Board approves indemnity for itself

Commissioners move to provide protections in lawsuits

Posted 1/31/16

In a series of resolutions, the Elbert County Board of County Commissioners voted to provide indemnity for two sitting county commissioners and one former county commissioner for a pending lawsuit against Elbert County at its meeting on Jan. …

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Board approves indemnity for itself

Commissioners move to provide protections in lawsuits

Posted

In a series of resolutions, the Elbert County Board of County Commissioners voted to provide indemnity for two sitting county commissioners and one former county commissioner for a pending lawsuit against Elbert County at its meeting on Jan. 27.

The move by the board directly addresses one of two resolutions that are the subject of a separate lawsuit filed by Elbert County resident Rick Brown against the BOCC and Commissioner Robert Rowland for potential violations of the Colorado Open Meetings Law, also known as sunshine laws.

Brown’s complaint centers on actions taken at an April 8, 2015, BOCC meeting, where the BOCC also passed resolutions indemnifying the commissioners

The first resolution, designated as resolution 15-11, indemnified commissioners Robert Rowland, Larry Ross, and former Commissioner Kurt Schlegel. who were named along with the county in a wrongful termination civil suit brought by former county employee Cherie Radeker.

The second indemnifies Rowland for a $1,000 fine levied against him by an administrative judge for the BOCC’s violation of the Colorado Fair Campaign Practices Act, a complaint made to the Colorado Secretary of State’s Office by Jill Duvall, Elbert County Democratic chair, which specifically named Rowland.

Though Brown raised an eyebrow about the indemnifications, his complaint, filed last October, focuses on potential violations of the sunshine laws when the BOCC “failed to provide ‘specific agenda information’” regarding the new business for the meeting last April.

Brown’s complaint alleges the April 8 meeting agenda was “deceptive and failed to provide adequate notice,” and “as a result of the OML violations, the resolutions are void.”

At the April 8 meeting, the BOCC entered into executive session, a closed or nonpublic session framed within an open meeting, to discuss pending litigation. The action came following the last new-business agenda item for the meeting.

By the time the BOCC returned to open session, the public and the press had left the building. Commissioner Kelly Dore, not named in any of the lawsuits, made two motions, both seconded by Ross.

Resolution (15-11) indemnified Rowland for the Duvall complaint, allowing Rowland to receive a reimbursement from the county for the $1,000 fine. The second (Resolution 15-10), addressed the indemnification of the commissioners in the Radeker litigation.

Brown’s complaint states that since Ross seconded both motions, but then recused himself, along with Rowland, from both indemnification votes, Resolutions 15-10 and 15-11 are unlawful, because only a single commissioner cast a vote.

“There were two claims, one that it wasn’t on the agenda. There was also a claim they had not gone into executive session properly, because they didn’t state the grounds,” Brown said. “The other part was they didn’t have a quorum to vote on it.”

At the Jan. 27 meeting, the BOCC passed three separate resolutions offering individual indemnification rather than a single blanket resolution, thus allowing commissioners to appropriately recuse themselves but still achieve a quorum.

In a statement read by Dore at last week’s meeting, Dore said the meeting and the executive session were properly noticed, and after receiving legal advice during the session, the board determined it was appropriate to vote on the indemnification resolutions.

“I singularly voted to pass resolutions 15-10 and 15-11, because no individual should be afraid of running for public office due to potential litigation against him or her,” Dore said. “Instead people should be encouraged to run for public office and feel confident that if they are acting in good faith within the scope of their duty as an elected official, they will be protected in their individual capacity from any potential lawsuit.”

While Dore expressed the BOCC’s disagreement with Brown’s lawsuit, she said that in order to avoid “unnecessary, costly, and time-consuming litigation,” the BOCC would readdress the Radeker indemnifications.

“Under the open meeting law, you get a second bite at the apple, which is what they just did,” Brown said, commenting on the board’s do-over of resolution 15-11. “You can go back and cure it as long as it’s not a sham, not a rubber stamp. You can argue whether this is a rubber stamp or not, but they invited public comment, it’s on the agenda, and people got up and commented on it.”

Overall, Brown was satisfied that the BOCC met sunshine provisions for the action to address the indemnification for the Radeker litigation, but the BOCC took no action to address resolution 15-10.

Rowland repaid the county the $1,000 in December 2015, but the resolution indemnifying him remains on the books and in theory, leaves the door open for him to submit another reimbursement request at any time.

A decision in the Radeker case is still pending.

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