With the Colorado Senate’s passage of the Red Flag Bill (Colorado HB19-1177 Extreme Risk Orders), the state is facing what might at some point be called a constitutional crisis. The decision by many rural counties of whether to flaunt enforcement of the bill as “Sanctuary Counties” is also a test of democratic transparency, the statutory basis of the Colorado Open Meetings Act (also known as the Sunshine Law). In Chaffee County, the issue is whether the commissioners will allow the public to listen to their discussion, weigh in, and whether to declare Chaffee a Sanctuary County in response to the bill’s passage.

The written request by Chaffee County Sheriff John Spezze asking that the county declare itself to be a Sanctuary County, in defiance of the bill, was made even before the passage of the bill Thursday afternoon. The bill now sits on Gov. Jared Polis’s desk. Whether or not he decides to sign it, the pressure on Chaffee County Commissioners is whether to take up deliberation of the sheriff’s request, and whether they will do so in full view of the public in compliance with the Sunshine Law.

At the moment, the commissioner’s agenda for their 9 a.m. Monday, April 1 meeting, includes an executive session “to receive legal advice on the Red Flag Bill,” at which point the agenda says they will return to public session and discuss the topic. The description of the executive session does not at this time include the words “Sanctuary County”. The agenda says there will be no public comment on the stated topic.

Earlier this month, the Colorado government and the news media celebrated the state’s annual “Sunshine Week.” This is a week set aside to highlight this democratic truth — that open government and transparency act as a re-enforcement of our state and federal laws, allowing the media to shine a light on aspects of government that can often remain in the dark. The act goes directly to the concept that “We the People” have a right to know what our government is doing.

“Sunlight is said to be the best of disinfectants,” said former U.S. Supreme Court Justice Louis Brandeis. That astute observation caused the Colorado state statutes related to government transparency to become known as the Sunshine Laws.

The Colorado Sunshine Law allows for executive sessions after full and timely notice, to be called by a 2/3 vote within an open meeting to consider the following topics:

  • The purchase of sale or property
  • Anything subject to the attorney-client privilege exemption
  • Matters that are subject to state or federal statutes requiring concealment
  • Labor negotiations
  • Discussions of employee dismissal, discipline, promotion, demotion or compensation are open unless the employee specifically requests an executive session and is still subject to a vote by the board in question
  • Security details
  • Discussions of any records exempted under the Colorado Open Records Act

It is hard to see how a discussion of the just-passed Red Flag Bill, or the momentous decision to declare itself a Sanctuary County to avoid enforcing the bill, should the governor sign it into law, would fall into most of those categories. Surely the legal advice they will be given applies to “We the Citizens of the County” since a declaration would be made on behalf of the citizens.

Security couldn’t be the reason, since the bill was proposed to protect the families and neighbors of possessors of guns who are in the midst of mental health crisis from hurting themselves or others. Nothing is being purchased or sold, and there is no concealment of a federal or state statute. If anything, holding the discussion of this issue in executive session could be seen by some, as concealment.

There is no labor issue, and it doesn’t appear that anyone is being fired over the Red Flag Bill. There don’t seem to be any exempt records involved. Security details would seem to apply more to preparing for domestic or foreign terrorist attacks. So  the remaining reason for commissioners to not include the public is that it is subject to the attorney-client privilege exemption.

A public meeting related to this topic was held by commissioners March 19, focusing on the Red Flag Bill itself. It was held in the afternoon, when many of the people who might want to comment on that bill, for or against, were working. It was held in Buena Vista, causing many to request an equal opportunity for the southern end of the county, as well as that it be an evening session when young working families could attend.

The decision on whether or not to declare Chaffee County a sanctuary county is a huge decision with constitutional implications far beyond the Red Flag Bill itself. This fact would seem to be a valid reason for an adjustment of that executive session agenda item description to comply with the Sunshine Law, and for the bulk of the conversation to take place in the public eye.