Committee or ‘committee’?

When is a committee not a “committee”?

Based on the Boulder City Council’s discussion last Tuesday night, the answer is — whenever the council decides it isn’t. To understand why this is important, some background is necessary:

Boulder has ver y stringent open meeting laws. Charter Section 9 provides the primar y directive, “All meetings of the council or committees thereof shall be public.” So, unlike under state law, the council cannot hold executive (closeddoor) sessions for any reason. The citizens temporarily granted executive session power in 2014 for the Xcel negotiations occurring then. But it was abused, and in 2017, the citizens rejected the council’s request to extend that power.

Section 9 also contains the only exception to Boulder’s requirement that all committee meetings be public. It allows a committee of not more than two council members and any number of noncouncil members to meet privately to screen applications for city manager, city attorney and municipal court judge; to evaluate their performance, and to recommend disciplinar y actions. But the full council must still make the final decisions, and in public.

I also note that the council cannot grant its authority to a committee. Char ter Section 16 makes it clear that only the council has authority to pass ordinances, resolutions and motions. And if a committee were to take an action that the majority of the council disagrees with, the council could reject it.

So what is a council committee? It’s basically a group of two or more council members who the council appoints one way or another to do something, whether that’s organizing a process, advising the city manager or planting tulip bulbs at the Municipal Building.

Another impor tant distinction is that if three or more council members meet and discuss public business, then under state law, those meetings are public. But the charter requires open committee meetings even if it’s only two. This becomes relevant, as you will see.

So what happened on Tuesday night? The first thing to know is that the online agenda had zero information. All it said was, “Update on CU South Annexation Negotiations.” Nothing else. But watching the meeting, it appears as if the real agenda had been carefully orchestrated ahead of time. (To watch, go to bouldercolorado.gov/city-council/watch-councilmeetings. The relevant part starts at 3:00 into the meeting.)

The apparent game plan was to have Mayor Sam Weaver and Councilmember Rachel Friend be “invited” by the interim city manager (who of course works for and takes direction from the council) to become his “advisers” in the CU South annexation negotiations, as Councilmember Bob Yates commented, similar to what he and Weaver did last year in the Xcel franchise negotiations. To do so, Weaver and Friend would resign from the CU South Process Committee and be replaced by councilmembers Yates and Aaron Brockett.

Regarding Yates’ comment, I should point out that Xcel franchises typically are just rubber-stamped by the Colorado Public Utilities Commission. But the results of the inadequate Xcel negotiations instead triggered inter ventions by both the PUC staff and by the Colorado Office of Consumer Counsel, apparently over money. (Also, only the franchise agreement was submitted for PUC approval, and not the linked settlement and partnership agreements, a big mistake in my opinion.) My bet is that Boulder will end up losing whatever financial benefits were in the deal, and will be left holding the bag for whatever our council can convince Xcel to do, since there’s really not much agreed to other than talk.

Back to Tuesday night: The question is — are Weaver and Friend subject to Charter Section 9’s requirement that their meetings with the city manager must be public? To me, the answer is clearly “yes”; otherwise the charter’s open committee meeting requirement is meaningless: That Weaver and Friend have no real authority is not a relevant distinction, since neither are not on any other committees.

State law’s requirement that meetings of three or more councilmembers must be public is also irrelevant; the charter’s open committee meeting requirement does not distinguish between two versus three members. As to Weaver and Friend not being “formally appointed,” well, that’s a distinction without a difference; if their roles were discussed and agreed to at a council meeting, that’s good enough.

So what happens if citizens decide to legally challenge the council over this CU South advisor y committee’s closed meetings? Char ter Section 151 states, in part, that a violation of the charter is a misdemeanor, and shall be punished by the fine and imprisonment applicable to a misdemeanor occurring within the city.

So you’d think councilmembers would be more careful. Jail is not fun.