Closed sessions held in 2019 by El Paso County commissioners to discuss a ballot question that could have asked voters to allow the county to retain tax dollars were lawfully held and did not violate open meetings law, a judge found last week.

Rebecca Marshall, co-founder of advocacy group The Springs Taxpayers, filed a lawsuit in August 2020  against the county, asserting the closed meetings were not lawful executive sessions but were open meetings because the matters discussed during those meetings were not clearly identified. Marshall argued the county “provided only negligible identification of the particular matter the board intended to discuss,” according to court documents.

The group also sought audio of the meetings to be released, saying there was no reason for discussions to have been secret.

On June 11 and July 30, 2019, El Paso County commissioners went into closed sessions to discuss a ballot question that could have asked voters to allow the county to retain tax dollars. The board ultimately decided not to ask voters to retain $4.1 million and instead refunded it, county spokesman Ryan Parsell told The Gazette in June  2020.

A ruling handed down Jan. 11 by 4^th Judicial District Judge Thomas Kane found the executive sessions were lawful because information provided for the sessions “included specific reference to ‘ballot questions’ and the ‘return of taxpayer funds,’” documents show.

Parsell said in a Wednesday email to The Gazette the county was not surprised by the ruling and that it “vindicates the county’s position which we explained to the plaintiff multiple times.”

He said the county would not normally comment about an ongoing lawsuit, “but the assertations made by (Marshall) in this case are so meritless that we feel this circumstance warrants a departure from our normal practice.”

Multiple attempts to reach Marshall’s lawyer were not immediately returned Wednesday.

Commissioners spent $20,500 on a poll to ask voters about how they felt about allowing the county to keep taxes collected in excess of the Taxpayers Bill of Rights cap and determine the commissioners’ own popularity among voters. The Springs Taxpayers requested the poll from the county, Laura Carno, executive director of the group, told The Gazette in June.

In May 2020 , the group asked the county if the commission could vote to release the recordings of the closed meetings and were told by a county public information officer to seek legal counsel on the question, according the group’s blog.

Marshall alleged in court documents she first requested a copy of the recordings in June and that County Attorney Diana May denied the request three days later.

May alleged Marshall requested the recordings several times prior and was denied each time because the recordings were not subject to public inspection since they were records of executive sessions. Requests made in June by The Gazette to review the same recordings were denied by the county for that reason.

“When the plaintiff requested the data and supporting documents, we released it,” Parsell said. “When she requested privileged information, we explained the law. When she repeated the same request multiple times, we invited her to seek competent legal advice.”

In the lawsuit, Marshall alleged May violated the Colorado Open Records Act when she withheld the audio recordings. Marshall asserted because the County Board of Commissioners’ announcements failed to specifically identify the matters discussed in those meetings, the recordings of the executive sessions were also subject to public inspection.

Court documents show the recordings were destroyed on June 15, three days after one of Marshall’s requests to review them was denied. Marshall was informed the recordings had been destroyed a month later, in July .

According to state statute, executive session recordings must only be maintained for 90 days after the meeting was held.

Marshall argued in court documents that destruction of the recordings denied her the right to preservation of the recordings and her right to pursue legal proceedings. Parsell said the county retained those records four times longer than required by law.

“Now, over a year later, the plaintiff argues she did not have sufficient time in which to seek inspection as to these recordings,” May said in court documents.

When Marshall requested May produce a copy of all records concerning the destruction of the audio — emails between May; her counsel, Senior Assistant County Attorney Steven Klaffky; Parsell and his employee Michael Madsen; and County Administrator Amy Folsom — May withheld those communications, stating they were protected by attorney-client privilege.

May’s office voluntarily provided Marshall a privilege log describing those emails but not revealing the privileged information, court documents show.

Kane found those emails were a string of legal advice between May, Klaffky, Parsell, Madsen and Folsom and were protected by attorney-client privilege. Kane denied Marshall’s request to review them.

Marshall also sought an order that would require May to justify her decision to withhold the recordings from Marshall’s inspection, but because Kane found the executive sessions were lawfully held, further proceedings on the matter are unnecessary, court documents said.