2023 Leg Session, Featured, Gold Dome, Original Report, Sherrie Peif, Transparency

Transparency advocates warn bill hampers challenges to executive session violations

DENVER – Open government advocates say a bill making its way through the House of Representatives would water down Colorado’s open meeting laws when it comes to local elected bodies informing constituents about conversations behind closed doors.

House Bill 23-1259, sponsored by Adams and Jefferson County Democrat Lindsey Daugherty and Weld County Republican Gabe Evans, would create a cumbersome new process for anyone wishing to challenge public entities, such as school boards or city councils, as to whether proper notice about executive sessions was given.  Challengers could also face large reimbursements if a court deems they did not meet those requirements.

Evans said when he signed onto the bill, he did not expect the language of the final draft to have such a “chilling” effect on the press and constituents who wish to challenge misdoings by their local governing boards.

 Lawsuits driving effort

“Rural school districts came to me and said they wanted to have the right to cure these things before they were taken to court and forced to spend thousands of dollars on litigation,” Evans said, adding he agreed because as a police officer, he often witnessed frivolous lawsuits against the department simply for the sake of settling out of court, and could see the same happening in the small rural school districts. “The language of the bill was a bit stronger than I had thought it would be. I have had some conversations with stakeholders to bring amendments to the bill that will ease some of the concerns.” lawsuits drive effort

Evans was referring to Pagosa Springs attorney, Matt Roane, who according to news reports had filed at least 45 lawsuits against small school districts and other municipal boards over alleged open meetings violations, usually settling out of court for $3,750 each.

Michelle Murphy, executive director of the Colorado Rural Schools Alliance, told the Durango Herald: “… Many of these are against small rural districts with extremely limited resources. Unlike larger urban districts, rural districts do not employ in-house legal counsel and are forced to spend additional funds on attorneys.”

The bill does not yet have any sponsorship in the Senate.

Jeffrey Roberts, Executive Director of the Colorado Freedom of Information Coalition (CFOIC) said his organization is opposed to this bill.

“We are very concerned about weakening the enforcement of executive session announcements in the open meetings law,” Roberts said “The public is entitled to know something about what a public body is going to discuss behind closed doors.”

Evans agreed, adding his intent was never to skirt sunshine laws.

“My intent was: Can we try to take a step away from everything being litigated in society? Can we try something else before the court process starts? I think districts should have the right to try to work things out before going to court,” Evans said. “But if someone wants to get open records or challenge the government if they have done something wrong, by all means, they should also have that right.”

Roberts said when you weaken the enforcement mechanism of the existing law, it gives public bodies the ability to say very little about what is being discussed in executive sessions.

Putting up roadblocks to challenges

Under the current law, before the body can go into executive session, it must be announced with as much specificity as possible what the meeting is about. For example, if a city council were receiving legal advice pertaining to a lawsuit, the announcement would need to be something such as: “To receive legal advice on pending litigation in relation to the dismissal of an employee.”

The bill requires that for anyone to have standing to challenge a violation, they must first file a notice to the clerk of the local public body and meet with the public body before the next meeting to see if the issue can be resolved without going to court. It then gives that local public body the ability to “cure” the violation at its next meeting or the meeting immediately following 14 days after a complaint is raised.

Under the bill, “If someone complained, (the local public body) could theoretically cure that at the next meeting,” Roberts said. “But it’s very difficult in that bill to understand whether that cure is adequate or not because no one has standing to go to court over it.”

Roberts pointed out that the law doesn’t pertain explicitly to the published agenda for the meeting, rather it is intended to be announced at time of the vote to enter into the executive session. Therefore, the only people aware that a violation may be occurring would be the people in the room at the time of the meeting.

“They are supposed to be as specific as possible without ruining the point of going into executive session,” Roberts said. “So that someone wondering why they are closing the door, knows why they are closing the door. If they explain it at the next meeting (anyone at the previous meeting when the violation occurred), may or may not be there. You may not hear that.”

Just as troublesome, Roberts said, the fact that there is no explanation as to who determines if a “cure” is adequate complicates whether the meeting could still be challenged. If the local public body believes it’s been cured, but the person wishing to challenge does not think it’s adequate, they may still not have standing to sue. And another addition to the law allows the local public body to recover costs and attorney fees from the person filing the complaint if a court finds the person filing the challenge did not meet the notice requirements or that the local public body cured the violation.

“The public already often wonders why their boards and commissions and councils are meeting behind closed doors,” Roberts said. “Are they straying from topic? Are they making decisions when they are not supposed to? This gives them a little bit of information and why do we want to weaken that provision?”

Roberts said his organization will be testifying against the bill at a hearing before the State, Civic, Military, & Veterans Affairs committee at 1:30 p.m. on April 10.

Evans said he will continue to work on amendments that will make this bill more acceptable.

“I’m still a small government, conservative that doesn’t want to have a chilling effect on the media or other constituents,” Evans said. “Sunshine is a great disinfectant. I’m trying to do what the legislature is supposed to do and that is to find a happy medium on things that are real issues for my constituents.”


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