Basalt council emails violated the Colorado Sunshine Law, judge rules

By Jeffrey A. Roberts
CFOIC Executive Director

Basalt town council members violated Colorado’s open meetings law in 2016 when they used email to discuss a retail marijuana resolution and other matters, a judge ruled Monday.

The council members engaged in “electronic discussions of public business absent public notice and without opportunity for the public to observe and participate in the process,” wrote Eagle County District Court Judge Russell Granger.

“Colorado’s open meetings law is unambiguously clear: When three or more elected members of a local board, committee or commission discuss public business – whether it be in person or by email, phone, Snapchat, Twitter, Facebook or any method of communication – they must provide the public with notice and an opportunity to attend or observe that discussion,” said attorney Steve Zansberg, who represented Basalt resident Theodore Guy in a lawsuit against the town. “Judge Granger’s ruling strongly reaffirms that principle.”

Guy challenged four separate email and texting chains involving Basalt Mayor Jacque Whitsitt, council members and other town officials.

The judge found that a series of text messages between the mayor and the town manager were not subject to the Colorado Open Meetings Law (COML), nor was an email sent by one town councilor to another.

But two other email exchanges were subject to the law, he determined. One set in July 2016, involving Councilor Jennifer Riffle and three other council members, concerned a resolution on the expansion of zone districts where marijuana could be sold. Another set in August 2016, involving council members, the mayor and town staff, conveyed a councilor’s “specific thoughts on a variety of matters,” including municipal bonds and a ballot measure, the judge wrote.

Hands typing on laptop

The purpose of the Sunshine Law, Granger noted, “is to enable and facilitate, and ultimately to require, transparency in government.”

For local government bodies like city councils, meetings must be open to the public if public business is discussed or formal action may be taken and at least three members or a quorum – whichever is fewer – are in attendance. Full and timely notice is required if a majority or quorum is expected to attend.

Whether a meeting is conducted in person or electronically doesn’t matter – it’s still subject to the law. “If elected officials use electronic mail to discuss pending legislation or other public business among themselves, the electronic mail shall be subject to the requirements of this section,” the statute says.

In court documents, an attorney for the town argued that the emails on marijuana dispensary zones did not violate the open meetings law because they reflected only the thoughts of individual members of the town council and there was no “meaningful connection between the meeting and the policy-making powers” of the council. The August 2016 emails, he contended, were not “secret communications,” only one council member conveying her thoughts and ideas because she was leaving town for three weeks.

The attorney, Steven Dawes, referenced a 2004 Colorado Supreme Court ruling which held that a meeting must be rationally connected to a public body’s policy-making function for the meeting to be open. Neither court rulings nor the COML “stand for the proposition that an elected official can never write emails to other council members containing her personal thoughts about matters coming up before the town council,” Dawes wrote.

But the judge, in a footnote in his ruling, noted that the discussion of pending public business is sufficient for the Sunshine Law to apply: “If the electronic communications involve matters of policy, they are subject to the COML.”

Granger last year ruled in the town’s favor regarding other open meetings law issues raised by Guy.

Town Manager Ryan Mahoney told the Colorado Freedom of Information Coalition the council will review Granger’s latest ruling with Basalt’s new town attorney.

“Since this lawsuit was filed, the town has reviewed communication practices by council members and actively arranged for ongoing education on these issues,” he wrote in an email. “We will continue to do so by reviewing with our town attorney the town’s policies and procedures regarding communications to ensure compliance with the state’s sunshine laws.”

Zansberg, who is CFOIC’s president, said he hopes other local public bodies “take heed” of Granger’s ruling “so that the people they serve will not similarly be denied their right to participate meaningfully in the formation of public policy.”

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