Some members of the Colorado Supreme Court appeared hesitant on Wednesday to release a recording of an Aurora City Council closed-door session, even though the state’s second-highest court found — and the city admitted — its notice to the public failed to comply with the open meetings law.

Although prior Court of Appeals decisions have ruled that a public entity’s failure to properly convene an executive session means its contents are open for public inspection, the March 14, 2022 session of Aurora’s council introduced a complicating factor. That day, the council received legal advice relating to the censure of one of its members, Councilwoman Danielle Jurinsky.

The Court of Appeals found that distinction did not matter in Aurora’s case, as the council subsequently disclosed it had directed its counsel in the executive session to prepare a settlement, to be voted upon at the next public meeting. To the appeals court, that disclosure surrendered the council’s attorney-client confidentiality.

But the Supreme Court was not so sure.

“It would be another thing to say, ‘Counsel advised us that you have a losing argument here because the law says this.’ That would be a different case. But ‘I think we need to end this?'” said Justice Richard L. Gabriel during oral arguments. “I have a little bit of trouble seeing what’s privileged in that.”

After Jurinsky called the city’s police chief “trash” on a radio talk show, then-Council Member Juan Marcano moved to censure her. On March 14, 2022, the council held a closed-door executive session to discuss the advertised topic of “legal advice.” Four days later, a reporter for The Sentinel asked for the recording of the discussion about Jurinsky’s censure, only to be denied.

Later, the council held another meeting that included an item about the censure with a statement explaining that during the executive session, the council “directed and instructed special legal counsel to end the investigation” and to dismiss the charges against Jurinsky. 

The Sentinel filed suit, leading Arapahoe County District Court Judge Elizabeth B. Volz to review the documentation and learn the council had taken a roll call vote about how its legal counsel should proceed. Moreover, the description of the executive session “does not appear to comply with the requirements of the applicable statutes,” she wrote.

However, Volz gave the city the opportunity to argue that attorney-client privilege shielded the recording from disclosure. After reconsidering her decision, Volz decided the council’s subsequent description of what took place at the March 14 executive session cured the original violation. She ended the case on those grounds.

A three-judge Court of Appeals panel disagreed that the council had cured its violation. It believed — as did the parties — the notice of the executive session contained a deficient level of detail and violated the open meetings law as a result. It also found the roll call similarly problematic.

Although the city argued the executive session recording was nonetheless shielded from release due to attorney-client confidentiality, the Court of Appeals seized on the council’s subsequent description of what happened to conclude it had waived its confidentiality.

Finally, in response to The Sentinel’s request for attorney fees for prevailing, then-Judge David Furman noted the law only provided fees to a “citizen.”

“‘Citizen’ is commonly defined as ‘a native or naturalized person who owes allegiance to a government and is entitled to protection from it,'” he wrote. “The Sentinel does not meet this definition.”

Both sides appealed to the Supreme Court. The city focused on the harms that would befall local governments if city staff who described the subject matter of an executive session could waive attorney-client privilege for their councils.

“If the Court of Appeals’ decision is upheld, local governing bodies may be reluctant to confer with counsel before acting, which disadvantages the public,” wrote the Colorado Municipal League in support of Aurora. “Legal services could be strictly rationed to avoid inadvertent disclosures, thereby preventing lower-level employees from receiving the benefit of legal advice.”

Gabriel, who said he was troubled by the Court of Appeals’ broad ruling, suggested the council had not waived its confidentiality by issuing the public description. Instead, it had disclosed the nature of the settlement it was about to vote on.

“There are certain things that have to be discussed out of the public realm for the benefit of the entity, the benefit of the council, for the benefit of its constituents,” responded attorney Corey Y. Hoffmann for the city.

The Sentinel’s attorney pointed out Jurinsky herself was in the executive session and, as someone litigating on the other side of the censure, her presence could be deemed a waiver of attorney-client confidentiality. Some justices were unsure, however, if that line of argument fell within the scope of the legal question in the case.

As for the question of whether The Sentinel was a “citizen” entitled to attorney fees for showing an open meetings violation, its lawyer argued that attorney fees are important incentives to exposing violations. Depriving news organizations of that incentive could impede reporting and reduce the flow of information to the public.

Multiple justices pointed to the oddity of the open meetings law entitling a citizen to attorney fees, but a 2014 change clarified any “person” has standing to bring an enforcement action.

“My concern is the legislature chose to use both the word ‘person’ and the word ‘citizen.’ And ‘citizen’ has a distinctly narrower meaning. Should we not infer that was an intentional choice?” asked Chief Justice Monica M. Márquez.

“Nothing in the legislative intent shows that the General Assembly only intended for natural persons to recover fees under the statute,” attorney Rachael Johnson responded.

Jefferson County Commissioner Rachel Zenzinger, a former state senator who sponsored the 2014 change to allow any person to bring an enforcement action, recalled that the amendment came about after a Jeffco judge dismissed a complaint alleging the Arvada City Council violated the open meetings law when it filled Zenzinger’s seat upon her appointment to the legislature.

She told Colorado Politics the purpose was to clarify that “citizens” have standing, but Zenzinger did not recall why the sponsors chose one word over the other.

Complicating matters, she shared briefing materials from the time, which contained sample testimony in support of the bill. In referencing who would be able to pursue violations, the document mentioned neither a citizen nor a person, but a “member of the public.”

The case is The Sentinel Colorado v. Rodriguez.