By Jeffrey A. Roberts
CFOIC Executive Director

A judge this week tossed out one claim from a lawsuit that was aimed at holding Elbert County commissioners personally liable for approving new contracts for the county administrator and county attorney outside of public view.

The dismissal for lack of standing, ordered by Elbert County District Court Judge Theresa Slade, doesn’t affect other civil claims made by five county residents against Commissioners Chris Richardson, Dallas Schroeder and Grant Thayer for allegedly violating the Colorado Open Meetings Law.

The residents’ lawsuit, filed in September, says the commissioners should have approved the contract extensions in a properly noticed open meeting, which didn’t occur until residents objected to the raises during a town hall meeting.

The commissioners defended the legality of the contract changes for County Manager Shawn Fletcher and County Attorney Bart Greer by citing a provision in the open meetings law regarding the “day-to-day oversight of property or supervision of employees by county commissioners.”

But that provision only exempts county commissioners from the open meetings law’s 24-hour notice requirement in supervisory situations. The open meetings law requires that any discussion of public business by two or more members of the county commission be conducted in an open meeting, and it prohibits the commissioners “from making any decision — such as agreeing to sign a multi-year contract that commits the County to pay substantial sums — outside of a properly noticed meeting that is open to the public,” the lawsuit says.

The residents’ complaint asked Slade to also hold the commissioners in violation of another state statute that forbids county commissions from making contracts “unless an appropriation shall have been previously made concerning such expense.”

Under that law, county commissioners “who undertake to create any liability against the county, except such as they are by statute required to do, shall be personally liable and, together with the sureties upon their official bonds, shall be held for such indebtedness.”

The residents who sued wanted the three commissioners to reimburse the county treasury “for financial expenditures above appropriated amounts they caused the County to incur.” But those residents haven’t “suffered an injury-in-fact” and, therefore, lacked legal standing to make the personal liability claim, Slade ruled.

The plaintiffs argued that their status as Elbert County taxpayers gave them standing “to seek declaratory relief against unlawful expenditures of funds by their local government officials.”

The judge, however, wrote that a plaintiff “must demonstrate a clear nexus between his status as a taxpayer and the challenged government action” to satisfy the injury-in-fact requirement. A test laid out in a 1977 Colorado Supreme Court ruling, Wimberly v. Ettenberg, requires an injury-in-fact and “this harm must have been to a legally protected interest,” she added.

“Plaintiffs contend their legally protected interest is ‘their right to ensure that their local government … complies with non-discretionary restrictions on their power to expend Plaintiffs’ tax dollars,’” the judge wrote. “Plaintiffs do not argue they have standing on any other basis. Because Plaintiffs have not shown that Defendants’ alleged action is an unlawful expenditure of their tax dollars, Plaintiffs fail to satisfy both prongs of the Wimberly test, and the Court finds that Plaintiffs lack standing to bring the third claim for relief against Defendants.”

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