September 06, 2023 10:27 AM UTC

Rubber Chicken Luncheon Lawsuit Resolved

• 6 Comments
• by: Colorado Pols

We wrote back in July about a curious, and probably unnecessary, lawsuit filed against leadership of both Democrats and Republicans in the State House of Representatives regarding certain communications that might violate the spirit of public disclosure at the State Capitol. It appears that this suit has now been resolved.

The lawsuit was forged by State Rep. Bob Marshall (D-Douglas County), a freshman lawmaker who has kinda become the “open meetings guy” dating back to his efforts in February 2022 to sue the Douglas County School Board for violating Colorado Open Meeting Laws (OML) in a case related to the firing of former Superintendent Corey Wise. After making it through his first legislative session last spring, Marshall filed a complaint in early July related to his concerns that members of both parties routinely violate regulations by taking part in conversations about public policy without providing OML-required notice to the public. Marshall was specifically concerned about the use of messaging apps like Signal, which have an “auto-delete” feature.

As Jesse Paul and Elliott Wenzler explain for The Colorado Sun, Marshall’s concerns appear to have been alleviated:

As part of the settlement, which must be approved by a judge, the defendants agreed to not discuss public business or take a “formal action” during a meeting where a quorum of a state body is expected to be in attendance without first providing public notice of the gathering and promptly making minutes of the meeting publicly available.

Also, two or more members of the House “shall not discuss public business through any electronic means (including, without limitation, any instant messaging platform or application) unless written minutes of such meetings are made publicly available upon request.” Those minutes would have to be released under the Colorado Open Records Act…

…“The settlement of this dispute does not establish wrongdoing by any party,” the agreement says.

The “consent decree” will also instruct state representatives to refrain from using “auto-delete” features on messaging apps such as Signal. The agreement applies to the leadership of both Democratic and Republican caucuses. According to the Sun, Marshall is pleased with the results:

“It’s going to get us where we need to go, I hope,” said Marshall.

Marshall said the next step is pursuing a bill aimed at modernizing Colorado’s open meetings and public records laws. The consent decree says the agreement would be in effect until the laws are amended, hinting that changes are coming.

Accusations of OML violations are fairly common in Colorado, in part because it can be difficult to nail down what constitutes a meeting that should require public notice; it’s also nearly impossible to keep track of whether an elected official was talking about something with another elected official that should have been made public. Both Democratic and Republican caucuses, for example, have regularly held rubber chicken lunches over the years to discuss all matter of issues. We doubt there are many members of the public clamoring to know about luncheons that elected representatives themselves would rather not attend; this “problem” has now been resolved regardless.

These concerns probably could have been worked out without a formal lawsuit and saved taxpayers from the $13,000 bill that covers the legal fees of Marshall’s attorneys, but perhaps it’s hard to be “open meetings guy” if people don’t know that you are complaining about open meetings.