Boulder County and a Gunbarrel resident have settled a lawsuit in which the resident alleged the county violated open meetings and open records laws in connection with a proposed affordable housing project in the Gunbarrel area.
A Nov. 26 settlement signed by Kristin Bjornsen, who represented herself, and Boulder County commissioners’ staff deputy Michelle Krezek stipulates that the Boulder County commissioners board will provide advance authorization of all separately held executive sessions and will confirm or notify the public whether a scheduled executive session took place. Additionally, the commissioners agreed to abide by the Colorado Open Meetings Law if they hold what the statute considers an electronic public meeting. The settlement also awards Bjornsen $4,000 in damages.
“I’m very happy to have reached an agreement with the county and appreciate their amicable dialogue the last couple months as we worked on the settlement,” Kristin Bjornsen said in a Monday email.
Bjornsen’s open-meetings and open-records complaints, filed in a February 2017 Boulder District Court lawsuit, stemmed from her opposition to a proposal by the Boulder County Housing Authority and Boulder Valley School District to someday build an affordable-housing project on 20 acres of now-vacant government-owned land along Twin Lakes Road in unincorporated Gunbarrel.
She has said she opposed the project from an environmental-protection and open-space-preservation standpoint.
Bjornsen, who lives on Brandon Creek Drive, had alleged that between April 1, 2016, and Nov. 1, 2016, Boulder County commissioners violated open meetings laws by retroactively approving three closed-to-the-public executive sessions, rather than authorizing the sessions in advance.
Bjornsen also had alleged that on 15 occasions between April 1, 2016, and Nov. 1, 2016, the commissioners had cited the topics of its executive sessions and the provisions in state law allowing such closed meetings to discuss those topics — but failed to identify the “particular matter to be discussed in as much details as possible without compromising the purpose for which the executive session is authorized,” according to the settlement-agreement document.
Since then, Bjornsen and Boulder County have acknowledged that the county “has generally provided particular subject matter when authorizing executive sessions,” the agreement states.
The stipulation in the settlement that requires commissioners to publicly acknowledge that executive sessions happened addresses this claim by giving the public the ability to establish an executive session happened and to verify the topics that were discussed. That stipulation is “in addition to the law’s requirement that the county authorize executive sessions at least 24 hours in advance.”
“The county will continue to follow present law on this point and endeavors to provide as much information as possible without compromising the purpose of the executive session.”
Bjornsen’s complaint alleged that on Aug. 31, 2016, Sept. 1, 2016, and Oct. 31, 2016, Boulder County did not record executive sessions as required by the Colorado Open Meetings Law, but the county took the position that it recorded all executive sessions under that law’s requirements.
The settlement states that since Bjornsen made her complaint, the county has recorded all executive sessions pursuant to the law’s requirements and has agreed will continue to do so.
Bjornsen’s original lawsuit objected that she’d been denied non-redacted copies she had sought to examine of several draft Boulder County documents — including drafts of a “Your Opinion Matters” communication county staff prepared for a message ultimately sent to invite county residents to participate in meetings about the Twin Lakes affordable housing project.
In May of this year, Boulder County provided Bjornsen with the emails, according to the settlement agreement document, so her claims about the open-records violation are now moot.
Boulder County “represents that it is following and will continue to follow” a Colorado Court of Appeals opinion about emails in Bjornsen’s litigation regarding whether certain emails are, or are not, “work product” that’s not subject to open-records disclosure, under the settlement agreement.
Bjornsen said Monday that “some of the funds from the $4,000 will go to attorney Thom Ward, who helped me for about a month pro bono around September 2017. The rest will cover the court filing costs, transcription costs, serving fees, and other legal expenses, which were very significant.”
In April, the Colorado Court of Appeals directed that Boulder District Court reconsider several rulings in Bjornsen’s lawsuit.
The three-judge appellate court panel reversed Boulder District Court Judge Thomas Mulvahill’s October 2017 summary judgment that had held that county commissioners did not violate Colorado Open Meetings Law in their convening of executive sessions.
The Court of Appeals judges also found that Mulvahill erred in a November 2017 ruling that Frank Alexander, director of the Boulder County Department of Housing and Human Services, properly withheld several draft Boulder County Housing Authority staff documents Bjornsen had sought to examine.
Boulder County’s Krezek said in a Monday interview that most of the items in the settlement agreement represented things that the county already had promised to do when convening future executive sessions, as well as the county having already provided Bjornsen with the documents she’d sought in her open-records requests.
The agreement “just memorializes” the fact that the county has done that and will comply with those legal requirements in the future, Krezek said.
Last May, Bjornsen said she would oppose any further county efforts to get the courts to dismiss her lawsuit but that she might be willing to settle. Deputy Boulder County Attorney Trina Ruhland said at the time that the county also would be open to a settlement.
Bjornsen said in May: “I am completely open to settlement discussions in which the county would agree in a written policy statement to comply with open-meetings and open-records laws, so that we can ‘Windex’ our government’s transparency and ensure the protection of citizens’ liberties.”
However, “I would want a binding commitment, in writing,” she said at the time.
Krezek said Monday that “there isn’t anything happening” right now on the proposal to use the Twin Lakes properties for the site of a affordable housing project.
That proposed project was essentially put on hold in February 2017, when Boulder County Planning Commission members voted 5-4 Wednesday night to reject any changes to the Boulder Valley Comprehensive Plan’s current land-use designations for the 20 acres of county- and school district-owned land along Twin Lakes Road in unincorporated Gunbarrel.
The Boulder County Housing Authority and the school district had sought a medium-density residential comprehensive-plan designation for most of those 20 acres as a step toward seeking annexation and zoning by the city of Boulder in order to proceed with that project.
The 10 acres owned by the Housing Authority at 6655 Twin Lakes Road remains in a low-density residential category. The school district’s 10 acres at 6500 Twin Lakes Road and 0 Kalua Road continues to be designated for such public uses as a school, although the district has said it doesn’t intend to put one there.