On Tuesday, Nov. 14, in the middle of an emotional 16-hour showdown over potentially destroying the Mill Street working-class neighborhood to build the El Pomar-funded Montgomery Community Center, the City Council took a dinner break.
Council members, along with city manager Jim Mullen, assistant city attorney Al Ziegler and utilities director Phil Tollefson headed to MacKenzie's Chop House, where they convened in private to enjoy a $262 dinner courtesy of the taxpayers.
As long as official business was not being discussed, the City Council's dinner was not illegal. As city councilman Ted Eastburn noted later, "What's the big deal? We do it all the time."
However, the timing of their dinner, in the midst of an emotional, high-stakes and extraordinarily controversial public hearing, at least raises the hint of impropriety, according to a leading Denver open meetings lawyer.
Notably, this member of the press was barred from the Council's private dining room and told that their meeting could not be disturbed. Ziegler, the city's attorney, later refused to say whether official business had indeed been discussed during dinner.
"Write that down!"
Though Mayor Mary Lou Makepeace had told the Independent where the group was headed, when a reporter and photographer showed up to make sure no official business was being privately discussed, the restaurant's manager refused to allow them access to the Council.
The manager, who declined to identify himself, claimed it was a private meeting and he had not received instructions to the contrary. "I'm going to have to ask you to leave," the manager said.
Later, after the Council returned to City Hall, Ziegler, serving as the city's legal representative, refused to say whether any city business matters had been discussed during the dinner.
"I don't feel like commenting on that," Ziegler said.
The attorney also refused to divulge what he had eaten for dinner.
When a quorum of City Council members meets in a social gathering, they are prohibited under Colorado's open meetings law from discussing city business, or cutting deals.
Councilmen Richard Skorman and Jim Null subsequently took issue over being questioned about their dinner, and denied that any city business had been discussed.
When asked the topic of their dinnertime conversation, Skorman initially said, "It's none of your business," but then conceded that their conversation ranged from Tollefson's recent 50th birthday to Skorman and city manager Mullen swapping anecdotes about their stomach acid problems.
They were not aware, they said, that the press had been turned away from their table. "Write that down! Write that down!" an angry Skorman instructed, jabbing his finger at this reporters' notebook.
Two days later, Skorman apologized for his outburst.
"I was tired and cranky, as we all were," Skorman said. "It's something not typical for me, and I know you were just doing your job."
The sphere of impropriety
Steve Zansberg, a Denver attorney who specializes in First Amendment and open meetings law, said when officials meet in private -- particularly in the midst of a heated public debate, it gives the appearance that the public's business may have been discussed.
"They should be able to look you in the face and say, 'This is not what we were doing,'" Zansberg said. "But when they're getting together in the middle of deciding whether or not build a homeless shelter, they have a harder time saying that wasn't the central or even part of the discussion.
"It raises the sphere of impropriety."
Currently, all members of the Council attend the catered mealtime sessions, which are generally held at City Hall.
But while presiding over Colorado Springs for 18 years, former Mayor Bob Isaac avoided the lunches and would often go elsewhere during the Council's noon break. During Isaac's tenure, the council's business rarely extended into the dinner hour.
Isaac's rationale is the same as Zansberg's: The temptation to talk about city affairs is great, and if Council members ended up talking about city business, Isaac could later "look anyone in the eye" and honestly say he didn't discuss the public's business behind closed doors.
"You don't want to go to those things because there's an appearance that you might be talking business that is hard to avoid," Isaac said. "If there was an appearance of impropriety, that's what bothered me, not a matter of what was spent on the lunch."
Out of touch with the people
During the Nov. 14 dinner break, Matt Parkhouse and many other working class opponents of the homeless center, went home to eat.
The irony of the council's upscale dinner was not lost on Parkhouse, who believes that many of Colorado Springs elected representatives are out of touch with the needs of the working-class of Colorado Springs.
"Of course I think that's inappropriate," he said of the dinner. "There's other ways to get nourishment to the City Council -- or get them to nourishment -- than to send them to a high-end restaurant, especially at city expense."
In recent years, the cost of feeding the City Council has increased exponentially. According to a breakdown supplied by the city in an Open Records request, last year the city's taxpayers spent $16,650 to feed the City Council and its five appointees.
This year, as of the end of October, the council has already surpassed last year's total by almost $4,500, consuming $21,093 worth of breakfasts, lunches and dinners.
The elected officials officially meet twice a month for formal Council meetings, where they vote to adopt ordinances and set policy. They also hold informal sessions twice a month amd gather at City Hall informally once a month for early breakfast roundtable discussions.
The city usually relies on four local caterers to bring in food, and Council members typically dine in a conference room on the fourth floor of the city administration building at 30 S. Nevada. Nancy Bramwell, the mayor's assistant, said that the conference room door is always open.
"If people want to come over at lunchtime they can just walk in," she said.
Pizza and fried chicken
Bramwell said that the Council's tradition of indulging in city-purchased meals dates back at least 28 years, when she started her job.
"Back in 1973, Colorado Springs didn't have any caterers, except [Kentucky Fried Chicken]," she said. "So we would get KFC, or order pizzas from Guiseppe's [Depot restaurant] and go and pick them up and bring them back."
Former city attorney Jim Colvin said that in the early 1980s, Paul Sherbo, then a reporter for the now-defunct Colorado Springs Sun, routinely sat in on the meetings to monitor Council and ensure official city business was not being discussed. The reporter, Colvin noted, always brought his own brown bag lunch to show he would not accept freebies or bribes from the government agency he was covering.
"I don't know why Al [Ziegler] was being so reluctant to say what he had for dinner [on Nov. 14]," Colvin said. "All they are doing is throwing gasoline on the fire."
Colorado Springs 2000 is a far cry from the days of old, and a myriad of restaurants and caterers abound. Though the city has a policy that requires competitive bidding throughout its other departments, that practice does not apparently extend to food service for Council.
This year, the tabs for catered lunches at City Hall average $50 a head for the nine elected officials and their five appointed managers.
On Sept. 12, during a much-touted "Council comes to you" public meeting held during the night to allow working citizens to attend a Council meeting, the city forked out more than $900 for cookies for the masses.
An apt quotation
By Colorado law, the City Council must, at least 24 hours in advance, publicly post the times and places when three or more City Council members are going to meet in a quorum.
City Council meetings are posted outside the city clerk and recorder's office and on the fourth floor of the city administration building. However, the notices do not include the details of where they -- or even that they will -- take their lunch inside the 7-story administration building.
Such apparent secrecy, according to attorney Zansberg, may not violate the letter of the open meeting law, but certainly breeches its spirit.
"When the people are denied the right of access to meetings at which public business is discussed, it certainly raises suspicions," he said.
Finally, Zansberg noted former U.S. Supreme Court Chief Justice Warren Berger's quote of more than 20 years ago, "People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."
"That's an apt quotation for what really animates the open meetings law," Zansberg said.