By Dan Cartin
The Open Meetings Law, or OML (section 24-6-401, C.R.S., et seq.), requires any meeting of two or more members of the General Assembly to be open to the public when any public business is discussed or formal action may be taken. Legislative committee meetings are subject to the OML’s requirements and are generally open to any person who wishes to attend. Notice of a meeting must be given if the committee is taking formal action or if a majority or quorum of committee members are either in attendance or expected to be in attendance.
There is an exception under both the OML and Joint Rule 31 of the Senate and House of Representatives to the open meeting requirement. A legislative committee, at a regular or special meeting, may convene in an executive session that is closed to the public to discuss certain matters specified by the OML. These matters include discussions involving purchases or sales of property, confidential matters under federal or state law, security arrangements or investigations, and negotiations with employee organizations. A committee also may confer in an executive session with an attorney representing the General Assembly in court proceedings or to receive legal advice.
A legislative committee must follow a specific process to convene in executive session. The committee chair first announces the general topic for discussion in the executive session and the OML provision authorizing the executive session. The notice or agenda preceding the meeting may include the executive session, with the topic and OML citation. A committee may also convene in executive session during a committee meeting so long as the chair announces the topic and relevant OML provision.
A two-thirds vote of the entire committee membership – not just of the committee members present – is required in order to convene in an executive session. So, for example, the affirmative vote of seven members of a ten-member committee is necessary to go into an executive session. It also means that the same ten-member committee may not go into executive session if fewer than seven members are present.
Only the committee members and other individuals authorized by the chairperson may remain for the executive session. The OML does not prescribe limitations on who may participate in an executive session, but non-committee members ordinarily are limited to those persons having information essential to the discussion, including other legislators or staff. The chairperson will ask everyone else to leave the room for the duration of the executive session. Once the meeting is closed, the committee’s discussions must be electronically recorded. The committee must limit its discussions exclusively to the matter that was the reason for the executive session, and the chairperson ensures that the committee does not stray from that topic.
A committee may not adopt a proposed policy, position, resolution, rule, or regulation in an executive session. Any formal action taken by a committee in an executive session is invalid. The Colorado court of appeals has held that this also means that a committee cannot come to a formal decision in an executive session and then “rubber stamp” that decision in a subsequent open meeting. It is the chairperson’s responsibility to ensure that this OML requirement is observed.
The Office of Legislative Legal Services can assist legislators in determining whether the OML allows a committee to discuss a particular matter in an executive session and the process for convening and conducting that discussion in a closed meeting.