With meeting in public becoming increasingly risky, members of Denver City Council are looking into whether the city charter allows them to meet virtually.
"We are trying to explore every possible option and vetting what we can do logistically, technologically and legally," says Jolon Clark, council president.
On March 16, only nine members of council were present at the meeting. Nine was enough to establish a quorum, however; a minimum of seven members are needed to be present for a meeting to happen.
But all council committee meetings were canceled this week. All committee meetings are canceled for next week, too, yet the full council meeting for Monday, March 23, remains on the schedule. Although Clark is still planning for that meeting to occur, he and his staff are working on backup plans in case having seven members at a meeting becomes impossible.
"Monday is around the corner, yet it is months away in COVID time," Clark says.
The charter, which can only be changed by a vote of the people, contains very specific language about Denver City Council meetings.
"The Council shall meet in the Council chambers each Monday in regular session except as otherwise may be provided by ordinance, and at such other times as it may be called together by the Mayor or any three members upon twenty-four hours written notice; shall sit with open doors; make rules governing its procedure; keep a public record of all its proceedings, in which every vote shall be entered by roll call," the charter states.
"Reading this, it sounds like they could enact an ordinance that would allow it under the charter," says Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, of a virtual meeting.
Some on council, like Candi CdeBaca, agree with Roberts's assessment, pointing to the clause "except as otherwise may be provided by ordinance" as granting council the power to pass an ordinance allowing for virtual meetings rather than having to take it to city voters.
"We've had a real need to modernize our city council meetings," CdeBaca says. "This crisis only really highlighted why we needed to implement a modernization of our meetings."
Although Kirsten Crawford, the legal counsel for Denver City Council, has already issued a legal opinion that appears to say that changing the meeting structure without voters' input is not allowed under the charter, "I'm challenging the interpretation," CdeBaca says. She won't share the exact opinion that council received, but indicates that she has appealed it and is asking the Denver City Attorney for a review.
Ryan Luby, a spokesperson for the city attorney's office, says that Crawford simply wants members of council to talk about the matter instead of having her talk about it. "This is ultimately up to council, not the city attorney's office. Kirsten is simply advising as she is tasked to do. They need to speak on it," Luby says.
But even if his office determines that council could pass such an ordinance, there's the very real possibility that there may not be time to do so.
According to the current rules, in order for an ordinance to be passed, council must vote on it over the course of two meetings.
The earliest the first could be held would be March 23. At that meeting, Clark says, council will definitely be practicing social distancing. And he's considering limiting the number of members present to the bare minimum of seven. "It's a lot easier to spread out seven people than it is thirteen," Clark says.
But it's possible that council might not be able to meet at council chambers by the time the second scheduled meeting comes around. Clark points to the fact that Mayor Michael Hancock has declared a state of emergency in Denver until mid-May; he wonders whether council can take extraordinary action to ensure that meetings somehow continue.
"Does that allow us an opportunity to convene a virtual meeting that wouldn’t normally be allowed without a change in ordinance or change in charter?" he asks. "I don’t think we’re quite there yet, but we’re trying to look ahead to what could change."
CdeBaca would like Clark to take that look soon. "We're in a state of emergency, and that is the point of that declaration — to be able to legislate accordingly in ways that are out of the ordinary," CdeBaca says.
Colorado law requires that members of the public be able to view Denver City Council meetings, as well as other governmental meetings. In order to comply with state law, Aspen's city council, for example, just passed a resolution that allows for virtual meetings so that the public can continue to watch.
If meetings were to go virtual in Denver, they'd continue to be broadcast live on Channel 8 and streamed on the Internet, albeit with small video boxes for each member of council rather than a video stream coming from council chambers.
Right now, Clark says, he and legislative staff are focusing on the bare bones of what Denver City Council needs to achieve before it starts holding virtual meetings, if those become possible.
"We need to focus on the emergency efforts, none of which require a public hearing," he says, "and then also, while we’re there, can we move through consent agenda items that keep people at work and keep contracts flowing, so we don’t have more people unemployed?" There's also a legal requirement allowing for public comment when it comes to certain agenda items, like rezonings, he notes.
And the Freedom of Information Coalition is strongly encouraging Denver City Council to continue an open public-comment period, even if meetings are virtual.
"As long as there is a way for the community to watch or listen in, I don't think they should abandon their public-comment process, even if it is not specified in the open-meetings law, because that's part of the democratic process," Roberts says. "And, especially now, when people are very anxious, there needs to be a way for them to talk back to their elected officials and let them know what they're thinking about."