Colorado Supreme Court finds that public bodies may cure public meeting violations, but may be subject to legal fees
Michael Karlik, Colorado Politics
A public governing body can resolve violations of Colorado’s open meetings law through a subsequent meeting, the Colorado Supreme Court affirmed on Monday.
The ruling stemmed from a lawsuit filed against Woodland Park RE-2’s Board of Education by a parent, who alleged that the board violated the state’s open meetings law at a 2022 meeting and only cured the violation at a subsequent meeting.
Supreme court hears oral arguments for Woodland Park Public Schools case
The court ruled that public bodies can “cure” these types of violations if they comply with the open meetings law and don’t simply “rubber-stamp” prior decisions. It also ruled that the plaintiff is entitled to costs and reasonable attorney fees if such a violation is successfully proven in court.
Colorado’s open meetings law provides that all meetings that include at least three members of a local public body, where business is discussed or official actions are taken, are “public meetings open to the public at all times.”
Justice Maria Berkenkotter wrote for the court’s majority that ruling in favor of these plaintiffs ensures that public bodies don’t “take the teeth out of the COML (Colorado Open Meetings Law)” by retroactively addressing any violations, whether or not they are intentional.
“By conceding a violation, a public body could effectively prevent the award of costs and reasonable attorney fees to prevailing plaintiffs even though they are a mandatory consequence for a violation of the statute,” she wrote.
Erin O’Connell, a parent of students in the district, filed a complaint after the board held a special meeting with an agenda labeled “BOARD HOUSEKEEPING” in January 2022. At the meeting, the board approved a memorandum of understanding with Merit Academy, a charter school seeking to join the district, despite concerns raised by a board member that the agenda wasn’t clear to the public.
Following this complaint, the board then listed the memorandum of understanding as an agenda item for a meeting the following month to redo the vote for the sake of transparency. The board again approved the memorandum of understanding, but without discussion.
A district judge found that the board had initially violated the law by making a “conscious decision to hide a controversial issue,” only to “rubber stamp” the original decision weeks later. Later that year, the court concluded that a third meeting the board held in April with a vote on the memorandum of understanding had successfully cured the original violation.
The decision referred to the 2012 doctrine by the Court of Appeals in Colorado Off-Highway Vehicle Coalition v. Colorado Board of Parks and Outdoor Recreation.
Colorado Supreme Court takes up 2 cases implicating open meetings law
While the District Court decision found that O’Connell was not a “prevailing party” entitled to costs and fees, the Supreme Court reversed this decision, ruling that the board cured the legal violation after she filed her lawsuit.
Neither O’Connell nor the school district responded to a request for comment.
Chief Justice Monica Márquez was the only dissenting vote. She agreed that the school board had successfully cured its violation, but disagreed with the plaintiff’s entitlement to an award since the cure was a complete legal remedy.
“Simply put, the violation no longer exists,” she wrote. “Here, because the violation was cured (allowing the School Board’s initial decision to have legal effect), a court cannot ‘find a violation’ under section 24-6-402(9)(b) to serve as a basis for an award of costs and fees.”
The Colorado Supreme Court affirmed 6-1 that a public governing body can resolve violations of Colorado’s open meetings law through a subsequent meeting, but are subject to costs and attorney fees if a violation is proven in court. Chief Justice Monica Márquez was the only dissent from the court majority.
The court remanded the case to the District Court to determine and award O’Connell costs and reasonable attorney fees.
