OPINION: Colorado Supreme Court Should Confirm Executive Session Requirement

The Colorado Freedom of Information Coalition (CFOIC) has asked the state’s highest court to affirm that when a public body fails to properly announce the “particular matter” to be discussed in an executive session, the recording of that closed-door meeting becomes a public record.

“It would greatly benefit the public, press, and all public bodies… to confirm that this is how the COML (Colorado Open Meetings Law) works,” says a friend-of-the-court brief submitted to the Colorado Supreme Court last week by the Colorado Freedom of Information Coalition.

Since 2001, the open meetings law has required state and local boards, commissions and councils to announce the topic of each executive session — prior to taking a vote to convene the private meeting — “in as much detail as possible without compromising the purpose for which the executive session is authorized.”

Mandating topic specificity provides the public with something more than a vague idea of why their elected officials are excluding them from a meeting. It gives them a way to police whether public bodies might be straying from the law, and it gives public officials a framework for avoiding confidential discussions of unauthorized topics.

“The particular matter announcement requirement is… not simply an annoying, meaningless technicality,” says the CFOIC brief, prepared by attorney Ashley Kissinger of the Ballard Spahr law firm. “It serves the important purpose of ensuring that public bodies remember their COML obligations and are not meeting privately in circumstances under which the General Assembly has determined they must meet publicly.”

The Supreme Court justices are reviewing a 2023 Court of Appeals order that Aurora publicly release the recording of an executive session in which city council members ended censure proceedings against Councilmember Danielle Jurinsky.

In a case brought by the Aurora Sentinel, a three-judge appellate panel ruled that council members violated the open meetings law by inadequately announcing a March 14, 2022, closed-door meeting and improperly deciding in secret to halt the action against Jurinsky for comments she made about Aurora’s then-police chief and deputy chief.

The Court of Appeals has held three times — in 1998, 2004 and 2020 — that improperly convened executive sessions are meetings open to the public, “and therefore the public may access the recording of it,” CFOIC’s brief says.

Public bodies across Colorado “routinely fail to announce, with the requisite specificity,” executive session topics, it adds. “Despite the fundamental importance of the particular matter announcement requirement, and the fact that it is expressly laid out in the COML itself, public bodies across Colorado quite often overlook it, whether intentionally or not. As a result, members of the press and of the public are forced to go to court seeking a remedy for improperly convened executive session meetings.”

A high-profile example: In 2023, the day after a student shot and injured two administrators at East High School, the Denver school board came out of a nearly five-hour executive session and voted unanimously — with no public discussion — to suspend its policy banning police officers in schools. A judge later ruled the “executive session was convened in violation of statute because the subjects discussed during the executive session were not properly noticed” as required by the “particular matter” provision of the open meetings law. He ordered the recording released to seven news organizations that had sued DPS.

CFOIC’s brief says a ruling by the Supreme Court “affirming the sound body of Court of Appeals precedent on this issue is what is needed to quell any lingering doubt there could be on the matter and spur public bodies to pay attention to and comply with the law.”

“And what is the alternative? There really is none. If the Court does not hold that the particular matter announcement requirement means what it says, it will not mean what it says. It will continue to be honored more in the breach than in the observance, undercutting the very purpose of the COML: to keep public bodies from meeting in secret — a practice that not only deprives the public of the information it needs for effective self-governance, but undermines the public trust in government institutions.”