About Chris Rodriguez

Chris is the editor/publisher of LightningRod Blog - as well as founder/editor of Wrongmont, Longmont Advocate, Vote!Longmont, Longmont Politics, the LightningRod Radio Network, as well as being the original Longmont Examiner. Chris is a writer and talker - whether it be blogs, podcasts, music, or public speaking. When he's not heard on Air Traffic radio, he can be heard on his podcasts or seen in the local paper causing trouble.

Boulder County D.A. letter over Benker’s Open Records issues

Below you will see the correspondence I sent to the Boulder Assistant District Attorney in regards to the alleged Open Records violations of Longmont City Councilmember Karen Benker.  This was sent September 29, 2009.  Below this communication there are updates to the ongoing situation.  Even if the DA’s office wont pursue this, citizens and voters need to be aware of it.
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To:  Boulder County Assistant District Attorney Christopher Zenisek
From:  Chris Rodriguez
Subject: Possible Colorado Open Records Act violation
Mr. Zenisek,
It was nice talking to you about this subject, thanks for your time and consideration of the following.  I believe Longmont City Council member Karen Benker has violated provisions of the Colorado Open Records Act (24-72-201) and I’ve provided below the basis of that opinion.  Below are several hyperlinks to documents for background information, which I will try to explain.

http://longmontadvocate.com/1_Electronic_Records.pdf
This is a Longmont policy/procedure document having to do with emails.  Highlighted on pg. 12-3 is the subject of confidentiality, this topic will become more important as you read the other documents.

http://longmontadvocate.com/1_042909_LCC_notes.pdf
http://longmontadvocate.com/1_042908_CC_meeting.mp3
This is a transcript of the April 29, 2008 Longmont City Council Study session, and the audio in mp3 format.  This is a discussion that Karen Benker initiated about emails and Open Records.  In this exchange between council members and their City Attorney, it’s pretty clear what is expected in the arena of emails.  Also, the City Attorney gives his interpretation of what is “confidential” and how it is established.  This discussion references an “administrative regulation” which I believe is the document above, but could possibly be a confidential communication between himself and council.

http://longmontadvocate.com/2_043009_LA_Can_of_Worms.pdf
This is an April 30, 2008 story I wrote about the 4/29 meeting.  The point of this and subsequent stories submitted by the Times-Call and myself is to point out this is not a new issue, it’s been an ongoing and very public story.

http://www.timescall.com/news_story.asp?ID=16590
Times-Call June 14, 2009Request for council members email’s rife with difficulties”.  This talks about council members being assigned city based email addresses, something that was long overdue.  The Times-Call did an Open Records request of emails, this was the result of that request.

http://www.timescall.com/print.asp?ID=16591
Times-Call’s June 14, 2009Lot’s of room for error built in”.  In this, council members are quoted about this ongoing problem.  Karen Benker admits in this story that she had not been following the policy.  Check some of the quotes, keeping in mind she’s been on council for over 4 years, and was made quite aware of the policy and state statute in April 2008.

http://www.timescall.com/editorial/editorial.asp?ID=16596
Times-Call’s June 14, 2009 editorialPublic business should be done using public e-mail accounts

http://longmontadvocate.com/4_061509_LA_Council_being_dishonest_about_emails.pdf
June 15, 2009 story I wrote about continuing problem with emails

http://longmontadvocate.com/5_072109_Benker_Burt_emails.pdf
Email exchange between Karen Benker and Greg Burt.  This was over a month after the Times-Call articles/editorial on this subject.  At this point Ms. Benker did have a city based email address, as you can see in this exchange.  She alludes to an email or emails from constituents that must have been sent to her private email account as they do not reside on the city server.  You may also notice that in her initial reply to Mr. Burt she uses her private email address, not her city based email address

http://longmontadvocate.com/6_080509_Benker_TC_letter.pdf
Karen Benker’s August 5, 2009 Open Forum letter to the Times-Call on this subject.  She again references an email from Mr. Burt that does not appear anywhere on the city’s server.

http://longmontadvocate.com/7_Colorado_Sunshine_Laws.pdf
Brief outline of Colorado Open Records Act

http://longmontadvocate.com/8_CO_24-72-201_Open_Records_Act.pdf
Pertinent language of the Colorado Open Records Act

You may or may not be aware that the Times-Call is suing the City of Longmont over Open Meetings violations.  I only bring this up as Ms. Benker in her capacity as an RTD board member in the ‘90’s was also accused of violating Open Meetings law (the Rocky Mountain News wrote some stories and an editorial about this) and citizens tried to mount a recall effort against Ms. Benker to remove her from her RTD board position.  So this is not a new issue that someone in her capacity and experience can claim as ignorance of the law.  The supporting documentation I’ve provided, and there could be more, shows a timeline of how and when she was made aware of this law and her responsibilities – and then afterwards continued violation of the Colorado Open Records Act where it appears to be intentional.

On the “confidential” aspect:  I included relevant documents about this as I expect it to be the defense for her actions.  You’ll note in the first attachment and the transcription of the 4/29/08 City Council meeting that it is up to the “Sender” to claim confidentiality, not the “Receiver” to determine.  Further, it says the request for confidentiality shall be in the “salutation”.  The Longmont City Clerk told me this indicates the “Subject” area, not within the body of the email.

Also, the fact Ms. Benker included the subject of these emails within the email to Mr. Burt and the op-ed in the Times-Call would, to me, make something supposedly confidential quite public.  She could have redacted names from emails if she chose to, but as of this date (2 months after exposing the content of those emails) she still has not done this.

I appreciate your position that how your office operates is outside the timing of elections.  As you can see, I and the Times-Call have been writing about this issue for much longer than one election cycle and this all occurred prior to Ms. Benker even announcing her candidacy.  But it now has become an election issue due to the mere timing of her latest, in my opinion, violation.

Like I said, I have no problem dealing with this in the court of public opinion.  But something I repeat often is the concept of holding elected officials accountable.  If it appears an elected official has violated a state statute, what faith will citizens have that officials truly are being held accountable if no one’s willing to enforce the law?

And if a law is not going to be enforced, or only selectively, why bother even having it?
I know this is more philosophical, but when this gets out, and it will, people will be asking those questions.  And I can’t say I would blame them.

Cordially,
Chris Rodriguez

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As previously mentioned, the above correspondence was sent September 29th.  As of October 5th there has been no response, but a misdemeanor like this is not likely high on their list of priorities, which I understand.  I did receive a call from the Clerk of the Court‘s office about the steps I can take (and what it would cost) to file a case in court over this issue. 
The day after I sent this to the ADA, the following letters ran in the Times-Call:
http://longmontadvocate.com/9_093009openforum.pdf
September 30, 2009 Longmont Times-Call Open Forum letter by Chris Rodriguez and rebuttal by Karen Benker.
To me this appears to be an open and shut case, regardless if the DA’s office decides to pursue it or not.  At the very least, with all the Times-Call stories and advice from her City Attorney, it shows complete incompetence and ignorance on Ms. Benkers part.
I’m sure this will only appear to some as a campaign season attack piece, but if you go through the timeline, you’ll see this is not a new issue for Ms. Benker, the Times-Call, or myself.  How any ardent Benker supporter can look the other way after reading all of the above articles and documents is a gargantuan leap of faith.  How any voter could consider returning her to her Ward 2 seat is equally appalling.
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UPDATE:  It appears Ms. Benker has further violated the Open Records Act and is telling her fellow attack dogs to use “CONFIDENTIAL” in clearly non-confidential emails so as to conceal them.  She is also apparently having these people, most notably Kaye Fissinger, to look into organizations she doesn’t like and homeowner information on private citizens.  This also has been forwarded to the Boulder D.A.’s Office and they have added it to the previously large packet of information they have already received. 

Benker decries robo-calls, then engages in them

Yet another case of the pot calling the kettle black.  Longmont City Council member Karen Benker has filed a complaint with the Elections Committee about a robo-call that went out recently.

And yet, she just interrupted people’s Sunday with this robo-call herself.  I guess for someone who basically lead an anti-LifeBridge, anti-church, anti-religious movement, it’s your problem if you have better or more important things to do on Sunday:
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Hi this is Karen Benker. For the past 4 years I have served as your city council member and I am seeking reelection this year. Over the past couple of weeks many of you have received phone calls and fliers in the mail that have lied about my work on council. During my tenure as councilwoman I have faithfully and honestly represented my district. I am asking you now, do not to believe these lies paid for by outside interest groups from Montana who are spending thousands of dollars slandering my name. I am a true advocate for you. Again this is Karen Benker, and I hope you will vote for me this week. If you have any questions about my votes on city council, about my position on an issue, or the work I have done on your behalf please call me at 303-774-7745 or go to my website www.karenbenker.com. This phone call was paid for by Benker for City Council, Dennis Etchells, Treasurer.
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Faithfully and honestly“?  I don’t live in Ward 2 so I didn’t receive many of these mailers or calls, but they sound pretty spot on and not full of lies or slander.  Ms. Benker apparently, as the great Jack Nicholson once said, “can’t handle the truth“.  And she wants to make sure the truth is whitewashed as much as possible before Election Day.
I don’t think so.

Benker SPAMS Prospect

Seems Longmont City Councilmember Karen Benker sent out some SPAM emails to her neighbors in the Prospect neighborhood.  Here it is below (in black) with some additional made-up lines thrown in (in red) to make it more interesting.  Enjoy.

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Hi everyone,
Yes, it’s that time of year again…football, falling leaves in Prospect, and elections.  (But Sunshine Law violations and misleading about “accomplishments” is a year round activity that keeps me quite busy)

Gotten any strange calls lately?  (UFO’s got you down?  People stalking around your home or place of business?)

As you know, I am (unfortunately) running for reelection to City Council and am facing a very negative campaign from folks that are (spreading the truth about me, and) refusing to file campaign expenditure reports and are hiding behind a Montana non-profit called Western Tradition Partnership (well, actually I’m not being totally truthful.  WTP has made contributions to Longmont Leadership Committee, who are filing campaign expenditure reports) Seems weird (like, totally weird) that out-of-state and out-of-city folks (darn city folk) are involved in a Longmont campaign.  (Sort of like how the Democratic Party has funded my campaigns in the past)

Please do not believe these lies and distortions of my record (as they are pretty much 100% true). If you want more info, go to my website (www.KarenBenker.com) or, better yet, please give me a call at 303.774.7745. (And don’t forget to ask me about Clover Basin, Secret Executive Sessions, and Open Records violations – three of my favorite subjects, along with pushing churches out of town, harrasing their members, and suing neighboring cities)

I ask you for your vote (but if you’re smart, you’ll mail it in after Election Day, or just vote for my opponent Katie Witt). Many thanks.

Hope to see you at the chili cook off.  (Don’t forget to try the Backyard Chicken and Prairie Dog Surprise recipes!)

Karen Benker

Benkers Clover Basin mistruth proven

If you’ve seen Longmont City Councilmember Karen Benker‘s website and flier, or have heard her speak at forums, you’ve probably read or heard this repeated mistruth of hers that she “ended the unfair Clover Basin Fire tax“.   You even see some of her miscreant followers screech this in the Times-Call comment section, probably at the same time covering their ears and yelling “la la la” as the actual truth is told to them.

Well, I guess I just have one question:  If this tax was ended and it was a done deal, like so many have falsely portrayed, why is it on this Tuesday’s Longmont City Council agenda for the council to finally vote on it?

Uh oh, an inconvenient truth for Ms. Benker.  Has she been lying on her brochures, website, and public speaking engagements?  In a word, yes.

But lets dig deeper into the agenda, specifically this PDF from the city’s website that speaks directly to this Clover Basin issue.  There are some interesting quotes that you need to be aware of.  Here’s one, and this is by their City Attorney Eugene Mei:  “At the July 21, 2009 study session, Council provided direction to staff to terminate the District’s annual payment obligation at the end of this year, and to dissolve the District.”  I know this can be complicated to understand (if you can’t read), but this was the vote to draft a Resolution to end the District, not an actual vote to end the District, that takes a Resolution.

Actually, it will take two Resolutions, and here they are (again, yet to be voted on):
1. R-2009-92, A Resolution of the Longmont City Council To Terminate the Intergovernmental Agreement with the Clover Basin Fire Protection District and Eliminate the District’s Future Annual Payment Obligations
2. R-2009-93, A Resolution of the Longmont City Council Consenting to the Dissolution of the Clover Basin Fire Protection District

But there’s more, Mr. Mei continues:  “Accordingly, the City has negotiated with the District the attached termination agreement that will terminate the IGA on December 31, 2009—and with it all future annual payment obligations—provided that the District makes this year’s final payment in full.”  Uh oh, there’s a condition.  How could there be any conditions if it was a done deal?

And then there’s this interesting tidbit (brace yourself Clover Basin non-done deal deniers):  The proceedings to dissolve the District will be conducted in state district court according to statutory procedures as set forth in C.R.S. Title 32, and will continue well into 2010.”

So how can the following statement on Ms. Benker’s website be true?  “In July 2009, a third council vote was taken with a vote of 7 to 0—finally eliminating this unfair tax and directing staff to sunset the agreement between the city and the special district.”  Easy answer, it’s not true.  It’s Ms. Benker assuming you don’t know better when a lifetime politician is pulling the wool over your eyes.

Oh, it gets better.  If Ms. Benker had her way at that July 2009 meeting, every voter in the City of Longmont would have voted on this issue which would have put the shaft to all of those Clover Basin residents Ms. Benker falsely claims to be the savior of.  You can read more of that part of the story at this link.

Basically, Karen Benker is playing the voters of Longmont as fools, especially those in Clover Basin.  If this is the kind of leadership you consider effective, you might need your head examined.

GUEST EDITORIAL: Julia Pirnack on the First Amendment

Under the guise of promoting “transparency” in campaigns, this summer the City passed legislation that I believe violates first amendment protections. I am one of the plaintiffs in the lawsuit over the Longmont “Fair” Campaign Practices Act because it threatens freedom of speech and has direct negative impacts on our community’s ability to discuss policy issues and candidates. Freedom of speech means just that: freedom to discuss what you wish without undue regulation and oversight. While some exceptions have been allowed, the first amendment to the U.S. Constitution is clear: no law should be made infringing on free speech.

During my last months as Longmont’s mayor, a few people made it their business every week during council meetings and almost daily in the blogs, to launch personal attacks, lies and innuendo against me, other council members, businesses and others. At the time, many people asked me why I chose not to use my discretion as mayor to suppress attacks during meetings. My answer was always the same – people have the right to express what they wish, even though I may have thought their speech was politically motivated, downright deceptive or derogatory in the extreme.

If we set up laws, committees or regulators of “rightness,” we empower them to decide what we should hear based upon their own biases and motivations. We lose the battle to maintain our freedom to speak without threat of retribution or fines. Rather than government oversight, it is up to each listener to be their own regulator – for each individual to judge the value of the speech, its truth, and yes, the character of those speaking. 

Many years ago, a singular piece of federal legislation was proposed for adoption. This legislation was of such importance that one citizen decided extraordinary amounts of personal time and money must be dedicated to persuade the public on its merits. He decided to publish a series of papers promoting adoption of the legislation. For whatever reason, he wrote anonymously. He contracted with printers and enlisted a couple of personal and political friends to assist.

This series became the famous Federalist Papers written by Alexander Hamilton, John Jay and James Madison, supporting adoption of the U.S. Constitution. Thomas Jefferson wrote that the Papers were “The best commentary on the principles of government which was ever written.” 84 papers were published under the pseudonym “Publius.”

Had Hamilton tried to publish the Federalist Papers in Longmont today, under the Longmont “Fair” Campaign Practices Act he would have been threatened and “… fined for [his] political views” (August 2009 City Line) to the tune of $200 per day, because he didn’t report to the City clerk first, note on each paper how much they cost (he didn’t know how many he would publish), and notify candidates and committees of his activities. As a people, we have forgotten that good arguments have the real power to persuade and that no amount of regulation, red tape and reporting will promote public understanding.

Instead of clarifying the City’s position on the lawsuit’s allegations, our City posts threats for non-compliance in newsletters and on TV, and our City attorney plays politics, shown clearly in the Times Call article of October 3rd. The article states City attorney Mei finds the timing of the lawsuit “curious” and wonders why plaintiffs wouldn’t just ask the clerk what they can or can’t do. “Instead, they chose to make this into a much bigger deal.” Sorry Mr. Mei, but I think first amendment violations by City government are a big deal.

Resolving the violations in the LFCPA would benefit everyone in Longmont, not just one faction or another – that is the whole point. Rather than follow their current lawsuit-happy path (note the City demanded that this local issue be removed to federal court), there is a simple, lower cost option for the Council to pursue. Acknowledge that there may be legitimate concerns, roll back the amendments to the LFCPA that violate first amendment rights and ask the election commission to craft a piece of legislation that passes constitutional muster. If the “curious” summer amendments to the LFCPA really weren’t politically motivated by some members of our current Council, they should not have any problem with taking another look at legitimate citizen concerns.