Open meeting violations routine at Colorado Legislature, two of its own Democratic members allege
Improper caucus meetings and use of Signal app called out in lawsuit from Reps. Epps and Marshall
A view of the Colorado House of Representatives on April 19, 2023. (Quentin Young/Colorado Newsline)
Two first-term Democratic lawmakers are suing the Colorado House of Representatives and both parties’ leaders over allegations that elected officials routinely engage in behavior that violates the state’s open meeting law.
The lawsuit, filed Denver District Court on July 7, claims that the Democratic and Republican House caucuses held regular meetings during the legislative session without public notice or recorded minutes, violating Colorado’s open government meeting statute.
Democratic Reps. Elisabeth Epps of Denver and Bob Marshall of Highlands Ranch filed the lawsuit against the House as a whole, House Speaker Julie McCluskie, a Dillon Democrat, Majority Leader Monica Duran, a Wheat Ridge Democrat, Minority Leader Mike Lynch, a Wellington Republican, and both party caucuses.
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Democrats hold a 49-19 supermajority in the House.
Colorado’s so-called Sunshine Law mandates that governmental bodies discuss public business — whether that’s in person, over the phone or electronically — in public view and give timely notice beforehand. For a state body, the law applies to meetings of two or more members. The law also requires that minutes get taken and made available to the public.
The 1983 Colorado Supreme Court case Cole v. State decided that legislative caucus meetings are subject to the open meeting law, defining them as de-facto policy-making bodies.
The lawsuit alleges, however, that the House with the endorsement of leadership regularly violated that policy.
“Throughout the First Regular Session of the 74th General Assembly, Democratic Caucus members constituting a quorum of every House Committee of Reference met outside of public view, usually weekly, to discuss pending legislation. All Democratic Committee members were expected to attend these meetings which included presentations by bill sponsors, question and answer period, and discussion of members’ expected votes. These meetings were never publicly noticed,” the lawsuit reads, also alleging that Democratic staff members were directed to disguise the meetings from members’ calendars and that meeting minutes were never made available to the public.
It notes a similar arrangement in the Republican caucus. These unannounced caucus meetings are a longstanding practice in the Legislature.
“Our leadership is not at fault that they inherited a swamp,” Marshall told Colorado Newsline. “After six months, we had to conclude that the institution is not likely to reform itself without outside help.”
Marshall, a lawyer, sued the Douglas County School Board in 2022 when it fired former Superintendent Corey Wise, arguing that there were open meeting violations.
“I have no moral aspersions on my colleagues at all. If I hadn’t been doing all that stuff (in Douglas County) and I was told that this was all normal and custom and practice and how we’ve been doing things for years, I likely wouldn’t have questioned it. But it is wrong,” he said.
Steve Zansberg filed the lawsuit on behalf of Marshall and Epps. Zansberg represented Colorado Newsline and five other media outlets in a recent lawsuit against Denver Public Schools concerning open meetings.
Use of Signal app faulted
In addition to those caucus meetings, the lawsuit argues that representatives’ use of Signal, the encrypted messaging application where messages can be automatically deleted, also violates the state’s open meeting law. The lawsuit says that representatives regularly used Signal to discuss witness testimony during committee hearings and votes.
It also alleges that Republicans used Signal to coordinate their walk-out on the last day of session in protest of property tax legislation. Press had been notified of the plan for a Republican walk-out earlier in the day.
“This secret electronic communication among a quorum of the Republican Caucus on the last day of the First General Session of the 74th General Assembly exemplifies the brazen nature of COML violations committed as a matter of routine practice by both Democrats and Republicans,” the lawsuit reads, referring to the Colorado Open Meetings Law.
Epps and Marshall both brought these concerns to Democratic House leadership and the Legislature’s nonpartisan Office of Legislative Legal Services, the lawsuit says, but leadership did not act and the violations continued despite assurance the issue would be addressed. Additionally, at least one House staff member also raised concerns during the 2022 session, before Epps and Marshall took office.
Marshall requested that an interim committee be convened this summer to come up with workable solutions, including modernization of the law to account for technology like Signal. That committee wasn’t approved. He said he chose to bring the lawsuit with Epps after the lawmaking term ended in May, rather than during the session itself, in order to prevent the chamber from coming to a “screeching halt” while it tried to pass policy.
Members of House leadership said they are still working through the lawsuit.
“House Democratic leadership is committed to open and transparent government and ensuring a fair and public process for policymaking. We are still reviewing the complaint in full, and we stand by our caucus — dedicated public servants who work tirelessly on behalf of their constituents,” McCluskie and Duran wrote in a joint statement.
Roger Hudson, the deputy chief of staff for the House GOP, said in a statement that the lawsuit represents what “Coloradans hate about politics at the Capitol.”
“The infighting and expense is only a distraction to the priorities that they care about; improved schools, safer communities, more jobs at higher wages, and better roads throughout our state,” he said. “Republicans continue to believe that the people of Colorado deserve access to their government through comprehensive open meetings and open records laws — we welcome any conversation that will update our statutes to keep up with rapidly evolving technology.”
The lawsuit asks that a judge declare the non-publicized caucus meetings and Signal communication a violation of the open meetings law and bar the defendants from committing further similar violations. Epps and Marshalls are also asking the defendants to pay their attorneys fees.
No hearings have been scheduled yet.
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