Interviews and a leaked e-mail indicate the council and mayor improperly met in secret to discuss Cheyenne budget crisis issues.

By Jodi Rogstad
jrogstad@wyomingnews.com

CHEYENNE -- The City Council and Mayor Rick Kaysen apparently held an illegal meeting last month to discuss issues related to Cheyenne's budget crisis.

The executive session was initiated by the city attorney on Jan. 11. Such sessions are allowed by the Wyoming Open Meetings Law, but only for narrow reasons.

Last month's gathering does not appear to meet any of the exemptions provided by statute.

These conclusions are based on an e-mail leaked to the Wyoming Tribune Eagle as well as subsequent interviews with City Council members.

Mayor Rick Kaysen cut an interview short with the WTE when questioned about the meeting, saying the paper would end up suing the city.

"Let's be honest, that's where this is headed," he said. "I think I answered your questions and now we're getting in areas that are involving litigation. So I think it would best to let the legal system address it."

On Jan. 8 -- just days before the executive session -- the state Supreme Court ruled against the city in the newspaper's lawsuit over a closed meeting in 2008.

Can't talk about it

On Friday, council President Georgia Broyles said members should not have talked with the press about the closed-door meeting.

"I didn't see anything that took place in (the executive session) that was inappropriate," Broyles said. "And confidentiality requires me to not speak about it."

But several council members have a different take on that. They say a portion of the executive session was -- or could have been -- illegal. The closed-door gathering was called to discuss legal matters.

Councilman Jim Brown said it occurred to him as he left the meeting that the discussion was done improperly.

"Somewhere into the middle of this meeting things were brought up that had nothing to do with lawsuits," he said. "In retrospect, someone should have spoke up and said, 'Hey, wait a minute. We're out of bounds.'"

City attorney Dan White, who requested the meeting, said Friday, "I guess I have no comment on that at this time."

He said he would review the question about the closed meeting and "make a determination."

Before the City Council adjourned to executive session on Jan. 11, White told the council he was requesting it to discuss "legal matters and potential litigation matters involving the city."

The Wyoming Open Meetings Act allows governing bodies to meet behind closed doors to talk about litigation. It also allows closed door discussion on proposed litigation. However, potential litigation -- a lawsuit that might arise from a given situation -- is not covered under the act, experts say. Nor is general legal advice.

Leaked e-mail

There is no way for the public to know if an executive session is conducted properly: They may not attend, the meeting is not recorded and the minutes are sealed. In many situations, the governing body has to be its own watchdog.

But a leaked e-mail that Councilwoman Amber Ash sent to seven other council members on Tuesday -- nearly a month after the meeting -- refers to the executive session and raises a red flag.

"I told him (White) that I thought the executive session information on RIFs (a reduction in force) had been hyped up to dissuade council from acting on the measure," Ash writes.

It refers to a belief of some council members that the city needs to do layoffs now to prepare the city for cuts in the next budget year. Kaysen has called that approach a "knee-jerk" reaction.

This week, the WTE requested a copy of Ash's e-mail as a matter of public record. Electronic communications by and to government officials are covered by the state's public documents law.

But that request was denied. Broyles said White deemed the communication a privileged, attorney-client communication.

However, the WTE obtained a copy of the e-mail.

Several council members were interviewed and recounted the events of the executive session:

-- Three lawsuits were discussed.

-- Either White or Kaysen introduced a new topic wherein White talked about federal regulations that needed to be followed in certain employee matters.

-- The city treasurer was present and offered copies of a document, which were collected at the end of the meeting.

-- No vote was taken.

Kaysen said in addition to the "three or four lawsuits," he recalled a discussion on the voluntary retirement program and, "specifically, following federal law and that process."

He was told by the WTE that didn't fit under the state's exemptions of its open meeting law: They could only discuss specific lawsuits, not hypothetical ones.

"I'm not an attorney, and thank God I'm not," Kaysen said. "The intent was to provide information with respect to the law."

"Accusations"

When asked about the city's treasurer's presence at the session -- she wouldn't have anything relevant to add to discussions about most lawsuits --Kaysen responded that the WTE was "leveling accusations."

Talking about a lawsuit that might happen is not covered by state law, said Jim Angell, president of the Wyoming Press Association.

"The chance you might get sued over something is not what is considered pending litigation," Angell said.

He added that state case law backs this up.

"Attorneys like to talk with clients in private," he said. "Unfortunately, you don't have that luxury when you're a city attorney."

Several council members recounted the meeting.

Councilman Patrick Collins said the bounds of the discussion "pushed the envelope," and made him "uncomfortable."

But he said he believed White wanted to educate the council on the legal considerations of doing layoffs and there were specific procedures that had to be followed.

"But we adjourned and, hopefully, it won't happen again," Collins said.

Councilman Mark Rinne said it did not occur to him that the discussion went out of bounds of the law. If that is true, it's his fault for "not being up on it," he said.

"But then, I'm not the attorney in the room," Rinne added.

Councilman Don Pierson said he could not comment on anything pertaining to an executive session and deferred questions to White.

"It's my understanding that anything in executive should not discussed outside executive session: It's confidential," Pierson said.

Councilwoman Judy Case said White was telling the council about following federal regulations, in addition to three existing lawsuits. She added that she relies on the city attorney to keep executive session within the bounds of the open-meetings law.

Councilman Jack Spiker said two-thirds of the executive session dealt with actual legal issues before the city. But the remaining third did not.

Ash did not return a message left on her cell phone.

Portion illegal?

Spiker recalled discussion about RIFs, the budget and health insurance. He realized later that portion was illegal.

"I wished I would have thought about it at the time, and I wished I made the comment: 'We need to get on topic or I need to excuse myself from the meeting,'" Spiker said.

Knowingly breaking the open meetings law is a misdemeanor, punishable by a fine up to $750.

Cheyenne attorney Bruce Moats, who specializes in open government law, said to avoid liability, members can object during the executive session.

But the law gives them an out, he added. So they don't have to miss out on a discussion, they may also publicly state their objection at the next public meeting.

Brown said next time, he would do better.

"In retrospect, what took place was absolutely not right," Brown said. "I learned a lesson that night: Pay attention to what's going on, say something and get up and walk out.

"I don't like having to say what I'm saying. But it's the right thing to do. It's much better to stand up and say you've wrong than to try to cover it up. With that many people involved, it will not remain a secret.

"Why (keep secrets from) your constituents? Why make them wonder what's going on?"