The 411 on executive sessions under the Colorado Open Meetings Law

Colorado LegiSource (Office of Legislative Legal Services): You are the chairman for a legislative committee, and the committee’s next hearing starts in 15 minutes. The committee will be discussing a new report that you expect may embarrass employees of a particular state agency. To avoid this type of embarrassment, it would be better if the committee could meet in executive session so the committee can talk about the issue in a “safe space” without the media or any professional malcontents being present. You read the Open Meetings Law when you started chairing the committee, and you’re sure that the fine print of the law includes a list of reasons for which you can close the meeting. Specifically you’re hoping it includes a general catch-all for sensitive matters that would make the state look bad if disclosed. But you also seem to recall that there are specific procedures to follow when going into executive session. You reach for the phone for a quick consult with your legislative staff…

This article aims to provide a basic understanding of the requirements for meeting in executive session under the Colorado Open Meetings Law (OML) and enable legislators and legislative staff to successfully navigate the requirements for executive sessions.

First, it’s important to note that the OML begins with an over-arching statement of policy: “It is declared to be … the policy of this state that the formation of public policy is public business and may not be conducted in secret.” Next, the OML declares that all meetings of “two or more members of any state public body at which any public business is discussed or at which any formal action is taken are declared to be public meetings open to the public at all times.” The General Assembly and its committees are specifically included in the definition of “state public body.”

The OML allows a legislative committee to go into executive session, that is, to conduct a closed session, only to discuss topics that are specified in the statute. Only members of the committee and staff—and in some cases outside counsel—may be present in an executive session. Before the committee can go into executive session, the committee chair must announce to the public—in open session—the “topic for discussion in the executive session,” including specific citation to the OML provision authorizing the committee to meet in executive session, and  identify “the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized…”. Going into executive session requires the affirmative vote of 2/3 of the entire membership of the committee after the chair makes the announcement. The committee may hold an executive session only at a regular or special meeting. Presumably this means the committee is not permitted to hold a spontaneous get together to go into executive session.

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