Gov. Jared Polis signs bill exempting lawmakers from open meetings law

• By Marianne Goodland, Colorado Politics

• Mar 12, 2024 Updated Mar 13, 2024
  

LKY: Makes you wonder: WHAT DO THEY WANT TO HIDE??????

Just hours after the bill reached his desk, Gov. Jared Polis signed into law a measure that would exempt lawmakers from the state's open meetings law, ultimately saying the matter deals with separations of powers between his office and the Colorado General Assembly.   

The law is effective immediately. 

In a signing statement, the governor said he accepted Senate Bill 24-157 to "provide clarity to the Legislature as it seeks to resolve ambiguities around their own conduct under the Colorado Open Meetings Law."

Polis noted the bill applies only to the legislature, not the executive or judicial branches. He said he respects the path adopted by the General Assembly, and that he"(recognizes) the separate and distinct authority of the Legislature to determine, within reason, their own procedures to maintain transparency while modernizing and adapting the Legislative Branch to an ever-evolving society."

The measure would put limits on what constitutes "public business" and allow lawmakers to discuss bills and public policy via email or text message without it being subject to the open meetings law. Those communications could be available through an open records request, so long as the requestor knows who was in the conversation and when it took place.

First Amendment attorney Steve Zansberg, who is president of the Colorado Freedom of Information Coalition, called the governor's decision to sign the bill disappointing.

“It is profoundly disappointing that the leadership of both houses, and the Governor, have chosen to effectively exempt one branch of government from our state’s public transparency law," Zansberg wrote in an email. "It is all the more so, given that our organization’s input was completely ignored, and that they did so during 'National Sunshine Week' of 2024."

Monday marked the start of the nationwide "Sunshine Week," which is intended to celebrate open government and public access to information. 

In the past year, the General Assembly has been sued twice over violations of the open meetings law. In January, a Denver District Court judge ruled that Democrats' use of "quadratic voting," a secret vote to determine which bills would be funded by the state budget, violated the law.

Two House Democrats sued the House last year over other violations of the open meetings law, including the use of secretive electronic messaging services and caucus meetings held without public notice or minutes. The lawsuit was settled with an agreement by both caucuses to stop setting those messaging apps to automatically self-destruct and to post minutes and agendas of caucus meetings.

Speaker pro-Tem Chris deGruy Kennedy of Lakewood, one of the bill's House cosponsors, noted that the definition of public business includes introduced or draft legislation and defines a quorum as "contemporaneous" rather than a "walking around" conversation.

Requiring a meeting to be contemporaneous gets into what's known as "daisy chain" communications. That's when a one person has a conversation with several people, but one at a time to avoid open meetings requirements.

DeGruy Kennedy insisted on Monday, when the bill was up for its final vote, that the bill does not shield the public from being able to see what lawmakers are doing. 

"We’re not trying to pretend that we got it perfectly right, but I have not yet heard better solutions,” he told House members.  

Senate President Steve Fenberg, D-Boulder, the bill's Senate sponsor, has commented several times about the difficulty in finding a way forward on the issue, and that solutions to the ability of lawmakers having conversations around legislation without violating the Open Meetings Law have been elusive.

House Speaker Julie McCluskie said prior to Monday's final vote that she will seek additional time for retention of records around email subject to the state Open Records Law. She has so far favored a 60-day retention policy, but that's just half of the legislative session.

The measure was opposed by governmental transparency advocates, including the Colorado Freedom of Information Coalition, Colorado Common Cause and the Colorado League of Women Voters, which sent out an email blast early Tuesday, asking people to contact the governor and seek a veto of SB 157.

During a committee hearing last month, Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, said voters "emphatically declared that the formation of public policy is public business and may not be conducted in secret."

He argued that the public has the right to observe the formation of policy, not merely the official hearings and votes, and that SB 157 would undermine that principle by allowing and encouraging lawmakers to discuss public business in an unlimited way through electronic, written communications, email, text message, or disappearing messaging apps, such as Signal — all outside of public view.