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Arkansas Valley Publishing Co. v. Lake County Board of County Comm'rs

Court of Appeals of Colorado, Fifth Division

July 16, 2015

Arkansas Valley Publishing Company, d/b/a the Herald Democrat; and Marcia Martinek, Plaintiffs-Appellees,
v.
Lake County Board of County Commissioners, Defendant-Appellant

          Lake County District Court No. 13CV30015. Honorable D. Wayne Patton, Judge.

         Levine Sullivan Koch & Schulz, LLP, Steven D. Zansberg, Ashley I. Kissinger, Denver, Colorado, for Plaintiffs-Appellees.

         Hall & Evans, LLC, Thomas J. Lyons, Keith M. Goman, Denver, Colorado, for Defendant-Appellant.

         Opinion by JUDGE ASHBY. Romá n and Kapelke[*], JJ., concur.

          OPINION

         ASHBY, J.

          [¶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.

         I. Background

          [¶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 the request.

          [¶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.

         II. 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 ...


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