Open Government Guide CO item

Open Meetings

I. STATUTE -- BASIC APPLICATION.

D. What constitutes a meeting subject to the law.

2. Nature of business subject to the law.

(a). Public Business. Meetings subject to the Sunshine Law are "any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication." Colo. Rev. Stat. § 24-6-402(1)(b). This general rule of application, however, is subject to several specific exceptions. Board of County Comm'rs, Costilla County v. Costilla County Conservancy Dist., 88 P.3d 1188 (Colo. 2004) (for a meeting to be subject to Open Meetings Law, there must be a demonstrated link between the meeting and the policy-making powers of the public body, for example enactment of a rule, regulation, or ordinance, or a discussion of a pending measure or action which is subsequently "rubber stamped" by the public body. Mere discussion of matters of public importance does not trigger the Open Meetings Law.)

(b). Public Employment. Meetings of a state public body to consider appointment or employment of public officials or employees or the dismissal, discipline, promotion, demotion, compensation of, or charges or complaints against public officials or employees are open unless the public applicant, official, or employee requests an executive session. Colo. Rev. Stat. § 24-6-402(3)(b). However, meetings of local public bodies to consider similar matters with respect to public employees (not public officials) are closed unless the subject of the executive session requests that it be conducted as an open meeting. Colo. Rev. Stat. § 24-6-402(4)(f).

(c). Exemptions.

i. Social gatherings. The Sunshine Law does not apply to any chance meeting or social gathering at which discussion of public business is not the central purpose. Colo. Rev. Stat. § 24-6-402(2)(e).

ii. Executive sessions. A state public body otherwise subject to the Sunshine Law may, after an announcement to the public of the topic for discussion in the executive session and upon a two-thirds vote of its entire membership, and a local government upon a two-thirds vote of the quorum present, hold an executive session at regular or special meetings. Colo. Rev. Stat. § 24-6-402(3)(a) (state); Colo. Rev. Stat. § 24-6-402(4) (local). Discussion in an executive session of a state or local public body shall be recorded in the same manner and media that the body uses to record minutes of open meetings. An electronic recording satisfies the requirement. A public body going into executive session shall identify the particular matter to be discussed therein in as much detail as possible. Colo. Rev. Stat. § 24-6-402(2)(d.5)(I)(A). The public body may meet in executive session only to consider the following matters:

(1) Purchase or sale of public property, if premature disclosure of information would give an unfair advantage to any person whose private interest is adverse to the public interest. Colo. Rev. Stat. § 24-6-402(3)(a)(I) (state); Colo. Rev. Stat. § 24-6-402(4)(a) (local).

However, no member of a state public body may request an executive session as a subterfuge for providing covert information to prospective buyers or sellers, and no member of a local public body may request an executive session for the purpose of concealing that the member has a personal interest in the transaction.

(2) Conferences between a state public body and its attorney to consider legal disputes involving the public body, if the disputes are the subject of pending or imminent court action, Colo. Rev. Stat. § 24-6-402(3)(a)(II), and conferences between a local public body and its attorney for the purpose of receiving specific legal advice on specific legal questions. Colo. Rev. Stat. § 24-6-402(4)(b). Cf. Denver Post Corp. v. University of Colorado, 739 P.2d 874 (Colo. App. 1987) (attorney-client privileged communications exempt from Open Records Act). The mere presence or participation of an attorney at an executive session does not satisfy the requirements. However, when an attorney representing a public body determines that a portion of an executive session constitutes a privileged attorney-client communication, no record need be kept thereof and any written minutes shall contain a signed statement by the attorney attesting to the privilege and a signed statement by the chair of the session. Colo. Rev. Stat. § 24-72-204(5.5)(II)(B).

(3) Matters required to be kept confidential by federal law or rules or state statute. Colo. Rev. Stat. §§ 24-6-402(3)(a)(III) (state) and 24-6-402(4)(c) (local). The local public body shall announce the specific citation of the statutes or rules that serve as the basis for such confidentiality before holding the executive session. Colo. Rev. Stat. § 24-6-402(4)(c). See, e.g., Gillies v. Schmidt, 38 Colo. App. 233, 556 P.2d 82 (1976) (public committee subject to local government open meetings law on child abuse may hold executive session not subject to Open Meetings Act to consider child abuse reports and related records where statute required such records to be kept confidential). However, non-confidential matters may not be discussed in closed executive sessions. Gillies v. Schmidt, supra.

(4) Specialized details of security arrangements and investigations regarding defenses against domestic and foreign terrorism which, if disclosed, might reveal information which could be used for violating the law. Colo. Rev. Stat. §§ 24-6-402(3)(a)(IV) (state) and 24-6-402(4)(d) (local).

(5) Positions and strategies on matters subject to negotiations with employees or employee organizations, i.e., matters pertaining to collective bargaining. Colo. Rev. Stat. §§ 24-6-402(3)(a)(V) (state) and 24-6-402(4)(e) (local).

(6) Meetings of a state public body to consider appointment or employment of public officials or employees or the dismissal, discipline, promotion, demotion, compensation of, or charges or complaints against public officials or employees are open unless the public applicant, official, or employee requests an executive session. Colo. Rev. Stat. § 24-6-402(3)(b). However, meetings of local public bodies to consider similar matters with respect to public employees (not public officials) are closed unless the subject of the executive session requests that it be conducted as an open meeting. Colo. Rev. Stat. § 24-6-402(4)(f).

iii. Local public bodies may meet in executive session, in addition to the matters listed above to consider the following matters:

(1) Documents protected by the mandatory nondisclosure provisions of the Open Records Act. Colo. Rev. Stat. § 24-6-402(4)(g).

(2) Discussion of individual students where public disclosure would adversely affect the persons involved. Colo. Rev. Stat. § 24-6-402(4)(h).

iv. Governing Boards of Institutions of Higher Education (including Board of Regents of University of Colorado). In addition to the matters listed above which may be considered in a closed executive session, the governing board of any institution of higher education, upon its own affirmative vote, may meet in executive session to consider the following matters:

(1) Gifts. Governing boards of state universities may also hold executive sessions to consider acquisition of property as a gift, if requested by the donor. Colo. Rev. Stat. § 24-6-402(3)(a)(I).

(2) Legal Advice. Conferences with an attorney concerning specific claims or grievances or for purposes of receiving legal advice on specific legal questions. However, the mere presence of an attorney at an executive session does not satisfy this requirement. Colo. Rev. Stat. § 24-6-402(3)(a)(II). See Associated Students v. Regents of University of Colorado, 189 Colo. 482, 543 P.2d 59 (1975) (Open Meetings Law does not repeal attorney-client privilege).

(3) Patient Care Programs. Matters and reports concerning initiation, modification, or cessation of patient care programs at University of Colorado Hospital, if premature disclosure of the information would give anyone an unfair advantage. Colo. Rev. Stat. § 24-6-402(3)(a)(VI).

(4) Honorary awards. Nominations for the awarding of honorary degrees, medals and other institutional awards, as well as proposals for the naming of a building after a person. Colo. Rev. Stat. § 24-6-402(3)(a)(VIII).

(5) Student Discipline. Executive sessions may be held to review administrative actions regarding investigations and reports of charges and complaints against students, unless the student has specifically requested or consented to disclosure of such matters. Colo. Rev. Stat. § 24-6-402(3)(b).

v. State Parole Board. The state parole board may, by two-thirds vote of the membership present, meet in executive session to consider matters connected with any parole proceedings under its jurisdiction. Colo. Rev. Stat. § 24-6-402(3)(c). However, no final parole decisions may be made by the board while in executive session.

vi. Nonprofit corporations. Nonprofit companies incorporated pursuant to section 23-5-121(2), C.R.S. may hold executive sessions to review matters concerning trade secrets, privileged information, and confidential commercial, financial, geological, or geophysical data. Colo. Rev. Stat. § 24-6-402(3)(a)(VII).

(d). Final Decisions to be Made in Public. Although executive sessions may be held to conduct deliberations on a matter exempt from the Open Meetings law, any final decision must be taken at a subsequently reconvened public meeting. See Colo. Rev. Stat. § 24-6-402(3)(a) (state agencies); Colo. Rev. Stat. § 24-6-402(4) (local government); Colo. Rev. Stat. § 22-32-108(5) (school boards); see also Bagby v. School Dist. No. 1, 186 Colo. 428, 528 P.2d 1299 (1974) (holding that the Open Meetings Law is designed to avoid mere "rubber stamping" in public decisions that are effectively made in private, since the public is entitled to know "the discussions, the motivations, the public arguments and other considerations which led to the discretion exercised . . ."); Einarsen v. City of Wheat Ridge, 43 Colo. App. 232, 604 P.2d 691 (1979); Glenwood Post v. City of Glenwood Springs, 731 P.2d 761 (Colo. App. 1986); Hudspeth v. Board of Cty. Comm'rs, 667 P.2d 775 (Colo. App. 1983).

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