Earlier this month, the Colorado Supreme Court declined to hear Arvada’s appeal in a case regarding a violation of Colorado’s open meetings law. The case now returns to district court to address other motions filed by Arvada, including whether home-rule cities are subject to the law.
It also is one of many examples of why the law is virtually toothless and needs to be changed.
In January 2014, the Arvada City Council used secret ballots to appoint Jerry Marks to fill a council vacancy. This was done despite a provision in the law that says a local public body may not “adopt any proposed policy, position, resolution, rule, or regulation or take formal action by secret ballots”.
As such, I filed the lawsuit that resulted in the court’s recent refusal.
It has now been nearly two years after Marks’ illegal appointment and two weeks after he was voted out of office, yet the costly case continues.
The purpose of the open meetings law is to provide the public with insight into how policy is made and how their leaders vote. This lets the public help shape policy or determine whether or not to re-elect their officials. Yet when it takes years to resolve violations, how can the public do that?
In another high profile case, the Jefferson County School Board was accused of violating the same law. The accusation even appeared on ballots during the recent recall. School board president Ken Witt vehemently denied those accusations and filed a quixotic complaint against himself for violating the open meetings law.
You would think that the law would provide an easy way for such accusations to be resolved. You would be wrong. The only recourse for recallers was to file a lawsuit — an action that they believed would be prohibitively expensive and, even in victory, change nothing. As for Witt’s complaint, no agency is authorized to handle it.
Perhaps the greatest example of the law’s impotency comes from Broomfield. In April, the city also used secret ballots to fill a council vacancy. Just prior to the vote, I spoke in council chambers and cautioned that such an act was clearly illegal.
Needless to say, they used secret ballots anyway.
Despite being specifically told that their action would be illegal and go against the unanimous will of the legislature, Broomfield City Council members flaunted the law and cowardly hid their votes from their constituents.
Such examples might be part of the reason why a recent study by the Center for Public Integrity gave Colorado an “F” for its openness. Another part of the reason was because unlike 25 other states, Colorado has no agency to address openness concerns. Additionally, Colorado imposes no penalties for individual violators of the law.
Were Colorado to follow in the footsteps of half the nation and create such an agency and also impose severe penalties for violations, then perhaps the open meetings law would be more useful. Average citizens would then have a viable way to enforce the law.
Government leaders would be more cautious before engaging in possible illicit actions. Sure, there would be increased costs with the formation of such an agency, but the overall benefits to the public would be well worth the expense.
It has been almost 20 years since the last major change to the law, with only had minor modifications since (including one stemming from the Arvada lawsuit). It is time for the legislature to alter the open meetings law.
Russell Weisfield is a community activist. He lives in Arvada.
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