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D.A.'s advisory board ruled not a public body

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D.A.’s advisory board ruled not a public body

  • The Colorado Court of Appeals held that a district attorney’s Citizens Advisory Board is not subject to the state’s Open Meetings Law.

Oct. 16, 2003 — A Colorado district attorney’s Citizens Advisory Board is not a public body subject to the state’s Open Meetings Law, the Colorado Court of Appeals ruled last week.

The ACLU of Colorado brought suit on behalf of the Free Speech Defense Committee in order to gain access to the Advisory Board’s monthly meetings. The Free Speech group objected to a prosecutor’s decision to impanel a grand jury to investigate protest activities directed at what it perceived to be “sweat shop” activities.

Holli L. Hartman, one of the private attorneys acting on behalf of the ACLU, said the committee wanted to see how Jefferson County District Attorney David J. Thomas made decisions, particularly relating to a grand jury investigation of the Denver Justice and Peace Committee, a sister organization of Free Speech Defense.

Thomas said he denied committee members access to the meetings because they wanted to debate an issue not on the agenda. Thomas said he had never previously denied the public access to the meetings. “I’m not trying to do anything out of the public view,” he said.

On Oct. 9, the court of appeals upheld the trial court’s decision that Thomas, as an executive official, did not fit the statutory definition of a public body, and therefore his advisory board is not subject to the state’s Open Meeting Law. Additionally, the appeals court held, because “no governmental decision-making authority had been delegated to the advisory board,” the board itself did not fit the statutory definition of a public body.

The court based its decision on the findings of the trial court that “the activities of the board are to entertain and enlighten [its] members as to the function and accomplishments of the district attorney’s office.” Furthermore, the trial court held, there was “no evidence that Thomas was ever persuaded to take action by a member’s suggestion, and Thomas was not bound by anything the board told him.”

“Our contention is that it does provide advice,” says Hartman. “(Thomas) listens to what they have to say and factors it into his decisions.” Moreover, she points out, “the Open Meeting Law is a content neutral law. They can’t pick and choose who comes.”

The problem, according to Hartman, is that the court’s decision allows the district attorney’s office to conduct business away from public scrutiny. “We have no way to prove exactly what they discuss in those meetings,” she added. “We really feel this tears a large hole in the Open Meetings Law.”

(Free Speech Defense Committee v. Thomas; Plaintiff counsel: Holli L. Hartman, Baker & Hostetler, Denver; Mark Silverstein, ACLU of Colorado, Denver) GP


© 2003 The Reporters Committee for Freedom of the Press

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