Flouting Colorado’s state statutes has become a too-frequent occurrence among our elected officials related to our so-called Sunshine Laws. The Colorado General Assembly has had its sunshine problems. It’s apparent now a school district has also broken the sunshine rules, probably more than once.

Jessica Capsel, a resident of the Elizabeth School District, sued the district for failing to fully and timely post a controversial board meeting agenda item. The district contested her case in court. The district lost on April 17.

The court’s finding, as legal interpretations ought to be, was detailed in its examination of Colorado’s Open Meeting Law (OML) statute and precedents. The statute says public agendas must be posted 24 hours ahead of a public meeting to represent items up for discussion and action. This requirement allows interested parties to study and/or comment on issues up for consideration.

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In her court case, Capsel showed the board posted a Sept. 11, 2023 agenda 24 hours in advance of its announced meeting. That’s good. However, it failed to include a proposed resolution to “Keep Elizabeth Schools Open and Education Unrestricted.” That’s bad. The resolution was taken almost verbatim from Moms for Liberty, a conservative influencer group. The language responding to COVID pandemic rules is controversial and deserved adequate notice. At its meeting, the board approved the resolution without public input.

Capsel brought the OML non-compliance to the board’s attention and was rebuffed. At the following board meeting, the district’s attorney Brad Miller showed up to provide his legal advice. He assured the board it could change its agenda as it wished and such changes occurred all the time at school board meetings. Miller should know as he makes much of his living as lead attorney representing school districts. It should be worrying to citizens living in those districts as to whether Miller is offering correct interpretation of statute governing the OML.

In this particular instance, Miller didn’t grasp the “sunshine” that’s supposed to illuminate the conduct of the public’s business. Capsel, realizing the board would continue with its rogue agenda shenanigans, filed her suit in October, 2023. Unfortunately, due to numerous extensions at the request of the district via Miller’s legal team, the case took a year and seven months to resolve, allowing Miller’s bad advice to stand as guidance.

The court made two crucial findings. The OML requires “full” and “timely” disclosure of agenda items. It does give wiggle room for agenda changes only in the instance where a posted agenda item is modified in some way. According to the court, it doesn’t allow boards to toss in an agenda item out of nowhere at the last minute.

In this case, the board’s agenda did not include any reference at all to the “Keep Schools Open” resolution in the 24-hour announcement. No element of the board’s original agenda could be construed as related to the “Keep Schools Open” action item. In its finding, the court decided the original agenda did not meet the “full” requirement of the OML. Though the “Keep Schools Open” resolution was eventually added to the agenda before the meeting, the addition did not comply with the 24-hour deadline. It was not “timely.” In this instance, the court found a breach of both “full” and “timely” elements.

The board again flouted the OML in its recent April 7 board meeting when board president Rhonda Olsen announced it would retreat to executive session on an action item not announced on its agenda. When an audience member asked about the action, Olsen dismissed the question: “We can amend the agenda at the time of this meeting.” The court decision on Elizabeth School District non-compliance came out 10 days later.

The executive session at the April 7 board meeting included attorney Miller. The board discussed a charter school contract for Independence Classical Academy. Miller’s law firm, Miller, Farmer, Carlson Law, submitted the Articles of Incorporation to the Secretary of State’s Office for Independence Classical Academy. The firm appears to represent the charter school and the district. That’s an interesting entanglement.

As a principal partner in the law firm, Miller’s advice carries weight. The firm’s mission statement says it all: “Miller Farmer Carlson Law is committed to being a trusted and responsive resource for you. We are there to be the calm voice in the storm. When faced with difficult issues and decisions, you immediately and confidently can count on us to support you with integrity.”

That the district has authorized a charter arrangement during a time of declining school enrollments is problematic. Independence Classical is projected to open in August. Money for the charter will siphon dollars from Elizabeth’s current school programs and consequent taxpayer investments, possibly affecting their viability.

Miller’s inaccurate legal advice will likely cost the district the plaintiff’s attorney fees in addition to whatever the firm charges. If the district decides to appeal the decision, which according to Superintendent Dan Snowberger it will probably do, additional district expenses will follow. If the non-compliance event of this April goes to court, the district will no doubt face more legal fees.

Paula Noonan owns Colorado Capitol Watch, the state’s premier legislature tracking platform.