Weld County commissioners quarrel over utility company meetings, document release
October 19, 2016
After one county commissioner released confidential records to protest county meetings with utility companies, the rest of the commissioners are left scratching their heads.
Commissioner Sean Conway recently released emails, which detailed the county's attorney giving the board legal advice before a planned September meeting with Xcel Energy, alleging the meeting was a kind of unethically private correspondence called ex parte communication. The emails went public this week when a conservative blog published them.
"If there truly was an issue, I don't know why he was at (that) meeting," Commissioner Barbara Kirkmeyer said, noting Conway didn't seem concerned enough to skip the meeting. Conway is known for missing meetings he disagrees with. As an example, he did not attend a county training this summer in Breckenridge, stating the travel expense was excessive.
Other commissioners expressed concerns about the email documents' release, which took place after the county attorney deemed them confidential and protected by attorney-client privilege. They said the meeting with Xcel, and frankly other large companies, are normal county business.
County Attorney Bruce Barker declined to release the documents, citing confidentiality. The emails were then published anyway on Complete Colorado, which is funded by Independence Institute, a Denver-based conservative think-tank. The report said the one of the email chain's recipients shared the emails.
The conversation outlined in the emails prior to the Sept. 6 meeting showed Barker advising the commissioners to avoid talking about project specifics. The emails also showed Conway voicing concern about the meeting. He was the only one who voiced opposition to the meetings, and various sources confirmed he shared the documents. He did not respond before deadline to a call and text message from The Tribune seeking comment.
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The Sept. 6 Xcel talks weren't noteworthy, commissioners said. They're standard operating procedure.
"This is a regular meeting," Kirkmeyer said. "We do this with all sorts of people. … We meet on a regular basis with oil and gas folks."
These meetings are open to the public and officials give public notice, but they take place in an administration room in the back, not the hearing room out front. This specific meeting with Xcel is the only one drawing ire.
In an interview, Barker said the concern he was trying to get across to commissioners in his email about this meeting was that because the county will have to decide on Xcel land-use cases in the future, residents might believe meeting with them now poses a conflict of interest, or that it could look inappropriate.
"'You've got to be real careful,'" Barker said, summing up the advice he gave the commissioners in the email. "'You can still meet with them, but you've got to be careful.' That's really about it."
Ex parte communications are a concern for any board that has judicial or quasi-judicial powers. In this case, the Board of Weld County Commissioners acts as a quasi-judicial entity when it's making land-use decisions, such as those that occur when a company seeks permission to build a large project in the county. During the hearings, they collect evidence and use their own judgment to make a decision.
Officials aren't allowed to hear any facts about a land-use case privately, especially without a member of the opposition present. Any written communication has to be entered into the record, Barker said. Telephone calls would have to be recorded, or an official would have to tell the caller to share the message in a public hearing instead.
For example, if a company representative wanted to discuss details about the batch plant the company pitched last year during a private meeting with a commissioner before the hearing, it would be ex parte communication.
Although the county attorney, Cornell University's legal dictionary and other area attorneys say ex parte communication would happen during a specific time frame. The clock would start only once a land-use hearing is announced and before the board makes a decision.
The apparent concern is that the meeting with Xcel would be considered ex parte because Xcel will have land-use hearings in the future. The company is one of only a handful of electric providers in the quickly growing region. Company representatives have presented long-range plans to address that growth to various local agencies, including the city of Greeley.
But there are no Xcel cases on the land-use hearing schedule, said Commissioner Chairman Mike Freeman. The utility company doesn't even have a case in the pre-application phase, he said. Xcel representatives did not return calls seeking comment.
The Sept. 6 meeting wasn't designed to discuss a specific case, but the company's strategy in the region, Freeman said.
"They actually talked more about Larimer County," he said. "It's just big-picture stuff."
The same is true for the other industry representatives with whom the board meets.
"Mainly, it's so we know what's going on with their long-range plan, where they're going to be in the county," he said.
It helps commissioners with their own long-range plans. For example, if there's going to be heavy truck traffic in a region that's usually sparsely populated, the county will have to consider road impacts and public works projects, he said.
These meetings, especially those with utility companies, also help officials make the county sound more enticing to businesses considering Weld County, Kirkmeyer said.
"This is part of our job," she said. "We're supposed to know about the type of infrastructure coming in."
Documents that have been deemed attorney-client communications aren't open to the public under the Colorado Open Records Act, said Mike Beylkin, a media attorney in Denver. Once a reporter gets the information, he or she is fully allowed to publish it, though. Any wrongdoing wouldn't be on the news outlet that put it out.
But depending on the content in the documents, that might not be true for the officials who release it.
"There's a potential that the commissioner violated his fiduciary duties to the county by revealing the emails," Beylkin said.