The Colorado Court of Appeals issued its opinion in Intermountain Rural Electric Association v. Colorado Public Utilities Commission on July 19, 2012.
Colorado Open Meetings Law—E-mail Exchanges—Summary Judgment.
This case raises the issue of whether e-mail exchanges among members of the Public Utilities Commission (PUC) regarding proposed legislation constituted “meetings” for purposes of the Colorado Open Meetings Law (OML). The Court of Appeals held that the exchanges did not constitute meetings and affirmed the trial court’s summary judgment in favor of defendants.
On March 15, 2010, a bill for the Clean Air–Clean Jobs Act (CACJA)was introduced in the House of Representatives. The next day, the director of the PUC provided testimony that the PUC did not oppose the legislation. Both Houses passed the bill and it was signed into law.
In early 2010, Kelly Nordini, a member of the Governor’s staff, e-mailed PUC Chairman Ron Binz seeking input on proposed language for inclusion in an earlier version of the bill. The language was suggested by Public Service Company of Colorado (PSCo). An e-mail conversation ensued among the Commissioners about the proposed legislation, and Nordini was copied on fifteen of eighteen e-mails. The content generally comprises edits to the draft legislative language and detailed discussion about the bill.
Intermountain Rural Electric Association (IREA) brought suit against the PUC, its Director, and the Commissioners in their official capacities, seeking a declaration that (1) the e-mails were “meetings” subject to the OML; (2) defendants violated the OML when they failed to provide notice of the meetings, make the meetings public, or enter an executive session; and (3) any formal action arising out of the e-mails was invalid.
Defendants moved for summary judgment, arguing the e-mails were not “meetings” under CRS § 24-6-402(1)(b). The trial court agreed and granted summary judgment in favor of defendants. On appeal, IREA argued it was error to determine the e-mails were not “convened to discuss public business.” The Court disagreed and affirmed.
The OML provides: “All meetings of two or more members of any state public body 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.” A “meeting” is “any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication.” The parties agree that the exchange of e-mails was a “gathering” but dispute whether the e-mails discussed “public business.”
The Colorado Supreme Court has held that discussing public business (not defined in the statute) refers to a public body’s policy-making function. IREA claimed that the e-mails were part of the PUC’s policy-making process. The Court disagreed. It held that to prevail on an OML claim, a party must point to a pending action by the public body holding the meeting with regard to a rule, regulation, ordinance, or formal action by that public body that has a meaningful connection to the gathering in question. Here, the Court could not find that the hypothetical effect of providing input to the Governor’s staff with regard to draft language for a bill pending before the legislature, or advising a legislative committee that the PUC did not oppose the bill, constituted part of the PUC’s policy-making function.
The IREA argued that the e-mails were a “formal action” of the PUC because it is “authorized” to engage in discussions on pending legislative proposals. The Court stated that this argument failed to distinguish between “formal actions” of the PUC, which create public policy within the purview of the PUC’s policy-making powers, and other duties and actions of the PUC, which do not. Here, where the PUC was opining about potential legislation, it was not itself making public policy.
Summary and full case available here.