The latest battle over the future of the Elbert County Planning Commission drew nearly two dozen residents to a typically empty second-floor meeting room at the Elbert County Courthouse on Jan. 5 for the weekly Monday-morning study session of the Board of County Commissioners, but the discussion over the planning commission's future may expand to include more than just zoning and bylaws.

On July 31 last year, Elbert County submitted its audit financial statements to the state by the statutory deadline for the first time in years. While the auditors praised the county for significant improvements to its accounting practices and financial situation, they also identified weaknesses in the county's departmental business practices, specifically citing a lack of standardization.

In response to the auditor's comments, the BOCC has made streamlining and formalizing the county's business practices a priority. None of these efforts has drawn more attention than proposed changes to zoning laws and the creation of bylaws for the Elbert County Planning Commission.

Kurt Schlegel, commissioner for District 2, said that since the planning commission makes recommendations, the changes are a necessary prelude to the creation of a countywide master plan to manage continued growth in concert with the county's mission statement.

The proposed changes to zoning laws center on two issues: the composition of the planning commission and the implementation of time limits for processing zoning requests. No one has questioned the BOCC's legislative authority to change the zoning regulations, but questions have arisen over the BOCC's legal authority or need to approve the final draft of the planning commission's bylaws.

The bylaws are required by state statute, but the language in the law makes no specific reference to the BOCC, and a lack of case law leaves the issue to be interpreted differently by each side. Additionally, the month-long conflict over bylaws has spawned a second, more far-reaching issue of whether the BOCC is in compliance with Colorado's sunshine laws requiring notice of any kind of gathering convened to discuss public business.

The issue was first raised by planning commission member Rick Brown, an appointee of Larry Ross, commissioner for District 3, in a letter addressed to the BOCC dated Dec. 20.

Brown called into question the legitimacy of a letter addressed to the planning commission and signed by all three commissioners during a study session on Dec. 17, because no public notice had been posted for the meeting. Brown also challenged the legitimacy of the discussions taking place at the Monday-morning meeting on Jan. 5 for the same reason.

Ross did not attend the Jan. 5 meeting, stating in an open letter, “I am deeply concerned that this particular study session was not properly noticed to the public, and therefore my attendance and participation today would involve me in an inappropriate quorum of your county commissioners.”

Ross attached a copy of an email from Schlegel, dated Dec. 17, inviting the following people to attend the morning session on Jan. 5: fellow commissioners; Kyle Fenner, director of community development services; County Attorney Wade Gateley; and Commissioner-elect Kelly Dore. The email specifically mentions a “work session to discuss amendments to the Elbert County zoning regulations re: planning commission.”

The Colorado sunshine statute states, “A local public body is required to give public notice of any meeting attended or expected to be attended by a quorum of the public body when the meeting is part of the policy-making process.”

The law has been determined, however, not to apply to the day-to-day oversight of property or supervision of employees by county commissioners.

“We are getting an update from a department head. That is the purpose of this section of this Monday-morning meeting,” Schlegel said an hour into the meeting, and asked Fenner for a briefing on the status of proposed zoning regulation changes.

Gateley said that the regularly scheduled Monday-morning meetings constitute part of the day-to-day operations of the county where no formal action takes place.

“It is not possible to have every item on the agenda because that's a fluid situation. We have situations where during the weekend things come up, different staff members need a chance to present things, so we have a regular, weekly meeting at 9 o'clock,” Gateley said. “When we have a work session devoted to a specific item, we have noticed that, we've made a specific agenda of that.”

Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, a nonpartisan organization promoting government transparency in Colorado disagrees with Gateley's assessment.

“Getting weekly status updates from department heads or an update on proposed zoning regulations during these unnoticed Monday-morning meetings, it seems to me, does not fall under the category of routine day-to-day supervision of employees,” Roberts said. “If a quorum of county commissioners is present, it is a public meeting that should be properly noticed.”

Roberts also noted that minutes should have been taken at the Jan. 5 meeting. “If no minutes were taken, that may have been a meeting that was convened improperly,” he said.

The state coalition is affiliated with the National Freedom of Information Coalition and is a nonpartisan alliance ensuring the transparency of state and local governments in Colorado.