Denver Public Schools on Monday appealed a court decision requiring the district to release the recording from a March 23 executive decision held in the wake of the East High School shooting that wounded two administrators.

The DPS Board of Education went into the executive session, which is closed to the public, to discuss security measures.

The district’s appeal questioned whether the judge erred in reviewing and then revealing – in issuing his order – details from the audio not yet disclosed, “frustrating DPS’ rights of appeal.”

District officials also contend the district court’s order did not resolve the amount of attorney’s fees and costs due the media coalition as a result of the lawsuit.

DPS additionally requested a transcript of the June 16 hearing.

The appeal delays the tape’s release.

In appealing the order, the district ignored the wishes of Auon’tai Anderson, the board’s vice president, who suggested not fighting the court order, citing fiscal and transparency considerations.

“The use of outside counsel, while sometimes necessary, can lead to considerable expense – expenses that are met with taxpayer dollars,” Anderson said.

DPS General Counsel Aaron Thompson made the decision to appeal, said Scott Pribble, a district spokesperson.

DPS Notice of Appeal

The district also separately asked for a stay of the court’s release order, saying if the recording were released, it “cannot be undone” even if DPS ultimately succeeds on appeal.

The district said releasing the records now, before its appellate rights are exhausted, would “effectively eviscerate its right of appeal.” The court is set to hear the motion at 10 a.m. Tuesday.  

Denver District Court Judge Andrew J. Luxen – who spent two days listening to the five-hour executive session – ruled Friday that the district “did engage in a substantial discussion of matters” in contravention of open meeting laws and ordered DPS to release the audio recording.

Luxen also said the school board did not sufficiently cite the statute that formed the basis for the confidential meeting.

“The Denver School Board did not discuss these issues in executive session, specifically any issues involving specialized details of security arrangements or investigations, including defenses against domestic and foreign terrorism or matters which if made public might reveal information that could be used for the purpose of committing, or avoiding prosecution for, a violation of the law,” Luxen wrote.

“There was lengthy discussion of general security arrangements, however, including the return of school resource officers to Denver public schools,” the judge added. 

Under the state law, state and local governments are required to discuss and take action in meetings that are open to the public.

The laws have a carve out for specific purposes, such as to consult with an attorney or to discuss personnel matters or about an individual student, among other things.

Any action, though, must be conducted in public.

After five hours and 13 minutes in executive session, the board returned a memo drafted in executive session temporarily changing the district’s policy barring police officers on campus, which was unanimously approved without discussion.

A coalition of news outlets that includes the Denver Gazette and Colorado Politics sued the Board of Education and its custodian of records for the release of the executive session minutes and recording.

The lawsuit alleged the secret meeting violated the Colorado Open Meetings Law’s prohibition on making policy in executive session.

At least one board member believes the recording should be released.

“Some colleagues want it sealed as it exposes the truth,” Anderson said in a Tweet Friday after the ruling.

Anderson added, “The community deserves to see the tape.”

In a statement last week, Anderson worried about the legal costs of continuing the litigation – money that he said would be better used on educating children. 

District officials declined to comment.

In neighboring Douglas County School District, legal costs have mounted – more than $185,000 and counting, so far – in defending board members against a lawsuit stemming from the firing of former Superintendent Corey Wise.

The true costs are likely more. That’s because the tally does not include any expenses incurred over the last few weeks, and it also doesn’t include the roughly $94,000 state Rep. Bob Marshall, who brought the lawsuit, has spent in attorney fees.

In his statement, Anderson said an appeal might unintentionally convey the impression that the board has “something to conceal, possibly undermining the board’s commitment to openness and accountability.”

“These are the cornerstones of our relationship with you, the community,” he said. “If we have made a mistake, let’s acknowledge it and use this occasion to learn and improve instead of engaging in a costly and potentially reputation-damaging appeal.”