutes be kept of all meetings, and that
those minutes be open to public inspection. And it
provides that The minutes of a meeting during which an
executive session authorized under subsection (4) of this
section is held shall reflect the topic of the discussion
at the executive meeting.
In other words, state law requires the minutes to state
what was discussed in executive session, while this
ordinance essentially forbids the inclusion of this
information in the minutes, since the minutes are public
record, and thus open to the public at large.
Any
city employee who made those minutes available would be
obeying state law but violating city law. I don't think
it's wise to put your employees in that situation.
1-5-7 A 2) Earlier in this letter, I posed a scenario
that could result from allowing city department heads to
declare documents confidential.
A written communication from the city's legal counsel might well qualify as a privileged communication between attorney and client. But the privilege can be waived by the client -- why are you reducing your own personal rights to release information?
You are elected officials, put in office because the voters have entrusted you, and you are accountable to the voters -- not the city attorney, nor to the rest of the council -- for your conduct in office. The voters are free to recall you or refuse to re-elect you for improper conduct.
1-5-7 B) How is the City Council even supposed to
discuss taking any document or information out of the
category of 'confidential information'
?
There does not appear to be such an exemption in the Sunshine Law for such discussions, and if the discussions occurred in open meeting, then the discussions themselves might well be in violation of this statute. You've put yourselves in the position you put the city employees earlier -- obeying the city law is violating the state law, and vice versa.
1-5-7-C) This makes it illegal for any person to make confidential information available to the public, or indeed, to anyone not on a specific list.
Consider this scenario. Someone in city government
leaks some confidential information
to me. At this
point, the city employee has broken this law, but I
haven't.
But then I decide to publish this information -- in our magazine, on the World Wide Web, in the Denver Post, wherever. I have thereby violated this city ordinance, which brings me under 1-5-7-D. Is the city prepared to prosecute in such cases, given the body of case law surrounding both the state and federal Bills of Rights?
If the New York Times could publish the Pentagon Papers despite the fervent opposition of the U.S. Department of Justice, do you really think the City of Salida will be able to engage in successful prosecutions under its Official Secrets Act?
Of course not, although the mere prospect of litigation may serve to deter publication -- most of us, unlike the city attorney, have better things to do than go to court. Then again, most of us don't get paid for our time in court.
I have no doubt that any competent judge would find this ordinance unconstitutional, a violation of every citizen's rights. But why is the city council even considering this, forcing its citizens to go through expensive and time-consuming litigation to protect their rights as Americans and Coloradans?
1-5-7 D) This provides penalties, including removal from office and fines, for violators who are city officials or employees. Further, anyone, even people who don't work for the city, can be prosecuted in municipal court for violation.
Under state law, the City Council already has the power to remove members for good cause. Is more discipline really necessary? Further, it was my understanding that fines are supposed to be levied by judicial bodies, like courts, rather then legislative bodies, like the council.
And as I mentioned earlier, I don't think there would be any successful prosecution against a citizen exercising his rights of free speech and press under the state and federal constitutions.
At first glance, this proposed ordinance may appear to
be rather narrowly drawn, covering only what might be
properly handled in an executive session, but in the past,
the city attorney has taken an expansive view of what may
be considered in executive session -- including the conduct
of elected officials, which he attempted to justify as a
personnel matter
even though the city personnel
code, which is the city's definition of personnel matters,
specifically excludes elected officials.
The Colorado Sunshine Law is quite specific as to what may be handled in executive session, and I urge you to read it.
Further, it is not the business of the Salida City Council, or indeed, of any government in the United States of America, to determine what we citizens may or may not talk about, or what we write to each other.
It is my hope that this ordinance will not even appear on the table because no one will move for its consideration. Failing that, I hope it dies for lack of a second. And failing that, I hope it is defeated.
If all that fails, I must point out that I have at this
moment a copy of a document issued on May 15, 1998 by the
city attorney, marked Confidential.
And I have
shown this document, and will continue to show this
document, to sundry other people, thus putting me in
violation.
I await the jackboots kicking at my door. After all, what's the point of passing this ordinance if you're not going to enforce it?
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