Leaders of the Colorado General Assembly, along with several Democratic members, are seeking sweeping exemptions for lawmakers from the state’s open meetings law, which contains guarantees of transparency when officials craft policies.

The exemptions only apply to the legislature, not to other policymaking bodies such as a city council or county commission.  

It’s not immediately clear if the proposal is a direct response to a lawsuit filed in July against leaders of both House caucuses. That lawsuit from two Democratic legislators claimed the Democratic and GOP caucuses each held mandatory secret meetings at least weekly during the 2023 legislative session, directing legislative aides to omit or disguise the meetings on legislators’ calendars, and thereby failing to adhere to the state’s open meetings law.

The lawsuit was settled in September with an agreement from leaders to not hold meetings that could violate the open meetings law and for members to not use open messaging apps to conduct public business.

The proposal introduced by House Speaker Julie McCluskie and Senate President Steve Fenberg would change the laws so that written communication, “electronic or otherwise,” that is exchanged between members of the General Assembly is not subject to open meetings laws.

In addition, the bill would redefine “public business” to not apply to matters that are “by nature interpersonal, administrative, or logistical or that concern personnel, planning, process, training, or operations, as long as the merits or substance of matters that are expressly defined as being public business are not discussed.”

First Amendment attorney Steve Zansberg, president of the Colorado Freedom of Information Coalition, said the proposal, in essence, “completely exempts the General Assembly, and all its constituent committees, from the open meetings law.”

“It would allow state legislators (i.e., all of them, collectively) to discuss all pending legislation via electronic communications without the public ever being able to inspect those communications,” Zansberg said.

“Given the magnitude and scope of this bill — that would literally exempt an entire branch of government from a citizen-initiated transparency law that has been in place for 50 years — the sponsors should have convened discussions with stakeholders before introducing such ill-conceived legislation. Conducting such discussions now, in committee hearings, is not likely to produce a reasonable compromise solution,” the lawyer said. 

Zansberg said if enacted, the proposal would allow lawmakers to engage in an “infinite number of serial meetings” with less than a quorum of any committee, caucus or the entire body — without providing public notice or keeping minutes — and in “endless discussions through electronic means” without the public ever knowing such conversations occurred or gaining access to them.

Such a scenario would leave the public “completely in the dark,” Zansberg said.           

The lawyer said if the General Assembly wants to exempt itself “wholesale” from the open meetings law, lawmakers ought to do it in a way that’s straightforward and plain for the public to see.

“It would be more transparent and plain for the public if they simply exempted the General Assembly from the definition of state ‘public body,’ rather than all of this rigmarole of how they’re going about doing it,” Zansberg said. “And that’s fine … and they will face the political consequences of doing so.”

Fenberg and McCluskie did not immediately respond to questions. 

Under the the bill, text or email messages between lawmakers would not be subject to the open meetings law, though it says the Colorado Open Records Act would apply to “any records” of those communications. 

As justification for the changes, McCluskie, Fenberg and Speaker Pro-Tem Chris deGruy Kennedy said the General Assembly is “distinct from any other state public body based on the volume and broad scope of the legislation it considers, the limited duration of its legislative sessions, and its large membership of one hundred legislators.”

“The policy-making function of the General Assembly is furthered by the often informal, direct flow and sharing of information, research, and ideas between and among legislators concerning policy positions and legislation,” their proposal said.  

The case over caucus meetings from Epps and Marshall is not the only issue that deals with transparency at the state Capitol that has arisen within the last few years.

Democratic leaders have also faced criticism over the practice known as quadratic voting, a system that allows Democrats to internally prioritize bills while factoring in price tags and the limited pool dollars available.

It works like this: Every Democratic lawmaker gets access to an interactive website with a spreadsheet that lists the bills awaiting action from the House or Senate Appropriations committees. Bills before those two panels require general fund dollars.

The voting system has usually only applied to Democrats. Those in the majority in Colorado’s Capitol are the only lawmakers allowed to vote in the survey, and it usually only applies to their bills.

Republicans have told Colorado Politics in the past that they’ve been excluded both from the process and from having their bills considered. However, KUNC reported last year that a bill sponsored by House Minority Leader Mike Lynch of Wellington, on wildfire cameras, was included in the survey and ranked No. 2. Despite the measure winning unanimous support from the state Senate, it died in the House.

The process is conducted in secret. Lawmakers do not divulge how the voting came out. Colorado Politics began asking for access to the results in 2019, and other Capitol reporters also have challenged the secrecy behind the system. KUNC’s Scott Franz began filing open records requests in 2019 to obtain the results. All those requests were denied until this year, when Democratic lawmakers relented after complaints about the system’s secrecy and released the results of the March 24 anonymous survey.

The open meetings law prohibits lawmakers for voting via secret ballot. One lawmaker referred to quadratic voting as a secret ballot in a 2020 interview. 

It’s not immediately clear how Gov. Jared Polis would approach his party mates’ proposed changes to the open meetings law.

Last year, Polis vetoed legislation that would have barred the recovery of attorney’s fees by a pro se plaintiff in cases dealing with the open meetings law.

“(We) should strive for increased transparency and accountability, not less transparency and accountability, throughout out democratic institutions,” the governor wrote.