Last week, the Colorado Court of Appeals held that the Colorado Open Meeting Law (“COML”) does not preclude a home rule city from conducting business using secret ballots. In Henderson v. City of Ft. Morgan, Case No. 10CA1409, the Court of Appeals affirmed a District Court decision that the Ft. Morgan City Council’s use of secret ballots to fill two vacancies on the City Council and a vacant magistrate judge position did not violate COML, C.R.S. sec. 24-6-401 to -402.
Prior to voting, the City Council conducted two public meetings where the Council heard presentations from the city council applicants, allotted time for the public to speak about the applicants, and conducted interviews with the magistrate judge applicants. After these presentations, the City Council voted by written ballot. Copies of the ballots were retained by the City and obtained by Plaintiff through a CORA request.
Reviewing the plain text of COML, the panel concludes that the statute simply does not impose a particular voting procedure on local government agencies, let alone a procedure that prohibits the use of anonymous ballots for the appointment of government officials. Because the Court holds that the statute is not ambiguous on this point, it does not look beyond the text of the statute to consider legislative intent.
In reaching this holding, the Court contrasts Colorado’s statute with similar laws in other states which expressly forbid the use of anonymous ballots. “Had the legislature intended to prescribe a voting procedure, and for that matter a procedure prohibiting anonymous voting, it could have said so plainly.” Moreover, the Court notes that in a separate statute the General Assembly has prescribed a particular voting procedure for municipal bodies when voting on particular subjects. See C.R.S. sec. 31-16-108 (“On the adoption of an ordinance, resolution, or order for the appropriation of money or the entering of a contract by the governing body of any city or town, the yeas and nays shall be called and recorded, and the concurrence of a majority of the governing body shall be required.”).
Last week, the Denver Post published an editorial describing this ruling as a “cloud” on COML. The editorial goes on to argue that the Court’s ruling is in direct contradiction with the General Assembly’s intent in enacting COML to ensure that “the formation of public policy is public business and may not be conducted in secret.”
Unfortunately, the editorial does not engage in the substance of the decision in any meaningful way, instead it declares that the decision “boggles the mind.” In particular, the editorial makes no effort to address the Court’s distinction between conducting business in open meetings — which is clearly required by the COML — and the use of particular voting procedures to decide an issue — a subject not addressed by the COML.
If the Denver Post is correct, and the General Assembly obviously intended to forbid the use of secret ballots when it enacted COML, there is a simple solution: the General Assembly should promptly amend the law to clarify this point. Absent such an amendment, it is not the job of the courts to rewrite statutes to add a provision endorsed by the Post.