"It is declared to be a matter of statewide concern and the policy of this state that the formation of public policy is public business and may not be conducted in secret."
That's the preamble to the Colorado Open Meetings Law, designed to ensure citizens can be "fully informed on issues of public importance" so they can take part in decision-making in a meaningful way.
In other words, the public has a right to know what its government is up to.
But the public remains largely in the dark about an Aug. 1 confab between city officials and Houston-based Ultra Petroleum, which submitted the winning bid of $26.25 million to buy 18,000 acres of Banning Lewis Ranch land out of bankruptcy court.
That's because the public's two elected representatives who attended the meeting — City Council President Scott Hente and Mayor Steve Bach — aren't saying much.
"It's all very confidential, because it's still in the court system," says Hente, who refuses even to identify who else was in the room.
Why should we care?
The meeting is important because Ultra has said it wants to drill for oil and gas on the property, which spans much of the city's eastern boundary.
Toward that end, Ultra wants a federal judge to set aside a 1988 annexation agreement requiring the property owner to give the city land for roads, fire and police stations, electric substations, parks and the like. The agreement also requires the owner to pay to expand a wastewater treatment plant, among other expenses.
The city wants the annexation agreement enforced, and wants to move the bankruptcy proceeding from Delaware to U.S. Bankruptcy Court in Colorado, because of "important and complex issues of Colorado law that include critical public policy concerns."
Hente chaired the Aug. 1 meeting but says he fears that if information leaks from the meeting, he and others could face sanctions from the Securities and Exchange Commission.
What could the SEC do? "I don't want to find out," Hente says. "The threat of Scott facing a civil or criminal sanction is more important than anything."
Asked if secrecy surrounding the meeting means a deal could be struck without public engagement, Hente says, "I don't know the answer to that question."
He'd better find out, says Luis Toro, director of Colorado Ethics Watch.
"He needs to figure that out right away and let Ultra know, so they can deal with any supposed SEC issues that they seem to think could arise if a deal becomes public before it is final," says Toro, who adds that the SEC excuse sounds "far-fetched."
The SEC declined to comment for this story, but securities laws require confidentiality only when a company is preparing for a public offering. The SEC website doesn't show that Ultra has given notice that an offering is imminent. Ultra didn't return a phone call seeking comment.
Mayor Steve Bach says he attended the meeting "from a courtesy standpoint" to explain to Ultra that Council, not he, has authority over land-use decisions and city-owned Colorado Springs Utilities. Land use comes into play because Ultra may ask for a zoning change or revision to the master plan, which dictates where homes, businesses and roads will be located. Utilities has a huge stake in the discussion, because the Southern Delivery System pipeline is being built, in part, to serve Banning Lewis.
Unlike Hente, Bach doesn't hesitate to list who was there: Wynetta Massey with the city attorney's office, Utilities CEO Jerry Forte, another Utilities official, Ultra officials and Hente. Beyond that, though, the mayor demurs.
"Here's what happened," Bach says. "We convened. They immediately said, 'This must be a totally confidential meeting. We're going to tell you some things. We are publicly traded. What we're going to tell you, you must hold in confidence.'"
Bach says he left after 45 minutes and doesn't know if any decisions were made, but adds it's not likely.
"Any decision that would be made on the Banning Lewis Ranch with respect to annexation and zoning and Utilities would have to be decided by the Council in public session," Bach says. "There's no way anyone could have made any guarantee or representation of any type."
The mayor, who's vowed his administration will be the most transparent in the city's history, says he's not troubled by the confidential meeting, the likes of which he says happen "every day" at City Hall.
Council not concerned
Based on Bach's report to him, Councilor Tim Leigh describes the meeting as a "look-see" at Ultra's plans, and President Pro Tem Jan Martin calls it "an opportunity for everyone to meet each other and talk about where we go from here."
Which makes one wonder: Why all the stealth?
"Some things you have to discuss quietly behind closed doors and figure out what the landscape looks like," Leigh says. "When it gets to the right point, I think we need to let the public in on it."
Despite the secret meeting and their support of it, Martin and Leigh say Council is committed to open government.
"This Council is very interested in not only following the law but being very open about whatever we can be," Leigh says. "I would assure you [that] under my watch, and I would be very willing to bet I'm speaking for the Council, when it gets to a policy, it will be open."
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