Does Vail Town Council over-use executive sessions?
Some residents say too much is done behind closed doors
Virtually every Vail Town Council meeting agenda in recent memory has included notice of an executive session — a session held out of public view. Some residents say the council is over-using this common tool.
Vail Homeowners Association Executive Director Jim Lamont, a longtime Vail government watcher, said the council is “definitely” over-using executive sessions. Many other residents are making the same argument, particularly when it comes to the Booth Heights property and a pending development agreement with Triumph Development for Lot 3 of the Middle Creek subdivision.
“There’s a lot of public policy being made inappropriately that rightfully belongs in the public arena,” Lamont said.
In a recent newsletter, Lamont said a suggestion from Mayor Dave Chapin – announcing that a decision regarding condemnation of the Booth Heights property had been made in closed session — raised the alarm. At very least, the matter wasn’t noticed properly, Lamont said.
“The public had no notice that this subject would be taken up,” Lamont said. “The decision to condemn or not was not a matter of real estate negotiation. The Town was not bargaining with any third party. The Council simply made a policy decision for reasons that have yet to be publicly disclosed.”
Vail Town Councilmember Brian Stockmar said he’s often questioned the need for the town to have as many executive sessions as it does.
Stockmar said when he’s questioned by residents about the use of executive sessions, he tells them that the closed-door sessions need to be limited to the context in which they’re allowed.
• An executive session must be published as part of a regular agenda.
• That notice must include the purpose. Those purposes are limited to legal advice, negotiations and personnel matters.
• The elected board must vote, in public, to go into an executive session.
• The elected board must vote, in public, on any action as a result of the session.
“I’d prefer our work be as public as possible,” Stockmar said.
Stockmar said the use of executive sessions “does concern me.” But, he added, each session has to be judged on its merits and how it complies with state law.
Different councils, different tactics
State law limits executive sessions to legal advice, negotiations and personnel matters.
Former councilmember Margaret Rogers served on the council from 2007-2015. Rogers, an attorney, said she believes executive sessions should only be used when needed, with all other business conducted in public.
Rogers said in her eight years on council, that group tended to want to do too much business in public. As a lawyer, Rogers said she knew there were some topics that needed to be discussed confidentially.
She credited former Councilmember Dick Cleveland in particular as being “very scrupulous” about only holding executive sessions when needed.
Eagle County Attorney Bryan Treu wouldn’t comment on anything going on in Vail. But he was able to provide some context about the use of closed-door sessions.
Treu said he’ll brief the Eagle County Commissioners for an hour or so just about every week. Most of the time the update is fairly dry: updates on negotiations, or the progress of litigation on various topics.
Treu said he works to brief the commissioners in private. Public briefings can provide too much information to those who might sue the county, he said.
Treu said he views much of his job as being a “fire preventer,” keeping the county out of potential legal jeopardy.
But, he added, he’s very clear on advice about land-use discussions, telling commissioners not to review the merits of a specific file, instead telling them what they might expect during a file review.
The line to walk is not to pre-judge a matter coming up for public review.
“I have seen towns come out of executive session and move to approve,” he said
Treu said he also works to keep the commissioners focused on the topic at hand, not letting the conversation wander.
Vail Town Manager Scott Robson said that also happens during council briefings by Vail Town Attorney Matt Mire.
Robson said Vail, even before he took the manager’s job in 2019, was involved a “lot of complex negotiations” on various topics. Those are “incredibly difficult types of discussions to have in a public venue,” Robson said.
Executive session discussions are intended to protect the town as much as possible, Robson noted.
Vail Town Councilmember Jenn Bruno agreed. Confidential discussions are intended to “guarantee the best negotiation for the town,” Bruno said, adding that councilmembers are able to “speak freely” during those sessions.
And, Bruno added, anything decided in executive session must be voted on in a public forum.
Lamont and others aren’t convinced. Between executive sessions and releasing council agenda materials just a few days before a meeting, “serious-minded people” have “very little time” to give informed opinions on how matters should be handled.
But, Robson said, “We’ll continue to do as much work as possible in front of the public.”
The agenda item for the March 2 Vail Town Council meeting includes this executive session notice:
Executive Session, pursuant to 1) C.R.S. §24-6-402(4)(b)(e) – to have a conference with the Town Attorney to receive legal advice on specific legal questions; and to determine positions, develop a negotiating strategy and instruct negotiators regarding negotiations with Triumph Development regarding a certain development agreement between the Town and Triumph Development for the redevelopment of Lot 3, Middle Creek; and 2) pursuant to C.R.S. §24-6-402(4)(b) – to have a conference with the Town Attorney to receive legal advice on specific legal questions regarding Colorado Open Meeting Act procedures, stream tract protection regulations, and appointments and removal of individuals to Town boards, committees and authorities.