By Jeffrey A. Roberts
CFOIC Executive Director

Concerned the measure would “act as an impediment to legitimate challenges to open meetings,” Gov. Jared Polis on Tuesday vetoed a heavily amended bill that would have barred pro se litigants who sue over executive sessions from collecting legal fees if they prevailed in court.

As introduced, House Bill 23-1259 would have allowed school boards and other local public bodies to “cure” an inadequately announced closed-door meeting at a subsequent meeting, and anyone who unsuccessfully challenged an executive session announcement in court would have been liable for the government’s court costs and attorney fees.

The Colorado Freedom of Information Coalition argued the bill diminished local government transparency and created a risky financial barrier for anyone interested in filing an accountability lawsuit over whether a local public body announced a closed-door meeting with enough specificity.

Eventually, CFOIC helped persuade lawmakers to rewrite the measure, leaving only the provision affecting pro se litigants such as a Pagosa Springs lawyer who has represented himself in 46 open-government lawsuits over the past three years, often settling with school districts and other local governments for amounts of about $3,000.

In his veto message, Polis noted that the Colorado Open Meetings Law requires the awarding of court costs and attorney fees to anyone who prevails in a lawsuit. The bill would have created a narrow exception for plaintiffs who represent themselves in court.

“I am concerned that the provisions of HB 23-1259 may act as an impediment to legitimate challenges to open meetings and potentially result in instances of non-compliance by shifting the costs of the legal burden to those seeking the disclosures,” Polis wrote. “Colorado Open Meetings Law is clear and local public bodies have a responsibility to comply and meet certain requirements that ensure all Coloradans have access throughout the public process.”

“While I appreciate the bipartisan nature of this work and the thoughtful amendments towards the end of the legislative process, we should strive for increased transparency and accountability, not less transparency and accountability, throughout our democratic institutions,” the governor added.

Many of the lawsuits filed by Matt Roane, the Pagosa Springs attorney, concerned inadequate executive session announcements.

Since 2001, the open meetings law has required state and local public bodies to announce the topic of each executive session — prior to taking a vote to convene the private meeting — “in as much detail as possible without compromising the purpose for which the executive session is authorized.”

Mandating topic specificity provides community members with something more than a vague idea of why their elected officials are excluding them from a meeting. It gives the public a way to police whether public bodies might be straying from the law, and it gives public officials a framework for avoiding confidential discussions of unauthorized topics.

A lawsuit filed by six news organizations in April asks a judge to invalidate a five-hour March 23 executive session convened by the Denver school board — and release the recording of that meeting — in part because the board did not announce to the public it would be discussing behind closed doors the district’s safety policy and the reinstatement of police officers in schools. The lawsuit also alleges the DPS board violated the open meetings law by making a policy decision in secret, the day after a shooting at East High School.

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