County retirement board will repeat 'secret' decision in open session
Members of the El Paso County Board of Retirement decided secretly, using e-mail, how much to pay the board's new administrator, documents show.
"They were not following the law," said Tom Kelley, a Denver attorney who represents The Gazette. "It was a meeting. It was convened without notice. It's probably an action that's void under the Open Meetings Law."
The state law prohibits public boards from making decisions except in meetings open to the public. Even if a meeting legitimately may be held behind closed doors, the law forbids votes and even reaching informal consensus until the board reconvenes in public.
Board president Joe Breister, a Sheriff's Office bureau chief, said he thought it was okay to decide the pay issue by e-mail because e-mail messages are subject to disclosure under the Colorado Public Records Law.
"I made a bad assumption," Breister said.
He said the decision will be repeated in open session July 21 after it's properly posted in advance, as required by law.
Breister said at that same meeting, the board will vote again to hire the new administrator, Howard Miller of Austin, Texas, because that vote, too, was problematic.
It was taken at the May 4 board meeting without proper notice and wasn't reported in meeting minutes, Breister said. When the board approved the May 4 minutes at its May 19 meeting, it did so without correcting the omission.
At issue is a board that oversees $200 million in retirement benefits for 3,680 employees, beneficiaries and retirees of El Paso County, the county Health Department, the 4th Judicial District Attorney's Office, the retirement board and the Pikes Peak Library District.
Members are Breister and Deputy County Administrator Monnie Gore, who were elected by plan members; banker Brian Larson and retiree Julie Johnson, appointed by the Board of County Commissioners; and Sandra Damron, county treasurer.
The decision to hire Miller on May 4 was unanimous. An e-mail vote about pay taken two hours later was 4-1, with Johnson dissenting, according to copies of the e-mails obtained by The Gazette. The board agreed to a salary of $102,000 plus $12,000 in moving expenses. Miller recently began work.
The problems weren't solved when the board "ratified" both decisions at the May 19 meeting, Kelley said.
"They can't just say, ‘OK, we ratify it,' because the ratification is meaningless. It's a rubber stamp," he said. "They have to go back and reopen it, discuss it afresh and then vote."
Board attorney Brent Rychener, didn't attend the May 4 or May 19 meetings.
"Attorneys are pricey," Breister said. "The board as a whole felt there was enough understanding (of the Open Meetings Law) to where we could save the board money and not have an attorney present."
The board has some history with this issue. In 1997, former administrator Mike Witty was sentenced to 21 years in prison for stealing from the fund and its beneficiaries, culminating a scandal that saw two other public officials convicted of official misconduct and a loss to the pension fund of at least $2 million in stolen cash and legal and auditing fees.
During the nearly four-year ordeal, the pension board, comprised of different people at that time, fought an open meetings and open records lawsuit and lost.
"Ever since then, the board has made an effort to be as transparent as possible in everything they do," Breister said. "Our meetings are open. There's nothing secretive with them."
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