A muddled amateurishness
I composed my prior post regarding Park County’s County Manager, Lucas Meyer’s, proposal to establish a non-disclosure agreement (NDA) for county employees too quickly. It was incomplete, and I apologize for that. A more thorough discussion is necessary.
The proposed NDA first appeared on the March 17, 2026, BOCC work session agenda. There was no link to the document, so curious individuals could neither read it nor pose reasonable questions about its content. Here’s what I wrote about it back in March:
If you weren’t paying close attention to the March 17, 2026, BOCC work session, you probably missed an agenda item introduced by County Manager Meyer, and favorably received by Wissel, Mitchell, and Gemmer, with little discussion (Mitchell just nodded and grunted) that proposed devising a template for an NDA or Non-Disclosure Agreement for Park County Government. Meyer explained in so many words that there are some things in Park County government that need to remain secret, that should not be disclosed to the public in the interest of security and safety. If I remember correctly, he may have mentioned the layout of the jail for one thing. I guess that’s a security issue if, for example, some yahoo wants to break their buddy out, or their buddy wants to dig a tunnel to break themselves out. Meyer said he’d work on the template that’s already received the contract paralegal’s blessing (actually, I believe he said the paralegal prepared it) to identify who would be required to sign the NDA.
I guess that’s okay unless there is an ulterior motive at work here. Say, for instance, any employee who thinks Wissel and Gemmer shouldn’t be leaning against Mitchell’s office door frame, shooting the shit about any matter that is clearly public business and covered by Colorado’s Sunshine Law. If that employee has signed an NDA but reports the offensive activity anyway to some libtard vermin, will their job be in jeopardy?
Should we not fear such a thing happening? Especially since several conservative state senators and Democrats as well co-sponsored SB23-053, “Restrict Governmental Nondisclosure Agreements,” in 2023, which was passed by the legislature and signed by the governor in June 2023?
Okay. We won’t worry about that until it’s time to.
It’s clearly time to worry. No, worry isn’t the right word. It’s time to once again point out that the usual suspects, Wissel, Mitchell, Gemmer, and Meyer, are now joined by Brandon Heacock, newly installed assistant county manager, and Nate Osterberg, a paralegal who, along with his boss, John Evans, may be fiddling with the dangerous illogic of their ideological biases that will affect us all to the county’s detriment.
More on the above video later.
Senate Bill SB 23-053, “Restrict Governmental Nondisclosure Agreements,” became effective on August 7, 2023, as CRS 29-1-1601. Barbara Kirkmeyer, a Republican running for governor who bypassed the bat-shit crazy MAGA Republican state assembly to gain access to the ballot (she petitioned onto it), was a sponsor of the bill.
Here’s the first paragraph of the statute: “Neither a local government nor a department, institution, or agency of a local government shall make it a condition of employment that an employee executes a contract or other form of agreement that prohibits, prevents, or otherwise restricts the employee from disclosing factual circumstances concerning the employee’s employment with the local government or any of its departments, institutions, or agencies unless the prohibition or restriction in the contract or agreement is necessary to prevent disclosure of…”
The statute mandates that the local government and the employee can execute a contract or agreement, an NDA, if it is necessary to prevent the employee’s identity; data, or information restricted by federal or state law or rules or regulations, or a court proceeding or attorney-client privilege, privileged work product, or communications relative to threatened or pending legal litigation or administrative actions, or personnel or regulatory investigations; customer’s, contractor’s, lessee’s or lessor’s or employer’s trade secrets; information on specialized details of security arrangements or criminal investigations, physical infrastructure, or cybersecurity; information relative to threatened or pending legal or administrative actions; discussion that occur in executive session per 24-6-402; information not subject to the Colorado Open Records Act.
Contrary to state law and without the specificity provided in the statute, the Park County NDA language broadly prohibits the disclosure of…
…any and all information, data, documents, materials, or knowledge disclosed by the County to the Recipient, whether orally, in writing, electronically, or otherwise, that is not generally known to the public and that relates to the County’s operations, including but not limited to: trade secrets; technical data such as processes, techniques, and research; business plans, strategies, financial information, budgets, revenues, expenses, and pricing; personnel records; customer, supplier, or vendor lists; legal matters; county policies, procedures, and internal communications; and any other proprietary information designated as confidential by the County. Confidential Information includes information from third parties that the County is obligated to protect.
The County shall mark written or tangible Confidential Information as Confidential where practicable, but failure to do so does not waive protection if the Recipient knows or should know it is confidential.
You’ll note the Park County document mandates that information/materials “…not generally known to the public” is the first test in identifying what is taboo for the employee to disclose. The state statute doesn’t mention that, but it clearly drives the intent of the Park County document, and perhaps the charge Meyer may have given to paralegal Nate Osterberg (Meyer said on March 17, 2026, that Osterberg created the thing, or that he’d already reviewed it) to come up with something that will force county employees to keep their damned mouths shut.
The other notable test in the Park County document is the non-specific litany of things that, in Osterberg’s or Meyer’s mind, constitute “not generally known to the public.” That litany provides, incredibly, financial information, budgets, and county policies and procedures, which are confidential under the NDA. Imagine that! It further provides that they can designate anything they believe to be proprietary as confidential. And they say they’ll mark this stuff (a big red stamp?) confidential; employees should know what’s confidential even if not marked as such.
CRS 29-1-1601 continues with the clear admonition that anything that violates the prior provisions—those specific legitimate confidential categories—is “…against public policy and is unenforceable against an employee.
Let’s dig into the Park County NDA.
WHEREAS, the Recipient is employed by the County and, in the course of employment, may have access to Confidential Information (as defined below) belonging to the County; and
WHEREAS, the County desires to protect its Confidential Information from unauthorized disclosure or use, in consideration of employee’s termination on ________________, 2026 and the Recipient agrees to such protections as a condition of continued employment of thirty days (30) should the employee disclose this agreement or the terms and condition in this agreement, the employee shall be subject to reimbursement to the County three times (3) the amount of pay, the employee shall also pay attorney fees and court costs; and
WHEREAS, this Agreement is unilateral and imposes obligations solely on the Recipient to favor the County’s interests, with no reciprocal confidentiality obligations on the County.
NOW, THEREFORE, in consideration of the Recipient’s continued employment and access to Confidential Information, and other good and valuable consideration, the parties agree as follows:
Wow! What on earth does this mean? It starts out with the employee’s termination date, provides them with 30 days of employment, and apparently if the employee reveals the terms and conditions of the NDA within those 30 days, then the employee will (voluntarily?) hand over three times their salary to the county, as well as pay any attorney fees or court costs which might accrue if the county sues them, or if they sue the county and lose.
But wait! There’s more. The agreement (NDA) is unilateral and removes any obligation of the county, including protecting the employee’s confidentiality.
To suggest that the punitive consequences in the NDA are outrageous is an understatement. Maybe that’s what Meyer was going for? Maybe that’s what floats his hefty boat?
In the “Obligations” section of the document, the language provides that the employee will limit access to confidential information to only those who are the employee’s agents or representatives, “…bound by confidentiality obligations at least as restrictive as those herein. The Recipient [employee] is responsible for any breaches by such persons.”
The employee has agents and representatives. Really? Who, I wonder, would those agents or representatives be? If the employee is in a non-supervisory position, who would act on their behalf as an agent or representative? Sure, supervisory personnel may allow a subordinate employee to act on their behalf. But not the clerk in front of the monitor, typing away, answering phones, etc. If the employee’s agent or representative takes it upon themselves to reveal what the NDA considers confidential, the county won’t go after them, but after the employee.
The NDA requires the employee to comply with the Colorado Open Records Act, yet also requires them to “…provide reasonable assistance to the County in contesting or limiting the disclosure.” Surely that speaks volumes about the often-expressed devotion to transparency voiced by Wissel, Mitchell, Gemmer, and Meyer. Sure, in the public interest, we will always comply with open records requests, but in the background, we’ll always have the mindset to contest and limit those disclosures.
The NDA’s exclusions provide that if the employee knows commissioners are discussing public business when they shouldn’t be, but doesn’t tell anyone, even though someone else tells someone and it becomes public knowledge, the employee is off the hook. It says, however, that the employee must provide written records proving their compliance with the NDA provisions for information known to them but not voiced until after the county has revealed the information, and also information developed by the employee without using confidential information. It also says that material disclosed under the Open Records Act is okey-dokey with the caveat that the first principle of such transparency applies: Contest and limit those disclosures.
Finally, the Remedies for Breach of the NDA provides that “…any breach or threatened breach of this Agreement will cause irreparable harm to the County, for which monetary damages alone may be inadequate.”
That’s interesting. So, are we to conclude, for example, that revealing commissioners often discuss public business out of the public’s eye is as “irreparable” a breach as revealing the combination to the door lock behind which the Clerk and Recorder keeps her ballot counting software? Well, of course, that’s what it means. The NDA language says so: “It shall be presumed that a breach results in irreparable harm to the County,” and the county will not have to “…prove actual damages.”
Park County’s NDA, likely conceived by Meyer and possibly drafted by Osterberg, is amateurish, muddled, unclear, ridiculously overly punitive to the employee, and most likely illegal under CRS 29-1-1601.
In the above video, Meyer describes the NDA as nothing more than a tool for keeping the locations of sensitive or security-related items away from the public’s eye, to keep them secret, except only to those employees with a need to know, or necessarily know where and what they are because of the position they hold.
If that’s the only intent of the NDA, why isn’t it worded that way? Why does the NDA anticipate that anything under the sun may become confidential (a secret) simply because someone in authority says it is?
Mitchell’s comments in the above video are revealing. She says, “Yeah, I mean, this is more housekeeping that we’re doing to try to get things in writing so they are real, um, because a lot of this has to do with security. Security of the building, the facility, the people, and our information to keep us from being vulnerable to any kind of attack. Ah, either be by information used against us that we didn’t want people to have, or just, you know, how to reprogram one of our doors. So I think it’s just a really good idea. And slowly but surely, we will have all of our good policies in place.”
I’ll repeat it: “…to keep us from being vulnerable to any kind of attack. Ah, either be by information used against us that we didn’t want people to have, or just, you know, how to reprogram one of our doors.”
Perhaps a slip of the tongue reveals Mitchell’s fears that someone, some person, some employee may have some information on her that she doesn’t want the public to know about. Kind of harkening back to the first principle of transparency: Contest and limit disclosures.
Gemmer’s comments in the video: “Yeah, so the comment I want to make is when it comes to NDAs, um, you know, I had to read through this to really, ah, try to get this in my mind. I don’t disagree with it. I think this is a good cleanup ability, to, and it basically keeps those who have knowledge of those sensitive areas, to keep them, um, from being able to release those without some sort of a mechanism to, ah, against them, should they try to release those, that information. So I think it’s a beneficial to the county in those sensitive areas.”
Yeah, Gemmer had to say something. I think I know what he’s saying. As usual, though, Gemmer goes along to get along.
Wissel says in the video that he sees the NDA as a specific use agreement. In other words, Wissel sees county employees as end-users of the commissioners’ largess in providing them a job. The NDA is simply the means by which commissioners protect themselves from liability arising from public scrutiny of any employee’s revelations concerning what the commissioners want to keep secret. And how will this be done? Well, the NDA provides a severe retaliatory response for employees who find themselves embroiled in the amateurish, muddled, unclear, ridiculously overly punitive, and most likely illegal under CRS 29-1-1601, verbiage of the Park County Nondisclosure Agreement.
