Letter to Secretary Jewell

8/13/2019 Letter to Secretary Jewell

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1888 S he rman S t ree t

Su ite 37 0

D enve r , C O 802 03

(303 ) 376-2400 | Phone

(303 ) 376-2401 | Fax

S teve Zansbe rg

(303) 376-2409

szansber [email protected] om

January 27, 2014

VIA E-MAIL (c/o Blake Andross) and U.S. Mail

Hon. Sally Jewell

Secretary of the Interior

U.S. Department of the Interior1849 C Street NW

Washington, DC 20240

Re: Exclusion of Reporters From Public Meeting

Dear Secretary Jewell:

This law firm represents the Colorado Press Association and its member newspaper, The

Craig Daily Press. I write, respectfully, to express both of these organizations disappointment

with the actions taken by your office on January 22, 2014, in excluding from a posted publicmeeting of the Moffat County Commissioners a reporter for The Craig Daily Press, Erin Fenner.

Ms. Fenners exclusion was in violation of the Moffat County Commissioners lawful duties

under the Colorado Open Meetings Law. Furthermore, her exclusion from the public meeting on

the basis of her status as a member of the press was a violation of her and her employers rightsunder the First Amendment. Accordingly, we respectfully urge that in the future, your office

make greater efforts to coordinate with local governmental offices to avoid any recurrence of

such violations of state law and constitutionally protected press freedoms.

Here is what we understand occurred: At its regular scheduled public meeting onTuesday morning, the Moffat County Commissioners announced that there would be a meeting

between them and Secretary Jewell that afternoon, and that this meeting to discuss public

business would be open to all members of the public, in accordance with Colorado law. Indeed,the County Commissioners expressly invited the reporter from the local radio station KRAI-FM

to have that station broadcast that the meeting was to occur, so that there were would be a large

public turnout to welcome Secretary Jewell and engage in a public discussion concerning thesage grouse conservation effort.

Moreover, that morning, the Moffat County Commissionersposted a formal notice thattheir meeting that afternoon with Secretary Jewell, the Governor, and other State officials, would

involve their discussion of public business and therefore, in compliance with their duties under

the Colorado Open Meetings Law, was a meeting open to the public.


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Hon. Sally Jewell

Secretary of the InteriorU.S. Department of the Interior

January 27, 2014

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In accordance with the Commissioners oral invitation and the formal posted notice, Ms.

Fenner arrived at the American Legion Hall and sought entry into the Commissioners publicmeeting. Ms. Fenner was prohibited from entering the public meeting, by someone she believes

was a member of your staff, who explained to her that the meeting was open to the pubic only,

but no members of the press were permitted to attend. When notified of the situation by The

Craig Daily Press Managing Editor, Noelle Leavitt-Riley, Moffat County Commissioner JohnKinkaid confirmed his belief that the meeting was open to the public, and that Ms. Fenner should

be given entry to the American Legion Hall. Nevertheless, Ms. Fenner was barred from entering

the public meeting.

From what we have been able to determine to date, it appears that what occurred was theresult of a miscommunication between the County Commissioners and your office concerning

the County Commissioners duties under Colorados Open Meetings Law. Quite clearly, the

County Commissioners fully understood and sought to abide by their obligations to open to the

public a meeting at which they participated in discussion of public business. Under Coloradoslaw, once a meeting is properly noticed as a public meeting, no member of the public may be

excluded (other than as a result of being disruptive). Members of the press, like Ms. Fenner, are,

under the law, members of the public. Thus, your Department spokesman Blake Androffsemailed statement to the Grand Junction Sentinel that no member of the public was turned

away, is factually incorrect.

Under Colorados Open Meetings Law, it is no more lawful to exclude all members of

the press from the Commissioners public meeting than it would be to exclude all people who are

left-handed or all people shorter than six feet in height. Simply put, excluding certain membersof the public from a public meeting is a violation of this states Open Meetings Law. As a result

of Ms. Fenners being barred from attending the public meeting at the American Legion Hall, we

have reason to believe that your office caused the Moffat County Commissioners to be inviolation of the Open Meetings Law. (As far as we are aware, the County Commissioners did

not meet in a public meeting and announce the topic and statutory basis for convening an

executive session, which would have authorized them to exclude the public from the meeting atwhich they discussed public business, provided they voted to do so publicly and thereafter

recorded their executive session.)

In addition, although neither your office nor the Colorado Governor are themselvessubject to the Colorado Open Meetings Law, as government officials, each is subject to the First

Amendment to the Constitution of the United States. The United States Supreme Court hasexplicitly recognized that the Constitution demands that the media be guaranteed access at leastequal to that granted to the public. Star Journal Publg Co. v. County Court, 591 P.2d 1028,

1030 (Colo. 1979) (citations omitted) (emphasis added). As Justice Potter Stewart wrote in aconcurring opinion inHouchins v. KQED, Inc., 431 U.S. 1 (1978), The Constitution does no

more than assure the public and the press equal access once government has opened its doors.


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Hon. Sally Jewell

Secretary of the InteriorU.S. Department of the Interior

January 27, 2014

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{00695429;v2}

(emphasis added). Here, by posting a formal notice and their oral statements on the morning of

January 22nd, the Moffat County Board of Commissioners had opened its doors to the publicto attend its meeting at the American Legion Post 62. Thereafter, by excluding Ms. Fenner from

that meeting, on the sole basis that she was a reporter, her rights, and the rights of the press

guaranteed by the First Amendment, were violated. The press has . . . a fundamental right to

attend any . . . proceeding which is open to the public. Star Journal Publg, 591 P.2d at 1030.

As I said above, we believe that what transpired in Craig on January 22nd was not theresult of any intentional effort by the County Commissioners nor by your office deliberately to

violate the rights of the press and/or the public. We attribute the unfortunate set of events to a

basic breakdown in communication between the Moffat County Commissioners and your officeregarding the parameters of the meeting at the American Legion Post. Accordingly, we

respectfully urge you, in the future, to strive to communicate in advance with local public bodies

who are subject to our states Open Meetings Laws prior to excluding any members of the public

(including the press) from meetings at which public business is discussed, and to which thegeneral public has been formally invited.

Thank you very much for your consideration. Please do not hesitate to contact me if you

wish to discuss any of the above.

Sincerely,

LEVINE SULLIVAN KOCH & SCHULZ, LLP

By:

Steve Zansberg

SDZ/cdhcc: County Commissioners, Moffat County, Colorado

Noelle Leavitt-Riley, Managing Editor, Craig Daily Press

Samantha Johnston, Executive Director, Colorado Press Association

Documents

Letter to Secretary Jewell