School board executive-sessions bill passes in Colorado House

Update: The Colorado House gave final approval to HB 14-1110 on a 34-31 vote Thursday.  The bill now moves to the Senate for consideration.

By Jeffrey A. Roberts
CFOIC Executive Director

Legislation to add requirements for school board executive sessions won preliminary House approval Wednesday after a long, passionate attack by opponents who said it would undermine attorney-client relationships as well as education-reform efforts in some districts.

A key provision of HB 14-1110 would mandate the electronic recording of portions of school board executive sessions that currently are not recorded because a board’s attorney believes the discussion involves privileged material.

This is necessary, proponents say, because of a perception that some boards of education in Colorado are meeting behind closed doors when they shouldn’t. Under the bill, citizens who suspect that an executive session was improper could ask a judge to listen to the recording and review a log of topics addressed during attorney-client discussions. The measure also would require school boards to list the amount of time spent discussing each executive session topic.

“I support this bill because it will increase transparency in government,” said Rep. Mike McLachlan, D-Durango. “When people know that what they’re saying and what they’re doing is being recorded, it brings a higher level of honesty and disclosure.”

Rep. Bob Gardner, R-Colorado Springs, led the charge against HB 14-1110, saying he was willing to talk “the rest of the day and into the night because this issue is that important.” He argued that the “near absolute” privilege of an attorney-client discussion should not be second guessed by anyone, not even a judge.

“It’s not that I don’t trust our judges,” Gardner said. “It’s that no one, no one, no one – other than the attorney and the client – should ever hear that conversation.”

Both McLachlan and Gardner are lawyers who have represented public bodies. McLachlan noted during floor debate on Monday that some school boards in Colorado already record all portions of their executive sessions, including attorney-client talks. Rep. Dan Pabon, D-Denver, pointed out Wednesday that state legislators also turn on a recorder whenever they get advice from an attorney.

“If there’s no breach, then there’s no disclosure (of the recording),” Pabon said.

But Gardner predicted there would be an “assault” on every instance of attorney-client communications in some school districts, with people constantly asking the courts to publicly release recordings.

“I think there will be a judge assigned in the 18th judicial district (Arapahoe, Douglas, Elbert and Lincoln counties) who does nothing but listen to recordings of executive sessions of school boards,” Gardner said.

The sponsor of HB 14-1110, Rep. Cherylin Peniston, D-Westminster, has said that her bill is not targeted at any particular school board. But questions about school board secrecy have come up recently in Douglas County, Jefferson County and in the Thompson school district in Loveland.

A majority of members of all three school boards are pushing conservative reforms, and Republican representatives charged that HB 14-1110 is meant to undermine those reform efforts.

“There are entrenched interests that do not want education reform in the state of Colorado,” said Rep. Kevin Priola, R-Henderson “They are losing at the ballot box and they are using this and other methods to try and stop it.”

Follow the Colorado Freedom of Information Coalition on Twitter @CoFOIC. Like CFOIC’s Facebook page. Visit CFOIC’s legislature page to track bills in the General Assembly that could affect the flow or availability of information in Colorado.

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