Marks looks to shed light on vote for open council seat

By Troy Hooper
Real AspenMarch 3, 2011

The secrecy over the preferred appointments for an open seat on Aspen City Council is under siege.

Local political watchdog and former mayoral candidate Marilyn Marks filed an open records request Wednesday seeking “a copy of the ballot or vote tally from each City Council member on the matter of filling the City Council seat vacancy” that opened when Dwayne Romero left for a job with the state.

Marilyn Marks

Eight candidates are vying to serve out the remainder of Romero's term, which expires in June. Ultimately the position will be put to voters on May 3, though the field of candidates is expected to change. Aspen City Council is charged with appointing Romero's replacement in the interim.

Aspen City Council took a vote on Tuesday, with two of the council members preferring one candidate and two other candidates receiving one vote each. A candidate must receive three votes in to win the appointment. Because of the deadlock, the council is scheduled to reconvene on Friday to vote again. Tuesday's vote was done in a public meeting but the results of which councilors voted for whom was kept secret.

“Obviously the intent of the Open Meetings law is to prohibit public bodies from making decisions in private, without full public observation of the process,” Marks wrote in an e-mail to Real Aspen this morning. “The exceptions to this principle are few and narrow. Choosing CC members is not one of those exceptions. It is thwarting the intent of the Sunshine Laws to have the CC members secretly record their decision on a piece of paper and call it a public vote just because they are sitting in a public room when they write down their secret decision. What is to keep all the land use and other officials decisions from being made that opaque way?”

The Aspen Times reported yesterday that there is an “internal dispute” among city officials about whether the council's votes are open or closed under state law. So far, they are keeping the votes secret.

Dwayne Romero

A similar dispute is playing out in Fort Morgan, Colo., where a citizen is challenging that municipality's appointments in 2009 and 2010 of city council members and a municipal court judge. That case is complicated by Fort Morgan's home-rule charter, which reportedly supports the city's position that votes for such appointments can remain anonymous. But the plaintiff maintains the practice violates the state's open meetings laws. The case is currently being considered by the Colorado Court of Appeals.

"It looks like the Fort Morgan case supports the position that secret ballots can be done, at least for now," Aspen assistant city attorney Jim True said Thursday afternoon. "Since our charter language is a little different, however, we are still looking at the issue."

The Aspen City Council seat opened up after Gov. John Hickenlooper's appointment of Romero as the new director of the Colorado Office of Economic Development and International Trade. The candidates to replace him are Patti Kay-Clapper, Adam Frisch, Marcia Goshorn, Ruth Kruger, Howie Mallory, Cathy Markle, Jag Pagnucco and Cliff Weiss. Romero has said he will split his time between Aspen and Denver, and continue to work for Related Snowmass, a development and investment firm.

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