“Transparency” — a hallmark of democracy.
Democracy is government of the people, by the people, and for the people. In this democracy, we choose our leaders, elected in local elections. The decisions and actions they take on our behalf and for the public welfare, are to be openly introduced, debated in the public forum, and decided upon in a public vote with adequate legal notice of their intent to take up the topic.
Lately, as Ark Valley Voice (AVV) reporters have been covering local meetings, we have seen repeated instances in which public boards have violated Colorado’s Open Meetings Law. It is heartening that these obvious infractions did not occur in our county and municipal government processes but in non-governmental or quasi-governmental boards.
But that doesn’t excuse these boards. Infractions of what are called Colorado Sunshine laws have been locally observed in hospital boards, school boards and in a multi-jurisdictional authority.
For a meeting to be subject to the Sunshine Law, “there must be a demonstrated link between the content of the meeting and some policy-making responsibilities of the public body”. Source: Board of County Commissioners of Costilla County v. Costilla County Conservancy District (Colo. Supreme Court, 2004).
While journalists have a traditional watchdog role, think of the word “democracy” as a verb — a commitment we all must practice to remain a democracy. The fact is, all Americans have a civic responsibility to fulfill our citizenship obligations, and that includes holding our leaders accountable.
But it’s hard to fulfill that democratic role if one is unsure what he/or she should be seeing. While this is by no means all-inclusive, below is a short primer on how this is supposed to work.
Sunshine Laws Cover Governance at all Levels
Colorado statutes covering how decisions and votes are to be done are referred to as “Sunshine Laws”, and they cover everything from the conduct for open meetings, to election committees, reporting election expenditures, Colorado’s Freedom of Information Act (which protects journalists and the public trying to get information which should be made publicly available).
There are actually several laws covering democratic processes: they include the Colorado Open Records Act, the Colorado Criminal Justice Records Act, the Colorado Open Meetings Law and access to judicial branch records. They also define the Reporter’s Shield Law, cameras in the courtroom, juvenile records and proceedings, as well as guidelines on using the federal Freedom of Information Act.
As explained by the Colorado Freedom of Information Coalition, the Colorado Open Meetings Law (COML) or Sunshine Law was formally passed in 1972. It originally applied only to the General Assembly and state agencies. A separate law applied to local government meetings until 1991, when the legislature combined the statutes into one law. When it did so it retained some differences between the requirements for state public bodies and those for local public bodies.
How the Sunshine Laws Apply to Local Open Meetings
An important component of the state’s sunshine laws is its focus on “Open Meetings Law”. These are state statutes designed to ensure the proceedings of local governments, non-governmental boards, and the proceedings of publicly-elected non-government boards, committees, and organizations make their decisions ” in the light of day” so to speak.
Per Colorado Sunshine Laws: “The open meetings law covers all boards, committees, commissions, authorities and other advisory, policy-making, rule-making or other formally constituted bodies, as well as any public or private entities that have been delegated governmental decision-making functions by a public body or official. Administrative staff meetings are not subject to the law. C.R.S. § 24-6-402(1).”
Here are just a few of the legal requirements of Colorado Open Meetings Law as it relates to local governance:
- “Local public bodies include the boards and commissions of all political subdivisions of the state, including counties, cities, towns, home rule cities, school districts, special districts, metropolitan districts, and the Regional Transportation District. C.R.S. § 24-6-402(1)(a)(I).”
- Public meetings must be properly noticed in a “full and timely” manner in the designated communications vehicles giving the public adequate time to prepare to attend. There are other special requirements of local school boards in a separate statute: C.R.S. § 22-32-108.
- Local public bodies must open meetings of a quorum or three or more members, whichever is fewer, at which public business is discussed or formal action may be taken. C.R.S. § 24-6-402(2)(b).
- Public meetings require agendas that list the topics that will be discussed in that session and materials being reviewed in a meeting must be made available to the public.
- Before making decisions with public impact, councils and boards must hold public hearings, allowing citizens who wish to voice their opinions to speak. There is normally a three-minute rule for public comments during these open sessions.
- Materials related to meeting topics of discussion and public hearings, including letters to town councils, trustees, commissioners, and quasi-governmental and non-governmental board members need to be available on request, per the Colorado Open Records Act (CORA). These days most materials are filed digitally, and digital is how they are provided, with a cost after the first hour of staff time required to prepare them.
- Minutes of public meetings must be kept and available for distribution “promptly”.
- If an executive session will be held, it must be publicly noticed and the description of the executive session must include the statute under which it is being called and the general topic or issue of the session (“The ‘particular matter’ to be discussed must be announced to the public with as much specificity as possible without compromising the reason for the executive session. The legal basis –statutory provision– for the executive session must be publicly announced as well, prior to the public body voting in public to go into executive session.”)
- The city or town council, county commissioners, quasi-governmental board, non-government board, or committee calling the executive session must inform the public (and the news media) if they anticipate that they expect to make any decisions during the executive session that would have them coming out of an executive session to take any votes.
- Appointments and openings for boards or committee positions must be communicated to the public, so that anyone interested can apply to be considered for an appointment.
- If a finalist or semi-finalists for a government staff position, or executive director position or board position has been selected, adequate notice of this information is to be shared with the public, fulfilling the requirement of a transparent, fair and unbiased selection.
- Bids for any government contract must be reviewed in a public meeting, before being awarded.
Email and Text Communications
These days modern electronic communications can cloud the interpretation of Colorado Open Meeting Laws, which point out:
Members of boards and commissions risk violating the open meetings law when three or more (for a local public body) use email or text messaging to discuss public business, either in a single transmission or in succession. Such electronic conversations are inherently closed because there may be no way to provide advance notice and allow the public to “attend” and observe the meeting. (The messages, however, may be subject to disclosure under the Colorado Open Records Act.)
Two members of a local board (unless two constitutes a quorum) may email each other about public business with no concerns. The messaging becomes a “public meeting” if one of those board members forwards the email to a third member.
This is by no means a complete list of local open meeting laws, but it reinforces this point: it is our responsibility as citizens to hold our leadership not just accountable for their decisions on our behalf, but accountable for the transparent process used to make those decisions.
For the first time, the Colorado Freedom of Information Coalition’s Sunshine Laws Guide is online — newly updated and searchable and indexed by topic — with links to pertinent statutes.
Featured image: Photo courtesy of The Conversation.
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