In February, Jefferson County District Court Judge Margie Enquist ruled that a secret ballot vote by the Arvada City Council didn’t violate Colorado’s Open Meetings Law, often referred to as the “Sunshine Law.” Enquist also ruled that the plaintiff, a citizen of Arvada, had no legal standing to take action against the city government because he couldn’t prove he suffered personal injury from the secret voting.
Enquist’s ruling challenges the foundation of Colorado’s 42-year-old Sunshine Law, part of which prohibits, with odd exceptions, state and local legislative bodies from casting secret ballots. But what some people find most disturbing is that the ruling questions whether any and all citizens have the right to challenge their government when it knowingly hides actions, and if upheld, renders the Sunshine Law a dead letter.
Steven Zansberg, a Denver-based attorney and president of Colorado’s Freedom of Information Coalition, says he found the ruling astonishing.
“It really is hard to understand how that statute, that the Open Meeting Laws, would not provide a basis for any member of the public to go to court for denial of access to a public meeting, to challenge the denial of access,” says Zansberg.
Arvada District 1 resident Russell Weisfield filed suit against the City of Arvada after learning that council members voted anonymously during a special session on Jan. 10 to fill the District 1 seat left vacant by Rachel Zenzinger after she headed to Denver to replace the recently resigned state Sen. Evie Hudak.
“From the moment I saw that they were going to be using secret ballots, as shown in their agenda, it infuriated me,” Weisfield says, referring to the fact that “Voting by Secret Ballot” was listed as Item 5 on the council’s special session agenda.
As with other council meetings, the Jan. 10 session was recorded, showing the six-member group deciding between five finalists. Mayor Marc Williams can be heard on the video discussing the method by which members will cast clandestine votes.
“We will each be marking with a checkmark so that no one will ever know which one of us were X’s or O’s or some other form of marking, so we will all use a checkmark designation on the ballots,” says Williams. He can later be heard discussing how ballots should be folded to further hide each council member’s identity as they voted.
“In my viewpoint, it guts the Open Meetings Law,” Weisfield says of the secret vote. “The purpose behind that law, as I understand it, is to make sure that government is open, and when someone who lives in the district for which the council member is appointed can’t even know how their councilors are being appointed … the fact that I won’t be able to base my vote on how they’ve conducted themselves in council is appalling.”
Paragraph IV of the Open Meetings Law states: “Neither a state nor a local public body may adopt any proposed policy, position, resolution, rule, or regulation or take formal action by secret ballot unless otherwise authorized in accordance with the provisions of this subparagraph (IV).”
In addition to the plaintiff having no legal standing, the JeffCo Court ruled that the Colorado Constitution makes municipal election issues a matter of local concern; the Colorado Open Meetings Law does not regulate filling of council vacancies; and Arvada followed its Home Rule Municipal Charter (which allows voters to create contracts that act as a city’s governing document over local issues).
Weisfield says he was surprised at the ruling, and he’s not alone. Colorado lawmakers have also taken issue with the decision, leading to the late session introduction of House Bill 1390.
“So Rep. [Bob] Gardner, joined by [Sen. Rachel] Zenzinger have introduced a bill to the same legislative session to clarify that it was never the intent of the general assembly to not afford standing to any member of the public that is denied access to a public meeting, or is threatened not to have access to public meeting — that includes through the use of secret ballots,” says Zansberg.
According to Gardner (R-Colorado Springs), the bipartisan bill clarifies what he says he believes the original Sunshine Law intended to accomplish.
“That is, if an individual citizen wants access to a meeting of the government that is supposed to be ‘open,’ and if that individual is denied access, then he or she has indeed been harmed to the extent that the individual should have the power to challenge that potential violation of the law,” Gardner said in an email to Boulder Weekly. “It is not directed at any particular group or governmental entity.”
This is not the first time Gardner has fought to keep Colorado’s Open Meetings Law robust. In 2012, he supported HB 1169 after the Colorado Court of Appeals ruled that the Fort Morgan City Council didn’t violate the Open Meetings Law when it used anonymous votes to appoint two council members and a municipal judge in 2009 and 2010. Much like the new proposed legislation, HB 1169 prohibits state or local civic bodies from taking “formal action” or adopting “any proposed policy, position, resolution, rule, or regulation” by secret ballot.
The House passed HB 1390 uncontested, 65-0, on Monday, April 28. The bill now moves to the Senate for consideration.
As for Weisberg, he and his attorney Elliot Fladen have filed a notice of appeal. Due to the ongoing nature of the litigation, Fladen declined to comment beyond expressing that he and his client believe in the arguments they raised in the district court.