Media coalition takes on CSU over alleged open-meetings-law violations

Today at 2 p.m., Colorado State University's board of governors will hold a meeting at which it will discuss "the resignation of Mr. Joe Blake from the CSU System Board of Governors," the "appointment of a replacement to fill the vacancy of Mr. Blake's seat," and "designation of finalist for chancellor" who just happens to be the aforementioned Blake. The public is invited to listen in on the conversation -- but the citizenry didn't have a chance to do likewise on May 5, when the idea of Blake resigning from the board in order to take over as chancellor was discussed in executive session.

The circumstances of this get-together violated Colorado's open-meetings laws according to a lawsuit filed by three news purveyors representing old and new media: the Fort Collins Coloradoan, the Pueblo Chieftain and the Colorado Independent website. Last week, Larimer County Judge Stephen Schapanski approved a so-called "in-camera review" of the suit, based on what he called the "reasonable belief" that CSU had skirted regulations in the way it anointed Blake. But this challenge might never have been brought, admits Coloradoan editor Bob Moore, if the parties involved hadn't come up with a creative way to split the expenses involved in the legal battle.

"There's a challenge with the costs of these lawsuits in this day and age," notes Moore, who's out of the office this week because he's on an unpaid furlough put in place as a money-saving measure by Gannett, the Coloradoan's owner. "You're seeing a decline in First Amendment actions that have historically been brought by newspapers because they're very expensive. So to try and control some of that, we thought it might be good to reach to a couple of other media organizations that have a vested interest in this."

The most recent incident didn't take place in a vacuum, Moore maintains. He confesses to having been "extremely frustrated with CSU's openness, or lack thereof," in relation to a number of high-profile stories, including university president Larry Penley's abrupt resignation last November (an exit eased by a six-figure golden parachute) and the subsequent departure of CSU police chief Dexter Yarbrough following a sexual-harassment complaint that the school made public "only after the lawyers got involved," Moore says.

The process of picking a new chancellor set off the same alarms for Moore. He describes the agenda items listed for the May 5 meeting as "very vague and not properly noticed," particularly if anything having to do with Blake was part of the program. In a conversation with Christopher Beall, an attorney with Levine Sullivan Koch & Schulz who works on many First Amendment cases, Moore said, "''I'm hearing they're going to pick Joe Blake, and they've got this executive session scheduled.' And he said, 'If they even discuss Joe Blake in executive session, it's illegal. They can't talk about their own members behind closed doors.'"

If that's true, it apparently failed to dissuade the board. Coloradoan reporter Trevor Hughes waited outside the executive session, snapping an iPhone photo of the only other person interviewed for the chancellor position: After posting the image online, the Coloradoan was able to identify him as Dennis Brimhall, who spent seventeen years as president and CEO of the University of Colorado Hospital. (Brimhall later confirmed that he was interviewed.) Then, Moore says, Douglas Jones, the board's chairman, "came out and said the search process had come to an end, or words to that effect. And that's an interesting statement, since it's an admission that they made a decision in executive session -- and that's as clear a no-no in state law as you could ever want." This comment was followed by "a couple of quick motions -- one to accept the search committee's recommendations, and another to accept Joe Blake. There was no discussion. No one said, 'He's the right guy for the job.' Nothing. Evidently all of this was done in executive session, in clear violation of the law."

For Moore, this action demanded an equal and opposite reaction -- and after speaking with his publisher, Kim Roegner, he decided to see if other organizations might be willing to join in a lawsuit as a way of defraying the costs for all the parties involved. He then reached out to the Chieftain, since Pueblo is the home of CSU's southern campus, and the Colorado Independent, which "had done a lot of reporting on the chancellor-search process -- probably more than anyone else in the state," Moore points out. Both quickly signed up despite the budgetary hazards involved.

"If we prevail, one of the provisions is that CSU will have to pay attorney's fees," Moore says. "But obviously there's a risk. Even if we are successful, we have to front the money for a while -- and we're talking a couple of thousand per organization to begin with. In this day and age, that's a fairly significant commitment. But we all agreed that the principle involved here is incredibly important."

Last week, after the lawsuit had been filed, CSU released about an hour's worth of recordings from the four-hour meeting. And while the university continues to claim that it's done nothing wrong, Moore believes the tape tells a different story. "By meeting in executive session to discuss Joe Blake, vice chairman of the board, they violated the open-meetings law. To decide to interview Blake and the other candidate without telling the public they were doing it is a violation. And voting at the end to name Blake sole finalist is a violation, too. We're not just talking about one error. These are serial violations in one meeting."

Given the seriousness and scope of this matter, Moore expected that the Denver Post would cover the story in detail -- but thus far, the broadsheet has done so in an exceedingly cursory fashion. Could that be because the Post editorialized in favor of the Blake appointment on May 7? Moore doesn't go there -- but he does suggest that the paper is growing less interested in taking on topics based beyond the metro area.

"I think part of it is as a result of the Rocky going away," he says. "There's not as much pressure on the Post to cover some of these statewide issues." In CSU, "we're talking about one of the two flagship institutions in the state, where there are serious questions about governance," he goes on. "But the state's dominant newspaper has done very little to notify its readership about what's going on -- and by remaining silent, it allows the board of governors to continue doing what they're doing." Likewise, he feels the lack of pressure has allowed Governor Bill Ritter, who issued a press release congratulating CSU on picking Blake, from having to take a position regarding the board's behavior.

CSU has until Thursday to provide Judge Schapanski with the complete recording of the May 5 meeting -- and because Schapanski will be out of town in early June, he may not have the opportunity to listen to it and reach any conclusions until the middle of next month. And even then, other elements of the lawsuit could drag out for several months, by Moore's estimate. Still, he and his partners are committed for the long haul, whether the Post pays any attention or not.

"None of this would have come out without these three media organizations stepping up," he emphasizes. "These are obviously difficult times for the industry, but this suit is a reminder why the media and the watchdog role it's traditionally performed are so incredibly important. A lot of other situations similar to this have gone uncovered or unchallenged simply because of a lack of resources. But this time, we found a way."

Oh yeah: Moore says that the agenda for today's meeting is "richly detailed," in stark contrast with the one offered in advance of the May 5 meeting. For that reason, he stresses, "the public has already scored an important victory."

Now it's the plaintiffs' turn.

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