Let the Sun Shine In! Open Meetings Help Ensure Transparency in State Government

by Julie Pelegrin

Throughout Colorado people like to open their homes to take advantage of the 300-plus days of sunshine the state gets each year. By law, Colorado’s government is required to open its meetings to let the sunshine — and the public — in.

Under part 4 of the “Colorado Sunshine Act of 1972”, (section 24-6-401 and section 24-6-402, C.R.S.) the General Assembly declares that “it is the policy of this state that the formation of public policy is public business and may not be conducted in secret.” To ensure that the public governing bodies in Colorado, including the General Assembly, meet this objective, the statutes require that all meetings of a public body at which public business is discussed or at which any formal action may be taken must be open to the public. But exactly how does this requirement for open meetings apply to the General Assembly and its members?

The open meetings law applies to “state public bodies”, which is broadly defined to include  any board, committee, commission, or other advisory, policy-making, or formally constituted body of the General Assembly — or any other state agency or authority.

Obviously, the law applies to any meeting of the Senate or the House of Representatives and to any meeting of a committee of either chamber or the General Assembly. The open meetings law not only requires these meetings to be open to the public but also requires the body to give public notice of the meetings and to take and record meeting minutes and make them open to public inspection. Also, the Colorado Supreme Court has held that, even though a caucus is not a policy-making body of the General Assembly, caucus meetings must be open to the public. Cole v. State, 673 P.2d 345 (Colo. 1983).

But the open meetings requirement extends beyond meetings of legislative committees and caucuses.

Whenever two or more legislators are together in one place, wherever that place may be, discussing public business, it’s a meeting and it must be open to the public. This means that the legislators must allow members of the public to listen to the conversation if there are members of the public present who ask to do so.

And the statute actually goes further in describing a public meeting: Whenever two or more legislators exchange electronic communications, such as telephone conversations or email, about pending legislation or other public business, it’s also a meeting and it must be open to the public. But it’s unclear how legislators who exchange emails concerning public business would allow the public to “listen in”, other than by providing copies of the emails, if any exist, in response to a Colorado open records act request.

Does this mean that every time two legislators decide to talk about a bill over coffee they have to give public notice and take notes?

No. The public notice requirements apply to a meeting only if a majority or a quorum of the state public body is expected to attend or if the state public body may adopt a proposed policy, position, resolution, rule, or regulation or take other formal action at the meeting. And the legislators don’t have to keep a record of their conversation either; the requirement for meeting minutes applies only to a meeting of the state public body.

Basically, the General Assembly, committees, and the caucuses must provide public notice of their meetings. And this notice must be “full and timely.” The  Colorado Supreme Court has held that this is a flexible standard that is “aimed at providing fair notice to the public.” Benson v. McCormick, 195 Colo. 381, 578 P.2d 651 (1978). The type of notice required may vary depending on the type of meeting or the frequency of the meetings. For example, when a caucus meeting is called on the spur of the moment, the only public notice that can be given is when the caucus chair announces at the mic that the caucus will be meeting in a few minutes in a committee room.

The law also does not require a legislator to invite the public if she decides to have a dinner party with her legislative colleagues. So long as public business is not the central purpose of a social gathering, the open meetings law does not apply.

If you would like more information regarding the General Assembly and public meetings or if you would like to know how the open meetings law applies to local public bodies, please see the OLLS memo, “Open Meeting Requirements of the Colorado Sunshine Law”.