Government transparency advocates say a bill aimed at loosening open-meetings restrictions for the Colorado legislature would risk making the Capitol’s inner workings too opaque to the public.
The legislation, sponsored by the House and Senate chamber leaders and set for its first committee hearing Wednesday, is intended to clear up confusion resulting from a legal dispute last year over the legislature’s practices. It would allow lawmakers to communicate informally, without publicly announcing the conversation, either one-on-one or in groups that are too small to constitute a majority of a committee or a chamber.
SB24-157 also would make clear that digital communication between legislators wouldn’t amount to a public meeting, though those messages could be obtained via public records requests.
But the bill is giving some government watchers heartburn.
“I think that in a lot of ways, (the bill) exempts the legislature from the open-meetings law,” said Jeffrey Roberts, the executive director of the Colorado Freedom of Information Coalition. “Other than what we’ll see in committee hearings and on the (House or Senate) floor, a lot of it will be done behind the scenes, and we’ll never know about it.”
Senate President Steve Fenberg told reporters last week, as the bill was introduced, that the objective was to bring the Colorado Open Meetings Law into the 21st century world of email and text messages and to provide clarity around how lawmakers may communicate with each other. House Speaker Julie McCluskie also is working on the bill. They lead chambers that have Democratic majorities.
The measure generally would codify how lawmakers operated and communicated before last summer, when two House Democrats filed a lawsuit against the House and its leaders for alleged violations of the open-meetings law.
That lawsuit was settled in September, but the agreement allowed for attempts to amend state law to loosen the rules formally.
“It’d be a lot easier just to move along and let the confusion be — and, frankly, I’ll be out of here in a few months and it’ll be someone else’s problem,” said Fenberg, who is term-limited after the session ends in May. “But I do think it is a pretty critical issue to figure out. Not just solve, but to open the conversation and to provide clarity, or else I do think it’s going to do detrimental damage to the institution.”
But even if much of the proposed bill would mark a return to previous practices, the measure has drawn the ire of transparency advocates like Roberts.
The proposal isn’t the only one under consideration that would alter Colorado’s government transparency laws. Roberts also raised concerns HB24-1296, a bill that, among other things, would limit access to certain public records and allow officials to limit requests from so-called “vexatious” requesters under the Colorado Open Records Act.
The sponsor of that bill, Democratic Rep. Cathy Kipp, said Tuesday morning that she was preparing a number of changes to the proposal. She said her intent with the bill was to help state and local agencies that are overwhelmed with requests from the public.
Attempt to amend meetings law was expected
Debate over the open-meetings law’s application to the legislature has been expected since the two lawmakers filed their lawsuit last summer.
The legal settlement, mixed with broader confusion about what’s permissible and what isn’t, has fueled frustration for months. Lawmakers have vented that informal conversations are key to passing bills, meeting with stakeholders and navigating the Capitol.
Some have joked about calling reporters in to hear any conversation they have with colleagues to ensure they’re public. Others expected changes to the open-meetings law to be introduced immediately in early January, as the legislature reconvened.
Fenberg said legislative leaders have been discussing potential amendments to the law since last year’s regular session, predating the lawsuit. Reps. Elisabeth Epps and Bob Marshall, the Democrats who filed the suit, both have said they raised concerns about the legislature’s adherence to the law throughout the 2023 session.
Roberts, from the Freedom of Information Coalition, worried that the bill, as introduced, effectively would legalize the sort of “serial meetings” that triggered a lawsuit against the Douglas County school board two years ago.
In that case, the school board’s majority held a series of one-on-one conversations among themselves about ousting the district’s superintendent. Though those conversations featured only two members at a time, which normally doesn’t require a public meeting, a judge ruled that they violated the open-meetings law because they were coordinated to reach a decision about public business.
The bill would apply only to the legislature and not to other public bodies covered by the open-meetings law, like school boards. Fenberg said informal discussions between legislators were a “natural part of the process” and would be used to count votes, discuss amendments and prepare for floor work.
Roberts took particular issue with allowing digital communication between legislators. Fenberg, for his part, said email or text exchanges couldn’t be regulated like in-person meetings and that legislators needed to talk to each other to do their job.
But Roberts said that those messages would be difficult to obtain, even if a reporter or member of the public filed a public records request for them.
While legislators’ communications are generally accessible under Colorado’s open-records law, state statute exempts messages that are legislative “work product.” That generally refers to drafts of bills, amendments or similar communications. Roberts worried the exemption could be used broadly to limit access to legislative communications about pending bills.
Critic: “At least make (the rules) something we can follow”
Epps, a representative from Denver, is sponsoring her own bill to change the open-meetings law. That bill, HB24-1303, would prohibit serial meetings involving individual conversations about public business — digitally or in person — that collectively involve enough lawmakers to constitute a majority of a committee or chamber.
Epps was unable to comment Tuesday.
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Marshall, a Highlands Ranch lawmaker who also was the plaintiff in the lawsuit challenging the Douglas County school board, said he was “agnostic” about how lawmakers might amend the law. But he does have concerns about legislators reaching decisions via non-public, serial meetings.
Primarily, Marshall said, he wanted legislators to be upfront about how they were operating.
“At least make (the rules) something we can follow, so we can follow the law,” he said. “That was my biggest concern: the hypocrisy of us putting laws in place we expect others to follow, yet we were blatantly violating open-meeting laws previously.”
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