Proposed school board ethics commission would hear open-meetings, open-records complaints

By Jeffrey A. Roberts
CFOIC Executive Director

As a target of last fall’s recall election in Jefferson County, the now former president of the school board hoped to prove his critics wrong by filing an ethics complaint against himself.

“I’m simply calling their bluff,” Ken Witt said of recall organizers, who claimed he had violated Colorado’s transparency laws.

But Witt’s move wasn’t going anywhere for two reasons: the Colorado Independent Ethics Commission doesn’t hear alleged violations of Colorado’s Open Meetings Law (the Sunshine Law) or the Colorado Open Records Act (CORA). Nor does it have any jurisdiction over school boards.

Sen. Andy Kerr

Sen. Andy Kerr

A proposed new ethics commission for school boards would have such powers. It would give Witt “somewhere to actually send that letter to,” said Sen. Andy Kerr, D-Lakewood, who introduced SB 16-101 late last week.

The bill creates a five-member “School Board Ethics Commission” within the Colorado Department of Education and establishes a code of ethics for school board members. It also creates a way to ensure that school board transparency is “enforceable in a manner that results in timely and efficient recourse for the public.”

In other words, Kerr said, it adds some “teeth” to CORA and the Sunshine Law, at least for the governing boards of local school districts and charter schools.

Currently, the only way to challenge alleged violations of either law is by filing a lawsuit in district court, an intimidating process for many people. Under SB 16-101, a person could file CORA and Sunshine Law complaints with the school board ethics commission, as well as complaints related to ethics, the conduct of school board meetings and other matters.

Upon a finding of probable cause, the commission would refer a complaint to an administrative law judge for a hearing. The commission then would vote to determine if a violation occurred and, if so, whether to impose a fine, censure a board member, void a school board action or impose some other sanction. Commission decisions could be appealed to district court.

Kerr, a Jeffco schoolteacher, said much of the bill language is borrowed from a similar law in New Jersey. He called the process “a friendlier, easier method” than having to file a lawsuit. “You don’t have to be lawyer to figure it out yourself or you don’t need to find a friend who’s a lawyer to do it pro bono.”

The person making the complaint “bears the burden of proving the allegation by a preponderance of the evidence,” the bill says, unless another statute requires a higher burden of proof. Someone making a frivolous complaint could be fined up to $500.

The successful recall ballot in Jeffco claimed that Witt and two other ousted board members “repeatedly violated Colorado open meetings laws by secretly making major decisions behind closed doors.” No one, however, had challenged the board’s actions in court.

SB 16-101 has been assigned to the Republican-controlled Senate State, Veterans and Military Affairs Committee, which has a reputation for killing bills. As a Democrat, Kerr fears “there’s some handwriting on the wall – that it’s not meant to go beyond that (committee). But we’ll see. I think it’s a good idea.”

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