By Jeffrey A. Roberts
CFOIC Executive Director

For meetings of state public bodies, the Colorado Open Meetings Law mandates that minutes must be “taken and promptly recorded, and such records shall be open to public inspection.” Minutes also are required for city councils and other local public bodies, but only during meetings where the adoption of policies or other formal action occurs or could occur.

But how detailed must minutes be? The open meetings law, aka the Sunshine Law, says little about that — only that minutes should reflect the topic of any closed-door executive sessions and the outcome of any secret-ballot votes to choose the leadership of a public body.

A recent state audit of the Sex Offender Management Board in the Division of Criminal Justice is a reminder that the minutes provision is unspecific and that some public bodies could do a better job of informing the public about past meetings.

Released July 28, the auditor’s report is highly critical of the 25-member panel responsible for developing standards and processes for treating and managing Colorado’s 24,000 registered sex offenders. Among other findings: Board members “had actual conflicts or situations that created the appearance of a conflict that were not disclosed and did not prevent them from performing official actions.”

The audit also slams the board for failing to keep meeting minutes “in a way that demonstrated compliance with statutory requirements.” The board and its committees repeatedly omitted or did not explain how individual members voted on various matters, including whether to approve applications from therapists and other professionals and how to resolve complaints filed against service providers.

Some meeting minutes, the audit says, listed board members’ names alongside the numbers “1,” “2” or “3,” but the minutes did not include a key to explain which number corresponded to “yes,” “no” or an abstention.

“When the board does not record votes in way that is clear and readily understandable to the public, the board does not operate transparently,” the auditor wrote, adding that maintaining “complete and transparent voting records” is important for monitoring how potential conflicts of interest are managed and identified.

“If voting records do not clearly delineate how individual members vote on each decision, including which members abstain from voting, there is no way for the Board or the general public to verify that members abstained from voting on decisions with which they had an actual or potential conflict.” When the auditor’s office found conflicts of interest, it could not verify that those members abstained from voting “due to the lack of detail about voting positions contained in meeting minutes.”

The board also runs the risk of having its official decisions invalidated when it cannot demonstrate adherence to the Sunshine Law, the audit notes.

Division of Criminal Justice staff told the auditor’s office “that someone who wants to see how individual members vote can attend meetings in person and observe which members cast votes by raising their hands to vote in favor or against a motion. “There is no mandate to record the way in which board members vote,” they said, adding that the numerical coding system in full board meeting minutes was “a courtesy to our minute reading audience.”

But it’s likely not feasible, the audit says, “for all individuals around the state who are interested in the Board’s proceedings to travel to the Denver metropolitan area to observe each Board and committee meeting in person.” (Although during the COVID-19 pandemic, with the board meeting by Webex video conference, members of the public can ask to attend via their computers.)

The auditor recommended the Sex Offender Management Board revise its bylaws to specify that individual vote tallies must appear in full board and committee minutes. The bylaws, the audit says, should also indicate who is responsible for providing the public with “a transparent record” of policy decisions.

The board agreed to implement the recommendations by December 2020, and it has started to include a voting key in its minutes.

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