July 16, 2015
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. See Colo.
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 Comm. v.
Thomas, 80 P.3d 935, 936 (Colo.App. 2003). If the
language is ambiguous, we may look to external sources to
discern legislative intent. Id.
[¶8] The legislative policy underlying the
OML is " that the formation of public policy is public
business and may not be conducted in secret." §
24-6-401. Therefore, as relevant here, the statute provides
that " [a]ll meetings of a quorum or three or more
members of any local public body, whichever is fewer, 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." § 24-6-402(2)(b);
see § 24-6-402(1)(b) (A " meeting" is
" any kind of gathering, convened to discuss public
business, in person, by telephone, electronically, or by
other means of communication." ).
[¶9] " Public business" is not
defined in the statute, but the supreme court has held that
" a meeting must be part of the policy-making process to
be subject to the requirements of the OML. A meeting is part
of the policy-making process if it concerns a matter related
to the policy-making function of the local public body
holding or attending the meeting." Bd. of Cnty.
Comm'rs v. Costilla Cnty. Conservancy Dist., 88 P.3d
1188, 1194 (Colo. 2004).
[a]ny 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.
§ 24-6-402(2)(c) (emphasis added). Full and timely
notice requires posting the anticipated agenda of the meeting
in a public place at least twenty-four hours before the
meeting is to be held. Id.
[¶11] However, meetings involving the "
day-to-day oversight of property or supervision of employees
by county commissioners" are exempt from the notice
requirement. § 24-6-402(2)(f). And personnel discussions
may take place in executive session, the record of which is
generally not available for public inspection. § §
24-6-402(2)(d.5)(II)(D), (4)(f)(I); see
Gumina, 119 P.3d at 531.
[¶12] Here, the Board convened a meeting
without giving advance notice of it. The Board then voted to
go into executive session to discuss personnel matters and
closed the doors to the meeting room. The personnel matters
it discussed were the available disciplinary options to
address the Director's misconduct. During the executive
session, which was held over the course of two days, the
Board consulted with the county attorney and with the
Director. By the end of the executive session, the Director
had tendered his resignation.
[¶13] The district court found that the
" subject of the meeting did concern formal board
action." However, the court also concluded, with record
support, that the Board did not intend to take formal action
against the Director in the executive session, but planned to
" go into a public meeting and make a decision about the
status of [the Director's] employment." It is
important to distinguish obtaining legal advice and having
discussions about available disciplinary options from taking
formal action in response to the employee's conduct. We
leave for another day the determination whether it is
necessary to take such formal action in a public meeting or
whether firing, as the ultimate form of disciplinary action,
is a decision that may be made in executive session.
[¶14] We conclude that this meeting falls
within the notice exception of section 24-6-402(2)(f):
supervision of employees by county commissioners. The
allegations against the Director related to criminal conduct
during work hours. Before convening the executive session,
the Sheriff and at least one Board member had spoken with the
Director, and he admitted to the alleged conduct. Although
the county has a zero tolerance policy related to the
misconduct, the subject of the executive session was to
discuss the options available to the Board in implementing
that zero tolerance policy under the circumstances presented.
The Board was not adopting or amending a policy, but rather
discussing the application of an existing policy to the
situation presented by the Director's conduct.
[¶15] The district court concluded that this
was not the type of day-to-day supervision of employees
described in the OML notice exception. We disagree. We
conclude that employee disciplinary matters directed toward
an individual employee are precisely the type of day-to-day
supervision the statute meant to exempt. And, contrary to the
Herald's contention, we do not find the phrase "
day-to-day" to be ambiguous. It would lead to an absurd
result to require all disciplinary or other supervisory
matters for a specific employee that involve a quorum of
board members to be discussed in public meetings.
See Costilla Cnty., 88 P.3d at 1192-93
(" If an interpretation of the statute would produce an
absurd result, that interpretation is not favored." ).
It is the nature of the action that may be taken -- e.g.,
employee supervision, including discipline or periodic
performance evaluation of an employee -- as opposed to the
nature of the employee's conduct - e.g., tardiness,
incompetence, or criminal misbehavior -- that determines
whether the meeting falls within the day-to-day supervision
exemption. Discipline of an employee falls within the scope
of routine, day-to-day supervision. Simply because the
employee's conduct may not have been routine did not
transform the Board's supervisory role into something
[¶16] Further, requiring advance notice of
this type of personnel meeting or discussion does not further
the purpose of the OML. See Cole v. State,
673 P.2d 345, 349 (Colo. 1983) (" The intent of the Open
Meetings Law is that citizens be given the opportunity to
obtain information about and to participate in the
legislative decision-making process which affects, both
directly and indirectly, their personal interests." );
Colo. Off-Highway Vehicle Coal., ¶ 23 ("
[W]e interpret the OML broadly to further the General
Assembly's intent to give citizens a greater opportunity
to meaningfully participate in the decision-making process by
becoming fully informed on issues of public importance."
); see also Gumina, 119 P.3d at 530 ("
In determining the meaning of a statute, we must adopt a
construction that will serve the legislative purposes
underlying the enactment." ). Generally, disciplinary
decisions and application of an existing personnel policy to
an individual employee are not matters that require, or are
necessarily appropriate for, public input. And the
public's right to know what formal action may be taken
following any personnel discussion was protected here by the
Board's plan to take any formal action or make any change
in policy at a meeting for which the public had notice and a
right to attend. § 24-6-402(4).
[¶17] Therefore, we conclude that the Board
was not required to provide full and timely notice before
convening the executive session to discuss the Director's
employment status. See Costilla Cnty., 88
P.3d at 1194.
[¶18] We disagree with the district court
that this interpretation of section 24-6-402(2)(f) cannot be
harmonized with section 24-6-402(4)(f)(I), which permits
personnel matters to be discussed in executive session unless
an employee requests that the meeting be open to the public.
Personnel matters may include a wide-ranging list of topics,
including setting rates of compensation or the amount of
leave employees may earn. Subsection (4)(f)(I) includes all
personnel matters for any local public body, not just
day-to-day supervision by county commissioners. And
subsection (2)(f) relates only to the notice requirement,
whereas subsection (4)(f)(I) relates to whether the records
of personnel discussions must be made available to the
public. See § 24-6-402(2)(d.5)(II)(D). For any
personnel matter not falling within subsection (2)(f)'s
limited scope, proper notice is still required before the
local public body may convene an executive session. We
perceive no conflict.
[¶19] Therefore, here, because the Director
did not request that the discussion occur in an open meeting,
it was proper for the Board to discuss this personnel issue
in executive session. And, while we do not know precisely
what was discussed during the executive session, the court
found, with record support, that the Board did not adopt a
proposed policy, position, resolution, rule, regulation, or
formal action during that meeting. It became unnecessary for
the Board to take formal action when the Director tendered
his resignation. Further, a member of the Board testified
that, had the Director not resigned, it would have gone into
open session to make a final decision whether to continue or
terminate the Director's employment. See
Hanover Sch. Dist. No. 28 v. Barbour, 171 P.3d 223,
228 (Colo. 2007) (" While in executive session, the
members may discuss policies, but they are limited in their
policy making authority and may not adopt positions or make
formal decisions." ).
[¶20] Therefore, we conclude that the Board
permissibly discussed this employee-specific personnel issue
in executive session and that the record of that meeting is
not subject to disclosure under the OML. See §
24-72-204(5.5)(a), C.R.S. 2014 (" Any person seeking
access to the record of an executive session meeting of . . .
a local public body . . . shall, upon application to the
district . . . show grounds sufficient to support a
reasonable belief that the . . . local public body engaged in
substantial discussion of any matters not enumerated in
section 24-6-402(3) or (4) or that the state public body or
local public body adopted a proposed policy, position,
resolution, rule, regulation, or formal action in the
executive session in contravention of section 24-6-402(3)(a)
or (4)." ).
[¶21] Accordingly, we conclude that the
district court erred by granting the Herald's request for
the Board to disclose the records of the executive session.
And, because of our resolution of this contention, we need
not address the Board's remaining contentions regarding
the emergency nature of the meeting or the Board's
post-meeting attempts to cure the lack of notice. Whether
this executive session was called without notice due to an
emergency, which is a recognized exception to the
twenty-four-hour notice requirement, and whether the actions
the Board took after the meeting had concluded were
sufficient to cure the fact that it was not properly convened
are determinations that are not relevant in light of our
holding that the executive session was properly convened.
See Gumina, 119 P.3d at 531; Lewis v.
Town of Nederland, 934 P.2d 848, 851 (Colo.App. 1996).
[¶22] Therefore, we reverse the district
court's order requiring disclosure of the executive
[¶23] The Herald has requested appellate
attorney fees under sections 24-6-402(9) and 24-72-204(5),
C.R.S. 2014. Those sections provide that if a violation of
the OML has occurred, or if the party requesting access to
OML records has been wrongfully denied access thereto, the
prevailing party shall be awarded his or her reasonable
attorney fees and costs. Conversely, if the OML was not
violated or the local public body properly denied the
requesting party access to the records, then the local public
body is entitled to its reasonable attorney fees and costs
only if the court finds that the action was frivolous,
vexatious, or groundless.
[¶24] Because we have concluded that the
Board did not violate the OML or wrongfully deny the Herald
access to the records of its February 19 and 20, 2013,
executive session, we further conclude that the Herald is not
entitled to attorney fees and costs. The Board is also not
entitled to attorney fees and costs because neither the
underlying action nor the appeal was frivolous, vexatious, or
[¶25] We reverse the district court's
order requiring the Board to disclose the record of its
executive session, held February 19 and 20, 2013. The
district court's order was based entirely on its
interpretation of the OML and did not address the
Herald's alternative argument that the record was subject
to disclosure under CORA. Therefore, we remand the case to
the district court to address, as appropriate, the
Herald's alternative grounds for disclosure under CORA.
ROMÁN and JUDGE KAPELKE concur.
[*]Sitting by assignment of the Chief Justice
under provisions of Colo. Const. art. VI, § 5(3), and
§ 24-51-1105, C.R.S. 2014.