An attorney representing a Garfield County citizens group says the five-member Colorado Oil and Gas Commission failed to follow state law when it visited energy sites in the region in private rather than letting the public attend.
Steven Zansberg, an attorney who long has worked on media and First Amendment issues in Colorado, is taking issue with a state assistant attorney general’s contention that the commission was properly following the state’s open-meeting law in participating in the private visits.
The oil and gas commission determined it needed to post public notice of the meetings and, as a result, it only could bar the public from any portion of the meeting that qualifies for an executive, or closed-door, session, Zansberg said Thursday in a letter to Lauren Mercer, the state attorney representing the commission.
He is representing the Grand Valley Citizens Alliance.
“Should the Commission again notice a meeting to discuss public business but prohibit the public from attending, my client is prepared to seek an injunction prohibiting further violations of the (open meetings law),” Zansberg wrote.
Asked for comment, commission spokesperson Megan Castle on Monday said only that the “letter from Mr. Zansberg was received and it is with our attorneys.”
The Grand Valley Citizens Alliance, Citizens for a Healthy Community in Paonia, the League of Oil and Gas Impacted Coloradans and Mark Waltermire of Thistlewhistle Farm in the North Fork Valley first questioned the commission’s plans to hold the private site tours in a letter ahead of last week’s tours.
Tours were conducted in Garfield County and elsewhere in conjunction with public meetings in Paonia and Glenwood Springs. Those opposing the private tours pointed to state law saying that all meetings of two or more members of a state body where public business is discussed or formal action may be taken are open to the public.
Mercer responded in a letter that the Colorado Supreme Court ruled in 2004 that educational briefings not convened for policy-making purposes — such as discussing a rule, regulation or formal action — aren’t subject to the open-meetings law.
“In fact, that decision contains no such holding,” Zansberg said.
Zansberg, who filed a friend-of-the-court brief in that case, said the state Supreme Court ruled that a gathering attended by Costilla County commissioners, which they did not convene but to which they had been invited, didn’t involve discussion of the public business. He said the court said a meeting must be part of the policy-making process to be subject to the open-meetings requirement, and then clarified there must a be a meaningful connection between the meeting and the public body’s policy-making powers. Zansberg said that means the policymaking can occur later rather than at the meeting.
“Here, the Commissioners elected to tour the oil and gas facilities precisely because the operations of such facilities are within the ambit of the COGCC’s ‘policy-making powers,’” Zansberg wrote.
He cited Mercer’s own prior comments that visiting the sites was crucial to the individual commissioners’ “understanding of the processes they regulate.”
Zansberg wrote, “The publicly noticed meetings of the Commission are ones in which the ‘public business’ of the Commission was discussed. Were it not so, the Commission would not have publicly noticed the meetings (which was the only question at issue in the Costilla County case).”
Leslie Robinson, chair of the Grand Valley Citizens Alliance, said in a news release Monday, “The public should be allowed to hear what the commissioners hear and see what they see when a quorum of commissioners is meeting on industry-owned sites to consider the impacts of rules that are being debated.”