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24-6-402. Meetings - open to public - legislative declaration - definitions.

Text

(1) For the purposes of this section:

 

(a) (I) Local public body means any board, committee, commission, authority, or other advisory, policy-making, rule-making, or formally constituted body of any political subdivision of the state and any public or private entity to which a political subdivision, or an official thereof, has delegated a governmental decision-making function but does not include persons on the administrative staff of the local public body.

(II) Notwithstanding the provisions of subparagraph (I) of this paragraph (a), in order to assure school board transparency local public body shall include members of a board of education, school administration personnel, or a combination thereof who are involved in a meeting with a representative of employees at which a collective bargaining agreement is discussed.

(III) Notwithstanding the provisions of subparagraph (I) of this paragraph (a), local public body includes the governing board of an institute charter school that is authorized pursuant to part 5 of article 30.5 of title 22, C.R.S.

(b) Meeting means any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication.

(c) Political subdivision of the state includes, but is not limited to, 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.

 

(d) (I) State public body means 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, a nonprofit corporation incorporated pursuant to section 23-5-121 (2), C.R.S., or the general assembly, and any public or private entity to which the state, or an official thereof, has delegated a governmental decision-making function but does not include persons on the administrative staff of the state public body.

(II) Notwithstanding the provisions of subparagraph (I) of this paragraph (d), state public body does not include the governing board of an institute charter school that is authorized pursuant to part 5 of article 30.5 of title 22, C.R.S.

 

(2) (a) 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 may be taken are declared to be public meetings open to the public at all times.

(b) All meetings of a quorum or three or more members of any local public body, whichever is fewer, at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times.

 

(c) (I) 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 bodys first regular meeting of each calendar year. The posting shall include specific agenda information where possible.

(II) The general assembly hereby finds and declares that:

(A) It is the intent of the general assembly that local governments transition from posting physical notices of public meetings in physical locations to posting notices on a website, social media account, or other official online presence of the local government to the greatest extent practicable;

(B) It is the intent of the general assembly to relieve a local government of the requirement to physically post meeting notices, with certain exceptions, if the local government complies with the requirements of online posted notices of meetings;

(C) A number of factors may affect the ability of some local governments to easily establish a website, post meeting notices online, and otherwise benefit from having an online presence, including the availability of broadband or reliable broadband, the lack of cellular telephone and data services, and fiscal or staffing constraints of the local government;

(D) Local governments are encouraged to avail themselves of existing free resources for creating a website and receiving content management assistance from the Colorado statewide internet portal authority and statewide associations representing local governmental entities; and

(E) It is the intent of the general assembly to closely monitor the transition to providing notices of public meetings online over the next two years and, if significant progress is not made, to bring legislation mandating in statute that all notices be posted online except in very narrow circumstances that are beyond the control of a local government.

(III) On and after July 1, 2019, a local public body shall be deemed to have given full and timely notice of a public meeting if the local public body posts the notice, with specific agenda information if available, no less than twenty-four hours prior to the holding of the meeting on a public website of the local public body. The notice must be accessible at no charge to the public. The local public body shall, to the extent feasible, make the notices searchable by type of meeting, date of meeting, time of meeting, agenda contents, and any other category deemed appropriate by the local public body and shall consider linking the notices to any appropriate social media accounts of the local public body. A local public body that provides notice on a website pursuant to this subsection (2)(c)(III) shall provide the address of the website to the department of local affairs for inclusion in the inventory maintained pursuant to section 24-32-116. A local public body that posts a notice of a public meeting on a public website pursuant to this subsection (2)(c)(III) may in its discretion also post a notice by any other means including in a designated public place pursuant to subsection (2)(c)(I) of this section; except that nothing in this section shall be construed to require such other posting. A local public body that posts notices of public meetings on a public website pursuant to this subsection (2)(c)(III) shall designate a public place within the boundaries of the local public body at which it may post a notice no less than twenty-four hours prior to a meeting if it is unable to post a notice online in exigent or emergency circumstances such as a power outage or an interruption in internet service that prevents the public from accessing the notice online.

(IV) For purposes of this section, local public body includes municipalities, counties, school districts, and special districts.

 

(d) (I) Minutes of any meeting of a state public body shall be taken and promptly recorded, and such records shall be open to public inspection. The minutes of a meeting during which an executive session authorized under subsection (3) of this section is held shall reflect the topic of the discussion at the executive session.

(II) Minutes of any meeting of a local public body at which the adoption of any proposed policy, position, resolution, rule, regulation, or formal action occurs or could occur shall be taken and promptly recorded, and such records shall be open to public inspection. The minutes of a meeting during which an executive session authorized under subsection (4) of this section is held shall reflect the topic of the discussion at the executive session.

(III) If elected officials exchange electronic mail to discuss pending legislation or other public business among themselves, the electronic mail is subject to the requirements of this section. Electronic mail communication between elected officials that does not relate to the merits or substance of pending legislation or other public business, including electronic mail communication regarding scheduling and availability or electronic mail communication that is sent by an elected official for the purpose of forwarding information, responding to an inquiry from an individual who is not a member of the state or local public body, or posing a question for later discussion by the public body, shall not be considered a meeting within the meaning of this section. For purposes of this subsection (2)(d)(III), merits or substance means any discussion, debate, or exchange of ideas, either generally or specifically, related to the essence of any public policy proposition, specific proposal, or any other matter being considered by the governing entity.

(IV) Neither a state nor a local public body may adopt any proposed policy, position, resolution, rule, or regulation or take formal action by secret ballot unless otherwise authorized in accordance with the provisions of this subparagraph (IV). Notwithstanding any other provision of this section, a vote to elect leadership of a state or local public body by that same public body may be taken by secret ballot, and a secret ballot may be used in connection with the election by a state or local public body of members of a search committee, which committee is otherwise subject to the requirements of this section, but the outcome of the vote shall be recorded contemporaneously in the minutes of the body in accordance with the requirements of this section. Nothing in this subparagraph (IV) shall be construed to affect the authority of a board of education to use a secret ballot in accordance with the requirements of section 22-32-108 (6), C.R.S. For purposes of this subparagraph (IV), secret ballot means a vote cast in such a way that the identity of the person voting or the position taken in such vote is withheld from the public.

 

 

(d.5) (I) (A) Discussions that occur in an executive session of a state public body shall be electronically recorded. If a state public body electronically recorded the minutes of its open meetings on or after August 8, 2001, the state public body shall continue to electronically record the minutes of its open meetings that occur on or after August 8, 2001; except that electronic recording shall not be required for two successive meetings of the state public body while the regularly used electronic equipment is inoperable. A state public body may satisfy the electronic recording requirements of this sub-subparagraph (A) by making any form of electronic recording of the discussions in an executive session of the state public body. Except as provided in sub-subparagraph (B) of this subparagraph (I), the electronic recording of an executive session shall reflect the specific citation to the provision in subsection (3) of this section that authorizes the state public body to meet in an executive session and the actual contents of the discussion during the session. The provisions of this sub-subparagraph (A) shall not apply to discussions of individual students by a state public body pursuant to paragraph (b) of subsection (3) of this section.

(B) If, in the opinion of the attorney who is representing a governing board of a state institution of higher education, including the regents of the university of Colorado, and is in attendance at an executive session that has been properly announced pursuant to paragraph (a) of subsection (3) of this section, all or a portion of the discussion during the executive session constitutes a privileged attorney-client communication, no record or electronic recording shall be required to be kept of the part of the discussion that constitutes a privileged attorney-client communication. The electronic recording of said executive session discussion shall reflect that no further record or electronic recording was kept of the discussion based on the opinion of the attorney representing the governing board of a state institution of higher education, including the regents of the university of Colorado, as stated for the record during the executive session, that the discussion constituted a privileged attorney-client communication, or the attorney representing the governing board of a state institution of higher education, including the regents of the university of Colorado, may provide a signed statement attesting that the portion of the executive session that was not recorded constituted a privileged attorney-client communication in the opinion of the attorney.

(C) If a court finds, upon application of a person seeking access to the record of the executive session of a state public body in accordance with section 24-72-204 (5.5) and after an in camera review of the record of the executive session, that the state public body engaged in substantial discussion of any matters not enumerated in subsection (3) of this section or that the body adopted a proposed policy, position, resolution, rule, regulation, or formal action in the executive session in contravention of paragraph (a) of subsection (3) of this section, the portion of the record of the executive session that reflects the substantial discussion of matters not enumerated in subsection (3) of this section or the adoption of a proposed policy, position, resolution, rule, regulation, or formal action shall be open to public inspection pursuant to section 24-72-204 (5.5).

(D) No portion of the record of an executive session of a state public body shall be open for public inspection or subject to discovery in any administrative or judicial proceeding, except upon the consent of the state public body or as provided in sub-subparagraph (C) of this subparagraph (I) and section 24-72-204 (5.5).

(E) The record of an executive session of a state public body recorded pursuant to sub-subparagraph (A) of this subparagraph (I) shall be retained for at least ninety days after the date of the executive session.

 

(II) (A) Discussions that occur in an executive session of a local public body shall be electronically recorded. If a local public body electronically recorded the minutes of its open meetings on or after August 8, 2001, the local public body shall continue to electronically record the minutes of its open meetings that occur on or after August 8, 2001; except that electronic recording shall not be required for two successive meetings of the local public body while the regularly used electronic equipment is inoperable. A local public body may satisfy the electronic recording requirements of this sub-subparagraph (A) by making any form of electronic recording of the discussions in an executive session of the local public body. Except as provided in sub-subparagraph (B) of this subparagraph (II), the electronic recording of an executive session shall reflect the specific citation to the provision in subsection (4) of this section that authorizes the local public body to meet in an executive session and the actual contents of the discussion during the session. The provisions of this sub-subparagraph (A) shall not apply to discussions of individual students by a local public body pursuant to paragraph (h) of subsection (4) of this section.

(B) If, in the opinion of the attorney who is representing the local public body and who is in attendance at an executive session that has been properly announced pursuant to subsection (4) of this section, all or a portion of the discussion during the executive session constitutes a privileged attorney-client communication, no record or electronic recording shall be required to be kept of the part of the discussion that constitutes a privileged attorney-client communication. The electronic recording of said executive session discussion shall reflect that no further record or electronic recording was kept of the discussion based on the opinion of the attorney representing the local public body, as stated for the record during the executive session, that the discussion constituted a privileged attorney-client communication, or the attorney representing the local public body may provide a signed statement attesting that the portion of the executive session that was not recorded constituted a privileged attorney-client communication in the opinion of the attorney.

(C) If a court finds, upon application of a person seeking access to the record of the executive session of a local public body in accordance with section 24-72-204 (5.5) and after an in camera review of the record of the executive session, that the local public body engaged in substantial discussion of any matters not enumerated in subsection (4) of this section or that the body adopted a proposed policy, position, resolution, rule, regulation, or formal action in the executive session in contravention of subsection (4) of this section, the portion of the record of the executive session that reflects the substantial discussion of matters not enumerated in subsection (4) of this section or the adoption of a proposed policy, position, resolution, rule, regulation, or formal action shall be open to public inspection pursuant to section 24-72-204 (5.5).

(D) No portion of the record of an executive session of a local public body shall be open for public inspection or subject to discovery in any administrative or judicial proceeding, except upon the consent of the local public body or as provided in sub-subparagraph (C) of this subparagraph (II) and section 24-72-204 (5.5).

(E) Except as otherwise required by section 22-32-108 (5)(e), C.R.S., the record of an executive session of a local public body recorded pursuant to sub-subparagraph (A) of this subparagraph (II) shall be retained for at least ninety days after the date of the executive session.

(e) This part 4 does not apply to any chance meeting or social gathering at which discussion of public business is not the central purpose.

(f) The provisions of paragraph (c) of this subsection (2) shall not be construed to apply to the day-to-day oversight of property or supervision of employees by county commissioners. Except as set forth in this paragraph (f), the provisions of this paragraph (f) shall not be interpreted to alter any requirements of paragraph (c) of this subsection (2).

 

(3) (a) The members of a state public body subject to this part 4, upon the announcement by the state public body to the public of the topic for discussion in the executive session, including specific citation to the provision of this subsection (3) authorizing the body to meet in an executive session and identification of the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized, and the affirmative vote of two-thirds of the entire membership of the body after such announcement, may hold an executive session only at a regular or special meeting and for the sole purpose of considering any of the matters enumerated in subsection (3)(b) of this section or the following matters; except that no adoption of any proposed policy, position, resolution, rule, regulation, or formal action, except the review, approval, and amendment of the minutes of an executive session recorded pursuant to subsection (2)(d.5)(I) of this section, shall occur at any executive session that is not open to the public:

(I) The purchase of property for public purposes, or the sale of property at competitive bidding, if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest. No member of the state public body shall use this paragraph (a) as a subterfuge for providing covert information to prospective buyers or sellers. Governing boards of state institutions of higher education including the regents of the university of Colorado may also consider the acquisition of property as a gift in an executive session, only if such executive session is requested by the donor.

(II) Conferences with an attorney representing the state public body concerning disputes involving the public body that are the subject of pending or imminent court action, concerning specific claims or grievances, or for purposes of receiving legal advice on specific legal questions. Mere presence or participation of an attorney at an executive session of a state public body is not sufficient to satisfy the requirements of this subsection (3).

(III) Matters required to be kept confidential by federal law or rules, state statutes, or in accordance with the requirements of any joint rule of the senate and house of representatives pertaining to lobbying practices or workplace harassment or workplace expectations policies;

(IV) Specialized details of security arrangements or investigations, including defenses against terrorism, both domestic and foreign, and including where disclosure of the matters discussed might reveal information that could be used for the purpose of committing, or avoiding prosecution for, a violation of the law;

(V) Determining positions relative to matters that may be subject to negotiations with employees or employee organizations; developing strategy for and receiving reports on the progress of such negotiations; and instructing negotiators;

(VI) With respect to the board of regents of the university of Colorado and the board of directors of the university of Colorado hospital authority created pursuant to article 21 of title 23, C.R.S., matters concerning the modification, initiation, or cessation of patient care programs at the university hospital operated by the university of Colorado hospital authority pursuant to part 5 of article 21 of title 23, C.R.S., (including the university of Colorado psychiatric hospital), and receiving reports with regard to any of the above, if premature disclosure of information would give an unfair competitive or bargaining advantage to any person or entity;

(VII) With respect to nonprofit corporations incorporated pursuant to section 23-5-121 (2), C.R.S., matters concerning trade secrets, privileged information, and confidential commercial, financial, geological, or geophysical data furnished by or obtained from any person;

(VIII) With respect to the governing board of a state institution of higher education and any committee thereof, consideration of nominations for the awarding of honorary degrees, medals, and other honorary awards by the institution and consideration of proposals for the naming of a building or a portion of a building for a person or persons.

 

(b) (I) All meetings held by members of a state public body subject to this part 4 to consider the appointment or employment of a public official or employee or the dismissal, discipline, promotion, demotion, or compensation of, or the investigation of charges or complaints against, a public official or employee shall be open to the public unless said applicant, official, or employee requests an executive session. Governing boards of institutions of higher education including the regents of the university of Colorado may, upon their own affirmative vote, hold executive sessions to consider the matters listed in this paragraph (b). Executive sessions may be held to review administrative actions regarding investigation of charges or complaints and attendant investigative reports against students where public disclosure could adversely affect the person or persons involved, unless the students have specifically consented to or requested the disclosure of such matters. An executive session may be held only at a regular or special meeting of the state public body and only upon the announcement by the public body to the public of the topic for discussion in the executive session and the affirmative vote of two-thirds of the entire membership of the body after such announcement.

(II) The provisions of subparagraph (I) of this paragraph (b) shall not apply to discussions concerning any member of the state public body, any elected official, or the appointment of a person to fill the office of a member of the state public body or an elected official or to discussions of personnel policies that do not require the discussion of matters personal to particular employees.

(c) Notwithstanding the provisions of paragraphs (a) and (b) of this subsection (3), the state board of parole created in part 2 of article 2 of title 17, C.R.S., may proceed in executive session to consider matters connected with any parole proceedings under the jurisdiction of said board; except that no final parole decisions shall be made by said board while in executive session. Such executive session may be held only at a regular or special meeting of the state board of parole and only upon the affirmative vote of two-thirds of the membership of the board present at such meeting.

(d) Notwithstanding any provision of paragraph (a) or (b) of this subsection (3) to the contrary, upon the affirmative vote of two-thirds of the members of the governing board of an institution of higher education who are authorized to vote, the governing board may hold an executive session in accordance with the provisions of this subsection (3).

(3.5) A search committee of a state public body or local public body shall establish job search goals, including the writing of the job description, deadlines for applications, requirements for applicants, selection procedures, and the time frame for appointing or employing a chief executive officer of an agency, authority, institution, or other entity at an open meeting. The state or local public body shall name one or more candidates as finalists for the position of chief executive officer. The state or local public body shall make public the finalist or finalists under consideration for the position of chief executive officer no later than fourteen days prior to appointing or employing a finalist to fill the position. No offer of appointment or employment shall be made prior to this public notice. Records submitted by or on behalf of a finalist for such position shall be subject to section 24-72-204 (3)(a)(XI). Nothing in this subsection (3.5) shall be construed to prohibit a search committee from holding an executive session to consider appointment or employment matters not described in this subsection (3.5) and otherwise authorized by this section.

(4) The members of a local public body subject to this part 4, upon the announcement by the local public body to the public of the topic for discussion in the executive session, including specific citation to this subsection (4) authorizing the body to meet in an executive session and identification of the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized, and the affirmative vote of two-thirds of the quorum present, after such announcement, may hold an executive session only at a regular or special meeting and for the sole purpose of considering any of the following matters; except that no adoption of any proposed policy, position, resolution, rule, regulation, or formal action, except the review, approval, and amendment of the minutes of an executive session recorded pursuant to subsection (2)(d.5)(II) of this section, shall occur at any executive session that is not open to the public:

(a) The purchase, acquisition, lease, transfer, or sale of any real, personal, or other property interest; except that no executive session shall be held for the purpose of concealing the fact that a member of the local public body has a personal interest in such purchase, acquisition, lease, transfer, or sale;

(b) Conferences with an attorney for the local public body for the purposes of receiving legal advice on specific legal questions. Mere presence or participation of an attorney at an executive session of the local public body is not sufficient to satisfy the requirements of this subsection (4).

(c) Matters required to be kept confidential by federal or state law or rules and regulations. The local public body shall announce the specific citation of the statutes or rules that are the basis for such confidentiality before holding the executive session.

(d) Specialized details of security arrangements or investigations, including defenses against terrorism, both domestic and foreign, and including where disclosure of the matters discussed might reveal information that could be used for the purpose of committing, or avoiding prosecution for, a violation of the law;

 

(e) (I) Determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators.

(II) Subsection (4)(e)(I) of this section shall not apply to a meeting of the members of a board of education of a school district:

(A) During which negotiations relating to collective bargaining, as defined in section 8-3-104 (3), are discussed; or

(B) During which negotiations for employment contracts, other than negotiations for an individual employees contract, are discussed.

(III) Notwithstanding subsection (4)(e)(II) of this section, the members of a board of education of a school district may hold an executive session in accordance with the requirements of this subsection (4)(e) for the purpose of developing the strategy of the school district for negotiations relating to collective bargaining or employment contracts.

 

(f) (I) Personnel matters except if the employee who is the subject of the session has requested an open meeting, or if the personnel matter involves more than one employee, all of the employees have requested an open meeting. With respect to hearings held pursuant to the Teacher Employment, Compensation, and Dismissal Act of 1990, article 63 of title 22, C.R.S., the provisions of section 22-63-302 (7)(a), C.R.S., shall govern in lieu of the provisions of this subsection (4).

(II) The provisions of subparagraph (I) of this paragraph (f) shall not apply to discussions concerning any member of the local public body, any elected official, or the appointment of a person to fill the office of a member of the local public body or an elected official or to discussions of personnel policies that do not require the discussion of matters personal to particular employees.

(g) Consideration of any documents protected by the mandatory nondisclosure provisions of the Colorado Open Records Act, part 2 of article 72 of this title; except that all consideration of documents or records that are work product as defined in section 24-72-202 (6.5) or that are subject to the governmental or deliberative process privilege shall occur in a public meeting unless an executive session is otherwise allowed pursuant to this subsection (4);

(h) Discussion of individual students where public disclosure would adversely affect the person or persons involved.

(5) (Deleted by amendment, L. 96, p. 691, 1, effective July 1, 1996.)

(6) The limitations imposed by subsections (3), (4), and (5) of this section do not apply to matters which are covered by section 14 of article V of the state constitution.

(7) The secretary or clerk of each state public body or local public body shall maintain a list of persons who, within the previous two years, have requested notification of all meetings or of meetings when certain specified policies will be discussed and shall provide reasonable advance notification of such meetings, provided, however, that unintentional failure to provide such advance notice will not nullify actions taken at an otherwise properly published meeting. The provisions of this subsection (7) shall not apply to the day-to-day oversight of property or supervision of employees by county commissioners, as provided in paragraph (f) of subsection (2) of this section.

(8) No resolution, rule, regulation, ordinance, or formal action of a state or local public body shall be valid unless taken or made at a meeting that meets the requirements of subsection (2) of this section.

 

(9) (a) Any person denied or threatened with denial of any of the rights that are conferred on the public by this part 4 has suffered an injury in fact and, therefore, has standing to challenge the violation of this part 4.

(b) The courts of record of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizen of this state. In any action in which the court finds a violation of this section, the court shall award the citizen prevailing in such action costs and reasonable attorney fees. In the event the court does not find a violation of this section, it shall award costs and reasonable attorney fees to the prevailing party if the court finds that the action was frivolous, vexatious, or groundless.

(10) Any provision of this section declared to be unconstitutional or otherwise invalid shall not impair the remaining provisions of this section, and, to this end, the provisions of this section are declared to be severable.

History

History.
Source: Initiated 72. L. 73: P. 1666, 1.C.R.S. 1963: 3-37-402. L. 77: (1) and (2) amended and (3) added, pp. 1155, 1157, 1, 1, effective June 19. L. 85: (2.6) added, p. 644, 6, effective June 19. L. 87: (1), (2.3)(a), (2.3)(b), and (2.5) amended and (2.3)(f) added, p. 926, 1, effective March 27. L. 89: (2.3)(f) amended, p. 1004, 4, effective October 1. L. 91: Entire section amended, p. 815, 2, effective June 1; (3)(a)(VI) amended, p. 586, 6, effective October 1. L. 92: (2)(f) added, p. 972, 1, effective April 23. L. 96: (2)(d)(III) added, p. 1480, 2, effective June 1; (1)(b), (1)(d), (2)(d), IP(3)(a), (3)(a)(II), (3)(a)(V), (3)(b), IP(4), (4)(c), (5), and (7) amended and (3.5) added, p. 691, 1, effective July 1. L. 97: (3.5) amended, p. 320, 1, effective April 14. L. 99: (4)(g) amended, p. 205, 1, effective March 31. L. 2000: (1)(d) amended and (3)(a)(VII) added, pp. 414, 415, 4, 5, effective April 13. L. 2001: (3)(a)(III) amended, p. 150, 5, effective March 27; (2)(d.5) added and IP(3)(a), (3)(b), IP(4), and (4)(f) amended, pp. 1069, 1072, 1, 2, effective August 8. L. 2002: (3)(a)(IV) and (4)(d) amended, p. 238, 7, effective April 12; (2)(d.5)(I)(A) and (2)(d.5)(II)(A) amended, p. 643, 3, effective May 24; (3)(a)(VIII) added, p. 85, 1, effective August 7. L. 2006: (2)(d.5)(I)(A), (2)(d.5)(I)(B), (2)(d.5)(II)(A), and (2)(d.5)(II)(B) amended, p. 9, 1, effective August 7. L. 2009: (2)(d.5)(I)(B) and (3)(a)(II) amended,(HB 09-1124), ch. 94, p. 359, 1, effective August 5; (4)(g) amended,(SB 09-292), ch. 369, p. 1967, 74, effective August 5. L. 2010: (3)(d) added,(SB 10-003), ch. 391, p. 1859, 40, effective June 9. L. 2012: (2)(d)(IV) added,(HB 12-1169), ch. 64, p. 227, 1, effective March 24. L. 2014: (2)(d.5)(II)(E) amended,(SB 14-182), ch. 393, p. 1986, 2, effective June 6; (9) amended,(HB 14-1390), ch. 380, p. 1859, 1, effective June 6.Initiated 2014: (1)(a) and (4)(e) amended, L. 2015, p. 2203, 1, effective upon proclamation of the governor, December 17, 2014. L. 2016: (1)(a)(III) added and (1)(d) amended,(HB 16-1422), ch. 351, p. 1436, 15, effective June 10. L. 2019: IP(3)(a) and (3)(a)(III) amended,(SB 19-244), ch. 243, p. 2377, 2, effective May 20; (2)(c) amended,(HB 19-1087), ch. 134, p. 608, 1, effective August 2; IP(4) and (4)(e) amended,(HB 19-1201), ch. 98, p. 359, 1, effective September 1. L. 2021: (2)(c)(IV) amended,(SB 21-268), ch. 222, p. 1185, 23, effective June 11; (3.5) amended,(HB 21-1051), ch. 183, p. 986, 2, effective September 7; (2)(d)(III) amended,(HB 21-1025), ch. 24, p. 110, 1, effective September 7.

Annotations

Editors note: (1) Subsection (2.3)(f) was amended by House Bill No. 1143, enacted by the General Assembly at its first regular session in 1989, as a conforming amendment necessitated by the authorization for the operation of the university of Colorado university hospital by a nonprofit-nonstock corporation. The Colorado Supreme Court subsequently declared House Bill No. 1143 unconstitutional in its entirety. See Colorado Association of Public Employees v. Board of Regents, 804 P.2d 138 (Colo. 1990). Senate Bill 91-225, enacted by the General Assembly at its first regular session in 1991, authorized the operation of university hospital by a newly created university of Colorado hospital authority. Since the previous act was declared unconstitutional in its entirety, the General Assembly elected to make a similar conforming amendment in Senate Bill 91-225. However, subsection (2.3)(f) was amended in Senate Bill 91-33, enacted by the General Assembly at its first regular session in 1991. The provisions of said subsection (2.3)(f) were moved to subsection (3)(a), and, therefore, said subsection was the version amended. For further explanation of the circumstances surrounding the enactment of Senate Bill 91-225, see the legislative declaration contained in section 1 of chapter 99, Session Laws of Colorado 1991.

(2) The vote count on the measure at the general election held November 4, 2014, was as follows:

FOR: :u940 1,364,747

AGAINST: :u1000 582,473

(3) Section 2(2) of chapter 24 (HB 21-1025), Session Laws of Colorado 2021, provides that the act changing this section applies to electronic mail communication sent on or after September 7, 2021.

Cross references:

(1) For the legislative declaration contained in the 1996 act enacting subsection (2)(d)(III), see section 1 of chapter 271, Session Laws of Colorado 1996. For the legislative declaration contained in the 2002 act amending subsections (2)(d.5)(I)(A) and (2)(d.5)(II)(A), see section 1 of chapter 187, Session Laws of Colorado 2002. For the legislative declaration in the 2010 act adding subsection (3)(d), see section 1 of chapter 391, Session Laws of Colorado 2010.

(2) For the legislative declaration in HB 21-1051, see section 1 of chapter 183, Session Laws of Colorado 2021.

ANNOTATION

Law reviews. For article, Home Rule Municipalities and Colorados Open Records and Meetings Laws, see 18 Colo. Law. 1125 (1989). For article, Practicing Law Before Part-Time Citizen Boards and Commissions, see 18 Colo. Law. 1133 (1989). For article, E-mail, Open Meetings, and Public Records, see 25 Colo. Law. 99 (Oct. 1996).

Constitutionality of section. The open meetings law does not conflict with 12 of art. V, Colo. Const., which provides in pertinent part: Each house shall have power to determine the rules of its proceedings . . .. Cole v. State, 673 P.2d 345 (Colo. 1983).

The open meetings law strikes the proper balance between the publics right of access to information and a legislators right to freedom of speech. Cole v. State, 673 P.2d 345 (Colo. 1983).

Although 14 of art. V, Colo. Const., expressly authorizes the general assembly to conduct certain business in secret, both the senate and the house of representatives have determined that the business of legislative caucuses is not such as ought to be kept secret. Therefore, the open meetings law does not conflict with 14 of art. V, Colo. Const.Cole v. State, 673 P.2d 345 (Colo. 1983).

Section only applies to state agencies, authorities, and the general assembly. Bagby v. Sch. Dist. No. 1, 186 Colo. 428, 528 P.2d 1299 (1974).

This section, in contrast to the Florida statute from which it was modeled, only applies to any state agency or authority. James v. Bd. of Commrs, 200 Colo. 28, 611 P.2d 976 (1980).

An entire state agency is not a state public body. If the general assembly had intended to include entire state agencies in the definition of state public body, it would not have limited the definition to identifiable bodies of any state agency. Doe 1 v. Dept. of Pub. Health & Envt, 2018 COA 106, 454 P.3d 327, affd, 2019 CO 92, 450 P.3d 851; Colo. Med. Bd. v. McLaughlin, 2019 CO 93, 451 P.3d 841.

And therefore is not subject to subsection (2)(a)s requirements. Doe v. Colo. Dept. of Pub. Health & Envt, 2019 CO 92, 450 P.3d 851.

A broad construction of this section is unwarranted because the general assembly was very specific in defining the entities whose meetings were to be open to the public. Free Speech Def. Comm. v. Thomas, 80 P.3d 935 (Colo. App. 2003).

Section fails to define scope of term state agency or authority. James v. Bd. of Commrs, 200 Colo. 28, 611 P.2d 976 (1980).

A county retirement plan operates as an agency or instrumentality of the county when the plan has availed itself of public entity tax and health benefits, has used county purchasing accounts, facilities, and the county seal, is authorized to levy a retirement tax, and has a budget that is factored into the county budget. Such plan is thereby subject to the open meetings law and the open records law. Zubeck v. El Paso County Ret. Plan, 961 P.2d 597 (Colo. App. 1998).

Formal action includes review of hearing officers decision resulting in order representing final agency action on a particular issue. The quasi-judicial nature of such review is immaterial. Lanes v. State Auditors Office, 797 P.2d 764 (Colo. App. 1990).

Teacher hiring and firing decisions are formal decisions, and, therefore, a firing decision by a school board that is made during an executive session as described in 22-32-108 is invalid. Barbour v. Hanover Sch. Dist. No. 28, 148 P.3d 268 (Colo. App. 2006), affd in part and revd in part on other grounds, 171 P.3d 223 (Colo. 2007).

Legislative caucus meetings are meetings of policy-making bodies within the meaning of the Colorado open meetings law and are therefore subject to the open meetings laws requirement that meetings be public meetings open to the public at all times. Cole v. State, 673 P.2d 345 (Colo. 1983).

A local public body 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. Bd. of County Commrs v. Costilla County Conservancy Dist., 88 P.3d 1188 (Colo. 2004).

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 open meetings law, and the public body holding or attending the meeting must provide notice. Bd. of County Commrs v. Costilla County Conservancy Dist., 88 P.3d 1188 (Colo. 2004).

Board of county commissioners was not required to give notice of a meeting arranged by others because nothing in the record establishes any connection between the meeting and the policy-making function of the board. Bd. of County Commrs v. Costilla County Conservancy Dist., 88 P.3d 1188 (Colo. 2004).

E-mails exchanged between a regulatory agencys chairperson, its commissioners, and a member of the governors staff about draft language of, and the agencys position on, pending legislation did not constitute a meeting under the statute because the e-mails did not concern the agencys public business. Public business means a public bodys policy-making functions, which consist of discussing or undertaking a rule, regulation, ordinance, or formal action of the public body itself. Providing input on pending legislation is not a policy-making function of a regulatory agency. Intermountain Rural v. Pub. Utils., 2012 COA 123, 298 P.3d 1027.

Mere legislative formation of agency or authority insufficient. The mere enactment of legislation which permits the formation of a commission, board, agency, or authority does not per se make that body a state agency or authority. James v. Bd. of Commrs, 200 Colo. 28, 611 P.2d 976 (1980).

Section does not apply to political subdivisions. Bagby v. Sch. Dist. No. 1, 186 Colo. 428, 528 P.2d 1299 (1974); James v. Bd. of Commrs, 42 Colo. App. 27, 595 P.2d 262 (1978), affd, 200 Colo. 28, 611 P.2d 976 (1980).

Local licensing authority of city was an arm of a political subdivision of the state rather than a state agency and thus was not subject to open meetings law with regard to license suspension revocation proceeding. Lasterka Corp. v. Buckingham, 739 P.2d 925 (Colo. App. 1987).

Nor to urban renewal authority. Rather than being a state agency or authority, an urban renewal authority is an arm or agency of the municipality which creates it, and, therefore, this section has no applicability to such an authority. James v. Bd. of Commrs, 42 Colo. App. 27, 595 P.2d 262 (1978), affd, 200 Colo. 28, 611 P.2d 976 (1980).

Nor to redistricting negotiations held in courthouse under judges supervision. Combined Commcns Corp. v. Finesilver, 672 F.2d 818 (10th Cir. 1982).

Nor to a district attorneys advisory board. A district attorney is not a political subdivision under this section and, therefore, his advisory board is not a local public body. A district attorney is also not a state agency or state authority pursuant to the definition of state public body under this section, therefore, his advisory board is not a state public body. Free Speech Def. Comm. v. Thomas, 80 P.3d 935 (Colo. App. 2003).

The Colorado medical board is a state public body, but it was not subject to this section for a meeting that was not convened for the purpose of policy making. Doe 1 v. Dept. of Pub. Health & Envt, 2018 COA 106, 454 P.3d 327, affd on other grounds, 2019 CO 92, 450 P.3d 851.

Prohibition against making final policy decisions or taking formal action in a closed meeting also prohibits rubber-stamping previously decided issues. Bagby v. Sch. Dist. No. 1, 186 Colo. 428, 528 P.2d 1299 (1974); Van Alstyne v. Housing Auth. of City of Pueblo, 985 P.2d 97 (Colo. App. 1999); Walsenburg Sand & Gravel Co. v. City Council of Walsenburg, 160 P.3d 297 (Colo. App. 2007).

Because the purpose of the open meetings law is to require open decision-making, not to permanently condemn a decision made in violation of the statute, a public body may cure a previous violation of the law by holding a subsequent complying meeting that is not a mere rubber stamping of an earlier decision. COHVCO v. Bd. of Parks & Outdoor Rec., 2012 COA 146, 292 P.3d 1132.

School boards not covered since they are political subdivisions. Bagby v. Sch. Dist. No. 1, 186 Colo. 428, 528 P.2d 1299 (1974).

Section establishes flexible standard of notice. In view of the numerous meetings to which the statutory requirement of full and timely notice is applicable, this section establishes a flexible standard aimed at providing fair notice to the public, so that whether the notice requirement has been satisfied in a given case will depend upon the particular type of meeting involved. Benson v. McCormick, 195 Colo. 381, 578 P.2d 651 (1978); Lewis v. Town of Nederland, 934 P.2d 848 (Colo. App. 1996); Town of Marble v. Darien, 181 P.3d 1148 (Colo. 2008).

Publication of notice of meeting of local public body in newspaper of general circulation in the county in which the meeting is to be held, six days prior to the meeting, satisfies notice requirements of section. Van Alstyne v. Housing Auth. of City of Pueblo, 985 P.2d 97 (Colo. App. 1999).

An emergency necessarily presents a situation in which public notice, and likewise, a public forum would be impracticable or impossible. Lewis v. Town of Nederland, 934 P.2d 848 (Colo. App. 1996).

Procedures contained in a municipal ordinance requiring ratification of action taken at an emergency meeting at either the next board meeting or a special meeting where public notice of the emergency has been given, represent reasonable satisfaction of the public conditions of the open meetings law under emergency circumstances. Lewis v. Town of Nederland, 934 P.2d 848 (Colo. App. 1996).

Some overt action must be taken by the board to give notice to the public that a meeting is to be held. At the very minimum, full and timely notice to the public requires that notice of the meeting be posted within a reasonable time prior to the meeting in an area which is open to public view. Hyde v. Banking Bd., 38 Colo. App. 41, 552 P.2d 32 (1976).

The mailing of notice to the persons on the sunshine list does not constitute full and timely notice to the public. Hyde v. Banking Bd., 38 Colo. App. 41, 552 P.2d 32 (1976).

Though a copy of the notice mailed to persons on the sunshine list is available for public inspection upon request, such a procedure does not constitute sufficient notice to the public under this section. Hyde v. Banking Bd., 38 Colo. App. 41, 552 P.2d 32 (1976).

Full notice requirement satisfied. An ordinary member of the community would understand that notice of an advisory committee update would include consideration of, and possible formal action on, the advisory committees recommendations. Town of Marble v. Darien, 181 P.3d 1148 (Colo. 2008).

Section does not require a public body to adjourn and re-notify when the action already falls under a topic listed on the notice. The particular notice contained the agenda information available at the time of the notice and, thus, satisfied the requirement that specific agenda information be included where possible. Town of Marble v. Darien, 181 P.3d 1148 (Colo. 2008).

Employee disciplinary matters directed toward an individual employee are precisely the type of day-to-day supervisions that subsection (2)(f) meant to exempt. A meeting of the board of county commissioners to discuss personnel matters -- the available disciplinary options to address a county employees misconduct -- falls within the notice exception of subsection (2)(f): The supervision of county employees by county commissioners. Ark. Valley Publg v. Lake County Bd. of County Commrs, 2015 COA 100, 369 P.3d 725.

The phrase day-to-day in subsection (2)(f) is not ambiguous. It would lead to an absurd result to require all disciplinary or other supervisory matters for a specific employee that involve a quorum of board members to be discussed in public meetings. It is the nature of the action that may be taken -- for example, employee supervision, including discipline or periodic performance evaluation of an employee -- as opposed to the nature of the employees conduct -- for example, tardiness, incompetence, or criminal misbehavior -- that determines whether the meeting falls within the day-to-day supervision exemption. Ark. Valley Publg v. Lake County Bd. of County Commrs, 2015 COA 100, 369 P.3d 725.

Generally, disciplinary decisions and application of an existing personnel policy to an individual employee are not matters that require, or are necessarily appropriate for, public input. Requiring advance notice of this type of personnel meeting or discussion does not further the purpose of the open meetings law. Ark. Valley Publg v. Lake County Bd. of County Commrs, 2015 COA 100, 369 P.3d 725.

For any personnel matter not falling within subsection (2)(f)s limited scope, proper notice is still required before the local public body may convene an executive session. Ark. Valley Publg v. Lake County Bd. of County Commrs, 2015 COA 100, 369 P.3d 725.

Compliance with subsection (3) is not substitute for compliance with subsection (2). Hyde v. Banking Bd., 38 Colo. App. 41, 552 P.2d 32 (1976).

Action taken without full and timely notice is invalid. This section does not invalidate the formal action of a board for the failure to comply with notice to those persons on the sunshine list, but it does invalidate an action taken where there is not full and timely notice to the public. Hyde v. Banking Bd., 38 Colo. App. 41, 552 P.2d 32 (1976).

City councils use of anonymous ballot procedure to fill city council vacancies and to appoint municipal judge is not prohibited by section. Section does not impose specific voting procedures on local public bodies let alone one that prohibits the use of anonymous ballots. Section is silent as to whether the votes taken need to be recorded in a way that identifies which elected official voted for which candidate. Rather, section only requires that the public have access to meetings of local public bodies and be able to observe the decision-making process. Henderson v. City of Ft. Morgan, 277 P.3d 853 (Colo. App. 2011) (decided prior to 2012 amendment).

Subsection (4) invalidates any formal action regarding compensation taken other than at an open meeting, absent prior request by the person affected for an executive session. Lanes v. State Auditors Office, 797 P.2d 764 (Colo. App. 1990).

District court erred in permitting the redaction of the minutes of a county retirement plans meetings that were not conducted in an executive session because the plan did not follow the statutory requirements for calling an executive session and the meetings were not actually held in an executive session. Zubeck v. El Paso County Ret. Plan, 961 P.2d 597 (Colo. App. 1998).

If a local public body fails strictly to comply with the requirements set forth to convene an executive session, it may not avail itself of the protections afforded by the executive session exception. Therefore, if an executive session is not properly convened, it is an open meeting subject to the public disclosure requirements of the open meetings law. Gumina v. City of Sterling, 119 P.3d 527 (Colo. App. 2004).

Local public body violated statute by convening executive sessions outside of a regular or special meeting, without announcing the topic or otherwise noticing the session beforehand. Retroactively noticing the executive session at the next public meeting did not cure the violation. Bjornsen v. Bd. of County Commrs, 2019 COA 59, __ P.3d __.

Where custodian redacted work product from emails between elected officials pursuant to the Colorado Open Records Act, the district court should have considered whether the redactions were proper under this section. Bjornsen v. Bd. of County Commrs, 2019 COA 59, __ P.3d __.

The remedy in subsection (8) invalidates formal action taken in two circumstances. First, the open meetings law voids any resolution, rule, regulation, ordinance, or formal action of a state or local public body taken at a meeting that does not comply with the requirements of subsection (2). But the open meetings law also voids any of these actions taken without a meeting of the state or local public body. Wisdom Works Counseling v. Dept. of Corr., 2015 COA 118, 360 P.3d 262.

While the open meetings law does not dictate when, where, or how often any public body must meet, by any fair reading it must be interpreted to hold a public body that takes formal action without meeting at risk of the action being voided under subsection (8) and paying the adverse partys attorney fees under subsection (9). Wisdom Works Counseling v. Dept. of Corr., 2015 COA 118, 360 P.3d 262.

Subsection (9) is not a general grant of standing to any citizen and does not abrogate the requirement that in order to have standing the plaintiff must suffer an injury in fact. Pueblo Sch. Dist. No. 60 v. Colo. High Sch. Activities Assn., 30 P.3d 752 (Colo. App. 2000).

Standing to bring suit under open meetings law. Colorado courts apply the two-prong Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977), test for standing. To satisfy that test, a plaintiff must establish that (1) he or she suffered an injury in fact and (2) the injury was to a legally protected interest. Weisfield v. City of Arvada, 2015 COA 43, 361 P.3d 1069.

As a citizen seeking to enforce open, public decision-making by the city council that represents him, plaintiff was precisely the type of plaintiff contemplated under the open meetings laws enforcement provisions. Weisfield v. City of Arvada, 2015 COA 43, 361 P.3d 1069.

Injury in fact found where allegations show that plaintiff was deprived of his legally protected right to have the city council that represents him take action in an open manner rather than by secret ballot. Weisfield v. City of Arvada, 2015 COA 43, 361 P.3d 1069.

The open meetings law creates a legally protected interest on behalf of Colorado citizens to have public business conducted openly in conformity with the statutory provisions. This section sets out specific requirements with which public bodies must comply, including providing notice and public access to meetings where public business is discussed, as well as a specific prohibition on taking formal action by the use of secret ballots. Finally, subsections (8) and (9) provide a legal remedy whereby private citizens may enforce its provisions. In sum, the open meetings law articulates an interest in having public business conducted openly and provides a mechanism for private citizens to protect that interest. Weisfield v. City of Arvada, 2015 COA 43, 361 P.3d 1069.

Subsection (4) violated. Town council failed to comply with the requirement of subsection (4) that the particular matters to be discussed in executive sessions be identified in as much detail as possible without compromising the purpose for which an executive session is authorized when its public notices of the executive sessions referenced only general statutory categories of legal advice and personnel matters without providing any information about what legal advice or personnel matters would be discussed. To comply with subsection (4), the notices needed to include at least the general subject on which legal advice was sought and identify the employee who was the subject of the personnel matter to be discussed. Guy v. Whitsitt, 2020 COA 93, 469 P.3d 546.

Subsection (9) entitles plaintiffs to an award of attorney fees upon a finding that the governmental entity has violated any of the provisions of law. There is no requirement that the violation be knowing or intentional. Zubeck v. El Paso County Ret. Plan, 961 P.2d 597 (Colo. App. 1998).

Subsection (9) establishes mandatory consequences for a violation of the open meetings law, entitling plaintiffs to their costs and attorney fees incurred in bringing an action to force a public body to comply with the law. Van Alstyne v. Housing Auth. of City of Pueblo, 985 P.2d 97 (Colo. App. 1999).

Where a public body cured an admitted violation before the filing of a complaint, the plaintiff was not a prevailing party and is not entitled to an award of fees and costs. COHVCO v. Bd. of Parks & Outdoor Rec., 2012 COA 146, 292 P.3d 1132.

Because the judicial branch, where the independent ethics commission (IEC) resides, is not a state agency within the meaning of subsection (2)(a) and a state agency as a whole cannot constitute a state public body within the meaning of subsection (1)(d)(I), the IEC falls outside the scope of the open meetings law. Lacking subject matter jurisdiction over appellants claims under the open meetings law, the district court appropriately dismissed his complaint. Dunafon v. Krupa, 2020 COA 149, 477 P.3d 785.

 

Part 5 Encryption of Radio Communications by Governmental Entities

24-6-501. Definitions.

24-6-502. Public broadcast of governmental radio communications - encryption policy.