Arkansas Valley Publishing Company, d/b/a the Herald Democrat; and Marcia Martinek, Plaintiffs-Appellees,
Lake County Board of County Commissioners, Defendant-Appellant
County District Court No. 13CV30015. Honorable D. Wayne
Sullivan Koch & Schulz, LLP, Steven D. Zansberg, Ashley I.
Kissinger, Denver, Colorado, for Plaintiffs-Appellees.
Evans, LLC, Thomas J. Lyons, Keith M. Goman, Denver,
Colorado, for Defendant-Appellant.
by JUDGE ASHBY. Romá n and Kapelke[*], JJ.,
[¶1] This is an appeal from the district
court's order granting the application of the Arkansas
Valley Publishing Company, d/b/a The Herald Democrat (the
Herald), for an order to show cause, asking the court to
order the Lake County Board of County Commissioners (the
Board) to disclose the audio recording of its February 19 and
20, 2013, executive session. We reverse and remand the case
to the district court for further proceedings.
[¶2] On February 19, 2013, the Board
convened an executive session to discuss a disciplinary
matter involving the Director of the Lake County Building and
Land Use Department (the Director). Lake County did not have
a County Manager, and two members of the Board were serving
as the direct supervisors to that Department. An employee in
the Building and Land Use Department had accused the Director
of criminal conduct. Before the meeting, the Director met
with the County Sheriff and one of the supervising Board
members and confessed to the conduct.
[¶3] During the executive session, the Board
sought legal advice from the County Attorney who advised it
as to available options to respond to the misconduct. They
met for one to two hours before recessing to attend to
personal matters and to participate in the regularly
scheduled monthly meeting. The Board did not mention the
executive session at the monthly meeting, but reconvened the
executive session the next morning for about one hour. The
entire executive session was audio-recorded.
[¶4] On March 18th, the Board published the
minutes of the February 19th meeting prior to the Board's
vote to go into executive session. That same day, the Herald
requested the executive session recording. The Board denied
[¶5] Several months later, the Herald filed
an application to show cause, asking the court to order
disclosure of the recording. The Herald requested disclosure
under both the Colorado Open Meetings Law (OML), sections
24-6-401 to -402, C.R.S. 2014, and the Colorado Open Records
Act (CORA), sections 24-72-200.1 to - 206, C.R.S. 2014. After
a hearing, the court granted the Herald's request based
on its interpretation of the OML, but, at the Board's
request, stayed the order pending this appeal.
Open Meetings Law
[¶6] The Board contends that the district
court erred by granting the Herald's application and
ordering the executive session recordings to be disclosed.
Specifically, the Board contends that the district court
erred by finding that the executive session, held February 19
and 20, was a meeting subject to the OML. We agree that the
meeting was subject to the OML, but conclude that the
exception in section 24-6-402 (2)(f) for supervision of
employees by county commissioners, C.R.S. 2014, applies.
[¶7] We review the district court's
interpretation of the OML de novo. SeeColo.
Off-Highway Vehicle Coalition v. Colo. Bd. of Parks & Outdoor
Rec., 292 P.3d 1132, 2012 COA 146, ¶ 22. In
interpreting statutes, our primary task is to ascertain and
discern the legislature's intent. Id. To do so,
we first look to the language of the statute, giving words
and phrases their plain and commonly understood meanings.
Id.;Gumina v. City of Sterling, 119 P.3d
527, 530 (Colo.App. 2004). If the language is clear, we apply
the statute as written. Free Speech Def ...