A panel of lawmakers decided to hold a proposal that seeks to carve out the General Assembly from some of the provisions of the state’s open meetings law after the sponsor indicated it may not be ready for prime time.

Senate Bill 157 attempts to deal with one of the stickiest unanswered questions around the state’s open meetings law — what exactly is an open meeting? The law, as it applies to the General Assembly, says that occurs whenever two or more lawmakers are together discussing public business.

But over the law’s 50-plus year history, lawmakers have held daily conversations on legislation on the floor of the House or Senate or in offices at the Capitol — all outside the public view.

It’s a conflict between what the law says and requires, and what’s practical in how lawmakers do their work.

“The open meetings law doesn’t apply in a way that makes a lot of sense in today’s world for the General Assembly,” as demonstrated by a “natural tension” between the law and the practicality of conducting every day work and conversations with each other, said Senate President Steve Fenberg, D-Boulder, the bill’s sponsor.

There are some aspects of the letter of the law and how lawmakers work together that don’t make much sense, Fenberg said, adding, “I don’t think this is a tension that we can just sort of allow to exist anymore.”

“It’s not sustainable,” he said.

Still, Fenberg asked the Senate State, Military, and Veterans Affairs Committee on Wednesday to not vote on the measure yet, saying it needs more work and conversations.

The measure has drawn sharp criticism from several groups, including the Colorado Freedom of Information Coalition, the League of Women Voters of Colorado and Colorado Common Cause.

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

The hearing drew a handful of witnesses, all either opposed or seeking amendments. No one testified in favor of the bill.

The proposal, which House Speaker Julie McCluskie and Speaker Pro-Tem Chris deGruy Kennedy cosponsored, 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.”

Democratic leader: End goal is clarity

Fenberg told the committee the process for how lawmakers do their work has changed since voters passed the open meetings law in 1972, when email did not exist. Committee hearings are now all broadcast live, and witnesses can testify remotely, he said.

The law has not completely kept pace with that rate of change, Fenberg argued.

The Democratic leader said the policy has been a tough one to navigate. 

In the past year, state lawmakers have faced two lawsuits over transparency issues. Last year, Democratic Reps. Bob Marshall and Elisabeth Epps sued the House leadership from both parties over violations of the open meetings law, including the use of electronic messaging services, such as WhatsApp, which erases messages after they’re read.

The second was over the Democrats’ use of “quadratic voting,” which allowed lawmakers to decide out of the public eye which bills would be funded during the budget process. The General Assembly lost both lawsuits.

That led to a conversation about how to modernize and update the open meetings law so that everyone knows what the rules are and how to follow them, Fenberg said.

The goal is not — or ever — to have less transparency or to exempt the General Assembly from the law, he insisted, adding the bill’s intent is to create, clarify, and codify current guidance that the General Assembly already operates under, which comes from the attorneys in the Office of Legislative Legal Services.

“The end goal should be clarity, so everybody knows how to follow it, and we know when it’s not being followed,” he said.

That applies to how lawmakers talk to each other, whether it’s in person or via electronic means, and whether there should be a time and place for deliberation among lawmakers in an informal, casual manner that allows for an exchange of ideas, he said.

“I think that is part of democracy, and that’s what we do here every day,” he said. 

Work product

The other issue deals with concept of “work product,” which is contained in the Colorado Open Records Act.

If something is put into an email or a note, it could be “work product,” but if two lawmakers are just talking — anytime two or more legislators are discussing public business, that’s an open meeting under the statutes — the law provides no guidance on that kind of conversation, Fenberg said. 

“We may have gotten some things wrong in this bill, and maybe there are areas where we can improve it, or we can figure out how to better thread the needle,” Fenberg added.

The Democratic leader said the question the bill intends to address is what it means for a meeting to be open. Is it a conversation in the hallway or an office with the doors open or closed? Is it a phone call between two lawmakers about a bill? And how a random member of the public could wander into their conversation to make sure it’s open?

It’s a question Fenberg asked and which, he said, he hasn’t gotten a good answer.

The open meetings law also applies to written communication, but the law is unclear about how to comply, he said. 

The statute also doesn’t say what constitutes “public business,” Fenberg said. Legislation already introduced clearly is, but — he asked — if a bill, for example, hasn’t been introduced or is just an idea or draft, is that public business? 

The bill defines “public business” as introduced legislation or matters before a statutory committee, a committee of reference, or an interim committee, but not administrative, interpersonal, or logistical matters that concern personnel, planning, process, training, or operations.

Under the bill’s definition of “public business,” a bill draft is not a public business until the measure is in the public domain, is debated, and acted on by lawmakers, Fenberg said.

Critics: Experts should have been included when drafting the bill

Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, said it would have been nice to be included in the “stakeholding” process for the bill. The coalition has three lawyers on its board, including Tom Kelley, who has drafted amendments to previous changes to the open meetings law, Roberts noted. 

Roberts told Colorado Politics anyone on the coalition board could have participated in conversations on the bill prior to its introduction.

Voters “emphatically declared that the formation of public policy is public business and may not be conducted in secret,” Roberts also said. The public has the right to observe the formation of policy, not merely the official hearings and votes, he said.

He argued that SB 157 will undermine that principle by allowing and encouraging members of the General Assembly to discuss public business in an unlimited way through electronic, written communications, email, text message, or disappearing messaging apps, such as Signal — all outside of public view, he said.

Roberts also suggested that electronic communications would likely not be available under the open records law because those communications could be defined as “work product.”

“Public policy will be formulated in secret,” he said. 

In response to a question from the committee, Roberts, a former reporter who covered the legislature in the 1980s, said there had never been a lawsuit over two lawmakers talking to each other about legislation.

Fenberg later responded to Roberts’ comments, saying he wasn’t comfortable with talking to the coalition because Zansberg, its board president was the plaintiffs’ attorney in the lawsuit against the House over its violation of the open meetings law.

Fenberg claimed there aren’t “natural stakeholders” on this section of the law, and the challenge was “how safe I should feel inviting certain people into the conversation at certain times before this bill was introduced.” 

“That’s a delicate situation to just bring that lawyer in for stakeholding on the topic that has essentially active litigation on,” he said of Zansberg.

Beth Hendricks of the League of Women Voters of Colorado, which opposes the measure, said the league believes the open meetings and open records laws “are fundamental to a healthy democracy because they support a citizen’s right to information about what their government is doing.”

Citizens are entitled to “barrier-free access” to information, and the league views SB 157 as doing the opposite, she said. 

“The use of electronic mail and messaging to conduct any kind of business today is ubiquitous inside and outside of government,” she said, adding it is an attempt to shield that business from the sunshine laws.

Hendricks also said the policymaking function of the legislature is advanced by the informal flow of information that citizens have a right to know. The bill would remove that information from the “information ecosystem” and deny citizens their ability to fully understand what the General Assembly is doing, she said. 

Representing the Colorado Broadcasters Association and the Colorado Press Association, Justin Sasso said the groups want to see the law amended to ensure transparency around meetings that take place during the legislation session and caucus meetings that take place outside of the session. Sasso also suggested the creation of an ongoing forum to address concerns, such as through a periodic review to measure and evaluate the strengths and disadvantages of the open meetings law.

He also raised concerns over the “public business” language, saying the groups would seek an amendment to “enhance the transparency of conversations in advance of a bill’s introduction.”

The open meetings and open records laws level the playing field between lawmakers and the public, said Cory Gaines, who also testified against the bill. He noted the lawsuits in 2023, adding, “You’ll pardon me if there’s a little bit of lack of trust here.”

Attorney Eric Maxfield, a board member with the coalition, said the bill is “anti-accountability and contrary to basic principles of good government.” Should the measure pass, it will reverse more than 50 years of transparency voted on by the citizens of Colorado, he said. 

It also sends a message that the General Assembly knows transparency is too hard and cumbersome, he added.

“Trust us, we will take care of business in secret,” Maxfield said of lawmakers’ views on the matter. “That’s the height of paternalism for the General Assembly to effect with this change … ‘let us protect you from the uncomfortable business of sausage-making.'” 

Roberts said after the hearing that should the bill pass, local public bodies, ranging from special districts to counties and municipalities, would want the same authority given to the General Assembly under the measure.