By: Christine Gazda, Garfield & Hecht, P.C.
Meetings of local public bodies are governed by the Colorado Open Meetings Law (“OML”). C.R.S. § 24-6-401 et seq. Though amended over the years, the purpose of the OML has remained constant – “that the formation of public policy is public business and may not be conducted in secret.” C.R.S. § 24-6-401.
Local public bodies must open meetings of “a quorum or three or more members, whichever is fewer, at which any public business is discussed or at which any formal action may be taken.” C.R.S. § 24-6-402(2)(b). However, the OML was drafted in the 1970s before the advent of email, and although that statutory provision refers to “a quorum or three or more members,” a recent state court decision suggests that one-on-one discussions of public business, even if causal or unintentionally serialized, may be violative of the OML. See Marshall v. Douglas County Bd. of Edu., et al., 2022CV30071 (D. Colo. Mar. 9, 2022) (order granting preliminary injunction against School Board).
In the Douglas County decision, the court granted an injunction based on evidence of an OML violation by four board members who had individual discussions about terminating the School Board’s superintendent and apparently reached a collective decision outside of a public meeting. Id. The Douglas County court stated that while “[t]here is a lack of appellate decisions in Colorado regarding whether serial communications violate” the OML, other states including Hawaii, Ohio, Wyoming, Nevada, California, and Florida have addressed the issue, and those “decisions are consistent with the position that Colorado has taken with regard to the conduct of public business.” Id.
The court concluded, “Circumventing the [OML] by a series of private one-on-one meetings at which public business is discussed and/or decisions reached is a violation of the purpose of the statute, not just the spirit.” Id. Granting the injunction, the court prohibited the School Board “from engaging in discussions of public business or taking formal action by three or more members of the [Board] as a group or through a series of meetings by less than three members at a time, except in public meetings open to the public.” Id.
Although the issues in Douglas County have yet to be fully adjudicated, the order granting a preliminary injunction against the School Broad may have broad implications for Colorado municipalities that have long taken advantage of the apparent loophole of “a quorum or three or more members.” Now, members of a local public body risk violating the OML when discussing public business outside of a public meeting regardless of whether the discussion is among three or more members, or if it is a series of communications.
For assistance with local government or special district matters, please contact:
David McConaughy (dmcconaughy@garfieldhecht.com or (970)-920-5801 ext. 810)
Mary Elizabeth Geiger (megeiger@garfieldhecht.com or (970)-920-5816 ext. 813)
Christine Gazda (cgazda@garfieldhecht.com or (970)-920-5803 ext. 211)
