CFOIC asks Gov. Polis to veto sole finalist bill

The Colorado Freedom of Information Coalition sent the following letter to Gov. Jared Polis on Monday, May 10, requesting a veto of House Bill 21-1051, which would allow state and local public bodies to disclose just one finalist for chief executive officer positions.

Dear Gov. Polis:

The Colorado Freedom of Information Coalition (CFOIC) urges you to veto House Bill 21-1051. The bill is overbroad and an unnecessary restriction on the public’s right to monitor the conduct of a wide range of public bodies across the state — from all 178 public school boards to myriad city and town councils (which select more than 130 chiefs of police) to the boards of fire districts, county commissioners and public universities. Shrouding the hiring process of government chief executive officers in secrecy means communities will have no way of knowing whether a diverse and well-qualified range of candidates received serious consideration for these high-ranking, often high-paying, taxpayer-funded positions, or whether a hiring decision was pre-ordained. Communities will have no opportunity to compare the backgrounds and applications of the finalists and no opportunity to conduct their own research on the finalists.

Although there is uncertainty in the courts about how the Colorado Open Records Act (CORA) and the Colorado Open Meetings Law affect the hiring of chief executive officers, it has generally been understood — for decades now — that under both statutes any public body considering the appointment of a city manager, county manager, police chief, fire chief or school superintendent must make public, at least 14 days prior to extending an offer of employment, the list of all “finalists” (plural) for that position as well as the application materials submitted by all announced “finalists.”

Here are several jurisdictions that recently disclosed multiple “finalists” for an open chief executive officer position, allowing their communities to weigh in on, and in many cases meet with, the top choices prior to the hiring decision: Adams 14 School District (superintendent), Alamosa School District (superintendent), Archuleta School District (superintendent), Aspen School District (superintendent), Aurora (police chief), Boulder (police chief), Boulder (city manager), Castle Rock (fire chief), Commerce City (city manager), Cortez (city manager), Delta (city manager), Denver (fire chief), Denver Public Schools (superintendent), Douglas County Schools (superintendent), Durango (city manager), Durango School District (superintendent), Englewood (city manager), Fort Morgan (city manager), Fort Morgan (police chief), Frederick (town manager), Front Range Fire Rescue (fire chief), Garfield School District (superintendent), Idaho Springs (police chief), Lake County School District (superintendent), Lamar (city administrator), Moffat Consolidated School District (superintendent), Montezuma-Cortez School District (superintendent), Monument (police chief), Morgan County School District (superintendent), Ouray (city administrator), Poudre Fire Authority (fire chief), Poudre School District (superintendent), Routt County (county manager), Telluride School District (superintendent), Vail (town manager).

This non-exhaustive list demonstrates conclusively that the status quo — requiring public disclosure of multiple finalists and their application materials at least 14 days in advance of extending an offer of employment — does not hamper the hiring process or diminish the quality of applicants for such highly coveted and powerful positions.

Not only is HB 21-1051 unnecessary, the bill would dramatically reduce government transparency and accountability in Colorado with no demonstrable public benefit.

While a few public bodies, notably the boards of some school districts and public universities, have ignored the current laws’ public-disclosure requirements, public interest in the hiring of chief executive officers has been profound. The outcry over the University of Colorado regents’ naming of only Mark Kennedy as the “sole finalist” for president of the four-campus CU system in 2019 led to a CORA lawsuit filed by the Boulder Daily Camera and the anonymous leaking of a list of 30 other applicants for the position. On the list were several prominent Coloradans, including former Gov. Bill Ritter and former Lt. Gov. Donna Lynne.

The Colorado Press Association and the Colorado Broadcasters Association also oppose HB 21-1051, with the press association’s CEO describing it in a committee hearing as “antithetical to the spirit of CORA.” The press association’s lobbyists tried to work out a compromise with the bill’s sponsors, but the sole-finalist provision — for public bodies large and small —remains in the bill, despite no documented proof the public-disclosure requirement has made it more difficult to attract highly qualified candidates for key leadership positions in government.

Compare the secrecy HB 21-1051 would create with Colorado’s open process for hiring judges. As you know, the rules for nominating a judge to the Colorado Supreme Court and the Colorado Court of Appeals require the public disclosure of the three nominees submitted to your office. And most judicial district nominating commissions in Colorado have similar disclosure rules for the two or three names they submit to your office to fill a district court vacancy.

These “short lists” often include the leading lights in our state bar, magistrates and judges from other jurisdictions or lower courts and high-profile attorneys from the government and private sectors. The announcement of three “finalists” for judicial positions encourages knowledgeable colleagues to contact you directly with additional candid input to inform your selection decision. This open process hasn’t hampered the judicial branch’s ability to attract “the best and the brightest” to serve on the bench.

There simply is no reason why the selection process for equally important government decision-making and leadership positions should operate any differently.

It is our firm belief that those advocating to curtail the amount of information available to the public under existing law — as HB 21-1051 would do — should bear the onus of demonstrating the need to do so. They should be required to show that not altering the status quo would significantly harm the public good. But proponents of the bill have not demonstrated there is an actual problem that needs fixing.

Accordingly, we respectfully urge you to protect the public’s right to monitor and evaluate the conduct of its public servants through transparency. We ask that you veto HB 21-1051 with a strong and clear message — that you are not willing to change the status quo and reduce the existing level of government transparency unless there is a demonstrated need to curtail the stock of information currently available to the public. Such a message will provide notice to the bill’s sponsors, and to others who may seek to curtail government transparency, that they bear the burden of proof. Unless they meet that burden to your satisfaction, you will not sign any bill like HB 21-1051 that restricts the public’s right to monitor the actions of public servants and thereby hold them accountable.

We would welcome the opportunity to meet with you and/or your legislative staff to discuss this request further.

Thank you for your consideration.

Steve Zansberg, CFOIC president
Jeff Roberts, CFOIC executive director

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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