In November 2014, 70 percent—nearly 1.4 million—Colorado voters told local school boards and K-12 employee associations across the state that it was time to start negotiating taxpayer money in open forum.
On a ballot where the three other statewide initiatives were defeated, the overwhelming majority of Coloradans said no more collective bargaining on teacher contracts behind closed doors. The clear intent of a Yes vote for Proposition 104 was to hold all such meetings in public view.
However, it appears that lawyers and administrators across the state have found new terminology to skirt the spirit of the law. At least until a judge is asked to determine otherwise, some are interpreting Proposition 104 to mean that not all negotiation meetings are to be open.
“We have to start by understanding that what Proposition 104 did was modify the Colorado Open Meeting Act for both state and local public bodies,” said Jim Branum, a Boulder-based attorney from Caplan and Earnest, LLC. He provides legal counsel for several Colorado school districts, including Jefferson County Public Schools, which has created its own procedure to effectively get around 104.
“It revised the definition of a local public body to include the district bargaining team when involved with representatives from the association it is bargaining with,” Branum added.
Jeffco is not alone. What its negotiators call “small group meetings” are referred to as “two-by-twos” in Larimer County’s Thompson School District. Still other districts call them caucuses or subcommittee meetings. Whatever form they take, the meetings are happening behind closed doors—exactly what 104 was supposed to do away with.
Bill Siebers, director of human services for the Thompson School District, said two-by-twos do not violate the law because they are not “negotiating.” The meetings include two members of the teacher’s association negotiating team, one member of the district negotiating team, and district superintendent Stan Scheer.
According to Siebers, the meetings are simply to get Scheer, who does not sit in on negotiations, caught up on what is happening.
“All they are, are discussions and clarifications on what has happened to that point,” Siebers said.
In Jeffco, however, the small group meetings are discussing four very specific topics: Effective educators, compensation, educating the whole child, and collaboration and school autonomy.
Branum said he sees nothing against the letter or spirit of the law with these meetings.
“Other provisions of open meetings require that they meet in public when they have three or more of their members involved in discussion of public business,” Branum said. “If fewer than three of the district members are present and involved in meeting with association representatives, the open meetings law does not require that meeting be held in public.”
That is not the only interpretation of 104, however.
Steve Zansberg, attorney and president of the Colorado Freedom of Information Coalition, says the law is ambiguous and subject to an interpretation that prohibits these types of meetings.
“Prop 104 defines a local public body as any group that meets with representatives of the teachers union to discuss labor contract, regardless of how small a group attend the meeting,” Zansberg said. “Under (this) interpretation, there can be no meeting of two members of the school board or its administration with union representatives that is not conducted in the open.”
It may not be clear, however, which interpretation is right until someone is willing to put up the money to challenge the questionable practice in court.
Branum said as long as the meetings in question—whatever they are labeled—are done correctly, even the spirit of the law remains intact. He added they are about moving the process along efficiently.
For example, if in the small group six items are brought by each side that they want discussed, but some of them are ridiculous or frivolous, the group is designed to decide which of the 12 should be brought back to the complete team and fully negotiated.
“Reality is when you’re trying to negotiate an entirely new agreement, these working groups are designed to break it down into bite sized chunks,” Branum said. “Or we would be at the table much, much longer. If being done appropriately, they shouldn’t be bargaining or negotiating.”