An Elbert County mother, Jessica Capsel, recently filed a lawsuit against the Elizabeth School District alleging the school board violated open-meetings law. The incident that led to the suit occurred at the Sept. 11 board meeting, when the Elizabeth School Board passed a “Resolution to Keep Elizabeth Schools Open and Education Unrestricted,” opposing mask and vaccine mandates.
Capsel, who moved to the area in 2019, has two children and holds degrees in writing and public health but currently works as a child nutritionist. Wherever she’s lived, she has always tried to pay attention to school board meetings and participate in the district. “You can’t just assume that the school board is doing things in the best interest of the students,” she said.
Capsel believes the district violated the Colorado Open Meetings Law (part of the Colorado Sunshine Law) by adding the resolution to the agenda at the last minute, therefore not giving parents or community members a chance to read and respond to the resolution beforehand.
Capsel said she pulled up the agenda at 2 p.m. the day of the meeting and did not see the resolution listed. When she looked again around 6 p.m., the time the board meeting was set to start, she saw the link to an amended agenda and another link to the resolution.
She feels like the resolution came out of nowhere, with no discussion beforehand at previous meetings and without opportunity for input. The posted resolution was already dated Sept. 11 so it seemed like a foregone conclusion that it would be passed by the board.
Capsel said she didn’t want to file a lawsuit but that, “anyone who violates an open meeting law is only held accountable if a citizen files a lawsuit. That’s the only way to get someone to look at it and pay attention.” She feels that she “can speak up in a way that other people in the community can’t because they have ties to the district.”
In a March article from Courthouse News Service, Jeremy Meyer, spokesperson for the Colorado Department of Education, spoke to this issue, “There is no Colorado state agency that oversees local school districts’ compliance with the open records and open meetings laws. If an individual believes the local school district has violated one of these laws, they can take their concern to the courts, and the courts will decide whether the local district complied with these laws.”
Colorado’s Open Meeting Law states, “Any meetings at which the adoption of any proposed policy, position, resolution, rule, regulation, or formal action occurs or at which a majority or quorum of the body is in attendance, or is expected to be in attendance, shall be held only after full and timely notice to the public.
“In addition to any other means of full and timely notice, a local public body shall be deemed to have given full and timely notice if the notice of the meeting is posted … no less than twenty-four hours prior to the holding of the meeting … The posting shall include specific agenda information where possible.”
Capsel added that “the whole point of open meeting laws is that we as parents and the community get to participate in the process and see the process happening.”
Court set precedent
Jeffrey Roberts, the executive director of the Colorado Freedom of Information Coalition, referenced a legal precedent established in Town of Marble v. Darien.
He wrote: “The Colorado Supreme Court in 2008 described the notice requirement as a ‘flexible standard’ but went on to say that a notice is sufficient if the items actually considered at the meeting are reasonably related to the subject matter indicated by the notice.
“The point of the notice requirement is to make sure the community knows what’s coming up at the meeting so they can decide whether to attend or tune in online or perhaps state their opinion during a public comment period. If there’s an emergency and something needs to be added to the agenda at the last minute, that’s reasonable. But a resolution about a topic of public interest that’s not an emergency can wait until the next meeting so the public can be adequately notified.”
In regards to the timeline for the resolution, District Superintendent Dan Snowberger said, “school boards regularly modify agendas at the start of board meetings when new information or items surface. Meetings must be noticed 24 hours in advance. That meeting was noticed on Friday, Sept. 8. In the case here, the resolution draft was received by a board member after the initial posting and notice of the meeting over the weekend.
“The resolution was posted publicly at 12:36 pm and an amended agenda was posted on Monday, September 11 at 1:32 pm. Had the board decided, it could have been added at the start of the meeting, but we posted as soon as we were able to add it on Monday for transparency (sic) sake.”
At the beginning of the Oct. 2 Board of Education Meeting, Board President Rhonda Olsen clarified the reasoning behind adopting the resolution.
“I wanted to bring up the resolution that we passed on Sept. 11 … We did it because we were receiving escalating concerns from parents regarding the mandates that they were seeing enacted across the country. The resurgence of mandates regarding masks, regarding, you know, what goes on in our schools.
“And this was a way to reaffirm our position. We are not changing the way that we are doing anything. This resolution was simply reaffirming that we will not mandate masks for our children or our staff. We will not mandate vaccinations for our children or our staff.”
At the Oct. 23 Elizabeth School Board meeting, Vice President Heather Booth addressed the lawsuit as well as CORA requests made by Capsel and Roxanne Aviles, who was a candidate running for school board.
“From time to time, all school districts have likely experienced situations where this law seems to be utilized for personal agendas and even to harass leadership … in conjunction with our upcoming school board elections, we have been faced with a number of huge requests from Mrs. Aviles and Ms. Capsel.”
In regard to what processing CORA requests could cost the district, Booth said, “these CORA requests by Mrs. Aviles and Ms. Capsel, in September and October, have cost us several thousands dollars that ought to be used to educate students instead of being used to support political agendas.”
“Then more recently, Ms. Capsel decided to file a lawsuit. All because we adopted a resolution to declare that we oppose the reinstatement of mask mandates. The [basis] for the lawsuit is that we amended our agenda and at a regular board meeting, which is perfectly legal to do so, and added the resolution because we only obtained it the weekend before. So this lawsuit will likely cost us another several thousand dollars to defend legal action taken by the board. And the only thing she could even win is to force us to revote on the resolution in a future meeting.”
Booth went on to say she values transparency and accused Capsel and Aviles of taking money away from students. “But for two people to use CORA as a way to steal money from our classrooms seems to be a violation of public trust.”
District Public Information Officer Jason Hackett said the cost of CORA requests to the district is “not a cut and dried process” and that “calculating the actual cost of fulfilling a CORA request is difficult.”
Superintendent Snowberger agreed that the requests were placing unnecessary strain on district resources and reached out to Capsel personally to ask her to stop submitting CORA requests.
Because Capsel is requesting official public documents, she’d prefer to use the formal process already in place. She expressed frustration at the accusation she’s stealing money and added that she’s only made five CORA requests over the span of two months. Two requests had to be revised and resubmitted.
Aviles also pushed back against the accusations in a written response. “During the October 23rd school board meeting, Director Booth accused me of using ‘CORA as a way to steal money from our classrooms.’ This is a libelous and charged statement as I have absolutely not stolen anything from our classrooms, let alone money,” Aviles wrote. “In addition, she also indicated that it was costing our district thousands of dollars, which, based on legal invoices I obtained, is also untrue and highly exaggerated.”
Aviles continued: “Any citizen in our community has the right to request inspection of public documents retained by local government agencies, including our school district, through the process of CORA. Had our school board been transparent in their communication, as required by law, these requests would not have been necessary. I can only hope that lessons have been learned and that our school board will consider transparency as they move into their next chapter of serving our staff and students.”
All have legal rights
Under the Colorado Open Records Act (CORA) citizens have the right to request inspection of public documents retained by local and state government agencies at reasonable times.
The Elizabeth School District page for such requests is available here and reads, “In accordance with the Colorado Open Records Act (CORA), Elizabeth School District is happy to assist with requests for public records. In order to be considered a public record, it must be maintained by the district.” The page also specifies that “some records are not open for public inspection, including student records and portions of personnel files.”
Capsel’s lawyer, Matt Roane, has filed other similar lawsuits within the state of Colorado as well as a separate pending lawsuit against the Elizabeth School District. Snowberger says that such suits “take necessary resources away from children and staff in launching a legal defense.”
Since 2019, Roane has filed 60 civil complaints in Colorado courts against 47 school districts, two boards of county commissioners, two towns, one metropolitan district and a small city. The article is dated March 2023, so this number may have increased since then.
“If I can help get people talking about sunshine laws and paying attention to this stuff, keeping government accountable, then I feel like we’re moving in the right direction,” he said.
Elbert County News reached out to Rhonda Olsen and Heather Booth for additional comment but did not receive a response by press time. Attorney Matt Roane declined to comment on an open case.
Elizabeth School District Meeting minutes and agendas are available at: https://www.elizabethschooldistrict.org/domain/124