Coronavirus and Colorado’s Sunshine Law

Update: Gov. Jared Polis signed HB 20-1301 into law on Wednesday, Mar. 18.

By Jeffrey A. Roberts
CFOIC Executive Director

As the COVID-19 pandemic forces everybody to consider limiting their exposure to other people, local elected officials are starting to think about how they can do the public’s business virtually without violating the Colorado Open Meetings Law.

A meeting of a public body convened “by telephone” or “electronically’ – using Zoom, for instance – is still a “meeting” under what’s commonly known as the Sunshine Law. If a majority or quorum of the body attends, or is expected to attend, it can be held only after “full and timely” notice to the public, which can include a posting on a website.

And any electronic or phone meetings must be open to the public, meaning there has to a way for community members to watch or listen in.

meeting room
Photo credit: eakin rasadonyindee

The open meetings law “expressly contemplates that a meeting may be conducted electronically, without giving any precise indication of how the public must be allowed to participate in the meeting,” wrote David Broadwell, general counsel for the Colorado Municipal League, in an email to the Colorado Freedom of information Coalition. “There seems to be a consensus that the trick will be finding a medium that allows the public to ‘attend’ and/or participate in the meeting.

“Since we are in uncharted waters here, nobody has reached any definite conclusion as to how the meeting logistics can and will work if anybody actually attempts to do this.” 

In some cities, charters or ordinance provisions may not allow councils to conduct virtual meetings.

The Boulder City Council on Tuesday will take up an emergency ordinance that would give councilors, as well as advisory board and commission members, the option to participate in meetings remotely, by phone or via the internet. According to the Daily Camera, the ordinance also would let public bodies in Boulder limit in-person public attendance, provided the city offers a way for community members to also participate remotely. The city, which streams council meetings on its website, plans to make a call-in number available for public comment at this week’s meeting.

In Aspen, a hot spot for the coronavirus, the City Council adopted a resolution Friday that lets the city manager make rules and regulations “for the conduct of and attendance at City Council meetings through electronic means” during a disaster emergency. “Whether those meetings will be televised or conducted via some type of audio system was not determined,” the Aspen Daily News reported.

Denver City Council rules currently don’t allow virtual meetings, according to Stacy Simonet, the council’s administrator of communications and technology solutions. “The only way for a member to be counted present is to be in physical attendance,” she wrote in an email to CFOIC. “That being said, it’s an ongoing discussion and Council is exploring options.”

While Colorado’s open meetings law merely permits “electronic meetings,” the state statute governing school board meetings is much more detailed on this topic. School boards may adopt policies allowing members to attend meetings electronically, but such policies “must ensure that a meeting at which one or more board members participate electronically is open to the public.”

If they use this provision, school boards are required to have “technology in place that will ensure that members of the public can hear the comments made by a board member who attends the meeting electronically and that the board member can hear comments made by the public.”

Before recessing Saturday for at least two weeks, the legislature sent Gov. Jared Polis a bill that redefines a school board meeting quorum to include members who attend electronically. House Bill 20-1301 was introduced before the spread of the new coronavirus to help rural school board members who travel long distances to attend meetings. Senators added a safety clause to the measure, declaring it “necessary for the immediate preservation of the public peace, health, or safety,” thus allowing it to go into effect upon the governor’s signature.

“Being in the time that we are in right now, we all thought it was really important that they could do this at the next school board meeting,” said Rep. Barbara McLachlan, D-Durango. “It just happened to be that this was a bill that was ahead of its time, and that time has come.”

Still pending during the legislative recess is another measure, House Bill 20-1308, that would let elected officials exchange emails unrelated to “the merits or substance” of pending legislation or other public business, without potentially violating the open meetings law. If elected officials forwarded information, scheduled meetings or responded “reply all” to a constituent’s inquiry sent to the entire body, it wouldn’t be “meeting” under the law.

Such emails, however, would still be subject to disclosure under the Colorado Open Records Act. A CORA request for emails is the only way to determine if members of a public body are using that mode of communication in violation of the Sunshine Law. That’s how The Pueblo Chieftain in 2014 caught three members of the Pueblo City Council discussing a trash-collection plan out of public view.

For local public bodies like a city council, a school board or a county commission, all meetings of a quorum or three or more members, whichever is fewer, must be open to the public if public business is discussed. For a meeting to be subject to the Sunshine Law, there must be a demonstrated link between the meeting and the policy-making responsibilities of the public body.

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