A group of Loveland City Council members deliberated on a proposed ban on flavored tobacco and vaping product sales in private and possibly in violation of Colorado law, a Dec. 8 text message thread shows.
The Reporter-Herald obtained the messages from Mayor Jacki Marsh after the paper received a confidential tip. All nine council members and City Manager Steve Adams were included in the thread, though not all council members participated.
Time stamps on the text thread show that 13 of the messages were exchanged by councilors during their regular meeting that evening, which was held virtually and dealt mostly with the proposed ban and the problem of youth vaping.
In the text conversation, council members Kathi Wright, Steve Olson, Don Overcash and John Fogle deliberated on how they would respond to calls for a ban on selling the products.
“Looks like another special meeting this month,” Wright said at 9:17 p.m., reviving a thread that Adams began earlier in the day to let councilors know about a scheduling change.
“yup. but don’t cave,” Overcash replied.
After Olson asked whether Wright was interested in “working with business to find a win win solution,” Wright said she “still believe(d) we have another step, talking with local business.”
“I agree,” Olson said. “We can work this out if we work together.”
“that makes sense to me,” a reply from Overcash reads in part. “take the time to make good decisions. we can find the time to get it all right.”
Wright went on to tell councilor Rob Molloy, who joined the thread briefly seeking clarification on Overcash’s initial comment, that she planned to “propose that the library and Amber help with zoom discussions with local businesses,” referring to Amber Greene, a Loveland Public Library employee who was present virtually during the Dec. 8 meeting and was involved in the drafting of the ban.
“Whatever group takes this on needs to come back with a selection of options, not just the ones liked by the extremes,” Fogle adds. His was the last message sent that night, at 9:36 p.m. Wright moved later in the meeting to table the item until February, giving more business owners the chance to give input in the interim.
The Dec. 8 meeting was originally scheduled to include a second vote on the ban, after council members approved it 6-3 on Nov. 24. Overcash, Olson and Dave Clark voted to oppose the ban in November, describing it as arbitrary and unfair to law-abiding businesses.
When contacted by the Reporter-Herald, City Attorney Moses Garcia and most of the five council members who participated in the text thread, all but Wright and Molloy, said they did not believe the thread was unethical or a violation of Colorado’s “sunshine laws.”
Title 24, Article 6 of the Colorado Revised Statutes includes the state’s sunshine law for open meetings, which dictates how government bodies such as city councils must conduct and give notice of their meetings to ensure transparency.
The law defines a “meeting” as “any kind of gathering, convened to discuss public business, in person, by telephone, electronically or by other means of communication” and goes on to declare that “all meetings of a quorum or three or more members of any local public body, whichever is fewer, at which any public business is discussed or at which any formal action may be taken are … public meetings open to the public at all times.”
Steve Zansberg, a Denver attorney and president of the Colorado Freedom of Information Coalition, called the thread an “extremely clear-cut” violation of state rules.
“Sending text messages like that during the meeting, or before the meeting, or after the meeting, that’s just as open-and-shut as it comes,” he said, adding that the law does not distinguish between purposeful and accidental violations, and that a breach can occur even if no formal action was taken in private.
The group’s executive director, Jeff Roberts, also said he believed the communications infringed on the public’s right to observe government meetings.
“A meeting held ‘electronically,’ in this case via text messages, is defined as a meeting subject to the law,” he wrote in an email. “But this was a meeting members of the public couldn’t attend, observe or listen to because only the councilors and city manager were on the texting thread. … It should have been part of the open discussion.”
Still, Garcia defended the legality of the communications by pointing out that no decision was made via text and that the vaping topic was being discussed at the same time.
Comparing message timestamps and the city’s recording of the meeting, the thread appears to have taken place during the latter part of a mid-meeting recess as well as during public and staff comment on the proposed ban.
Garcia said he has warned council members about the limits of allowable communication via email and text messages, at times when he has seen email threads that verge on “meetings” but most recently at the prompting of a council member following the Dec. 8 exchange.
“I do give them reminders that they need to be careful and not inadvertently create meetings,” he said. “I think it’s difficult with the changes in technology that make it easier to create meetings at different levels.”
Overcash too mentioned how councilors brought up the topics discussed in the messages at a later point in the Dec. 8 meeting. While he said he did not believe the thread was improper, he described being concerned about how the council was managing its time while texting.
“You see it one way, and maybe I see it as trying to move the meeting along,” he said. “I don’t think I said a word until about 11 o’clock that night. I sat there patiently five hours, and I’m sitting there trying to figure out how to get business done.”
Olson and Fogle also said they did not see a problem with the thread.
“What came out on that thread was discussed in public,” Olson said.
“I don’t guess I see a problem, at least not a blatantly obvious one,” Fogle said. “I’m not seeing anything more than just banter here.”
Wright said she became concerned after councilor Andrea Samson texted the group the following day, Dec. 9, to say she believed the thread was a violation of the law.
“We realized, oh yeah, we need to stop,” Wright said. “When you see that there’s three people, yes, I regret obviously that it occurred, and it won’t happen again.”
She could not answer why she and other councilors would want to exchange private messages about an item that was also the topic of that night’s public meeting.
“I don’t know. I have no answer,” she said.
Fogle, Olson, Overcash and Wright all said they could not remember an instance of them discussing public business with two or more council members at the same time via text.
Marsh, who allowed the Reporter-Herald to examine her cellphone and take screenshots of the exchange, later said the thread validated years of concerns about some other council members deliberating issues together out of public view.
She mentioned that she supports the limits that the sunshine laws put on communication between elected officials.
“I believe it’s good for the public to hear our thoughts of how we decided to vote a certain way. If that’s being discussed out of sight, you don’t honestly know,” she said. “They were essentially holding a private meeting during a public meeting.”
Samson and Molloy also said the exchange raised concerns that some council members have been discussing meeting topics and coordinating votes ahead of time.
Both said they believed Overcash’s first message — “yup. but don’t cave” — was proof that he and Wright had spoken about how they planned to vote.
“That, to me, says there was communication,” Samson said, noting, along with Marsh, that she believed a 2019 vote on board and commission appointments and a decision to reject an affordable housing proposal along South Taft Avenue earlier this month were engineered. “I’m concerned this is a habit that a lot of the other council members are perpetuating.”
Overcash later said he simply wanted to stress in his “don’t cave” comment the need to “take our time and get it right” after listening to hours of emotionally charged public comment.
Molloy also brought up an occasion when Overcash asked for his personal email address before sending him, Clark, Fogle, Olson and Wright an email in August describing Overcash’s reluctance to work with Samson and Marsh on the promotion of Ballot Issue 2A, which would have raised the city’s sales tax by 1% on most purchases.
There were no replies included in the copy of the Aug. 29 email that Molloy provided to the Reporter-Herald. The email was sent to councilors’ personal email addresses from an address associated with Overcash’s consulting firm, Sandler Training.
Emails to or from City Council members’ public accounts are generally made automatically viewable through the city’s public GlobalRelay email archiving system. Emails to or from their private accounts are not.
While Zansberg called the matter of whether the email had violated sunshine laws “murky,” Molloy said he was “disturbed” by Overcash’s request and insistence on contacting the group via private email, and noted that he was advised by Garcia not to reply.
“There’s obviously a lot more going on, even between individuals,” Molloy said. “I have a pretty good idea of what is right and wrong, and I guarantee you that I would not break the rules. But I think I understand the rules better than most on council.”
The other recipients and Garcia said they did not believe the email was improper and that it did not concern city business. The four other councilors also said they were not aware of any instance in which they had used group emails to discuss policy matters.
Overcash described the email mostly as an expression of opinion.
“My opinion there is I was really frustrated with councilors who were taking issues to Facebook,” he said. In the email, he attached screenshots of Facebook posts by Samson, in which she criticized other council members and Sheriff Justin Smith. “I think I’m entitled to a personal opinion, and I want to express it to people. Normally, my emails are one on one, and for some reason, I decided to send this to multiple people.”
“Going forward, I’m just going to quit email and switch to phone calls. This is just getting silly with Marsh going to the IRS,” he added, referring to a 2019 incident when the mayor contacted the federal government with complaints about the administration of local metropolitan districts.
Samson said she would not apologize for her social media posts and questioned whether Overcash wasn’t creating a divisive environment on the council by declaring his distrust of her and Marsh.
“That’s really the biggest issue I think of that email,” she said. “Now it has been proposed by one member to five other members to no longer work with two of the members.”
The Reporter-Herald has since submitted records requests to the city of Loveland for all communications, including phone messages and emails, among three or more council members concerning the topics of youth vaping prevention and the failed sales tax increase.
The newspaper also submitted a records request for packets of paperwork given to new council members that the paper believes include briefings on state open meetings laws.
On Thursday, assistant city clerk Heather Lowe said the city would answer the requests by Feb. 3, including a seven-day extension due to “the volume of requested records.”
In emails made available through the GlobalRelay email archiving system, Overcash on Thursday suggested a special meeting or study session to review examples of “proper” and “improper” communications and “how best to meet the communication expectations of today’s world for a variety of reasons.”
Olson also said he later asked Garcia for guidance on the limits of appropriate communication between council members.
Garcia replied to the council to say that he would “be working with the City Manager to advise you on the open meetings and open records act in the near future, possibly through an executive session.”
One of the supporters of the flavored vaping and tobacco product sales ban, Jodi Radke of the Campaign for Tobacco-Free Kids, wrote the Reporter-Herald to express frustration with the council’s text message conversation after being contacted by Marsh.
“This recent information reveals (a) lack of transparency, and the direct coordination amongst councilmembers to weaken a life-saving, public health policy that would protect Loveland’s kids,” Radke said in an email.
“I question the legitimacy of the public comment and hearings that have taken place, and whether or not this issue has been given fair consideration as a result of what we now know.”
The proposed ban is scheduled to return to the council for a vote Feb. 16.
Overcash said he was optimistic that the additional input sought from retailers of vaping and tobacco products will have been worth tabling the item in December. He again said he felt the text message conversation was not problematic, as the topics discussed privately were eventually brought up in public.
“I think the question is, ‘Were those items discussed publicly when we finally got the floor?’” he said. “When I said ‘take the time to make good decisions,’ I don’t think there’s anything wrong with that.”
Overcash also brought up the challenges of staying connected with other council members as COVID-19 has forced them to rely on teleconferencing software for meetings.
But he said he would “be more careful” in the future.
“Could that particular thread be perceived as not the best thread? Possibly. That’s a judgment call,” he said. “If somebody sees it as a problem, I accept that judgment and opinion, and I’ll certainly be more careful.
“We need a little grace on this issue. We’re trying to get things done, and it’s really difficult.”
