June 16, 2019

Colorado Court of Appeals: Open Meetings Law Prohibits Use of Secret Ballots

The Colorado Court of Appeals issued its opinion in Weisfield v. City of Arvada on Thursday, April 9, 2015.

Lack of Standing—Secret Ballots and Open Meetings Law.

This case concerned the use of secret ballots by Arvada’s mayor and city council members to fill a vacancy on the council for Arvada District 1. Plaintiff is a resident of that district. Defendants Mayor Williams and council members Dyer, Fifer, Allard, Marriot, and McGoff participated in the vote, and defendant Marks was selected to fill the vacancy.

After proper notice, a special meeting was held by city council on January 10, 2014 to select among five candidates for the vacancy. The meeting was recorded and televised. The council conducted four rounds of secret ballot voting in which candidates were eliminated if they didn’t receive a sufficient number of votes. Total votes were reported after each round, but it was not reported who voted for which candidates. At the end of the process, Marks was the only remaining candidate. The council then held an open vote in which they unanimously elected Marks.

Plaintiff sued, alleging that the use of secret ballots violated Colorado’s Open Meetings Law. Defendants moved to dismiss. The trial court granted the motion, holding that plaintiff lacked standing because he failed to allege an injury in fact to a legally protected interest.

The Court of Appeals reversed. The Open Meetings Law explicitly prohibits the use of secret ballots and provides that “any citizen of this state” may enforce the Open Meetings Law in Colorado courts. Plaintiff had a legally protected interest in having the city council fill its vacancy in an open manner in compliance with the Open Meetings Law. He also sufficiently alleged an injury in fact to this legally protected interest. He is a citizen of Colorado and a resident of Arvada District 1. As a direct result of the alleged violation, plaintiff did not know how each council member voted during the process of selecting the new council member who now represents him. The case was remanded for further proceedings, including the district court’s consideration of the alleged grounds for dismissal asserted in defendants’ motion to dismiss under CRCP 12(b)(5).

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Quality Management Program Records Protected Since Program Had CDPHE Approval

The Colorado Supreme Court issued its opinion in Simpson v. Cedar Springs Hospital, Inc. on Monday, October 13, 2014.

Quality Management Privilege.

In this original CAR 21 proceeding, the Supreme Court held that the trial court erred in finding that a hospital must have “authoritative” documentation of approval by the Colorado Department of Public Health and Environment (CDPHE) for the quality management privilege under CRS §25-3-109 to apply. The Court held that because the hospital maintained a CDPHE license at all relevant times, its quality management program was necessarily approved by CDPHE, and the documents from its quality management committee meetings were therefore covered by the quality management privilege. The Court made this rule absolute, and remanded to the district court for further proceedings consistent with this opinion.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: First Amendment Retaliation Claims Fail when Additional Grounds Exist for Termination

The Tenth Circuit Court of Appeals issued its opinion in Trant v. State of Oklahoma on Wednesday, May 28, 2014.

Dr. Collie Trant became Oklahoma’s Chief Medical Examiner during a time when the Office of the Chief Medical Examiner was recovering from several scandals. Trant was soon terminated by the Board of Medicolegal Investigations. He filed suit in Oklahoma state court, alleging First Amendment retaliation claims under 42 U.S.C. § 1983, breach of implied contract, and violation of the Oklahoma Open Meetings Act. The case was voluntarily removed to federal court. The district court granted summary judgment for defendants on the First Amendment retaliation claim, dismissed the breach of implied contract claim for failure to state a claim under Oklahoma law, and dismissed the Open Meetings Act claim for lack of standing. Trant then appealed to the Tenth Circuit.

The Tenth Circuit first addressed the summary judgment on the First Amendment retaliation claims. Trant asserted that he was terminated for statements made by him and his attorney threatening to reveal information to authorities regarding the grand jury investigation of the prior scandals. The Tenth Circuit applied the Garcetti/Pickering analysis and concluded that, because the Board had several legitimate reasons for terminating him and would have terminated him regardless of whether the protected statements were made, Trant did not meet his burden and summary judgment for the Board was appropriate.

Trant had also alleged that three other people took retaliatory actions against him because of his protected speech. However, the Tenth Circuit analyzed each individual and determined that no impropriety occurred.

Next, the Tenth Circuit evaluated Trant’s claims regarding the violation of the Open Meetings Act. He  sought a declaratory judgment that his termination was invalid because of the Board’s failure to comply with the Open Meetings Act. On this point, the Tenth Circuit reversed the dismissal and remanded the case to the district court to determine whether Oklahoma waived its immunity from liability.

The Tenth Circuit affirmed the district court’s grant of summary judgment on the First Amendment retaliation claims, affirmed dismissal of the breach of implied contract claims, and reversed and remanded the dismissal of the Open Meetings Act claims.

Colorado Court of Appeals: Violations of Open Meeting Law Can be “Cured” if Subsequent Meeting Meets Open Meeting Law’s Requirements

The Colorado Court of Appeals issued its opinion in Colorado Off-Highway Vehicle Coalition v. Colorado Board of Parks and Outdoor Recreation on August 30, 2012.

Curing an Open Meetings Law Violation—Summary Judgment.

In this action alleging violations of the Open Meetings Law (OML), plaintiffs, the Colorado Off-Highway Vehicle Coalition (COHVCo) and several nonprofit corporations and interested citizens, appealed the district court’s summary judgment in favor of defendant, the Colorado Board of Parks and Outdoor Recreation (Board). Plaintiffs also appealed the court’s order denying them costs and attorney fees. The judgment and order were affirmed.

The Board is responsible for managing all state parks and outdoor recreation areas and for administering all state park and outdoor recreation programs. One such program is the off-highway vehicle (OHV) program. Under the OHV Act, annual registration and permit fees are placed in the OHV Recreation Fund and are required to be used for specified OHV purposes. For several years, the Board has made a portion of the OHV funds available through a grant process awarded by the OHV Subcommittee, though the Board retains final authority to allocate the grant funds.

In November 2009, the Board provided notice and held a public meeting regarding possible changes to the OHV grant program and subcommittee. Notice of subsequent public meetings was made and meetings were held in January, February, March, May, and July of 2010. During the course of these proceedings, three violations of the OML occurred: (1) on March 19, following the meeting, the Board discussed proposed changes to the OHV program and the OHV Subcommittee via e-mail; (2) on April 28, the Board held a meeting via telephone and e-mail to discuss the proposed changes; and (3) on June 7, an “OHV Program Modifications Roundtable” was convened by the state Division of Parks and Outdoor Recreation to discuss the proposed changes (all Board members were notified, two attended, and one actively participated in this meeting).

After the June 7 meeting, COHVCo sent the Board a letter alleging it had violated the OML and subsequently alleged violations of the OML regarding the March 19 and April 28 meetings. On July 16, at its regularly scheduled public meeting, the Board was briefed by the Attorney General regarding the legal implications of the alleged violations. The meeting was well attended by all interested parties and numerous “key” parties commented on record. Ultimately, the Board unanimously approved the changes.

Plaintiffs sued the Board in August 2010. In its answer, the Board admitted to the three OML violations and plaintiffs moved for summary judgment and requested costs and attorney fees. The Board argued the OML violations “were all effectively remedied” by the July 16 public meeting. Following an extensive hearing, the district court granted summary judgment in favor of the Board and denied the request for costs and attorney fees, because the “Board cured any violation of the OML before the initiation of this lawsuit.”

On appeal, plaintiffs argued it was error to find that the Board “cured” the three OML violations. The Court of Appeals disagreed. The Court noted that the OML does not explicitly address whether a violation can be cured by holding a subsequent meeting that complies with the act. However, Colorado case law on the OML implies a public body may do so as long as it isn’t merely “rubber stamping” the earlier decision. The Court found that the July 16 meeting that effected the cure was not a rubber stamping of an earlier decision.

Plaintiffs also appealed the denial of their costs and attorney fees. The Court agreed with the district court that the Board “cured” the previous violation of the OML and therefore no costs or fees should have been awarded to plaintiffs. The judgment and order were affirmed.

Summary and full case available here.