August 13, 2018
Author: Gregory J. Clifton
Organization: Town of Telluride

Home Rule and State Preemption

• C.R.S. § 24-6-401 provides that the Open Meetings Law (OML) is “declared to be a matter of statewide concern and the policy of this state that the formation of public policy is public business and may not be conducted in secret.”
• What about local requirements of open meetings? Can they be reconciled with state law?

An early Colorado Supreme Court ruling on the subject did not concern local government but rather the Board of Regents of the University of Colorado. The Court, in holding that the Regents were not required to follow the OML, provided that "the Sunshine Act is a general law. General legislation does not repeal conflicting special statutory or constitutional provisions unless the intent to do so is clear and unmistakable”. Associated Students of the University of Colorado v. Board of Regents, 543 P.2d 59, 61 (Colo. 1975).

• The topic of home rule was applied in subsequent litigation, when newspaper reporters attempted to attend a meeting of the Denver Election Commission involving validation of recall petitions related to a City of Denver councilperson. After having access denied, they filed suit. The matter went to the Supreme Court, which again held that the OML does not repeal specific constitutional grants of authority, in this case home rule governance:

“Denver, being a home rule city, is empowered to adopt and amend its charter which is its organic law extending to all its local matters…. [T]he Public Meetings Law is general. This court has consistently held that general legislation does not repeal specific law unless the intent to do so is clear and unmistakable. Gosliner v. Denver Election Commission, 552 P.2d 1010, 1011 (Colo. 1976).

• In 1986, the Colorado Court of Appeals issued its decision in Glenwood Post v. City of Glenwood Springs, 731 P.2d 761 (Colo. App. 1986), again involving home rule authority. Plaintiff challenged the City Council’s closed meeting (for purpose of considering applications for the city attorney position). Under its home rule charter, the city enacted provisions that specifically allowed for closed-door executive sessions for the limited purpose of deliberating on specified matters. The Court’s ruling did not truly involve a conflict between the local home rule provisions and the OML so preemption was never addressed. The holding hinged more on the interpretation that the “executive session” was not within the character of a “meeting” so the OML was not violated.
• In 1991 the Colorado Legislature adopted SB91-33, amending the OML in its entirety and specifically defining a local “public body” to include “any board, committee, commission, authority, or another advisory; policy-making, rule-making, or formally constituted body of any political subdivision of the state ... but does not include administrative staff”. Political subdivision is defined to include “any county, city, city and county, town, home rule city, home rule county, home rule city and county, school district, special district, local improvement district, special improvement district, or service district”. Notably, the legislation also clarified the definition of “State public body” to include “any board, committee, commission, or other advisory, policy-making, rule-making, decision-making, or formally constituted body of any state agency, state authority, governing board of a state institution of higher education including the regents of the university of Colorado … ”, effectively superseding the previous ruling in Associated Students.

• In 1996, the Colorado Court of Appeals issued a ruling that opened the door for local governments to enact open meetings regulations not addressed in the statutes, outside of home rule authority. The Court upheld a statutory town’s local ordinance establishing a procedure for emergency meetings, relying heavily upon the presumption that local and state legislation should be reconciled when possible. The Court stated
  “[a]s a general rule, a local ordinance which is in conflict with state law will be declared void. However, contrary provisions in an ordinance and a state statute do not necessarily indicate a true conflict. The test to determine whether a true conflict exists is whether both the ordinance and the state statute contain conditions, express or implied, that are inconsistent and irreconcilable with one another.” Lewis v. Town of Nederland, 934 P.2d 848, 851 (Colo. App. 1996).

Practicalities & Pitfalls: While earlier caselaw appeared to give some deference to home rule authority regarding open meetings regulation, the prescriptive nature of the revised legislation and declaration of statewide concern provide a strong basis for state preemption. The issue of preemption has not truly been tested in the courts. The Nederland case should be viewed with narrow application for emergency meeting procedure that did not conflict with state law. Deliberations and Attorney/Client Privilege

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• The deliberative process privilege has been found to exist in Colorado and the request for public records under the Colorado Open Records Act (CORA) is subject to this privilege. City of Colorado Springs v. White, 967 P.2d 1042 (1998). The legislature subsequently codified this privilege under C.R.S. §24-72-204(3)(a)(XIII) which recognizes “[r]ecords protected under the common law governmental or ‘deliberative process’ privilege, if the material is so candid or personal that public disclosures is likely to stifle honest and frank discussion within the government.”

But the deliberative privilege as applied in CORA is not to be confused with the deliberative process that applies in the context of open meetings. Generally, all deliberations on policy matters and quasi-judicial decisions should occur in open meetings. The one exception to this is the statutory exemption found in C.R.S. §24-6- 402(4)(e), which allows for executive sessions to determine “positions relative to matters that may be subject to negotiations, developing strategy for negotiations; and instructing negotiators”.

• What happens when such deliberations in public meetings involve sensitive matters that may require legal assistance? Separating protected legal advice from public discourse is necessary but not always easily accomplished. How do you advise in the following:
  
  Hypothetical: Planning Commission is holding a hearing on a major, and quitecontroversial, Planned Unit Development (PUD) proposal. The proposal, involving mixed commercial and residential uses, is requesting a deviation on height limitations that is allowable under the PUD process if certain criteria are met. The requested deviation is consistent with previous requests that have been granted involving similar development proposals and through application of the same criteria. After the public hearing is concluded, the Commission commences the deliberative process. While deliberating, two of the Commissioners openly question the viability of the listed criteria and suggest denial of the request based upon other grounds.
• The governing body may adjourn into executive session at a regular or special meeting for any of the purposes set forth in C.R.S. §24-6-402(4), including the need to have conference with the attorney for the purpose of receiving legal advice on specific legal questions. C.R.S. §24-6-402(4)(b). There are no notice requirements that would prohibit the governing body from spontaneously calling an executive session during its meeting.

Practicalities & Pitfalls: The deliberative process is generally public. Elected bodies and appointed boards may occasionally touch on sensitive matters while deliberating in quasijudicial proceedings, often times necessitating legal advisements ‘on the fly’. When the attorney is present, spontaneously adjourning into executive session is a convenient means to provide the necessary advisement. It becomes problematic, however, when legal counsel is not present to guide the reviewing tribunal. Proper training of the review boards and administrative staff could establish good protocol to be followed when legal advise is needed, such as continuance of the deliberative process to allow for attorney client consultation.

Straying from the Noticed Agenda

• The Open Meetings Law requires “full and timely notice” of any meeting:

Any meetings at which the adoption of any proposed policy, position, resolution, rule, regulation, or formal action occurs or at which a majority or quorum of the body is in attendance, or is expected to be in attendance, shall be held only after full and timely notice to the public. In addition to any other means of full and timely notice, a local public body shall be deemed to have given full and timely notice if the notice of the meeting is posted in a designated public place within the boundaries of the local public body no less than twenty-four hours prior to the holding of the meeting. The public place or places for posting such notice shall be designated annually at the local public body’s first regular meeting of each calendar year. The posting shall include specific agenda information where possible. C.R.S. §24-6-402(2)(c)

• Full and timely notice is required if it is anticipated that a majority or quorum of the body will be in attendance. This is a different standard than that of “openness” requirement, which is triggered by three or more members or quorum of the body.
• In terms of public bodies acting beyond the actual agenda as set forth in the public notice, it is sufficient to include in the agenda only whatever specific information is available at the time of the notice. The fact that the agenda item does not specifically forecast action on the topic does not render the notice less than “full”. Town of Marble v. Darian, 181 P.3d 1148 (Colo. 2008).

Practicalities & Pitfalls: Providing full and timely notice is generally not an issue. Keeping to the agenda, however, is sometimes challenging for local public bodies. The Marble case offers some affirmation that flexibility will be accorded as long as there is notice of the general topic. The better practice is to not test the limits of this flexibility. Remember, beyond the legal parameters that govern open meetings, there are political parameters that ultimately define good governance. Decisions made with minimal notice requirements are not always acceptable to the electorate.

Appointed Task Forces and Ad Hoc Committees

• As previously noted, the OML defines “local public body” to include “any board, committee, commission, authority, or another advisory; policy-making, rule-making, or formally constituted body of a political subdivision of the state …”. This includes task forces and ad hoc committees and advisory boards. Local governments frequently utilize such groups to assist in researching issues and outreaching to the public for input on pending topics. Such entities are subject to the OML if they include three or more members, or a quorum, of the public body.
• However, “persons on the administrative staff” are specifically excluded. C.R.S. §24-6-402(1)(a). Administrative staff can meet at any time over a multitude of topics and without triggering the OML, and this of course is necessary. What about advisory committees and task forces that are comprised of both staff and only two members of the local public body (less than quorum):

Hypothetical: Town Council seeks to gather input related to possible enhancement of its downtown core. In the interest of avoiding numerous protracted meetings involving the entirety of the Council, it forms a task group consisting of several staff members and two chosen Councilmembers, tasked with meeting with members of the downtown business community to explore means of enhancing the business core. The task force meets several times with representatives of the business community and formulates a list of recommended enhancement measures that are subsequently presented to the Town Council. Are the task force meetings subject to the OML? What if a third Town Council member decides to attend one of the task force meetings out of curiosity? What if a fourth Council member attends for the same reason? Assuming the meetings are subject to the OML, must there be minutes taken?

• With respect to minutes, the clerk (or other official) must take minutes of any meeting of the local public body that involves “the adoption of any proposed policy, position, resolution, rule, regulation, or formal action …”. C.R.S. §24-6-402(2)(d)(II).
  
  Practicalities & Pitfalls: The use of ad hoc committees, task forces and advisory boards is an important tool for local government and enables citizen involvement on a wide array of topics. When used successfully, it is an inclusive process that can bring about efficiencies and community buy-in. However, adherence to the OML must always be carefully monitored. Formally appointed boards and committees are public bodies by definition. Informal ad hoc groups (that do not exceed the threshold number of public officials) may be at liberty to meet outside the public arena but the better practice is to keep the functions of these committees open to the public when possible. Keep in mind the appearance of ‘closed door deals’ that is often perceived when outcomes appear to be predetermined.
  

More on Electronic Communications

• Communications conducted by telephone, email, social media and other electronic means have created some challenge in terms of conformance with the OML (and CORA). The OML was amended in 1996 to include electronic, and other means of communication, under the definition of “meeting”. See, C.R.S. §24-6-402(1)(b).
• With the added statutory language regarding electronic communications, the need has become evident to balance the transparency and openness of electronic communications with privacy interests of the public official. C.R.S. §24-6- 402(2)(d)(III), perhaps intending to strike this balance, provides the following:

“If elected officials use electronic mail to discuss pending legislation or other public business among themselves, the electronic mail shall be subject to the requirements of this section. Electronic mail communication among elected officials that does not relate to pending legislation or other public business shall not be considered a “meeting” within the meaning of this section.”

The qualifying provisions however have raised more issues than they resolved. The exception specifically references ‘elected officials’, and is very broad in its reference to ‘other public business’. The statutes do not define the phrase “public business”. Applied literally, it precludes any electronic communications among elected officials that may involve information that has no implication in terms of policy or decisions.

• The Colorado Supreme Court, in 2004, addressed the issue in Board of County Comm’rs v. Costilla County Conservancy Dist., 88 P.3d 1188 (Colo. 2004). In that case, two of the County Commissioners attended a meeting held by the Colorado Department of Health and Environment related to compliance efforts of a mining operation in Costilla County. There was no public notice of the meeting and the Commissioners did not participate in the discussion. Plaintiff alleged that the Commissioners violated the OML insofar as it was a public meeting without notice. The Supreme Court ruled that the attendance of the Commissioners at the meeting did not violate the Open Meetings Law insofar as the meeting was not part of their policy-making process:

“[W]e hold that a local public body such as the Board is required to give public notice of any meeting attended or expected to be attended by a quorum of the public body when the meeting is part of the policy-making process. A meeting is part of the policy-making process when the meeting is held for the purpose of discussing or undertaking a rule, regulation, ordinance, or formal action. If the record supports the conclusion that the meeting is rationally connected to the policy-making responsibilities of the public body holding or attending the meeting, then the meeting is subject to the OML, and the public body holding or attending the meeting must provide notice.” Costilla County, 88 P.3d at 1189.

• The ruling in Costilla County was later applied to a case involving email communications between public officials in Intermountain Rural Electric Assoc. v. Colorado Public Utilities Comm., No. 11CA1398, 2012 WL 2927999 (Colo. App. 2012). The email communications at issue occurred between members of the PUC prior to the enactment of pending state legislation. The Court found that the email exchanges, while providing input related to the proposed state legislation, were not connected to the PUC’s policy-making function and hence not public business.
• In that same year, the Colorado Court of Appeals, in Colorado Off-Highway Vehicle Coalition v. Colorado Board of Parks and Outdoor Recreation, No. 11CA1988 (Colo. App. 2012), recognized the ability of the public body to cure a violation of the OML that involved email communications concerning pending policy (involving permit fees and off-highway vehicles). The Court upheld the agency’s cure by finding that the subsequent meeting fully complied with the OML and was not a mere "rubber stamping" of any earlier decisions.

Practicalities & Pitfalls: There is little consensus among local government attorneys as to the proper use of email communications by public officials. A safe approach is to advise that they do not occur at all, although this may raise impracticalities with regard to the dissemination of information between regular meetings. One approach is to route public official email communications through administrative staff and avoid communications  “among” public officials. While recent rulings appear to draw a distinction between communications related to the policy-making function of the public body, these cases are fact specific. The better approach is to avoid the need for judicial determinations.