Bill introduced clarifying citizens’ legal standing to challenge Sunshine Law violations

By Jeffrey A. Roberts
CFOIC Executive Director

Following outcry over the dismissal of a lawsuit against Arvada for allegedly violating a 2012 ban on the use of secret ballots, state lawmakers introduced legislation Wednesday to clarify that any citizen has legal standing to challenge violations of Colorado’s Open Meetings Law.

The bipartisan bill, HB 14-1390, is sponsored in the House by Rep. Crisanta Duran, D-Denver, and Rep. Bob Gardner, R-Colorado Springs. Gardner, who sponsored the secret-ballots prohibition two years ago, told us earlier this month he was “astounded” that a Jefferson County judge tossed out Arvada resident Russell Weisfield’s claim because Weisfield couldn’t prove he had been personally injured when City Council members marked unsigned pieces of paper four times on Jan. 10 to eliminate candidates for a vacant council seat.

H-Gardner

Rep. Bob Gardner, R-Colorado Springs

“The very point of the (Open Meetings Law) is transparency in government for all citizens, not just people who are directly affected,” Gardner said. “Every citizen ought to have standing.”

District Court Judge Margie Enquist acknowledged in her Mar. 30 decision that the voting procedure Arvada used to select new council member Jerry Marks “may have violated the secret ballot provision.” But she nonetheless ruled in Arvada’s favor because the law does not expressly “confer standing on every citizen.”

HB 14-1390, which is scheduled for a hearing in the House Judiciary Committee on Thursday afternoon, would rectify that by explicitly stating that any person denied rights under the Open Meetings Law “has suffered an injury in fact, and therefore, has standing to challenge the violation.”

Gardner sponsored HB 12-1169 after the Colorado Court of Appeals ruled that the Fort Morgan City Council did not violate the Open Meetings Law when it used anonymous written ballots to appoint two council members and a municipal judge in 2009 and 2010. With only a few exceptions, the two-year-old law prohibits the state or any local public body from using secret ballots to adopt “any proposed policy, position, resolution, rule, or regulation” or to take “formal action.”

At least three newspapers published editorials decrying Enquist’s ruling. It was deemed “outrageous” by The Gazette in Colorado Springs and “strange” by  the Times-Call in Longmont. By the judge’s logic, The Denver Post  said, “secret council votes could be held on a variety of topics with little fear of judicial rebuke.”

Duran and Gardner needed permission from legislative leaders to introduce a bill this late in the session.

Notably, Democratic Sen. Rachel Zenzinger is co-sponsoring HB 14-1390. It was her former seat on the Arvada City Council that Marks was chosen to fill in January. Zenzinger filled the Senate seat vacated by Democrat Evie Hudak, who resigned in November.

Follow the Colorado Freedom of Information Coalition on Twitter @CoFOIC. Like CFOIC’s Facebook page. Visit CFOIC’s legislature page to track bills in the General Assembly that could affect the flow or availability of information in Colorado.

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