The person in question is Council member Karen Benker. Back in the ‘90’s an issue that was brought up repeatedly by the Rocky Mountain News through articles and editorials was charges she violated Open Meetings laws. Her fellow RTD board members echoed this sentiment and a recall effort was attempted against her, although thrown out on a technicality due to jurisdiction.
As everyone should know by now, Ms. Benker is part of a council with a staggering amount of secret Executive Sessions, so much so that the Times-Call is suing this council over it. And now it has been revealed that she has repeatedly, and intentionally in my opinion, disregarded the Open Records law when it comes to making her emails public.
The amount of evidence that I have provided to the Boulder County District Attorney’s Office is a thick pile of attachments, I’ll try to summarize: I included relevant portions of the Colorado Public Records Law (C.R.S 24.72.201) and an administrative regulation from the City of Longmont. Included within them the issue of confidentiality comes up. This is the clause Ms. Benker is trying to use as her reasoning, or excuse, for not forwarding the emails in question. It’s made pretty clear that the actual word “CONFIDENTIAL” must be in the subject line of the email and “just because a message is labeled “CONFIDENTIAL” does not mean that it will be exempt from disclosure” (from 2.07 of “Longmont’s Electronic Records, their retention and availability to the public” administrative regulation)
Further, in the April 29, 2008 Longmont City Council Study Session, Ms. Benker asked the City Attorney specifically about this, and he clearly said it was not up to the receiver, in this case a council member, to determine the confidentiality of a communication – it is up to the sender. But these emails had to do with city business, not a personal note asking how the family was doing or anything along those lines. This was about funding anomalies concerning Ms. Benkers dealings with H.O.P.E. and the emails alluded to “frustrations that Longmont developers have with Karen Benker” (from Ms. Benkers 8/5/09 Times-Call op-ed). As you can see these are clearly not private or personal communications, they relate to public policy.
To prove this is not an election issue or some hatchet job, not only have I written about this for over 18 months, but the Times-Call did a series of stories and an editorial about it last June – before Ms. Benker even announced her candidacy. Her latest violation occurred in late July 2009, after all of the public attention was paid to this issue. In Ms. Benkers emails that were made public and in her op-ed she quoted directly from the emails in question, which would make the material within them public information and no longer confidential. She had the option of redacting the names of the people who sent her those emails, but after more than 2 months she has still not forwarded these to the city’s server as mandated by law. Instead she has insulted me, my website, and the other individual who dared question her activities (Greg Burt).
To further make the case that this isn’t an election issue, I am requesting the DA’s office pursue this regardless of the outcome of the upcoming election. Of course, it’s inevitable that it indeed will have to be considered during this election season because Ms. Benker has recently (allegedly) violated this state statute, and the coincidence of the time of the year. Due to the DA’s Office time constraints (and they have not indicated they will even consider this case) they may not be able to get to it before Election Day. This is after all just a misdemeanor, but punishable by a fine of not over $100 and/or imprisonment for not more than 90 days. If that maximum penalty wasn’t written for repeat and intentional violators, why was it written at all? And if this law won’t be enforced, why bother having it?
The DA’s office didn’t pursue the previous complaint against Ms. Benker (possible C.R.S. 24-18-109 violation), which doesn’t exactly mean she’s innocent of it, and I don’t know if they’ll pursue this either. Regardless of that, thankfully the largest jury in the city – the voters of Longmont – can render their own judgment in this matter.
On Ms. Benker’s website she says “Longmont voters are smart, don’t be fooled!” Not only has she tried to fool the citizens of Longmont, she’s tried to hide it by abusing Open Records and Open Meetings laws.