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.
To: Boulder County Assistant District Attorney Christopher Zenisek
From: Chris Rodriguez
Subject: Possible Colorado Open Records Act violation
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.
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.
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.
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.
Times-Call June 14, 2009 “Request 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.
Times-Call’s June 14, 2009 “Lot’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.
Times-Call’s June 14, 2009 editorial “Public business should be done using public e-mail accounts“
June 15, 2009 story I wrote about continuing problem with emails
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
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.
Brief outline of Colorado Open Records Act
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.
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:
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.
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.