LP012: Open Records, Wards, Boards, and the marauding hordes

On Episode 12 of Longmont Politics, we discussed Longmont’s ward realignment, advisory board processes, fun found through Open Records searches, the ongoing harassment by anti-airport individuals and the odd change in tactics by the anti-frackers.

Music played in this show was “Love” by Aldo Leopardi – courtesy of Music Alley.

Join Chris Rodriguez and his guests as they talk about the topics of the day. While the show will lean towards Longmont, Colorado with emphasis on politics, there’s no limit to where the show might go and may apply to your hometown. Leave a voicemail which we may use on-air at (720)924-1080      

For more information check out our website www.LightningRodRadio.Net

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. 

Councilmembers, candidates, and citizens who stalk others

It’s become painfully clear after the October 12th Election Committee Special Meeting that Longmont Councilmember Karen Benker and her loyal mouthpieces intend to use this committee as their own little political hit squad.  Ms. Benker has now filed 5 complaints to get done what she wants done – and her 5 complaints are the ONLY complaints filed so far.  Call the wahh-mbulance.

Until tonight there were only 3 complaints, but they were amended, and what was in those amendments is what’s really seedy.  The complaints were made against Longmont Leadership Committee, who have allegedly put out mailers, push-polls, and robo-calls.  Their address was filed with City Clerk when they registered.  So Ms. Benker and her merry bunch, which according to her complaint includes current council candidate Kaye Fissinger, went driving around town looking for the Longmont Leadership Committee.  Unfortunately, Ms. Benker apparently dropped a digit from their filed address.  Real brain surgeon material here. (UPDATE-1 INFO BELOW)

What was interesting was the email exchange that ensued between Ms. Benker and Ms. Fissinger.  It appears that Ms. Benker is schooling her lackies in how to use “CONFIDENTIAL” in the subject line so she doesn’t have to forward them to the city’s server.  In the complaint, she left out the original email from Ms. Fissinger and only shared the 2 that followed (UPDATE-2 INFO BELOW).  Just because someone says “CONFIDENTIAL” doesn’t mean it is, as the City Attorney clearly told them over a year ago.  From what I saw, these were clearly NOT confidential.  Let’s take a gander at them.

On October 5th, in a reply to Ms. Fissinger’s original email, Ms. Benker says “Kaye, I tried checking out the address on the flyer (flyers are people who fly airplanes, fliers are brochures).  Looks like it is just a house. 600 Hover St, C3 #129  Do you have any way to figure out who owns it?  karen”  (She got the address wrong and is trying to get Ms. Fissinger to hunt down info on the owners of this house!  Remember, this is a city council member telling a citizen and council candidate to do some snooping on a private citizens residence, very creepy stuff).

Within 13 minutes, Ms. Fissinger replies: “I think they may have listed the address incorrectly.  1600 Hover Street C3 is a mail box business.  I had Duane (presumably Duane Leise, fellow “What’s In It For Longmont” member) drive over there within the last week or so because it’s also the address for Longmont Leadership.  Coincidentally (or not) it’s very near the Longmont FAA facility (where Rodriguez works).  The #129 is probably the actual box number.  Kaye

So, there you have it.  Karen Benker, Kaye Fissinger, and Duane Leise are driving around town on a quest of what Ms. Fissinger once called the “politics of personal destruction” as they try to collect information on private citizens, and stalk around my work (which is a Federal installation).  I made it clear to the Election Committee tonight that if they want to drag the FAA into this little game Ms. Benker is playing, I’d be more than happy to bring along a federal attorney next time.

Here’s a little tip to this trio of stalkers and spies:  I have a government classified clearance, its level is of no business of yours.  Ms. Fissinger is implying a couple of things here:  that this group they were snooping after is located at a federal facility, or that it’s no coincidence that I work near where this group is supposedly located, implying I’m part of this group or I run it.  First, I’m not part of Longmont Leadership or any other group.  Second of all, I’m reporting this to FAA Security.  Based on the content of that communication, it appears one or all of these three are casing this federal installation and making assumptions of what goes on there.  They don’t take too kindly to that kind of thing, I can assure you.

Lastly, regardless of anything else, this sort of activity is way over the line – and these communications make it clear that Karen Benker is directing these citizens to carry out her dirty work for her.  Even if it means driving by peoples homes, businesses, places of employment, or digging up homeowner information.  It’s not a stretch to assume they have their own “enemies list” and the ends justify the means.

I haven’t written much about candidate Fissinger as I think the only thing saving her from finishing dead last in this race is that there’s another candidate who isn’t campaigning at all.  As far as Karen Benker, she’s proven to be one of the more loathesome politicians this city has seen in recent memory.  If this doesn’t prove that, I don’t know what does.

So, the moral to this story: speak up or make your opinion known and the political attack police (currently headed up by Karen Benker apparently) will come after you in whatever way they deem necessary to meet their objectives.  The Election Committee/LFCPA is just one tool in their arsenal, who knows what else there is.  Why don’t you ask the people above, I’m sure they’re interested in transparency.

(UPDATE-1) Ms. Benker got the 600 incorrect address from the flier that apparently had the wrong address on it.  Regardless of that, Longmont Leadership Committee’s address is on file with the City Clerks Office and website.

(UPDATE-2) I was notified that the original email from Kaye Fissinger (pictured at right) was forwarded to the City Clerk, but wasn’t included in the complaint.  It helps make sense of the 3rd email when Ms. Fissinger says “it’s also the address of Longmont Leadership” where I got the impression she was talking about some other entity.  That entity that they were snooping on, in addition to Longmont Leadership and where I work, was No Blank Check Longmont who is advocating against Ballot Question 2C.  Here is the email: “Who are these people opposing 2C on No Blank Checks  Longmont?  I don’t recognize the names.  Are they even from Longmont? Kaye ”  And then she names every supporter on that website, this was sent to “Undisclosed Recipeints”, Karen Benker being one of them.

Thanks to our City Clerk for the above updated information and corrections.

(UPDATE-3) From Times-Call comment section “Why didn’t I see this before: The “M” in Karen M. Benker must be “MILHOUS“! Let it be known from this point on. If an elected official is going to direct people to go spying on their political opponents, this is how they will be properly tagged. This shoe fits.”

Dueling in the Times-Call Open Forum

For my non-Longmont readers, or those Longmont residents that don’t get the Times-Call (and if not, why not?), there was an interesting exchange today between myself and sitting Longmont City Council member Karen Benker.  There is so much behind the scenes buried within our statements that it would help if I do a little running commentary through this exchange.  Enjoy.
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E-mail should have been in public folder
While perusing some emails on the city’s server (and a special thanks goes to the City Clerks Office), I noticed an interesting exchange between Councilmember Karen Benker and Greg Burt.  Ms. Benker said in one of the emails that she has “emails from folks that substantiate” that Mr. Burt is being paid to “investigate” her.  You may also recall in an Aug. 5 Times-Call op-ed, Ms. Benker quoted an email from Mr. Burt. 

One problem: those emails don’t exist on the city servers.

So either Ms. Benker is lying in that statement, or she has once again ignored the rules about forwarding all correspondence to the city servers (that would be the Colorado Open Records Act).  There has been enough warning to the council members to send these emails.  There is no excuse for Ms. Benker to flout this rule.

In the email she also slings mud at her opponent Katie Witt saying it was too bad she was “going negative in this upcoming campaign”.  But later in the same email, she asks Mr. Burt “So what individual or group has hired you?  What are the terms of your contract?  and How much are you getting paid to investigate me?”  In other words she’s guessing, or else why would she ask?  (the “and How” was her lousy grammar, not mine, just copying and pasting there)

But in her blind sleuth work, she doesn’t mind throwing out a baseless accusation at Katie Witt.

Also in Ms. Benkers op-ed she said “please by wary of what you read in this newspaper” (this newspaper being the Times-Call) and “Don’t always believe what you read.”  Ironic advice from someone with an honesty problem, or is hiding emails.  It’s one or the other, or maybe both. 

This is the kind of dirty campaigning we can expect from Karen Benker – unsubstantiated claims without a clue.  Maybe the civil campaign committee should look into this.
Chris Rodriguez
Longmont

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EDITORS NOTE:  Councilwoman Karen Benker received an advance copy of the above letter through the Longmont Civil Campaign Committee.  She responds to it in the following letter.
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MY NOTE:  The Longmont Civil Campaign Committee (LCCC) got a copy of it because I CC’d it to them.  This was to be interpreted as a complaint against Ms. Benker.  I haven’t heard that they “denounced” her for her dirty campaigning, instead they gave her this letter so as to have a heads up and a chance to respond.  Her only response should have been an apology, to both Katie Witt and the citizens of Longmont.  Of course, what she did is quite different, and quite telling.  Until I hear differently from the LCCC, this verifies what plenty of people have said about them, they are nothing but a group formed to support and run cover for their selected candidates.  In other words, it’s a sham.  I’d love to be surprised or proven wrong about this.

By the way, Ms. Benker demanded the Times-Call not run my letter.  Nevermind a longer version of it has already run on my various websites with hundreds of viewings.  This demand of hers, along with some of her statements below shows she really has a problem with freedom of speech and the 1st Amendment.
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E-mail was private, addressed campaign
Thank you for the opportunity to rebut the negative letter sent by Chris Rodriguez.  Keep in mind Mr. Rodriguez writes a blog called “Wrongmont”, so that should give you some indications of his beliefs.  (Really, what beliefs are those?  That I point out what’s wrong with Longmont that need fixing?  Like, for example, council members like Karen Benker?  But thanks for the free and unrequested publicity.)

He has accused me of not reporting to my city account an e-mail I received from a friend warning me about Greg Burt (You may now add to that submitting to the Boulder County Assistant District Attorney how Ms. Benker has violated Colorado Revised Statute 24.72.201 Colorado Open Records Act, with 11 attachments, but now probably 12 including this latest outburst).  Here’s what Burt’s e-mail said:  “I’m doing some consulting work for a client in Longmont who is upset with Karen Benker…My client has asked me to catalog the frustrations that Longmont developers have with Karen Benker…He hopes to use this information to persuade voters to vote against her.”  (As you can see this is clearly city business.  It talks about developers and Ms. Benker, not some private matter like “how’s the family, Happy Birthday, etc” that Ms. Benker tries to portrayAlso, names could have been redacted – as stated in the State Statute – if that was an issue, but it wasn’t done.)

Personal e-mails do not have to be forwarded to my city account.  Only e-mails having to do with city business are required to be made public.  This e-mail did not relate to city business.  (This is where she and possibly other council members are flat out wrong.  In the April 29, 2008 Longmont City Council Study Session, Ms. Benker asked then City Attorney Clay Douglas about this very issue.  He told them fairly clearly that it was up to the sender to claim confidentiality – and an administrative regulation and recent verification from the City Clerk backs this up.  The word CONFIDENTIAL must be in the “salutation“, in other words the Subject Line, not within the body of the email.  It is not up to the receiver, in this case a city council member, to determine confidentiality.  But again, this email does refer to city business anyway, so the point is moot.)

Under the city’s new Campaign Finance Act, all independent expenditures made on behalf of a council candidate must be reported to the city clerk within 72 hours.  This was adopted so Longmont voters could know who was funding local campaigns.  Mr. Burt concedes he is being paid by a client from Longmont, but no report has been filed (This makes no sense.  A consultant being paid by a client is not a reportable item unless a candidate is paying them, then it would be a reportable expense.  As Ms. Benker must know, the first reporting period for candidates isn’t for a couple of weeks, so of course it wouldn’t be reported yet.  But her point is the “independent expenditure” provision; to report an independent expenditure one would have to actually expend some money.  Where does it say in these emails or in this op-ed that Mr. Burt expended any money?  Talk about a stretch of logic.).  Later this week, I will file a grievance with the city’s Election Committee reporting our city law is being violated.  (Based on what?  Can she point to something that money was independently expended on by Mr. Burt?  Tip to the Election Committee – just ask that simple question)

Please remember Mr. Rodriguez is suing the city (with the Longmont realtors) (oh, you forgot about a couple former Longmont mayors and other groups) stating our campaign finance law needs to be overturned. (Flat out lie.  This lawsuit is narrow in its scope, it does not call for abolishing the entire Longmont Fair Campaign Practices Act, only very small fraction of itWhy?  (Why?  Did you not read the lawsuit, well obviously not based on your previous comment.  Or how about the story in the Times-Call about it?  No?  How about my and other websites discussing it?  No?  Ms. Benker isn’t very informed for a council member.)  One clause in the new ordinance limits the amount of money that can be donated to a campaign.  Previously, there was no contribution limit (in the last election, the Longmont Realtors donated $5,000 to one candidate who won.)  (The LFCPA lawsuit does not address contribution limits nor is trying to raise them or eliminate them, but nice attempt in trying to deflect the readers attention.  And also nice job mentioning negatively the Longmont Association of Realtors – and next time try to get their name right – not once, but twice)

I have signed the Civil Campaign pledge to refrain from negative campaigning.  My opponent has not.  Ask yourself, why?  (Notice all the “why“‘s?  Ms. Benker has a lot of questions but no answers.  Good for her, she signed a meaningless pledge by an equally meaningless committee that is protecting her, and formed by one of her supporters.  Of course, by the very nature of her emails and op-eds she has engaged in negative and uncivil campaign tactics, do you think the LCCC will “de-list” her?  Yeah, I don’t think so either)

Karen Benker
Mayor Pro Tem
City Council Candidate
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Whether or not the District Attorneys office takes up this Colorado Open Records Act violation or not, the evidence makes a pretty open and shut case.  Ms. Benker has shown a history of wanton disregard for Colorado’s Sunshine Laws dating back to her days on the RTD board.  In those cases it was Open Meetings complaints (did you know people tried to recall her from that seat?), and now she’s part of a Longmont council who also is having Open Meetings problems to the point of a lawsuit filed by the Times-Call.

In this case it’s an Open Records problem, and regardless of her personal interpretation of what is private and what isn’t, she should know better.  If the maximum penalty for this violation wasn’t written for repeat and intentional offenders like Ms. Benker, than I don’t know who or what would qualify for it.  And like I told the ADA, if this law is not going to be enforced, why even bother having it?

Let’s take a look at that penalty again:  24-72-206. Violation – penalty.
Any person who willfully and knowingly violates the provisions of this part 2 is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars, or by imprisonment in the county jail for not more than ninety days, or by both such fine and imprisonment.

Soon you will see the 11 attachments that were sent to the District Attorneys office.  Either here, in the Times-Call, or in a court document.  In them you will see Ms. Benker has absolutely no excuse for ignorance of the law or continued intentional violation of it, in my ever so humble opinion.

But Ms. Benker, you just keep on going after citizens if it makes you feel better about yourself.  Obviously, the citizens of Longmont deserve much better.

It’s on! Longmont Times-Call sues Longmont City Council

My jaw about hit the ground when I saw this headline on the Times-Call website:

Times-Call sues City Council
Lawsuit seeks tapes of closed meeting

After catching my breath, I really wasn’t surprised at all. Just a quick glance at some recent posts on this website should have been a warning to this council. (The lawsuit is over Longmont’s appeal to the Firestone lawsuit, and how they possibly abused the Open Meetings/Records law)
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Friday, May 2, 2008 Longmont: Take The Deal

Sunday, June 7, 2009 Longmont running out of moves

Thursday, June 25, 2009 Longmont’s Open Meetings violations

Wednesday, July 1, 2009 Longmont’s secret meeting addiction

Tuesday, July 28, 2009 Rogers Rules of Order

Tuesday, August 4, 2009 Citizens speak out over Firestone legal actions

and lets not forget:

Monday, June 8, 2009
Longmont City Council vs. Longmont Times-Call
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Here’s the PDF of the actual filing.

This could be politically devastating to the councilmembers who want to keep this charade alive, especially if the public gets a hold of these tapes. The lawsuit, if the Times-Call wins, allows a judge to hear the tapes and release (to the Times-Call) the relevant portions of it. What the paper does with that information will be interesting. Unfortunately, what we may not get to hear are the conversations leading up to this questionable “straw poll” (a vote they took concerning the appeal) which could be the most interesting of all.

I strongly feel this council holds so many secret meetings because they don’t want certain things they say to be heard by the public. All one has to do is watch all of the YouTube videos in my channel to see why they’d rather not be heard. I suspect there’s all kinds of name calling and stuff us citizens wouldn’t stand one second for. This is a cowardly maneuver to avoid the light of public scrutiny, nothing more, nothing less. If you thought they said crazy things in public, one can only imagine what they say when they figure you’ll never hear it.

Hats off to reporter Rachel Carter and Lehman Communications Corp. for taking this bold move. To some trying to avoid the truth, you’ll now be Public Enemy #1. But not here.