This is part 7 of a series exploring Rio Blanco County’s special districts, how they are funded, and their transparency practices.
Read part 1: The ins and outs of special tax districts
Part 2: Explainer: how special districts work
Part 3: Recreation in Rio Blanco County: WRBM and ERBM
Part 4: Rio Blanco County’s Hospital Districts
Part 5: Conservation and conservancy districts
In this series we’ve covered the finer points of local tax district transparency practices, from meeting notice locations to the availability of public information such as minutes and budgets, access to board contacts and other subjects. Our goal has been to educate citizens of Rio Blanco County about how their property tax dollars are managed by public officials and how public boards should operate according to state statutes. In this final story we dive into executive sessions, what they are, when they’re permissible by law and when they’re not.
Executive sessions
Under open meetings laws, also known as “sunshine laws,” public bodies including local and state governments must meet and make decisions in public to ensure accountability by the electorate. Colorado Open Meetings Laws (COML) specify topics that are authorized for discussion in “closed-door meetings” aka executive sessions. COML statutes also contain stipulations about how executive sessions are noticed, conducted and recorded among other requirements.
Authorized topics
Open meetings laws make exceptions for certain instances where disclosure of information that would be discussed could compromise legal negotiations or security arrangements, give an unfair competitive/bargaining advantage or expose certain sensitive information about personnel. Public bodies may also convene executive sessions if necessary to avoid disclosing information that state law requires be kept confidential. State statutes and requirements get even more specific for each of the six broad categories that executive sessions can fall under. As one example, local public bodies may close a meeting involving the discussion of personnel, unless the employee(s) involved request the meeting remain open.
Notice of sessions
Some of the most significant requirements surrounding executive sessions pertain to notices in meeting agendas and during public meetings. Colorado Freedom of Information Coalition (CFOIC) Executive Director Jeffrey Roberts said “three things are supposed to happen” when public bodies convene executive sessions. They are:
- Announce the “particular matter” to be discussed with as much specificity as possible without compromising the reason for the executive session
- Cite the legal basis (statutory provision) for the executive session
- Vote to enter executive session (local public bodies require ⅔ vote of a quorum to enter the session)
Common practice among public boards is to follow one or two of the mandated notice requirements. Public boards generally cite the legal basis for executive sessions before voting to convene, but most fail to announce the particular matter to be discussed with any specificity, if they specify at all. “They should be as specific as they can on the agenda and what they announce right before going into the meeting, is what the law really prescribes,” said Roberts.
Particular matters
“What the open meetings law says about notice is that it should include specific agenda information where possible,” Roberts said, adding, “so it’s kind of a very loose requirement.”
Despite the seemingly ambiguous nature of the requirement, the Colorado Supreme Court has ruled in favor of plaintiffs who sued public bodies that did not specify the subject of their executive sessions. “We actually have case law now since 2020, basically saying that they do have to be somewhat specific,” said Roberts, referencing Guy v. Whitsitt 2020 in which an Eagle County resident sued the Basalt Town Council over their executive session notice practices. In the original lawsuit, the plaintiff (Guy) argued that the Town failed to comply with open meetings law requirements because they did not specify the “particular matter” to be discussed when convening various types of executive sessions. After reviewing the executive session recordings, the district court found that “no impermissible topics were discussed.”
However, the court also found the town failed to properly notice certain executive sessions about “negotiations” and “property issues” because they didn’t say what those meetings were about.
The district court sided with the town council regarding sessions about legal advice, citing “attorney-client privilege” and sessions about personnel by noting that the employee in question objected to any public disclosure of his personnel issues.
Reversal
Theodore Guy appealed the decision. On the subject of legal advice, the appeals court stated “unprivileged facts cannot become privileged merely by incorporation into a communication with an attorney.” They further specified that the fact of the communication, identity of the attorney, subject discussed and details of the meetings are not protected by “privilege.” CFOIC’s Open Government Guide also notes, “Discussion exclusively among members of the public body of the legal advice they’ve received” is also not protected.
Regarding personnel matters, the appeals court ruling says public employees “have a narrower expectation of privacy than other citizens, and the public has an interest in knowing employee compensation, and, in certain instances, employee work performance.”
The appeals court found that despite the original ruling, the Basalt Town Council did not convene executive sessions properly, and ordered them to make recordings of those sessions available to the plaintiff. They also ordered the district court to award Guy his legal costs and a reasonable amount of attorney fees.
More on open gov
Colorado Freedom of Information Coalition has a comprehensive guide to open meetings laws and other government transparency requirements on their website at coloradofoic.org/open-government-guide
By LUCAS TURNER | [email protected]om
