By Jeffrey A. Roberts
CFOIC Executive Director
Colorado’s Sunshine Law does not require members of an elected public board to discuss the censure of a fellow board member in an open meeting, a judge has ruled.
The Oct. 31 decision by Rio Grande County District Court Judge Crista Newmyer-Olsen came in a lawsuit brought against the trustees of Del Norte, a statutory town in southern Colorado, by former town board member Laura Anzalone.
Anzalone alleged that the trustees held a “substantial” unauthorized discussion about censuring her during an Oct. 18, 2021, executive session convened to receive legal advice from their attorney. The trustees unlawfully crafted a censure resolution in the closed-door meeting and then “rubber stamped” their decision in public, she contended.
The Colorado Open Meetings Law, which is part of the Colorado Sunshine Act of 1972, requires local public bodies to open any meetings of a quorum or three or more members — whichever is fewer — at which public business is discussed. It prohibits public bodies from discussing public business in executive sessions beyond the scope of certain authorized topics, and it bars them from adopting any policy or position in secret.
But in dismissing Anzalone’s open meetings law claim, Newmyer-Olsen concluded that the board’s opinion of her “performance as a trustee, which took the form of a censure,” is not subject to the law because a censure does not concern the “formation of public policy.”
The judge cited a 2004 Colorado Supreme Court ruling that, in order for a meeting to be subject to the open meetings law, there must be “a demonstrated link between the meeting and the policy-making
powers of the government entity holding or attending the meeting.” Because the open meetings law does not define “public policy,” she looked to dictionary.com for a definition: “the body of laws and other measures that affect the general public.”
“The Censure does not have anything to do with laws or measures that affect the general public,” Newmyer-Olsen wrote in her ruling. “To say the Censure concerns ‘the formation of public policy’ stretches the (open meetings law) too far.”
The judge also dismissed Anzalone’s claims that the board “acted arbitrarily and capriciously and exceeded its authority” in censuring her, “given the lack of a public hearing and record evidence.”
Anzalone, who is represented by attorney Luis Corchado, served on the Del Norte town board from April 2018 to April 2022 as one of seven trustees.
The executive session on Oct. 18, 2021, was listed on the board’s agenda as a conference with the town attorney “for the purpose of receiving legal advice on specific legal questions concerning Trustee removal.” Also on the agenda: “Action by Town Board as a result of Executive Session relating to Trustee removal.”
Instead of removing Anzalone from the board, the trustees censured her for “misconduct.” The motion listed three allegations, including that she had “taken it upon herself to assume duties belonging to the Code Enforcement Officer by encouraging citizens to file complaints concerning the Del Norte lighting ordinance and has interfered with the Town Code Enforcement Officer’s procedure and protocol.” The motion accused Anzalone of creating “confusion in the public as to who has the authority to enforce the town code.”
Anzalone criticized the town board’s closed-door proceeding in an interview with Valley Publishing last year: “We all as trustees took an oath of office to uphold the law and to perform our duty as a public official to the best of our ability … When the Town Board moved to have a public hearing without stated allegations, and then met behind closed doors to construct a censure against a public official the rules of the law were not upheld.”
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.