“A minor COVID update” during a Glenwood Springs City Council executive session turned into a sometimes heated discussion that touched on county commissioners, Garfield County Sheriff Lou Vallario and enforcement of public health orders.
The nearly 45 minutes of rancor resulted in councilors voting at the May 21 meeting to call for the resignation of one of their own: Councilor Tony Hershey.
‘Sensitive and Confidential’
At the May 21 meeting, six councilors called for the at-large councilor’s resignation and alleged Hershey, among other things, “divulged sensitive and confidential comments” from the May 14 executive session. The letter, read into the record by his fellow council members on May 21, did not specify what Hershey had “divulged” from executive session.
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The May 14 published city council agenda listed “27th Street” as the lone executive session item. However, Garfield County Commissioner John Martin, Sheriff Lou Vallario and Shooters Grill were also discussed.
City Attorney Karl Hanlon said the city tries to provide notice of executive session items at least 24 hours in advance but sometimes information comes through late and the city has to react accordingly.
“We have one or two businesses that we have had problems with in the past that are going to take what’s going on with Shooters and run with it,” Hanlon said in the May 14 executive session. “It is going to leave us in a very, very difficult position.”
Hanlon also said Vallario had announced he would not enforce the state’s COVID-19 public health orders locally.
On May 14, Vallario wrote on the Garfield County Sheriff’s Office Facebook page “I will not arrest anyone who violates these health orders, because the rule of law and due process are absent.”
Mayor Jonathan Godes said in executive session that Glenwood needed to either “be all in or all out” with respect to enforcing public health orders.
“This is a public health issue and not something that should be enforced by local law enforcement,” Vallario said in an interview Friday after listening to the May 14 executive session recording. “Apparently, city council doesn’t understand…it’s not up to the sheriff to enforce these laws within their city limits.”
Hanlon also claimed Martin said the county would ignore the governor’s order and announce that businesses could operate as they saw fit — instead of applying for a variance, which the county did on May 15.
“We will not operate as businesses see fit,” said Debra Figueroa, Glenwood Springs City Manager in executive session. “We will enforce the state law.”
Martin said in an interview Friday that he didn’t say the county wouldn’t apply for a variance but that it was “considering” not doing so.
“I said we’re considering, because of the frustration, not going forward [with a variance],” Martin said. “But, we did anyway.”
At one point, Hershey became disconnected from the May 14 executive session.
Once he returned, Hershey informed council he had called Martin.
Hershey said Hanlon and Figueroa had “misinformation” and that the county was in fact applying for a variance.
Upon realizing Hershey had called Martin, Hanlon said the executive session was done.
“Councilor Hershey,” Hanlon said. “I don’t actually have words.”
To which Hershey replied, “You’re not telling the truth.”
Hanlon went on to say that he was simply reporting the best information that he had.
Martin said Hershey did call him but only to ask whether or not the county would apply for a variance.
“That was about the end of the conversation,” Martin said. “The things going on in city council, I didn’t want to hear it, I don’t want to hear it. That’s their business not mine. [Hershey] did not divulge anything to me other than he needed clarification.”
The county’s request for a variance was partially granted and now restaurants, places of worship and gyms can reopen at half capacity with social distancing guidelines in place.
Release the recording
Wednesday’s special city council meeting was scheduled after the city received public record requests calling for the release of the May 14 executive session recording, including one filed by former Ninth Judicial District Attorney Sherry Caloia.
Closed to the public, officials should utilize executive session to discuss property matters, develop strategies for negotiations and to receive legal advice.
Hanlon believed COVID-19 had been included in Councilor Charlie Willman’s motion to enter executive session on May 14 and that the recording software did not pick it up.
In a video from the May 14 public meeting, Willman only makes reference to “27th Street” in his motion to enter into executive session.
Shortly after the executive session began, “a minor COVID update” can be heard in the audio recording as being added to the topics up for discussion.
No one on council objected to COVID-19 being discussed in executive session on May 14.
“The city councilor who made the motion did not let the public know that legal issues related to COVID-19 would be a topic of discussion in the closed-door meeting,” Jeffrey Roberts, Colorado Freedom of Information Coalition executive director said in an email response. “The city council did the right thing by acknowledging its mistake and voting to make the executive session recording public.”
The city has maintained that COVID-19 was in Willman’s motion and that the recording software just didn’t pick it up.
Roberts said three actions must occur for a local body to properly and legally go into executive session. First, it must announce to the public the legal basis for the closed-door meeting. Roberts said the local body must also announce the particular matter, with as much specificity as possible, without compromising the reason for executive session. Lastly, the motion to enter executive session must receive yes votes from two-thirds of the quorum present.
Hanlon said COVID-19 was discussed in executive session in order to provide council with legal advice.
“The purpose of these rules is to give the public some idea of what their elected officials are discussing in private and to create a mechanism for policing whether public bodies are complying with the open meetings law,” Roberts said.
Elusive emails
In an email exchange obtained by the Post Independent through a public record request, Mayor Jonathan Godes, Mayor Pro Tem Shelley Kaup and Councilor Rick Voorhees discussed what they believed should and shouldn’t be included in the letter read into the record during the May 21 city council meeting, which called for Hershey’s resignation.
The letter was not available for public inspection prior to the May 21 council meeting, and still wasn’t until a majority of council voted to make it public during the meeting itself.
“Since it’ll eventually be part of the public record, let me drain it of some of the histrionics (with which I fully agree) and bring it back to the oath we all took,” Voorhees emailed Godes at 8:19 p.m. on May 16. “He’ll continue to run amok unless we do this.”
Hershey has repeatedly said he will not resign.
“I may have made some mistakes but I was just trying to get to the truth,” Hershey said.
In an email intended for members of city council, Hershey acknowledged that he too contributed to the tone of the May 14 executive session, which he described as “rife with acrimony.”
“I take significant offense that the council thinks I violated executive session rules when the discussion occurring during that session was far afield from what is allowed under state law,” Hershey wrote in a letter dated May 20 and addressed to his fellow council members. “Unfortunately for you, the people elected me to the city council and only they can remove me.
