Westcliffe Board of Trustees appear to have violated Colorado Open Meeting Laws

During a special meeting on December 12, the Town of Westcliffe’s Board of Trustee (BOT) agenda stated that it was discussing the structure of the town government with a presentation put together by the (now former) Town Manager Caleb Patterson.

However, by the end of the meeting, Mayor Paul Wenke was confusedly stating that he wanted Patterson to resign and then changing his story that Patterson had resigned during an executive session.

Patterson disagreed and stated that when the board went into a non-public meeting known as an “executive session” that was titled on the agenda as “Executive Session – For the purpose of determining positions relative to matters that may be subject to negotiations, under C.R.S. Section 24-6-402(4)(e) regarding job description of Town Manager” the Board instead gave him an ultimatum, “resign right now or be fired.”

In Colorado, the state law known as the Colorado Open Meetings Law demands that public boards such as the Westcliffe BOT discuss most public matters in public meetings. Executive sessions are special non-public meetings when the BOT needs to get legal advice, discuss an employee matter, or discuss a negotiation strategy. Broadly, they cannot make decisions as a board in an executive session.

But that is precisely what the BOT did, and they essentially confessed they had made broad decisions on the Town Manager’s resignation and his severance package when they came out of the executive session and reentered the regular public meeting. To be clear, Patterson has yet to resign officially, and all such discussions on a resignation if he had resigned needed to be placed on an agenda for a future meeting and discussed in public, none of which happened.

When Mayor Wenke came out of the executive session, he first attempted to end the meeting without saying anything else. However, it was retiring Town Clerk Kathy Reis who said he had to deal with the last agenda “items regarding a negotiation.”

Wenke, confused about what to do, listened to Clerk Reis as she said, “Caleb resigned. We need to make that a public record.”

Wenke stated that he did not agree. “Well, I would not put it like that. I would say that Caleb has the opportunity to resign, but I would not put it on the record like that. I would say that Caleb can write a letter to you.” Visibly frustrated, Mayor Wenke continued and seemed to have forgotten that the Board of Trustees was indeed in a public meeting again and was being recorded. “I don’t want to mention that in public. I want him [Caleb] to resign.”

Wenke was going to continue speaking but was interrupted by Clerk Reis, and asked the town Attorney Clayton Buchner, who was present by Zoom, to comment. “Well, I think we are already back in the public meeting, so that cat is out of the bag. But I think that the appropriate action is whether Mr. Patterson’s intent is on resigning, and if so, then you need to make a formal decision and vote on any information regarding severance waiver of payback and the details that you discussed during the executive session,” catching himself after realizing he should not have said that as he was acknowledging that plans had been made in the executive session continued. “Not the details but putting that, those, details of the resignation and what the formal decision of the board is going to be and do that in this public meeting.”

Mayor Wenke took over the meeting again and continued to admit that the BOT had made the decisions in the executive session. “We had that discussion and decided not to change our government structure.” Mayor Wenke, knowing full well that what he was about to say contradicted what he had said one minute prior, “and in that meeting, Mr. Patterson has submitted his resignation, um, effective immediately.” To date, Patterson has not submitted his resignation.

Mayor Wenke continued to spill out details that took place in the executive session that should have been discussed in a public meeting, “That the town accordingly, the town will pay a one-month severance package along with his paid time out, and no adjustment for any kind of education accruals that become due to him based on our town policies.” The Board then made a motion based on this statement, and the BOT voted unanimously on the motion made by the Mayor.

Very few things in this meeting appear to have followed state laws. The first violation is that a town manager appointed by the BOT can “be removed at the pleasure of the council” for cause. However, state law clearly states that “Before the city manager may be removed, he shall be given, if he so demands, a written statement of the reasons alleged for his removal, and he has the right to be heard thereon at a public meeting of the council prior to the final vote on the question of his removal.”

In addition, Colorado employees have the right to request that an executive session regarding a personnel matter be made public. This was denied by the BOT as they had originally not included Patterson in the meeting and then called him in halfway through.

Town Attorney Clay Buchner disagreed with the Tribune in a letter sent in December stating that “The Board of Trustees entered into an executive session to negotiate the Town Manager’s job description, as was specifically noticed on the agenda in accordance with Colorado law.” However, forcing a town manager to resign does not seem to fall under the title of the executive session agenda “For the purpose of determining positions relative to matters that may be subject to negotiations, under C.R.S. Section 24-6-402(4)(e) regarding job description job description of Town Manager.”

Finally, as reported by the Tribune before, the First Amendment, which protects free speech, also appears to have been violated. The Supreme Court of the United States ruled in 1968 that public employees have the right to speak out on matters of public concern. The case focused on Marvin Pickering, a high school science teacher in Illinois who was fired for writing a letter to a local newspaper criticizing the school board. The case set the stage for future rulings on the First Amendment, but the Supreme Court ruled 8-1 that “The problem in any case,” Justice Thurgood Marshall wrote for the Court, “is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering had made several factual errors in his letter, but the point remained that he had a right to talk about a matter of public concern. Westcliffe Manager Caleb Patterson had correctly identified a problem in the structure of the Westcliffe Town Government, and instead of remaining silent on the issue, he tried to bring it forward to the board to work towards a solution.

The Tribune was denied a copy of the recording of the executive session, but we will continue to investigate what took place during the executive session on December 12.

– Jordan Hedberg