We have lowered the bar for what constitutes courage.

Nearly two months to the day after the 2023 legislative session ended – after all bills passed by the General Assembly were signed into law by Gov. Polis – two progressive Democrat state representatives filed a lawsuit against the House leadership claiming that their colleagues (Democrats and Republicans) had been violating Colorado law since January. The lawsuit by Reps. Elisabeth Epps, of Denver, and Bob Marshall, of Highlands Ranch, alleges that they were eyewitness to numerous meetings kept secret from the public, as well as the ongoing use of the Signal app on legislators’ phones intended to defeat public scrutiny by automatically deleting communications between them.

Despite their claim that the illegal behavior began “[s]hortly after being sworn into office,” this was the first moment they revealed it to the public.

Since then, the mainstream media and other pundits have lauded them for their “courage” in coming forward with news of the months-long efforts to deny public access to meetings and communications owed to us under Colorado law. Marshall, a self-proclaimed expert in Colorado’s Open Meetings Law (COML), penned a self-laudatory column condemning his unnamed colleagues, while praising himself for “doing the right thing…when it…will likely extract a high cost.”

It was Marshall’s and Epps’ failure to take immediate action that extracted a high cost – from Coloradans who had every right to know of, and be present for, those regular secret meetings and scrutinize the secret committee communications that preceded votes on bills. It is too late now.

We should set the bar for “courage” higher. “Doing the right thing” requires more guts than riding shotgun on your colleagues’ 120-day COML crime spree, during which time your bills are assigned, debated and voted upon. Only after the revelation to the public of the repeated and wanton violations of our law might have derailed an aggressively progressive legislative session – only then did they finally come forward.

This is not a lesson we would teach our children. We would expect more from a claim of “doing the right thing.” Epps and Marshall had numerous opportunities to make decisions that would have been truly courageous and warranting of praise.

Marshall campaigned on, and routinely references, his honorable military service as a Marine and the fact that he is an attorney. His conduct here falls below the standard of each profession. The Marine Corps would blanche at the idea that an officer could witness unlawful behavior and not seek to immediately end it. Colorado’s Rules of Professional Conduct insist that a licensed attorney report known violations, like those occurring during trial, right away – not after the jury has rendered a verdict and sentence imposed.

MarshEpps did not give an ultimatum to their party’s leadership that they would let the public know if the secret meetings and secret texts continued. They did not file for an injunction in court (Bob knows how to do this) to immediately stop the illegal conduct and call out those who violate the laws designed solely for our protection from secret government. In a one-party consent state, like Colorado, they could have lawfully recorded the secret meetings and made them available to the public – in the spirit of the open meetings law they have invoked in their lawsuit. They could have screen-shotted the otherwise disappearing Signal messages which belong to the public and made them available to us.

They did none of it. Here, inaction is consent. If COML were a criminal law, MarshEpps arguably would have been accessories to those crimes. As a result of failure to act, they were recipients of – and witnesses to – numerous conversations that should have been available to you and me. Because no member of the press seems to have asked them, Epps and Marshall likely participated in those electronic conversations and even benefited from them.

Those questions have yet to be asked of Epps and Marshall.

This General Assembly can prove its commitment to accountability, accessibility and transparency by putting some teeth into our laws. Make the violation of COML a crime. No Coloradan expects this legislature to jail criminal offenders, so make the law a misdemeanor whose maximum sentence is a $10,000 fine and a prohibition from holding any government office for 10 years. Also, create a whistleblower reward for those who immediately (not six months later) dime out those participating in secret meetings and communications. That would get their attention. The change in legislator behavior would be instant and widespread.

There is already one provision of the COML that provides the only available sanction for violating the law, but it is a doozie. COML, C.R.S. 24-6-402(8), makes clear that “no formal action of…[the general assembly]…shall be valid unless…made a meeting” that complies with COML. That suggests that every vote taken by the members participating in this illegal scheme may not be valid. We cannot know unless and until Epps and Marshall come forward with every detail of what they know. Presumably, they kept detailed notes of the lawless behavior of the House leadership for future use to expose them and for the betterment of Coloradans. Turn over those notes and any other evidence to the public now (if they exist). That would be “the right thing to do.”

Was this delayed lawsuit courage? No. This was a profile in political opportunism.