By Jeffrey A. Roberts
CFOIC Executive Director

A judge ordered the payment of $148,822 in attorney fees and court costs to a parent who won an open meetings case against the Woodland Park school board for its discussion of a charter school MOU under a vague “BOARD HOUSEKEEPING” agenda item.

Erin O’Connell’s lawsuit “sent a message to public bodies across Colorado,” wrote Teller County District Court Judge William Moller in a decision issued Friday. “Based on the ruling of the Colorado Supreme Court, government entities can be held accountable for their actions by being forced to pay an opposing party’s fees and costs. Consequently, I find the results of the litigation far exceeded what defendants’ counsel argues because the litigation results have state-wide implications.”

Last September, the state Supreme Court affirmed a judicially created doctrine that lets public bodies “cure” violations of the Colorado Open Meetings Law (COML) at subsequent meetings that do not merely rubber-stamp earlier decisions. It also ruled that a plaintiff such as O’Connell is still entitled to recover costs and reasonable attorney fees if an open meetings violation is proven in court.

A different Teller County District Court judge, Scott Sells, determined in April 2022 that the “BOARD HOUSEKEEPING” agenda item “was a conscious decision to hide a controversial issue” — the memorandum of understanding with Merit Academy charter school. He ordered the school board to comply with the COML’s notice provision “by clearly, honestly and forthrightly” listing future agenda items concerning Merit Academy.

But later, in a ruling upheld by the Court of Appeals, Sells determined that O’Connell was not a “prevailing party” — entitled under the law to recover costs and reasonable attorney fees — because the board had cured the violation at a subsequent meeting.

The Supreme Court reversed that portion of those rulings, concluding that O’Connell should be awarded fees because she successfully proved a violation by the school board that wasn’t cured until after she filed a lawsuit. It sent the case back to district court to decide the amount.

Bryce Carlson, the school board’s attorney, argued for an award to O’Connell of around $40,000 because she prevailed only on a “single narrow issue” over the four years of litigation. Eric Maxfield, O’Connell’s attorney, asked for $144,305 in attorney fees and $4,517 in court costs after agreeing to lower an earlier request by $10,810.

Moller settled on the amount sought by Maxfield (who is a board member of the Colorado Freedom of Information Coalition) because “it is clear Ms. O’Connell forced the school board to comply with the COML and to give the public the right to participate in policy making decisions.”

“The position argued by the School Board would, had the Colorado Supreme Court adopted it, have allowed the School Board to escape repercussions for its actions,” the judge wrote. “Similarly, it would have allowed this school board, and other public bodies, to violate the COML with relative impunity because any violation could be remedied by a remedial cure.”

Though Carlson argued that some of O’Connell’s claims were unsuccessful, Moller added, “I find that even if true, they were ancillary to the overall purpose of O’Connell’s suit which was to show that the Woodland Park School Board had violated the COML and was accountable for so doing. Equally important was the holding by the Colorado Supreme Court reinforcing that previous decisions made in violation of the COML could not be merely ‘rubber-stamped.’”  

The judge also found that the school board “prolonged the litigation by failing to recognize its responsibilities under the COML, and that it should bear the expense of pursuing aggressive litigation.”

The open meetings law requires public bodies to post notice of meetings at least 24 hours ahead of time with “specific agenda information where possible.” In determining whether a notice is “full,” Colorado Supreme Court justices ruled in 2008, “we apply an objective standard, meaning that a notice should be interpreted in light of the knowledge of an ordinary member of the community to whom it is directed.”

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