Irony is the juxtaposition of one conceptual proposition with a directly contrary reality, like a “vegetarian butcher” or something that’s “seriously funny.” Or the swift enactment – during Sunshine Week – of a new state law that lets members of the Colorado General Assembly discuss and formulate public policy outside of public view.
You heard that right. Legislators and Gov. Jared Polis chose the very week in which journalists and transparency advocates annually celebrate federal and state open-government laws to essentially exempt the state Legislature from much of the Colorado Open Meetings Law, first initiated by the voters in 1972.
The open meetings law declares it is “the policy of this state that the formation of public policy is public business and may not be conducted in secret.”
Our state’s appellate court judges have recognized the underlying intent of the statute is to ensure that the public is not “deprived of the discussions, the motivations, the policy arguments and other considerations which led to the discretion exercised by (a public body).”
The law is meant to provide “the public access to a broad range of meetings at which public business is considered; to give citizens an expanded opportunity to become fully informed on issues of public importance, and to allow citizens to participate in the legislative decision-making process that affects their personal interests.”
We acknowledge that some provisions in the 52-year-old law required updates as they pertained to the business of the state Legislature. It’s not easy to comply with a mandate that meetings concerning public business between two members of a legislative chamber must be open to the public, with minutes “taken and promptly recorded.”
But Senate Bill 24-157 was rushed and some organizations, including the Colorado Freedom of Information Coalition, were excluded from the sponsors’ stakeholder process. Our suggested amendments after the bill’s introduction were ignored.
The bill, signed into law by the governor just a day after final passage, goes too far and will undermine public confidence in the Legislature’s actions.
The new law encourages and legalizes legislators engaging in an endless series of sub-quorum discussions of pending bills and amendments, via emails, text messages, phone calls or in-person meetings, without providing notice to the public or the keeping of any minutes of such policy-making conversations. In other words, the public will be left in the dark about “the motivations, policy arguments and other considerations” around legislation that affects them directly.
Don’t worry, elected officials tell us, because the emails, text messages, etc., exchanged between lawmakers are accessible, after the fact, “pursuant to the Colorado Open Records Act.” That’s what the newly passed law says.
But here’s the catch: CORA declares that all communications by or “assembled for” any state legislator that “relates to” the drafting of bills or amendments are not public records at all. So, there’s no need for legislators to hold onto, much less to make public, those electronic written communications because they are not public records.
It is safe to assume that more than 90% of all future discussions of potential bills, amendments, appointments, resolutions, rules, etc., in both chambers of our state Legislature will occur outside of public view. Not only will such policies be far more likely to be the product of backroom wheeling and dealing, but even ordinary nontainted policies will rightfully be subject to suspicion and skepticism by the general public.
Forty-one years ago, Colorado’s Supreme Court held that legislative caucus meetings must abide by the open meetings law, stating that the act was “designed precisely to prevent the abuse of secret or star chamber sessions of public bodies.” By exempting the General Assembly from a transparency law applicable to every other public body in the state, legislators have greatly reduced the level of public trust in that institution and cast a veil of secrecy over whatever legislation is produced.
Ironic for sure that this happened during Sunshine Week. And a sad day, of any week, for the people of this state.
Steve Zansberg is president of the Colorado Freedom of Information Coalition and Jeff Roberts is executive director.
