Clearly discussing public action is a violation but Sandy Daff never discussed public action. It is highly questionable as a reporter to make this jump and implicate Daff. The paper trail does not support Peter Roper’s conclusion.
Note: Because of the volume of information in order to make the email exchange easier to understand we are going to break up the coverage into understandable parts. This article is over the question did city council break Colorado’s sunshine laws?
There’s a reason when news organizations request public files they also make the files available for the public to scrutinize.
If you read Pueblo Chieftain’s reporting, by Peter Roper, he makes two claims, this was an illegal meeting and Greg Severance, Pueblo County Transportation Director manipulated Pueblo City Council. Let’s focus on the claim this was an illegal meeting.
After reviewing 1189 pages of emails, a different picture emerges that raises doubts on Peter Roper’s reporting of the story.
To understand this email chain, you first have to realize the emails are from or to Greg Severance, on his Pueblo County email, that included Pueblo City Councilors, Ami Nawrocki, Sandy Daff or Chris Kaufman. It is also important to note that a high percentage of emails were from Severance to Nawrocki or vice versa. It appears that the Chieftain only requested emails containing Severance and Nawrocki and this is highly suspicious. There are no true exchange with any other councilers such as Ed Brown, Eva Montoya, Chris Nicholl or Steve Nawrocki (no relation to Ami Nawrocki). Infrequently, does Sandy Daff and Chris Kaufman either initiate or respond to these email conversations.
The emails focus on several single threads of emails and responses. The main conversations were the mandatory trash proposal, how to fund the RTA grant at the Pueblo Convention Center and the proposal to use PEDCO money to fund civic projects.
The initial result of the reporting was that Nawrocki, Daff and Kaufman broke Colorado laws on open meetings when they discussed a “Bazooka Plan” to deal with the hauler/trash consultant issue.
There are two problems with this assessment. Sandy Daff refused to discuss this plan by email so does her refusal still constitute a public meeting? And the Bazooka Plan subject thread itself is questionable on whether it was actually public business.
The “Bazooka Plan” comes from an unsolicited email on July 5 by Severance to Nawrocki, and CC’d to Daff, and Kaufman regarding his idea on how the city can hire a trash consultant before a haulers petition would even be voted upon. It is part of a larger month-long email discussion where Severance, Nawrocki, Sean McCarthy of Castle Investments, and Becky Cortese of C & C Disposal discuss the City’s three proposals—from a May Council Meeting— for mandatory trash service.
This month-long conversation was not a one sided affair, at first all sides were seeking compromise. Then after a lunch meeting between Nawrocki, Cortese and McCarthy, arranged by Severance, there was a breakdown in understanding what was even discussed resulting in Cortese and Nawrocki questioning each other’s interpretation of the lunch meeting.
That prompted Severance, on July 5th to send his “Bazooka Plan” email. It urges Nawrocki, Daff and Kaufman to have city staff accelerate giving Council a recommendation on the trash consultant so the city can receive a complete study before the trash haulers petition, now-invalidated by City Clerk Gina Dutcher, was voted upon in November.
Here’s the timeline of “Bazooka Plan” email on July 5th. It’s important to note the time, who is the email being sent to, and who is being copied.
July 5, 7:18am - Bazooka Plan Email by Severance to Nawrocki cc Daff and Kaufmann.
July 5, 10:16am - Nawrocki replies to Severance cc Daff and Kaufman, "I completely agree. I literally have nothing else to add here. Love it."
July 5, 1:44pm - Kaufmann replies to Nawrocki, cc Daff "I'm in".
July 7, 8:32am - Nawrocki replies again to Daff, cc Kaufman, "Right on. Sandy?"
July 7, 10:36am - Daff replies to Nawrocki, cc Kaufman "I typically don't respond to these group emails."
July 7, 1:23pm - Nawrocki to Severance, "WTF???? Clearly she only wants to speak to you."
July 7th, 1:46pm - Severance replies, "Well. Atleast I can get her on board. You need a vacation.
According to the Colorado Freedom of Information Coalition, city council must adhere to the following statement, “local public bodies must open meetings of a quorum of three or more members, whichever is fewer, at which public business is discussed or formal action may be taken.” This also applies to electronic communications.
For the violation to occur three city council members would need to discuss public business regarding the “Bazooka Plan” and that puts into question an interpretation of Sandy Daff’s email.
Taking her response, “I typically don’t respond to these group emails.” is a stretch to say she was actively discussing policy on this email chain. Daff could also make the point she didn’t violate any Colorado Sunshine Laws regarding this email because the act of telling others she doesn’t discuss policy on group emails was not public business.
It is clear that Nawrocki and Kaufmann both agreed to this “Bazooka Plan.” And they could see two other council members were recipients on this email.
The reporting done by the Peter Roper is contradictory and misleading calling it an illegal online meeting when he also acknowledges, “only Daff seemed to recognize this was an illegal online council meeting.” Daff didn’t use that term. She only said, she doesn’t respond to mass emails. Daff doesn’t at any point in this conversation or another email conversation, in the document, make a statement on the “Bazooka Plan.”
Roper also left out that Daff, in this email conversation, did not request Severance’s advice nor did she initiate the conversation. And the conversation took place over July 4th weekend so she may not have even seen this exchange until well after Nawrocki and Kaufman responded.
If CC’ing recipients is the benchmark then in this email Barbara Vidmar, Leroy Garcia, Jack Rink, Sam Azad, Gina Dutcher among others also pulled council into an illegal meetings as they also mass emailed city council on various subjects some very benign.
But that’s not what the Colorado Revised Statutes imply. A mass email to elected officials is not an online illegal meeting. When did the illegality occur? At Nawrocki’s response? At Kaufman’s? Or at Daff’s refusal to comment?
Clearly discussing public action is a violation but Daff never discussed public action. It is highly questionable as a reporter to make this jump and implicate Daff. The paper trail does not support Peter Roper’s conclusion.
According to Jeff Roberts of the Colorado Freedom of Information Coalition as stated in an email to PULP about when a council member enters enter an illegal meeting but not specifically this council.
“Council Members are discussing public business outside of the public’s view is itself unlawful under plain terms of our state statute.” He continues in a statement from CFOIC attorney, “it doesn’t matter if the communication is shared among the three council members through a “daisy chain” meeting by email. He says it’s sometimes called a “constructive quorum.”
That brings into question not Severance’s initial email but Ami Nawrocki’s first response and if she pulled in Chris Kaufman and Sandy Daff into an illegal meeting.
The last serious concern over the illegality of the meeting is whether or not discussing this “Bazooka Plan” was even public business. Public business meaning “policy-making functions, undertaking a rule, regulation, ordinance, or formal action of the public body itself.”
This is a grey area. By July 5th, hiring a trash consultant was already agreed to by council in a 4-3 vote. Severance is advocating that Kaufman, Daff and Nawrocki “light a fire on staff” to accelerate the hiring process for the trash consultant in order to have a study completed before election day. Severance is also advocating that the council changes the scoring requirement for the proposal.
Severance in that same email says that “this is in the hands of the staff to make a recommendation to council.”
What were Kaufman and Nawrocki agreeing to? It’s murky since no city legislation was up for a vote and because selecting candidates for trash consultants was the role of city staff not council. The city attorney’s office or council will need to further clarify if any breach was committed. They will also need to clarify Kaufman’s and Nawrocki’s statements where the two appear to agree to the “work commitment as the top scoring objective of the proposal.”
After reading through 1189 pages, the allegation of an illegal meeting is murky at best and at worst a highly questionable attempt to use Daff’s response to call this illegal.
Updated 4:04pm received response from Jeff Roberts, Executive Director for Colorado FOIC. Bolded.