Sunshine Gone: The Shameful State of the People’s Right to Know in Colorado

Many states have attempted to shine light on their government’s plumbing, South Dakota being the latest.  The legislature there, bristling at the thought of a publicly created ethics commission, set about immediately to undo it.

The citizens of Colorado have been at the business of sunlight and plumbing a lot longer, passing the first of several government transparency initiatives in 1972.  The results are little better, for despite lofty language extolling its virtues, officialdom does not have to release anything under the state’s transparency laws that might be “contrary to the public interest.”  Of course, those creating such an absurdly broad test are also the ones who administer it.  This background helps explain why the Center for Integrity in Government gave the state a grade of F in 2015, saying that only 13 states performed worse in providing the public access to  government records, records they have paid for through their taxes.

Indeed, in Colorado, few will brave the courts to seek reversal of the not-in-the-public-interest-test knowing that if they lose they could be assessed the winner’s court costs as well.   Riven by faction and pettiness, the legislature promises reform each and every year, but can’t deliver. Last week a Republican bill that would have forced the courts to observe Colorado’s Open Records Laws was defeated purely along party lines.  The courts have largely exempted themselves from the law.  The Democrats stood with the Supreme Court and the Colorado Bar Association in defeating it.

The following is the latest story of how this mangled law plays out in real time.  It is a story of how Leslie Wiese, a single mom and part-time attorney, came to be the punching bag of city government in Colorado Springs, Colorado, a city of 400,000 people.  Her sin you ask?  Well, she, as the leader of a small group of concerned citizens, asked the city owned utility for the results of an air quality study.  The study had been undertaken by the utility to judge the level of pollution from its coal-fired generating plant, which sits in the middle of the city and was constructed in 1962.  That is her sin.

She was denied the material on the basis of attorney-client privilege.  The city council and mayor, who serve as the governing board for the citizen owned utility, sided with the utility’s CEO and staff attorney.  The local court provided the redoubtable rubber stamp.

But the plot thickens.  Wiese, on behalf of the citizens, appealed the decision to the Colorado Court of Appeals.  The court made the mistake of sending her the air quality study, the very report the city had denied her.

Almost unavoidably, she read the report, and called the court to tell them it was in her possession.  They asked that she return it, which she did. They did not say that she could not talk about the information in it.  In fact, she discovered in reading the utility’s report that it showed releases of sulfur dioxide, SO2, in excess of federal limits.  This corroborated information the citizen group was aware of from other independent air quality studies done of the plume from the city’s coal-fired plant.

Generally speaking, Wiese’s small cohort live in the city, directly downwind of the plant’s plume. SO2 is a major air pollutant and the source of acid rain.  It is toxic to both plants and animals.  In humans, it causes cardiovascular and respiratory disease leading to premature death.  Clearly, they had reason for concern and a reasonable expectation of government action to protect their health and safety.

These reasonable expectations have turned to ash.  Weise is now threatened with jail time, fines, revocation of her law license, and court costs in excess of $20,000, money she does not have.

In addition, one of her confederates, Jacquie Ostrom, a scientist who actually did air quality monitoring at the city’s generating plant, has been ordered to testify and produce four months of emails and other communications sought by the utility in its continuing assault on Weise.  Ostrom describes these activities as a “witch hunt.”  Reportedly, two others in the citizen group will soon be subpoenaed by the city utility, as the witch-hunt’s malignancy continues to grow.

If you can ignore that the U.S. Constitution guarantees every citizen the right to petition his or her government; and if you can ignore that the Colorado constitution declares…“all government, of right, originates from the people, … and is instituted solely for the good of the whole;” and if you can ignore that it goes on to say “All persons have certain…inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties,…and of seeking and obtaining their safety and happiness;”  you would still have to look past the requirements of  Colorado’s Open Records Act which as the courts have said,

creates a general presumption in favor of public access to government documents, exceptions to the act must be narrowly construed, and an agreement by a governmental entity that information in public records will remain confidential is insufficient to transform a public record into a private one.

Weise should have been able to rely on any or all of these laws, most of which describe fundamental rights.  But all have been willfully ignored by local government in the service of a public utility whose apparent desire is to poison the very people it was created to serve.

This willful ignorance is indeed strange in that the mayor of Colorado Springs is John Suthers.  For several terms, he served as Attorney General of the state.  One might hope that he had passing knowledge of the fundamental rights of citizens.  Rumors suggest, as an early on again-off again supporter of Trump, he is hoping for a federal judgeship.  This may explain his reticence to defend the law.  His actions suggest he may be a perfect fit for the Marmalade Kid and the band of sociopaths he’s assembled in Washington.

Clearly the CEO of the Colorado Springs utility should be fired.  As should the utility’s lawyer. The people of Colorado Springs will have to decide if the local judge and their city council deserve reelection.

As for Leslie Weise, she deserves our praise and respect.  She also could use some legal defense contributions.   A fund has been established for this purpose.  Please contribute: https://www.gofundme.com/city-attacks-whistleblower

PHILLIP DOE lives in Colorado. He can be reached at: ptdoe@comcast.net

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