Steamboat's McConnell challenging whether Senate appointment vote was legal

Former congressional candidate says vote should have been public; lawyer calls it 'an open question'

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Bob McConnell

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Al White

— Former U.S. congressional candidate and Steamboat Springs resident Bob McConnell is challenging the legality of a vacancy committee’s Jan. 3 secret ballot that gave Hayden Republican Jean White a seat in the state Senate.

Attorney Chris Beall, who provides legal counsel to the Steamboat Pilot & Today and the Colorado Press Association, said arguments presented by McConnell in a mass e-mail sent Sunday could have “some persuasive force” in a courtroom.

“There is no case that establishes whether a partisan vacancy committee is subject to open meetings law,” Beall said. “So it’s an open question.”

McConnell said today that he’s not planning any legal action related to the ballot process, in which the state Senate District 8 vacancy committee selected White to replace her husband, former state Sen. Al White, in the state Legislature. The selection occurred at the Moffat County Courthouse and required five rounds of voting to reach a majority of the committee, which included the district’s executive officers and Republican Party chairpersons from counties in its Northwest Colorado boundaries.

Seven members of the nine-member committee voted Jan. 3. Jean White, an executive officer for the district, recused herself. Eagle County Republican Party Chairman Randy Milhoan was hospitalized and unable to vote.

McConnell was one of six candidates vying to complete Al White’s term. Al White left his seat to become executive director of the Colorado Tourism Office.

Vacancy committee members have released the tally for each candidate in each round but have not specified which members cast which votes.

McConnell said the votes should have been made publicly but said he’s “just raising the question” about whether the vacancy committee violated open meetings laws.

“I’m not in this to undo what was done,” McConnell said today. “But I think we need to fix the process. I’m putting the Republican Party on notice that a bunch of us are upset about that.”

Vacancy committee Chairman Phil Vaughan, of Garfield County, said the state Republican Party specifies the use of secret ballots for vacancy appointments.

“That’s very clear in the Colorado Republican by-laws,” he said.

McConnell ran for Congress as a Republican last year but lost in the primary in August to Cortez businessman and state legislator Scott Tipton, who went on to defeat incumbent Democrat John Salazar and win a seat in the U.S. House of Representatives.

When Al White announced his departure from the state Senate, McConnell threw his hat in the ring for the seat. Shortly after the seat went to Jean White, McConnell announced his departure from the Republican Party, also in a mass e-mail.

He said he’s now registered as unaffiliated.

McConnell expressed how he felt about the vacancy process in Sunday’s e-mail, which took the form of a newsletter titled “A Conservative Voice.” McConnell said secret ballots are “one of the most insidious tools of the trade” in a broken political system.

“As we saw recently in the dog and pony show that was the SD 8 vacancy committee, the secret ballot protects good old boys from accountability and allows them to perpetuate the back door deals that have nearly destroyed the Colorado GOP and indeed, this country,” McConnell wrote.

Vaughan said whether the secret ballots violated open meetings laws is a question for attorneys and reiterated that he simply was following rules established by the state GOP.

“That was my job as chairman,” Vaughan said. “I don’t make state law.”

Legal questions

Beall said the question at the heart of the matter is not whether secret ballots are permissible.

“The real question is whether a vacancy committee is a body that is subject to open meetings law,” Beall said.

Colorado’s Sunshine Law imposes strict regulations on public and private entities that have been delegated a governmental decision-making function.

Beall said the distinction lies in whether the vacancy process constituted a representative body seeking to enact the will of its constituents.

“It’s unclear to me whether a vacancy committee functions in that way — whether committee members are representatives or direct voters,” he said.

Beall said it would be permissible for McConnell to bring a lawsuit to Moffat County District Court seeking a declaratory judgment that the secret ballots violated open meetings law.

“He would have to prove both that secret ballots are illegal and that the vacancy committee is a public body,” Beall said.

He speculated that should such a situation arise, the defendant likely would file a motion to dismiss the case, on grounds that the vacancy committee is not a public body.

The fact Jean White is serving in the state Senate could spur the litigation to move faster than normal, Beall said.

Beall said McConnell could ask for a preliminary injunction prohibiting Jean White from that service.

McConnell did state a potential for litigation in the Sunday e-mail after alleging that Colorado politicians have “hidden behind” the Republican Party’s by-laws.

“If this by-law is not changed, we will take the party to court under the state open meetings law, and we will win,” he wrote.

McConnell said he plans to continue sending the mass e-mail newsletters, likely once a week. He said he’s felt a need to challenge the secret ballot process since the vacancy arose.

“I’m just raising the question,” McConnell said. “Kicking the can and saying, ‘We’ve got to fix this.’”

— To reach Mike Lawrence, call 970-871-4233 or e-mail mlawrence@SteamboatToday.com

Comments

kathy foos 3 years, 7 months ago

Thanks Bob for the effort to spread a little "sunshine"in a very dark area like this situation.This appointment stinks the way it has turned out and it needs to be corrected, not just let go.Al White has campaigned in our area for years and won,when he decided to take the other job,he has to let go here on this job,not just have his wife hold his place..Maybe he never should have left ,but he shouldnt have influence on that job now and he does.I support you Bob and hope you can set this staight,it takes alot of courage to right a wrong like what has occured here.

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trump_suit 3 years, 7 months ago

Wasn't Bob in attendance and participating at these "illegal meetings"?

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Rick Akin 3 years, 7 months ago

There are two issues here: 1. Was this legal? The Open Meetings Act applies to, "any public or private entity to which the state, or an official thereof, has delegated a governmental decision-making function." The statutes delegate the ability to fill vacancies to vacancy committees like this one, so it looks to me like the Open Meetings Act would apply. Also, the statute that delegates this power provides that the vacancy is to be filled in this way, "The vacancy committee, by a majority vote of its members present and voting at a meeting called for that purpose and open to the public." It seems to me pretty clear that the procedure used was not legal.

  1. (And more importantly) GOP, would a little transparency kill you? These kinds of back-room proceedings do not inspire confidence.
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Steve Lewis 3 years, 7 months ago

Transparency is hopefully coming to the next such event. Bob probably is helping the GOP in Colorado get there by changing their bylaws.

And thanks for the Act text, Rick. Hard to see anything illegal: Since the election of "who sits in a given chair" of congress is not a government's decision, it seems obvious that that the state therein has not delegated any governmental decision-making function to the GOP.

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Rick Akin 3 years, 7 months ago

Hey Steve, You have identified the correct issue as far as the Open Meetings Act. We could argue about that one, but how do you get around the statute that specifically says the vacancy committee must act in a meeting "open to the public?"

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Steve Lewis 3 years, 7 months ago

I spoke too soon about change coming. The next article by the Pilot quotes a GOP attorney saying the question resurfaces every few years. Seems they are in no rush to change.

And I disagree with you again. Reading the text literally, "open to the public" describes the meeting, not the vote. Much the same way meetings to select Steamboat Planning Commissioners are open to the public and the ballots are secret.

Your next state convention should be interesting, now that you've gotten some press. Maybe you can change GOP rules. Will you go?

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Scott Wedel 3 years, 7 months ago

Well, this could be an interesting case because the other functions of the party, such as nominating, is not actually a government function. The law says that if the party fails to pick a replacement (and apparently independent candidates have to pick their vacancy committee as part of registering for the ballot) then the governor gets to pick. So replacing an elected official is a government function. So I think this is notably different than other aspects of the political parties that are not covered by the open meetings act.

Though, it would seem that the remedy would be make the votes public and not actually invalidate the committee's selection.

If the committee used an invalid process to pick the replacement then since they had a 30 day deadline then if a court says they did it wrong then it would seem to be clear that now it becomes the responsibility of the governor to pick the replacement.

It would appear that the open meeting law would say the votes to select planning commissioners and other officials should not be secret votes. It is not an election. It is a vote by public officials regarding a government function of how vacancies are filled in government. And it is not a personnel decision or anything else that has an exception.

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