Amicus brief: Court of Appeals ruling in Daily Camera lawsuit ‘deprives the public of meaningful oversight’ of government chief executive hiring

Update: The Colorado Senate voted 28-7 for HB 21-1051 on Wednesday, Apr. 28, sending the bill to Gov. Jared Polis.

By Jeffrey A. Roberts
CFOIC Executive Director

A Colorado Court of Appeals ruling in the Boulder Daily Camera’s lawsuit against the University of Colorado regents sets “a dangerous precedent that deprives the public of any meaningful oversight and input into the selection process of a public body’s chief executive,” says a friend-of-the-court brief filed Thursday by the Colorado Freedom of Information Coalition and 12 other organizations.

The filing supports the certiorari petition submitted by the Daily Camera last week, asking the Colorado Supreme Court to review the appellate court’s 2-1 reversal of a Denver District Court ruling against the regents for denying the newspaper’s Colorado Open Records Act request for the names and applications of all six candidates interviewed for the president’s job that went to Mark Kennedy in 2019.

University of Colorado
Photo credit: wellesenterprises

“If presidential searches are conducted in the secrecy sanctioned by the Court of Appeals’ decision in this case, the public will have no way of knowing whether a diverse range of candidates received consideration, or whether the process was engineered to produce a preordained result,” says the brief, prepared by attorneys and CFOIC board members Marc Flink and Tom Kelley.

If the appellate ruling stands, it adds, governments in Colorado will “take it upon themselves to define and limit their Colorado Open Records Act disclosure requirements simply by designating a nominee for the position as chief executive officer of the governmental entity as the ‘sole finalist.’ The Court of Appeals decision violates both the letter and intent of (CORA).”

Meanwhile Thursday, the Senate State, Veterans and Military Affairs Committee voted 3-2 for legislation that would let public bodies disclose just one finalist when choosing a new chief executive such as a university president, city manager or school district superintendent. House Bill 21-1051 already passed the House and now goes to the Senate floor.

The bill is needed, said sponsoring Sen. Brittany Pettersen, D-Lakewood, because some high-quality potential candidates for government positions are reluctant to apply, knowing their names and applications may be made public.

Brittany Pettersen
Sen. Brittany Pettersen, D-Lakewood

As currently written, CORA defines finalist as “a member of the final group of applicants or candidates” made public under the requirements of the Colorado Open Meetings Law, and it allows the public to inspect most records submitted by a finalist. It adds: “If only three or fewer applicants or candidates for the chief executive officer position possess the minimum qualifications for the position, said applicants or candidates shall be considered finalists.”

The proposed measure repeals the provision regarding three or fewer applicants and specifies that a state or local public body “shall name one or more candidates as finalists for the position of chief executive officer.” The open meetings law still would require public bodies to disclose the finalist (or finalists) 14 days before an appointment is made.

CFOIC opposes HB 21-1051, as does the Colorado Press Association, arguing that a secret selection process will keep the public and news media from knowing whether a diverse and well-qualified range of candidates received serious consideration for chief executive positions. Community members wouldn’t be able to vet multiple finalists and compare their backgrounds, diminishing the public’s oversight role.

The bill will eliminate public input before a sole finalist is announced, testified former Regional Transportation District Director Natalie Menten, “and we, the public, are ultimately the employer.”

As an elected official, Menten said she was involved in the hiring of two RTD general managers. “In each case we neared the end (of the selection process) with two to three finalists, which current law required that we publicize. If the law hadn’t required it, I’m sure it wouldn’t have been done voluntarily.”

The proposed legislation undercuts government transparency, said Carrie Lamitie, a Denver Public Schools civics teacher. She asked committee members to vote against the bill “in the name of democracy and keeping it healthy and resilient across our state.”

Michael Valdez, lobbyist for the Special District Association of Colorado, testified in support of HB 21-1051. He told the committee he doesn’t have “empirical data, but we field a number of telephone calls from people asking about a position that’s open, and they want to know if the law says that if I’m a finalist, does my name go public? … That has an immediate chilling effect on them.”

But lawyer Eric Maxfield, a lawyer who represents the Daily Camera and a parent who won a sole finalist ruling against the Academy District 20 school board in Colorado Springs, called the bill a “solution in search of a problem.” He noted that several government bodies have had no difficulty finding applicants for chief executive positions using an open process. This includes the Douglas County school board, which recently hired a superintendent, and the cities of Aurora, Fort Morgan and Idaho Springs, which hired police chiefs.

The other organizations signing the amicus brief filed Thursday are: Reporters Committee for Freedom of the Press, Joseph L. Brechner Center for Freedom of Information, National Freedom of Information Coalition, News Leaders Association, Society of Professional Journalists, Colorado Broadcasters Association, The Colorado Sun, Colorado SPJ Pro Chapter, Colorado Press Association, The Denver Post, Colorado News Collaborative and Chalkbeat Colorado.

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