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We’ve Never Seen a Violation of Open Meetings Law Like This | Opinion

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by Quentin Young, Colorado Newsline
July 13, 2023

Democrats and Republicans in the Colorado House of Representatives are responsible for what could be the most brazen and persistent violation of the Colorado open meetings law since voters adopted it more than half a century ago.

Journalists and other state Capitol observers have long had some idea that this was the case. But its scope was affirmed in spectacular fashion when two elected members of the House itself packed all the lurid details into a lawsuit last week. The members, Democrats in an institution controlled by Democrats, sued their own caucus and party leaders, as well the House’s top Republican and Republican caucus, in a blockbuster attempt to address years of flagrant misbehavior.

Among public bodies subject to the Colorado Sunshine Law, the Colorado House is about as big and significant as they come. It appears that the House is also the measure’s most intemperate violator.

Now that its members have been called to account in court, they owe Coloradans a commitment to follow the law. The Legislature should also adopt further Sunshine provisions to better ensure transparency and account for new technology.

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Voters approved the Sunshine Law by 20 percentage points in 1972 when it appeared on the ballot as a citizen’s initiative. One of the law’s components requires state lawmakers and agencies to conduct public business in open meetings. The law says that any meeting of two or more members of a state public body, like the Legislature, must be open to the public if any public business is discussed or formal action may be taken. And it says that any meeting where the adoption of policy or a position occurs must be preceded by timely public notice.

An important development of the law came in 1983 with the Colorado Supreme Court ruling in Cole v. State. 

Ralph Cole, a Republican state senator, objected to legislative caucus meetings — where members of a party gather to discuss positions and bills — being subject to Sunshine. The court declared that caucus meetings should indeed be open to the public, and it articulated why in artfully persuasive passages like this: “A free self-governing people needs full information concerning the activities of its government not only to shape its views of policy and to vote intelligently in elections, but also to compel the state, the agent of the people, to act responsibly and account for its actions.”

Now consider what the new lawsuit alleges against that legal backdrop.

Reps. Elisabeth Epps of Denver and Bob Marshall of Highlands Ranch in their complaint, filed in Denver District Court, allege that during the 2023 legislative session, a quorum of Democratic members of the party caucus and various House committees regularly met, once or more a week, “outside of public view” and without public notice to discuss public business. Worse, party leaders “instructed legislative aides to omit or disguise these meetings from Representatives’ calendars.”

Epps and Marshall say they think the Republicans were essentially doing the same thing, but they’re able to give an eyewitness account of Democrats’ behavior. Simply put, “Quorums of state public bodies in the House of Representatives routinely meet in secret to discuss public business,” they allege.

But it gets worse still. Epps and Marshall say House members habitually use the Signal app “to discuss public business outside of public view, in real time,” such as during committee meetings. They talk to each other in secret about witnesses in front of them and how they’re going to vote on bills. Republicans in May on the last day of the legislative session apparently used Signal to execute a walk-out, which had been planned earlier in the day. A lawmaker’s electronic communication about public business might normally be obtainable as a public record, but Signal allows automatic deletion of messages. The public record vanishes as quickly as it’s created.

Elected officials too often forget that their primary obligation is service on behalf of constituents.

None of this is really news to experienced Capitol observers, and there was a collective nodding of heads that greeted the lawsuit.

“This lack of transparency has been my biggest aggravation for most of the 25 years I’ve covered the Capitol,” tweeted Colorado Politics reporter Marianne Goodland, whose own reporting suggests anti-Sunshine sentiment also dominates the Senate chamber.

“Journalists who work at the Capitol are very familiar with the secret Democratic and Republican caucus meetings,” Colorado Sun reporters wrote in the Unaffiliated newsletter. “The gatherings happen almost daily during the session — on the Capitol grounds and in nearby buildings — and we typically only find out about them when a lawmaker provides a tip.”

But the insider’s account in the lawsuit both demonstrates how expansively lawmakers disregard the law and demands that they answer for their malpractice.

Moreover, the lawsuit is only the most recent indication that high public officials in Colorado would like nothing more than to conduct public business out of view of the public. Democrats in recent years have used a secret online survey to determine which bills advance or die. The system plainly appears to run afoul of the Sunshine Law, as lawmakers have been informed, but they just can’t quit their love of secrecy.

Transparency advocates have long pleaded with lawmakers to make public information requests more affordable, but elected officials have consistently failed to do so, including during the most recent legislative session. The rising cost of public information requests can effectively keep public documents concealed from the public. In fact, by next year the hourly rate Colorado government bodies can charge for responding to records requests is expected to jump 23%, from $33.58 to $41.34, according to Jeffrey Roberts, executive director of the Colorado Freedom of Information Coalition. 

Many people won’t be able to afford the cost of obtaining records that the law, and the principles of democratic society, say they’re entitled to see.

Elected officials too often forget that their primary obligation is service on behalf of constituents, not relationships with other officials, not elevation within their party, not cultivation of political ambitions. Secrecy is antithetical to their role as advocates for residents.

The Epps-Marshall lawsuit has made open-meeting reform at the Colorado Capitol unavoidable, though what form it will take is yet to be determined. Lawmakers could conceivably make adverse changes to the Sunshine statute, twisting it to accommodate current improper practices.

“When you open up these laws, you can make them better, or you can do damage,” Roberts told me this week.

As Newsline’s Sara Wilson reported this week, Marshall had requested that an interim legislative committee be convened this summer to discuss open-meeting solutions, but the committee wasn’t approved.

In a statement he and Epps released Monday, they say of the Colorado Open Meetings Law that “modernization is long overdue,” adding, “Our goal is to usher the legislature into a workable open and transparent governmental framework.”

Whatever that new framework looks like, it should demand more, not less, transparency. In the meantime, the state already has a framework for Sunshine. Representatives are obliged to follow, not flout, the law.

Editor’s note: This commentary was updated at 1:38 p.m., July 13, 2023, to clarify the nature of the Republican walk-out.

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Colorado Newsline is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Editor Quentin Young for questions: info@coloradonewsline.com. Follow Colorado Newsline on Facebook and Twitter.