By Jeffrey A. Roberts
CFOIC Executive Director
A Teller County District Court judge Friday ordered the Woodland Park school board to comply with the Colorado Open Meetings Law “by clearly, honestly and forthrightly” listing future agenda items pertaining to a charter school’s application to the district.
Judge Scott Sells also barred the board from “rubber stamping” decisions that don’t comply with the law’s notice requirements, but he rejected a claim that board members had conducted illegal, one-on-one “walking quorum” meetings.
The injunction issued by Sells is the first ruling in a lawsuit brought by Woodland Park parent Erin O’Connell that centers on three meetings held earlier this year at which the school board discussed — and voted on — a memorandum of understanding with Merit Academy charter school.
The board first considered the MOU on Jan. 26 under a “BOARD HOUSEKEEPING” agenda item. O’Connell testified during a court hearing Tuesday that she did not expect the board to take up a substantive issue such as Merit Academy when she saw “BOARD HOUSEKEEPING” on the meeting notice.
The phrase, she said, “means to me more ministerial tasks … not something that would drastically change the policies or direction of a district.”
Sells agreed, determining that the “BOARD HOUSEKEEPING” agenda item “was a conscious decision to hide a controversial issue regarding Merit, the MOU and the intent to charter.” The board “cannot demonstrate any legitimate reason for hiding their real Agenda at Board meetings,” the judge wrote, suggesting that future agenda items regarding Merit Academy say “something as simple as Merit Academy Charter School Application.” `
Superintendent Mathew Neal and board member Chris Austin also testified they had concerns about the vague agenda item, which Neal said had been drafted by board attorney Brad Miller. The judge in his order quoted from what he called a “remarkable exchange” on Jan. 26 between Austin, Miller and board president David Rusterholtz in which Miller said, “It’s not an absolute necessity to provide granularity to the public. And I get that there’s ambiguity here, but as long as the board is not surprised completely …”
In that meeting Miller also advised the school board members that — as a local public body — two of them could meet privately “to connive,” according to a transcript. He told them, “You can secretly, you know, whisper about school Board stuff. You can do whatever you want in groups of two.”
The open meetings law allows two members of a local public body such as a school board to discuss public business, but meetings of three members or a quorum, whichever is fewer, must be open to the public. Eric Maxfield, O’Connell’s attorney, alleged in his motion for a preliminary injunction that two one-on-one meetings to discuss Merit Academy constituted an illegal “walking quorum” in which members circumvented the notice and quorum requirements of the open meetings law.
Sells disagreed with Maxfield on that point, finding “no violation of the law” and agreeing with school board attorney Bryce Carlson that the statute doesn’t address walking quorums. (In March, however, a Douglas County District Court judge addressed a somewhat similar allegation, issuing a preliminary injunction against the Douglas County school board after finding that four members had circumvented the open meetings law by holding a series of one-on-one meetings in which they decided to fire the school superintendent.)
On the agenda issue, Sells noted that the open meetings law requires a local public body to notify the public at least 24 hours before a meeting with a posting that “shall include specific agenda information where possible.” In determining whether a notice was sufficient, the Colorado Supreme Court ruled in 2008, a judge must interpret the notice “in light of the knowledge of an ordinary member of the community to whom it is directed.”
The judge also cited two Colorado Court of Appeals opinions holding that a public body cannot “cure” a prior violation of the open meetings law by holding a subsequent meeting to “rubber stamp” a decision made illegally.
The Woodland Park school board “rubber stamped” its Jan. 26 decision regarding the Merit Academy MOU at two subsequent meetings,” Sells determined, adding that “an ordinary member of the community could not have understood or known what “BOARD HOUSEKEEPING” or Re-Approval of MOU with Merit Academy meant.”
Follow the Colorado Freedom of Information Coalition on Twitter @CoFOIC. Like CFOIC’s Facebook page. Do you appreciate the information and resources provided by CFOIC? Please consider making a tax-deductible donation.