Some Steamboat City Council members question recent use of confidential memos from city staff
March 5, 2014
Steamboat Springs — The Steamboat Springs City Council next week could decide whether it wants to continue getting some confidential communications from city staff that are labeled as “work product” and shielded from public review.
Council’s decision will come during a broader discussion about government transparency, how often council members want to use executive sessions and how they want to communicate with city staff.
The issue of work product came up Tuesday night when council members Scott Ford and Sonja Macys expressed concern about city staff’s recent use of it on two occasions this year to protect two memos Ford and other council members considered to be "mundane."
Labeling communications as work product is a way of keeping communications city staff send to the council privileged and allows staff to be more candid in those communications.
Colorado’s open records law allows the use of work product to shield documents, but only under limited circumstances.
For example, while it protects the draft of a report that is being sent to council early to help aid in the deliberative process, the final version of that same report could not be withheld as work product.
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When work product is sent to the council, it can’t be released to the public unless a majority of council members decide it should be.
"It limits our ability to have open conversations with our constituency," Ford said about the use of work product.
City Manager Deb Hinsvark said it was being used recently as a way to keep the council better informed about city projects that are preliminary.
Her decision to use it came after council members at some recent meetings asked that she keep them better informed about ongoing projects ranging from the possibility of paid parking to the construction of a new police station.
"More recently, we’ve been asked to be more upfront with you," Hinsvark said. "My colleagues in this business in the state of Colorado use this work product communication very much just to keep their councils informed on issues that are not something we want or need to make public that are very preliminary."
According to council members, its use has been rare or nonexistent in recent years, including under Hinsvark.
Until it was used last month, council members hadn’t reported its use since 2012, when it drew strong criticism from former council member Cari Hermacinski.
She called its use "far more insidious than the use of executive session."
A few other council members at the time also expressed a desire to limit its use, but a vote on the issue never was taken.
Hinsvark said Tuesday that because a vote hadn’t been taken, she didn’t think the council had given city staff any clear direction on the issue.
Hinsvark was interim city manager at the time and said city staff would not "use (work product) until they’ve discussed it with me and I’ve discussed it with" city attorney Tony Lettunich.
Ford questioned whether that had happened in the most recent uses of work product.
Its most recent use was met with a mix of reactions from the council, with some more accepting of it than others.
Council member Walter Magill said he understood why it was starting to be used, but he didn’t prefer it as a way to increase communication with the council.
"People don’t like to get something and then be told, ‘Don’t tell anyone,’" Magill said.
He said he would be more open to holding executive sessions instead to discuss city issues, "be it employees or land issues or a civil issue the city may be involved in."
New council member Tony Connell said he "was not against getting work product as long as it’s unbiased and it’s setting the stage for my decision."
Macys made a motion to restrict its use, but a majority of the council instead supported discussing it further during a council retreat Tuesday.
"I think this falls under the much broader and much more important concept of what we want out of our city manager, and I think and hope that’s something we go down the road on next Tuesday," council member Kenny Reisman said.
Reisman said he thought the council had created a "no-win" situation for the city manager by not clearly laying out its expectations, including about communication.
Council’s discussion about transparency is one of many topics expected to be tackled next week in a goal-setting retreat with Todd Musselman.
The retreat, which starts at 4 p.m. in Centennial Hall, is open to the public.