In the morning hours of Friday, January 10, 2014, Arvada Mayor Marc Williams presided over a final round of secret ballots that selected Jerry Marks for the district one council vacancy by a 5-to-1 vote. This is the council vacancy that occurred as the result of Rachael Zenzinger’s resignation to take the open state senate seat that arose from Evie Hudak’s resignation — Zenzinger had just been reelected to a second four-year term on the city council in November 2013.
Five finalists had been chosen previously by the remaining six council members from a total of sixteen applicants for the position at another Friday morning meeting held on January 3, 2014.
Mr. Marks was selected on the fourth round of secret ballots. There was not any discussion among the six council members between the secret ballots. After that fourth round the balloting stopped; a majority had voted for one individual.
This procedure had consequential and substantive effects — some applicants were eliminated, others advanced by these secret ballots.
Then Mayor Williams sought to make the results of the secret ballots ‘official’ with an ‘official’ resolution appointing Jerry Marks to the district one seat — that passed 6-to-0.
This procedure is a violation of the Colorado Open Meetings law — that seems clear from my reading of the statute. Colorado Revised Statutes 24-6-402 prohibits the casting of secret ballots:
(IV ) Neither a state nor a local public body may adopt any proposed policy, position, resolution, rule, or regulation or take formal action by secret ballot unless otherwise authorized in accordance with the provisions of this subparagraph (IV).
Part of the law allows a secret ballot to elect “leadership” of a “state or local public body” — that means, for instance, the council selecting from amongst its members the mayor pro tempore, or in the case of the Jeffco school board the ‘election’ of who will be the chairperson from among the five members. It certainly does not mean that a replacement representative of the people can be done secretly.
But that is exactly what happened in this case. The law states: For purposes of this subparagraph (IV), “secret ballot” means a vote cast in such a way that the identity of the person voting or the position taken in such vote is withheld from the public.
Thus on Friday morning, January 10, 2014, my council representative was chosen by people who do not even live in my district and they did this choosing secretly. What could be more antithetical to the very principles of representative democracy in our republican form of government?
So, good Arvada citizen and colleague of mine Russell Weisfield, who is also a district one resident, has step forward in a courageous move and challenged this city council action by filing a lawsuit to reverse the results of the secret balloting. (By the way neither Russell nor I had applied for this council vacancy position.)
Russell and I were proactive on this matter from the beginning; before Mr. Marks was sworn-in, we sent a letter to the mayor and council asking that this process be stopped because of Open Meetings laws problems.
The importance of this issue cannot be overstated. The selection to fill a vacancy on the elected city council — in other words a replacement for the peoples’s democratically elected choice — must not be done with the slightest hint of secrecy. As citizens of this city and residents of this district, we have a right to know why our representative was selected, why she or he was better than or more qualified than any of the other applicants. Acting in our stead as voters, we have a right to know why council members who do not even live in our district picked one candidate over another.
How are we to hold our elected government accountable if we are kept from even knowing why they make critical and important decisions that affect our lives in this city?
This lawsuit is about the bedrock principle of the republic — we, the people, are sovereign. When there is a vacancy in an elected office, we, the people, must know and must see how and why a temporary successor is appointed to act on our behalf; otherwise we have government by an elite that is not answerable to us.
It is regrettable that a lawsuit is necessary; it is too bad that we have an arrogant and indifferent city council in Arvada that often belittles and mocks citizens who try in good faith to be involved in this community, but who might just happen to have a different point of view.