Brief by Central Staff
Salida Politics – March 2000 – Colorado Central Magazine
Salida Council tables a proposed Official Secrects Act
We were among those present at the Feb. 7 meeting of the Salida City Council for its consideration of a proposed Official Secrets Act.
That’s not what they called it, of course. It was an ordinance to “protect confidentiality.”
In essence, it would have allowed the city attorney or any department head to stamp “CONFIDENTIAL” on any document, if that document concerned some topic that might be discussed in executive session, like “personnel” or “negotiations” — topics that can be extended to cover just about anything.
The proposed ordinance made it illegal to release such documents to any “unauthorized person” or to the general public. Elected officials in violation could be censured and fined, or even removed from office. City employees could be terminated. All offenders could be hailed into municipal court and further penalized.
At the meeting, at least two councilors said it was their understanding that the proposed ordinance applied only to city officials and personnel — even though the text clearly said that “It is unlawful for any person to reveal or release confidential information to the public at large or to any person not entitled to receive the same.”
One wonders if they bothered to read it at all. Or it could be that in their eyes, you’re only a “person” if you work for the city. Are the rest of us subhuman, or perhaps of a person?
Salida Mayor Jamie Lewis assured the audience that the council would still follow all applicable state open records laws. But one wonders how the public will know if the law is being followed.
Suppose some over-zealous department head stamps a document “CONFIDENTIAL” when it in fact covers items that state law requires to be discussed in open session.
Then what is a council person to do? He can either violate state law, or violate Salida’s new ordinance protecting all documents marked confidential.
We can think of many other potential problems with this proposed ordinance.
Fortunately, it was tabled indefinitely. Unfortunately, the notion is still under consideration as city administrator Scott Hahn tries to come up with a revision of what he called “a first stab.”
The City Council should give up on stabbing altogether. There are already remedies for employees or officials who make inappropriate disclosures. As for mere citizens, there’s Article 2, Section 10 of the Constitution of the State of Colorado:
“No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty.”
This has always been taken to mean that those who speak out or publish false and malicious information can be held accountable for damages, but the government has no right to criminalize any form of speech.
Despite promises from the council to observe all applicable state and federal regulations, they will have to disregard Colorado’s constitution just to pass such an ordinance.
BE IT ORDAINED by the City Council of the City of Salida that the Salida City Code be and the same hereby is amended by the addition of a Section 1-5-7 to read as follows:
1-5-7: NON-DISCLOSURE OF CERTAIN CONFIDENTIAL INFORMATION:
A. Confidential Information Defined: As used in this Section, the term “confidential information” refers to the following:
1. Matters discussed in an executive session of the City Council lawfully called pursuant to Colorado Statutes.
2. A written communication from a department head or legal counsel for the City clearly marked “Confidential” the contents of which would be the proper subject of an executive session if the Council chose to go into executive session concerning the matter.
3. Any document protected by non-disclosure provisions of the Public Records Laws of the State of Colorado and particularly Article 72 of Title 24 of the Colorado Revised Statutes.
B. For the purposes of this Section the City Council may, by Resolution, take any document or information out of the category of “confidential information.”
C. It is unlawful for any person to reveal or release confidential information to the public at large or to any person not entitled to receive the same. A person entitled to receive confidential information, for the purposes of this Section, is the originator of the information, the custodian of the information and necessary assistants to that custodian, the recipient of the confidential information, including members of the City Council, Mayor, and City employees to whom it is directed, and persons invited into confidential sessions of the City Council by the City Council.
D. Penalties: Any person who violates the terms of this Section may be punished or disciplined in any of the following fashions:
1. If the violator is a City of Salida department head, the Mayor of Salida, or a Salida Councilman, the violator may be disciplined by the city council in the following manner: for the first offense, the violator may be censured and the City Council may fine the violator up to $150 or one month’s pay, which ever is less; for any violations after a violation for which a person has been disciplined as set forth above in this subparagraph, the city may remove that person from office in a manner consistent with the City Code and State Statutes.
2. If the violator is a hired employee of the City of Salida, then the violator may be disciplined in a manner consistent with Salida personnel policies and such discipline may include discharge.
3. Any violator may be prosecuted in the Municipal Court for violating the non-disclosure terms of this Section and upon conviction of such violation shall be punished by the Court in the same manner as is generally authorized for the punishment of persons who violate the provisions of the City Code.