Transparency advocates are strongly opposing an effort by Colorado’s most powerful state lawmakers to relax open meeting requirements for those working at the statehouse.
Senate Bill 157 would let state lawmakers discuss bills and other public business electronically with each other by email or text message without the communications constituting a public meeting.
And it would only apply to the 100 state lawmakers, not local government officials.
That means it would remain illegal for more than two members of a city council, school board or county commission (or two if it makes up a quorum) to electronically discuss public business outside public meetings.
The bill also aims to define what topics should be considered public business and trigger open meeting requirements for lawmakers.
For example, the bill would specify that introduced legislation is public business, but not necessarily a draft of a bill.
Jeff Roberts, the head of the Colorado Freedom of Information Coalition, raised several concerns about the legislature’s proposal Wednesday during it’s first committee hearing.
“The people have the right to observe the formation of public policy, not merely the official hearings and votes,” Roberts said. “But Senate Bill 157 undermines that principle by allowing and encouraging members of the General Assembly to discuss public business in an unlimited way by electronic written communications, email, text message, disappearing messaging apps like Signal, all outside of public view without it being a meeting subject to the law.”
Before the hearing began, Roberts told KUNC the bill was a “step away from transparency.”
He predicted it would result in lawmakers forming public policy in secret.
“You're still going to be able to see the things that you see every day at the Capitol, which are committee hearings and floor action and things like that,” Roberts said. “But some issues, there’s more to it than that here. There are sort of backroom things that go on, that are sometimes pretty interesting and important to know a little bit more about, and it's going to be harder to dig into those things because of this legislation.”
The bill landed at the Capitol less than two months after a Denver district court judgeruled state lawmakers violated the open meetings law In recent years by using a secret ballot system to help decide which bills should live or die.
Lawmakers also chose to settle a separate transparency lawsuit last year brought by two current Democratic state representativeswho alleged lawmakers routinely violated the Open Meetings Law by texting each other about bills and holding secret meetings to discuss policy.
Senate President Steve Fenberg, D-Boulder, is sponsoring the effort to revise the Open Meetings Law for the legislature with House Speaker Julie McCluskie, D-Dillon.
Fenberg said the current, decades-old open meetings law is “confusing” and lawmakers are constantly wrestling with how it applies to their day to day work.
For example, he said the current version seemingly prevents lawmakers from sending emails to each other seeking potential bill sponsors and asking how they feel about legislation, unless they publicly notice a meeting and take minutes of it.
“And I don’t know how to do that,” he said. “The only answer is just don't email people. In my opinion, that's the safe course of business, and I don't think that's reasonable, either.”
Fenberg said his bill is an attempt to modernize the Open Meetings Law and bring clarity to it.
The law was created through a voter-approved citizens' initiative in 1972, and declares "the formation of public policy is public business and may not be conducted in secret."
Fenberg said his proposed revisions to it would allow lawmakers to communicate with each other more often and more freely without worrying about breaking the law while they’re moving “a million miles a minute.”
He added lawmakers should not be restricted to having every conversation with each other in a committee room or “on a microphone.”
Instead, he said allowing lawmakers to informally trade ideas and have conversations “over a beer, in the hallway” where they can feel like they can “ask dumb questions” is part of democracy.
“And that’s what we do here every day,” he said.
Fenberg said he disagreed with comments the bill would result in less transparency.
Under the proposal, he said the public can still obtain lawmakers' written communications through open records requests, as they do now.
But transparency advocates pushed back.
Beth Hendrix, who leads the League of Women Voters of Colorado, said filing records requests to get that information can be “burdensome.”
“And we are looking for open meetings laws to remain in effect as written,” she told Fenberg.
Roberts, of the Freedom of Information Coalition, said lawmakers could also label their communications as "work product" and withhold them from the public under the bill.
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Even if they don't, there are other hurdles.
A person trying to get a lawmaker's emails or text messages through an open records request might have to pay research fees to get them.
And the legislature can legally take up to ten days to respond to records requests when they are in session.
A person trying to obtain lawmakers’ communications about bills moving quickly through the statehouse may not be able to get them before the bill’s fate has already been decided.
Nobody testified in support of Fenberg’s open meetings bill on Wednesday.
And lawmakers tabled the proposal without voting on it, a sign that it may not have enough support in its current form to advance.
The legislature is also proposing a separate bill to reform the Colorado Open Records Act.
House Bill 1296 would give governments more time to respond to records requests in some cases and also allow them to delay fulfilling requests to people governments have deemed to be “vexatious” requestors.
The bill has not yet been scheduled for an initial hearing.
