Colorado lawmakers are advancing a bill to exempt themselves from parts of the Open Meetings Law despite facing strong opposition from transparency advocates who fear the measure would encourage policy to be crafted in secret at the statehouse.
Democrats passed Senate Bill 157on a party-line vote in the Senate on Monday, and the House Judiciary Committee approved it Wednesday.
The bill is now heading to the House for a series of votes.
The measure 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 the rules would only be relaxed for the 100 state lawmakers, not local government officials.
Sponsors say the legislature should be treated differently under the law than school boards and city councils because things at the statehouse "move a million miles a minute" and there is a much larger group of elected officials making decisions.
The bill, sponsored by Senate President Steve Fenberg and House Speaker Julie McCluskie, would also add limits to what constitutes public business under the Open Meetings Law and allow lawmakers to have a series of one on one meetings with each other without that being considered an illegal meeting.
Public officials have been sued in Colorado over what are referred to as "serial meetings."
In a recent case, a judge ruled the Douglas County School Board violated the Open Meetings Law by holding a series of one-on-one meetings about firing the superintendent.
Jeff Roberts, the executive director of the Colorado Freedom of Information Coalition, said he worries Senate Bill 157 could lead to lawmakers secretly deciding the fate of bills by emailing or texting each other on apps designed to automatically delete the messages.
“It's the policy of this state that the formation of public policy is public business and may not be conducted in secret,” Roberts said citing the Sunshine Law voters passed in 1972. “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 public view without being a meeting subject to the law.”
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Lawmakers who are supporting the bill say it would improve their ability to get work done. They also say the public could file records requests for their written communications.
Critics say getting those records can be expensive, and they may not even exist if lawmakers delete them.
“I understand if people think we’re exempting ourselves from the rules, but it really doesn’t feel that way to me,” Rep. Judy Amabile, D-Boulder, said before she voted to advance the bill. “It feels like people are saying we support you in getting this important work done.”
Amabile said under the current rules, lawmakers are arriving at committee hearings not knowing whether their colleagues will vote to support or oppose their bills.
“We are running amendments in the middle of the committee,” she said. “It seems like we're not doing as good a job for the people of Colorado because we aren't able to have those conversations.”
Democrats who lead the legislature say their bill aims to “clarify” the Open Meetings Law at the Capitol.
State lawmakers were sued twice last year over alleged open meetings violations at the Capitol, and they had to pay tens of thousands of dollars in court costs as a result of the cases.
In one case, a judge ruled lawmakers were violating the Open Meetings Law by using a secret ballot system to help decide which bills should live or die.
Another lawsuit brought by two Democratic representativesalleged House lawmakers were holding secret caucus meetings to discuss public business and texting each other about votes.
Leaders of the House decided to settle the lawsuitby agreeing to publicly notice their caucus meetings and not have lawmakers communicate with each other electronically about public business "unless written minutes of such meetings are made publicly available upon request."
Speaker McCluskie told the committee on Wednesday the current rules make it hard for lawmakers to talk to each other outside of public committee hearings and is contributing to a “deteriorating culture” at the Capitol.
“For many years, and especially following litigation (over lawmakers allegedly violating the Open Meetings Law) this past summer, lawmakers have navigated this building and this legislative process now in uncertainty, and this uncertainty has caused members to stop talking to one another,” she said. “That is a detriment to our democratic process.”
No member of the public has testified in favor of the current effort to relax the transparency law. And lawmakers heard more public opposition to the bill Wednesday than they did at a previous bill hearing last month.
Kathleen Gegner testified that the bill “contradicts transparency.”
“It is interesting that Senate Bill 157 is being brought forward by leadership of the General Assembly that has repeatedly violated Colorado's Open Meeting Law,” she said. “It is very hard for me to believe this bill has been brought forward in good faith to ensure transparency and to fix issues in the open meetings law.”
The League of Women Voters of Colorado has joined other transparency groups in opposing the bill.
“This bill keeps too much information in the shadows and runs the risk of only adding to the problem of disinformation,” said Linda Hutchinson, a Loveland resident and League of Women Voters spokesperson.
And Corey Gaines, a Sterling resident who runs a site called the Colorado Accountability Project, also has “grave concerns” about Senate Bill 157.
“It takes something that’s relatively straightforward now, and makes it more complex and more opaque,” Gaines said. “I just want things to be easy and really transparent to people who are not technical experts.”
The Colorado Broadcasters Association and the Colorado Press Association are seeking amendments to the bill. A current Democratic lawmaker also testified against the measure.
“I oppose this bill, because I support transparency,” Rep. Elisabeth Epps, D-Denver, told the committee.
Epps was one of the lawmakers who sued members of her own party last year alleging groups of House lawmakers “routinely meet in secret to discuss public business.”
KUNC News asked to interview Gov. Jared Polis this week about the bill to relax open meetings rules at the Capitol. His office said he wasn’t available this week, but a spokesperson sent the following statement:
“The Governor values transparency and the Governor’s Office will monitor this bill as it moves through the legislative process.”
Polis vetoed a bill last year that aimed to limit the amount of money a person representing themselves could recover in court if they won a lawsuit alleging open meetings law violations.
“We should strive for increased transparency and accountability, not less transparency and accountability, throughout our democratic institutions,” Polis wrote in a letter explaining that veto.
