The subject of “work product” has reared its ugly head again with the revelation that Steamboat Springs City Manager Deb Hinsvark recently sent two emails to members of the Steamboat Springs City Council and marked the correspondence as confidential by designating them as work product.
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Under the Colorado Open Meetings Law, also known as the Sunshine Law, the use of work product is allowed but limited. Work product can include advisory or deliberative materials assembled to assist officials in reaching decisions, such as preliminary drafts of documents or reports. Work product does not include any final version of a document, report or audit. Any material that previously has been labeled work product automatically becomes public once it is distributed to members of a public body for their consideration at a public meeting.
The correspondence that Hinsvark marked as work product was described to be “mundane” by several council members, but we want to make it very clear that the practice of using the work product label to keep communication confidential and away from the scrutiny of the public and the press is a serious subject.
In our opinion, Hinsvark acted unwisely and in apparent violation of direction she received from the council back in December 2012, when work product first was raised by former council member Cari Hermacinski. The video of that meeting confirms council clearly directed Hinsvark to limit the use of work product and only use it after conferring with the city attorney.
In this latest incident, it appears Hinsvark sent out the work product emails without the city attorney’s knowledge, and at Tuesday’s council meeting, when questioned about her actions, she said she was testing the waters to see if the new council would be open to receiving communications in the form of work product. She also said that since a vote on work product was not taken at the December 2012 meeting, she didn’t feel she had “clear direction” on the issue.
On Tuesday, council member Sonja Macys made a motion to vote on limiting the use of work product and tying its use to approval by the city attorney. Council member Scott Ford seconded the motion, but before a vote could be taken, council member Kenny Reisman asked that the issue be tabled until it could be discussed at this week’s council retreat in a broader context of the council’s expectations of how they want to communicate with Hinsvark moving forward. And while continued deliberation could be beneficial, we urge the current council to take deliberate action to limit the use of work product.
It is not our intent to be unreasonable, nor are we contending that the public needs to be privy to everything a city employee does. Anything preliminary in nature, and therefore considered work product, should be handled between employees and the city manager, but at the point when Hinsvark is bringing the project or issue to the council, it becomes public in our opinion, except in circumstances that would warrant a closed session under Colorado law.
Labeling correspondence or reports as work product may be legal in certain instances, but this practice ultimately takes information out of the public arena and keeps it away from the press. And the more conversations and deliberations are kept hidden from the public and press, distrust and suspicion grow.
The public has a right to know more than just how a council votes. It deserves to understand how the City Council makes its decisions, and that process should not be shielded by the use of work product. Good government fosters public engagement.
And we wholeheartedly agree with the position taken by former council member Hermacinski, who called the use of work product “insidious,” because unlike the use of executive sessions, the press and public have no way of knowing when work product is being used by the city. When executive sessions are held, they must be posted, and the reason for holding a meeting closed to the public and press must be disclosed.
This newspaper and members of the public would not have known that Hinsvark had begun using work product again unless council members Ford and Macys had raised the issue at a public meeting.
It is fitting that we are discussing open and transparent government in today’s editorial, which publishes the day before the start of Sunshine Law Week, which will be celebrated March 10 to 16 across the U.S. Its purpose is to foster a public dialogue about the importance of open government and open meetings law. This year’s theme is “Open Government is Good Government” — a simple statement that gets to the very core of government function and the public’s right to know.
The residents of Steamboat Springs deserve a city council dedicated to openness and transparency. The city is not a privately run business but an entity supported by tax dollars, and as such, city decisions must be made publicly, and the decision-making process should not be shielded from public scrutiny by the use of work product.
At Tuesday’s council retreat, we’d like to see council members continue their discussion about being open and transparent as a council and follow up with an actual vote ungirding that commitment. If the city manager needs clear direction on the subject of work product, a vote by council could not be misinterpreted and would send a strong message going forward about how this council wants city business to be conducted.