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Holme Roberts & Owen LLP° <br />Attorneys at Law <br />Jillian H.M. Allison <br />Cheryl A. Linden <br />October 12, 2010 <br />Page 2 <br />As you are aware, the Board would serve in an adjudicatory capacity at the <br />November 17-18, 2010 meeting to hear argument between DMRS and Cotter. <br />"Where agency action resembles judicial action ... the insulation of the <br />decisionmaker from ex parte contacts is justified by basic notions of due <br />process to the parties involved." Sierra Club v. Costle, 657 F.2d 298, 400 <br />(D.C. Cir. 1981) (footnotes omitted). Furthermore, ex parte communications in <br />the administrative agency context are of particular concern where "the contents <br />of the communications were unknown to opposing parties, who therefore had <br />no opportunity to respond...." Professional Air Traffic Controllers Org. v. <br />F.L.R.B., 685 F.2d 547, 565 (D.C. Cir. 1982). Since the Board and DRMS will <br />communicate during the October 13, 2010 executive session about matters <br />relevant to the November 17-18, 2010 hearing, Cotter would not have access to <br />those communications and would be prejudiced. Cotter therefore objects to this <br />scheduled ex parte communication. <br />To minimize concerns regarding improper ex parte communications, we draw <br />your attention to the Colorado Open Meetings Law, C.R.S. §§ 24-6-401 et seq., <br />particularly the requirement of C.R.S. § 24-6-402(2)(d.5)(I)(A) that executive <br />sessions of state public bodies shall be electronically recorded for possible <br />review pursuant to the procedures of C.R.S. § 24-72-204(5.5). <br />If it is the contention of the Board or DRMS that compliance with the <br />provisions of the Colorado Open Meetings Law in general, or the electronic <br />recording provision of C.R.S. § 24-6-402(2)(d.5)(I)(A) in particular, are not <br />required, please advise us of any such contention before the October 13, 2010 <br />executive session. <br />Very truly yours, <br />r <br />Charlotte L. Neitzel <br />CLN:sdr <br />#1497613 Q den