Colorado courts appear to be silent on the legality of meetings often called “serial meetings, “walking quorums” or “daisy-chain meetings” and whether they violate the state’s open meeting laws.
A lawsuit against the Douglas County Board of Education seeks to get an answer.
On Feb. 4, roughly an hour before a hurriedly called special meeting of the Douglas County School Board, Highlands Ranch resident Robert Marshall filed a lawsuit against the board and its conservative majority members — Mike Peterson, Becky Myers, Christy Williams and Kaylee Winegar.
He is alleging the four directors talked in private, one-on-one meetings to reach a consensus about removing former Superintendent Corey Wise. Marshall’s suit is asking a judge to declare the directors violated open meeting laws, also called Sunshine Laws, in the process.
Colorado Community Media requested interviews with majority directors regarding the lawsuit against them.
“We are unable to comment on pending litigation,” said Paula Hans, the district’s public information officers.
She also did not immediately respond when asked which legal counsel is representing the directors in this case.
These court cases are rare, said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition. Case law on serial meetings exists in several states, but Roberts is not aware of any in Colorado, so “it’s impossible to know what would happen if that were taken to court.”
Filings in Marshall’s lawsuit cite cases in Louisiana, Hawaii, Nevada and more. Other jurisdictions “found that weaving together multiple individual meetings to come to a collective discussion and reach a collective understanding or decision is the equivalent if all the individuals had met collectively,” the suit says. The motion also acknowledges that “Colorado courts seem to not have addressed this issue.”
“We’re kind of in uncharted territory,” Marshall told CCM.
Quorum rules
The lawsuit followed allegations made Jan. 31 by minority board directors David Ray, Susan Meek and Elizabeth Hanson. The three publicly claimed the board majority broke open meetings law by deciding in closed-door discussions to remove the superintendent.
On Jan. 28, Peterson and Williams issued the superintendent an ultimatum, minority directors said, telling him to resign or be fired.
Those claims and large-scale community protests prompted the board’s Feb 4 special meeting, where Sunshine Laws were hotly debated. Majority directors emphatically denied any wrongdoing.
Colorado law declares a public meeting to be any gathering of three or more local school board members, or a quorum if that is fewer, during which public business is discussed.
“Maybe they are relying on the fact that the open meetings law says that two members of a public body can talk about any matter,” Roberts said about the Jan. 31 allegations, “but if they are doing it systematically to purposefully circumvent the quorum requirement, that’s certainly not in the spirit of the law.”
CCM with Sunshine Law experts including Steve Zansberg before the lawsuit against school board directors was filed. Zansberg, a well-known Colorado attorney in the field of open meetings law, has since joined Marshall’s legal team bringing the lawsuit against DCSD’s board.
Walking quorum, daisy chain or serial meetings might happen in various capacities, such as in-person, by email, phone, text message or social media.
“It doesn’t matter how it gets done,” Zansberg said. “All of these efforts to evade the quorum requirement effectuate a meeting.”
About the Jan. 31 allegations, Zansberg said, if true, they indicated at least four board members communicated about a matter of public business and “that some polling was done.”
“If that’s all true, then that’s a confession that the open meetings law was violated, because four members of this board cannot discuss that matter of public business outside of a publicly noticed meeting that is open to the public and to which the public had a right to observe or attend,” Zansberg said.
In their words
During the Feb. 4 meeting, majority directors explained in their own words what led to the private meeting with Wise and rebuked accusations they acted illegally.
“There was complete compliance with open meeting requirements and the Sunshine Laws,” Peterson said. “When one director meets with another director, whether it’s text, in-person, by phone or other means, even if they are discussing school business, that is not a violation.”
Peterson said in recent weeks he received concerns about the superintendent from majority board directors. He described the Jan. 28 meeting with Wise as the start of a conversation about his future with the district and potential retirement plans, and Peterson confirmed they broached the idea of Wise resigning.
Peterson and Williams said they considered meeting with Wise privately the ethical thing to do.
“Director Williams and I wanted to convey our individual concerns as directors, discuss all contract options available and allow the superintendent to consider how he wanted things to proceed before joint board action was decided or taken,” Peterson said.
Williams stressed she never met with more than one other board director at a time, saying the law allows up to two members of a local public body to talk official business outside public meetings.
“I want to make very clear I followed the law to the letter,” she said.
Peterson maintained no formal action was taken against Wise and the superintendent was given time to come back with more input on his future with DCSD.
“There was no, `You will resign.’ There was no direction to resign,” Peterson said. “There was a discussion of all the options available in his contract, including his ability to terminate it.”
Minority directors pushed back. Meek said majority directors made clear that a meeting was held with Wise without the full board’s knowledge or consent, and he was given an ultimatum.
Peterson and Williams informed minority directors of their meeting with Wise hours after it took place. Williams spoke to Ray, and Peterson spoke to Hanson and Meek.
Ray, Meek and Hanson cited transcripts of recordings of their Jan. 28 phone calls with Peterson and Williams.
“What a gross mischaracterization of at least the conversation I had with Director Williams, to say it was just, `We’re opening a conversation to ask the superintendent how to proceed,’” Ray said.
Ray read from a transcript of his call with Williams, saying “I specifically asked Director Williams, `So you are asking him to resign by Wednesday, otherwise you are moving forward with termination? Is that correct?’ Her response, `Exactly that.’”
Minority directors focused on the allegation that giving Wise an ultimatum was a formal decision made outside a publicly held meeting, which they see as a violation of Sunshine Laws.
Hanson referenced Colorado case law for constructive discharge, saying an ultimatum to resign or be fired is the legal equivalent of terminating Wise.
“You took formal action, whether there were two of you there or whether the four of you had conversations, because you took it upon yourself to constructively discharge, to fire our superintendent, without having a public meeting,” Hanson said.
Peterson refuted that interpretation of state law.
“Again, I don’t think there has been a decision made on this. There were directors that have contacted me individually and expressed some grave concerns. When I had more than one director contact me, I contacted Director Williams and said, `We should express these concerns and talk to the superintendent and then figure out where we’re going to go,’” Peterson said.
Official action?
Does asking a superintendent to resign constitute official action?
Yes or no, that’s beside the point, Zansberg said.
State law says any meetings “at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times,” Zansberg said.
And “or” is a key word there, Zansberg said. It’s not just formal action that needs to be done in the public eye but also discussions about public business.
A properly noticed executive session allows elected officials to talk about certain issues behind closed doors, but “even in those meetings there can’t be any decision or even the adoption of a position,” Zansberg said.
On Feb. 4, Wise exercised his right under law to have directors discuss his personnel matter publicly. The law also allows that discussion to take place in executive session as long as no decisions are made there.
Roberts said three or more directors talking about hiring, firing, policymaking and so forth are talking public business.
“It’s an important decision that should be done in a public setting, and whether it’s firing the superintendent, asking the superintendent to resign, that’s something that a majority of the board in a public setting would do,” Roberts said.
What happens if the law was violated?
Alleged Sunshine Law violations are settled in court if someone chooses to bring suit like Marshall has. Anyone, whether that’s a community member or the superintendent himself, could challenge an incident through a lawsuit and ask a judge to determine if open meeting laws were violated.
If the judge sides with Marshall, he would be awarded attorney fees. Zansberg said the law allows a declaration that open meetings rules were broken, and any decisions made outside the confines of a properly held meeting would be considered null and void.
Marshall said it’s not impossible the court could find Wise’s firing illegitimate under these circumstances. He also is hoping for a permanent injunction that would bar the directors from using walking-quorums or similar approaches again.
“It seems like they think they didn’t do anything wrong, so if they don’t get stopped, they’ll do it again,” Marshall said.
For a case to be precedent setting, Roberts believes the district judge’s decision would first need to be appealed, and then, the Colorado Court of Appeals would publish an opinion.
It would be significant, he said. Without a precedent-setting ruling expressly saying these type of meetings are not permitted, “what’s to stop members of a public body from routinely conducting the public’s business in secret,” he said by email.
“The point of the open meetings law is that `the formation of public policy is public business and may not be conducted in secret,’” Roberts said. “It’s right there in the first paragraph.”