Secret meetings about public documents?

Two separate public bodies in Aspen held secret sessions to discuss my open records request- whew! The irony overwhelms me.
Last night the Aspen Election Commission met to discuss my records request to inspect Aspen’s 2011 ballots, that were voted in a conventional election (not IRV) under procedures that were extensively discussed and enacted prior to the election, and conducted by an experienced election manager from Pitkin County, who is also a lawyer and who understands well the importance of anonymity. I have reason to believe that these ballots are in fact anonymous for all practical purposes and would like to demonstrate the fact to counteract widespread myths that Aspen ballots might be traceable. I issued an open records request to inspect Aspen’s 2011 ballots, that are slated for immediate destruction according to the antiquated state law concerning municipal elections.
The city lawyer had already responded to my records request with a rejection minutes after a previous secret session was held with the city council a few days ago. After that rejection was issued, one election commissioner, Ward Hauenstein, justifiably expected to respond to my request as a member of the Election Commission, the same entity to which it was tendered in person by myself. He called yesterday’s meeting of the commission. We know that under the Aspen City Home Rule Charter the Election Commission has co-extensive powers with the City Clerk (who is also one of three members of the Commission) hence it could take a different position than the clerk acting by herself.
During the rather shocking meeting last night, the City Attorney badgered Ward about whether Ward wanted the advice of himself (city attorney), and if so, then would Ward also accept the same advice, or would he merely use the advice of independent counsel to detract from his advice instead. It was one of the more sophomoric pleas I have ever listened to. Nevertheless it had a purpose, as it led later to a motion to enter “executive session” made by the clerk, the merits of which were only weakly questioned by commissioners if discussed at all, and then took the discussion behind closed doors so that we in the public could no longer hear what the attorney was saying to Aspen’s Election Commission, presumably about my simple open records request. The move behind closed doors required the acceptance of the Election Commission to consider the city attorney as part of a privileged relationship, and may have indirectly provided facts on the ground to support the conclusion that the Election Commission does not consider the city attorney to be conflicted. I hope this is not the final conclusion over the question of conflict of interest, as I am of the opinion that the Aspen attorney is subject to a conflict in this matter. It can be argued he provided ample evidence to that effect during the meeting.
One member of the city council somehow also was allowed access to this secret session, much to my surprise… confirming that there probably is an improper channel of influence between the City Council and the Election Commission. The two public bodies are now acting in practice as one and the same from the point of view of attorney client privilege. The fact that the city attorney does not consider himself to be conflicted in his attempt to simultaneously represent two independent public bodies that have in principle and for excellent reasons the ability to take different positions is a matter of deep concern for onlookers like myself.
Also, judging from the responses of two of Aspen’s election commissioners and the city attorneys, the Colorado Court of Appeals has failed to clarify the issue of concern namely which ballots if any are public records in Colorado. All of these just mentioned people apparently have various interpretations of the meaning of the unanimous Court of Appeals decision that differ from my understanding of what I read – a clear statement that voted ballots are subject to open records laws except those that can be traced, and that TIFF files (digital copies) are not the legal equivalent of physical ballots.
One would hope that after two years consideration in court, citizens would be able to read the court’s interpretation and agree on what it means. It seems to me that those who refuse to accept the court’s message may be strategically pretending to fail to understand with the hope that either the court system will see confusion and reverse itself, or the legislature will step in and revise the law to fit a minority interpretation. This is an example of how pathetic our system of governance is – even the most expensive and considerate mechanisms of remedy are failing to produce consensus and conclusion among the interested parties. An appeal to the Supreme Court is being framed as a necessary and ordinary response, rather than an escape valve for unusual cases of recognized failure to provide justice.
Here are three texts from one newspaper today relating to this issue. Note that the headline of the first is incorrect. The Election Commission voted to pursue independent counsel – and that vote was 2-1, so it would be more correct to say that a majority of the election commission want an outside opinion.

Aspen Times Nov. 10 edition:

Aspen election commissioner wants outside opinion
11/10/2011 5:16am
http://www.aspentimes.com/article/20111110/NEWS/111119998/1001&parentprofile=1058

City of myths
Special to The Aspen Times by Maurice Emmer

Aspen, CO, Colorado
http://www.aspentimes.com/article/20111110/COLUMN/111109822/1021&parentprofile=1061


Pointers for the press (satirical letter by Marilyn Marks)
http://www.aspentimes.com/article/20111110/LETTER/111109815/1020&parentprofile=1061

Boulder Daily Camera, Nov. 10 edition:
Election transparency is essential

Should Coloradans be prevented from making the types of anonymous-ballot reviews that citizens of Florida, Minnesota, Michigan, Connecticut, South Carolina and other states enjoy? As our law stands, parties, campaigns, academicians and press may verify election results.

In the next few days, however, Aspen officials intend to petition the Colorado Supreme Court to overturn case law reaffirming citizens' and media's rights to authenticate Colorado's elections by reviewing anonymous ballots. If Aspen is successful, Colorado will be forced to accept whatever election results the clerks announce. So, in effect, Aspen plans to devote its considerable resources to fight election transparency across Colorado in the face of the 2012 presidential election.

As a purple state, Colorado will be a political battleground in 2012. One can imagine a scenario where the electoral college vote turns on Colorado. As Colorado law now stands, if Obama wins or loses by a small margin, the parties, campaigns and press can test the count for themselves. We need to keep the option to check election results, not just in formal recounts, but whenever we want to assure ourselves that nothing is amiss in our elections.
The Colorado Constitution guarantees anonymous ballots. It is up to the clerks to implement processes that back up this guarantee. Even the clerks themselves should not know how a person voted.
Anonymous voted ballots should remain basking in the Sunshine of the Colorado Open Records Act. The Daily Camera published an effective lead editorial that helped defeat a 2007 effort by county clerks to impose a similar blackout. As a member of Coloradans for Voting Integrity, I call on readers to implore Aspen officials to halt their attack on election transparency. Please email public_comment@ci.aspen.co.us today and ask Aspen's leaders not to appeal to the Colorado Supreme Court.

MARY C. EBERLE
Boulder

Emails from citizens:
Dear Councilpersons,
Boulder County Democrats might be especially interested in Aspen's fight against ballots as open records because the majority of county clerks are Republicans, and county clerks can make many decisions on the close calls or gray areas surrounding a voted ballot without significant local oversight. Even inadvertent mistakes can happen, such as counting a batch twice or deleting a batch as occurred in 2010 in Saguache County, Colorado. Citizen oversight is absolutely necessary.
As a life-long registered Democrat, I am dismayed that the supposedly Democratic stronghold of Aspen is fighting ballots as open records, after we have seen the successful review of Florida's 2000 election by the media consortium (http://www.aei.org/docLib/20040526_KeatingPaper.pdf).
Michael A. Rowe, Boulder
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