Silence on hot topics is itself also a hot topic

Some say ban on outside communications stifles democracy

 

Vail Daily
Scott N. Miller
September 7, 2005

EAGLE COUNTY - Some questions seem to have simple answers. That is, until
lawyers get involved.

The question, in this case, is when is it acceptable for any resident of a
town to give an elected official good talking to? The simple answer,
especially in a small town, is "Just about any time."

But questions and answers about any government are rarely simple, and so it
is in this case. When faced with controversial development projects and a
few other instances, town attorneys are advising their council members to
clam up outside public hearings.

The issue is what lawyers call "ex parte communication," which means, in
essence, talking about a subject anyplace but a public hearing. The lawyers
say cutting off conversations at a grocery store or coffee shop ensures
everyone gets a fair hearing. Others say the practice puts a crimp in
democracy.

"A lot of people I know wonder if that's legal," Vail resident Alan Kosloff
said. "It seems undemocratic."

During the summer's public hearings about the proposed rebuilding of the
Crossroads property in Vail Village, Town Attorney Matt Mire advised town
council members they shouldn't talk to either the developer or his opponents
outside of public hearings.

That legal opinion prompted at least one letter questioning the policy from
Vail attorney Ann Reilly Bishop, who has represented condo owners in the
Vail Village Inn.

In her most recent letter to Mire, Bishop asked for a written policy about
outside communications. She says she hasn't received a specific reply.

But whether or not Vail has a written policy, lawyers representing other
towns agreed with Mire's advice to his council.

Don't talk

"The rules are very clear," said Ed Sands, a Rifle-based lawyer who
represents Eagle and several other Western Slope towns. "There can't be ex
parte communications on matters like this. Courts can, and have, overturned
decisions because of it."

When the Eagle Town Board was discussing the controversial Red Mountain
Ranch project just east of town earlier this year, Sands and Mire gave their
respective bosses virtually identical advice: Don't talk about development
applications outside of public hearings.

"It got me out of a couple of situations," Eagle Town Board member Paul Witt
said. "We'd go out to dinner and somebody would start, and I'd just say 'I
can't talk about that now.'"

That policy has its good and bad sides, Witt said.

"Especially in a small town, it's hard to avoid having those conversations,"
he said. "And people feel they can walk up and talk to us any time."

That's what bothers Kosloff.

"If I run into (Vail Town Councilman) Kent Logan on the street and we talk
about Crossroads, am I lobbying or am I passing the time?" he said. "Is this
a slippery slope for people being unable to talk to their legislators?"

It depends

An Aspen-based attorney representing the Minturn Town Council about
developer Bobby Ginn's possible development on Battle Mountain said the
lobbying is fine, depending on what hat an elected official is wearing.

One of those hats involves council members acting as judges for one
application or appeal.

"A town council in land use or similar applications ... takes evidence and
makes decisions," Boots Ferguson said. "The applicant, and maybe opponents,
present their cases. You can't just call a judge on a Friday night."

Another hat council members wear is making laws for the entire town.

"If it's a matter of overall town regulations, or the land use code, cases
that aren't specific to one applicant, then citizens can beat the drum on
pending legislation," he said.

Ferguson said it's best to take a firm stand on talking about the matters
that deal with one person or company. "You have to say, 'I hear your
concerns, but please come to the meeting,'" Ferguson said.

One vocal Red Mountain Ranch opponent said she never had a problem with that
rule.

"I felt we could tell whoever we needed to how we felt," Jan Rosenthal
Townsend said. "I never really had any conversations outside the hearings."

But Bishop believes eliminating conversations about projects anywhere but in
public hearings leaves council members short on the information they need to
make good decisions.

It's also unfair to the public, since developers meet with town employees
outside of hearings. In the case of Crossroads, it meant developer Peter
Knobel and his architects and planners met several times with town
employees. Opponents didn't have the same access, Bishop said.

"It's unfortunate," Witt said, " but it's part of the public process. If you
want your voice heard, it's what you have to do."

Staff Writer Scott N. Miller can be reached at 949-0555, ext. 613, or
smiller@vaildaily.com.

Vail, Colorado