Recently, two district courts have come down on opposite sides on our state’s “sunshine laws.” Our state’s Open Meetings Law requires government policy be debated and decided in public with proper notice to allow for public oversight.

The law states policy-making meetings must be properly announced and agendas must accurately describe the subject matter of meetings. Policy-making decisions unconnected to agenda topics are not allowed, and policy discussed by a majority of elected officials outside of public oversight may not occur.

A district court heard an Open Meetings Law case involving the Elizabeth school board and found the school district passed a “Keep Schools Open and Education Unrestricted” resolution without adequate notice and without full description in its agenda in violation of the Open Meetings Law.

A district court in Douglas County found Douglas County commissioners did not violate the Open Meetings Law when they introduced and passed two resolutions related to placing a home-rule initiative on the ballot without ever inviting public comment.

Here are the acknowledged facts in the Douglas County case. When Lora Thomas, former Douglas County commissioner, resigned from office in December 2024, the path opened to pursue home rule. The three current county commissioners, Abe Laydon, George Teal and Kevin Van Winkle, wanted home rule to reduce the state’s regulatory role. The county argued with the state regarding numerous issues including Second Amendment rights, property rights and public health policy. The county’s attorney, Jeffrey Garcia, took up the mission.

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According to court testimony, Garcia decided to research the process and develop the resolutions necessary to move toward home rule. He met with commissioners individually to notify them of his activities. Apparently, the commissioners individually told him to develop his plans.

Changing to home rule may affect other elected officials in the county. Under home rule, commissioners can change elected offices to appointed offices and make compensation decisions.

A working session of elected officials was announced to discuss home rule in compliance with the Open Meetings Law, but the meeting immediately moved to executive session without following open meeting regulations related to recording motions and announcing topics. According to testimony, this first meeting in early March in private executive session evoked many questions from elected officials, so many questions that follow up meetings occurred in private executive sessions under the premise of “legal counsel.” In none of these instances did commissioners or other county elected officials seek or receive formal comment from the public.

Apparently, according to the judge’s ultimate decision, “legal counsel” isn’t policy making. One might ask, however, if elected officials had questions that merited “legal counsel” related to their status as elected officials, the public, as a matter of transparency and clarity in relation to how they might be governed, would also want to ask questions before resolutions were passed to take home rule to the ballot.

In the court case, legal wrangling occurred related to three events on the day the commissioners voted on the home rule resolutions. One event was a luncheon announcing the home rule initiative to selected parties including developers and others doing business with the county. County defendants said the luncheon was public even though it was an invitation event.

After the luncheon, the commissioners took 90 seconds to vote on the home rule resolutions in a 15-minute meeting with no public comment. After that 15-minute special session, a press conference occurred with the county’s elected officials lined up to show their home rule support, even though some seemed uneasy, perhaps at the prospect of losing their elected status.

Here’s the bottom line of what the district court concluded. Regardless of whether the letter of the law was followed, the three commissioners were going to put two home rule initiatives on the ballot. The public will elect a commission of individuals to create a “constitution” that will document the basis of home rule. Then the public will vote on whether to accept or reject the home rule status. According to the court, putting an injunction on the elections only delays the inevitable because the commissioners will simply pass another two resolutions for these elections.

These conclusions beg the question: if the court gives the commissioners and their appointed supporting cast, namely the county attorney, a pass on following the Open Meetings Law related to such an existential issue, the court is finding these commissioners acted ethically and appropriately.

Essentially, the court decided the commissioners did not violate the Open Meetings Law when they avoided general public oversight on their decision-making. The commissioners can claim they acted with justified authority to spend $500,000 of county money on an election that will no doubt drum up millions of dollars in dark money to support the commissioners’ home rule dream. The district court’s decision has removed the taint of malfeasance, cleaning up a messiness that might otherwise tarnish the home rule vision.

The district court’s decision will be appealed. Let’s hope the Appellate Court offers clarity as to how the Open Meetings Law should be implemented because, as of now, who knows?

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