Colorado’s new independent redistricting commission came with a promise of transparency and public inclusion, but in the days leading up to their adoption of a set of legislative maps, commissioners spent significant time working outside of public meetings.
In the final two weeks of the legislative redistricting commission’s work, hundreds of emails volleyed among commissioners. Some spoke on the phone several times. Others kept running text message conversations for days on end.
And while some of their communications focused on procedural logistics, like providing lists of which map plans were slated for discussion at upcoming hearings or reviewing the voting procedures they would use, many of the conversations included substantive debate about maps, suggestions for or critiques of maps, surveys of commissioners’ support or opposition to plans, in order to identify and build consensus, and the sharing of talking points and coordinated strategies to support or oppose certain maps.
A prominent First Amendment attorney, along with a government transparency advocate, say some of the conversations that took place outside public view circumvented the state's open meetings law. From a government openness perspective, the discussions represent an end-run around the spirit of public access, they say, but even more, they could amount to a violation of the Colorado Open Meetings Law, which requires the discussion of public business to be accessible to members of the public as the discussions are happening.
Some of the communications outside public meetings included all the commissioners directly addressing the work they were doing in public: “I am always willing to talk. But Samuel's map (Commissioner Samuel Greenidge), as outlined above, is not acceptable for the reason I outlined above. It appears to me that only one side of the political spectrum has made any concessions,” Commissioner John Buckley wrote in an email about a map proposal being discussed over email, sent to all the other commissioners on Oct. 12, about two hours before the commission met for the last time. Late that evening, the commissioners adopted their final Senate map, after having adopted a House map the night before.
Other conversations were one-on-one: “Made some additional changes to Aurora based on our convo before meeting yesterday. It was in Aurora. Sent you an email. Let me know if you have any concerns or want to chat quickly about it,” Commissioner Aislinn Kottwitz texted to the commission chairman Carlos Perez around noon on Oct. 1. “I presume you don't want your name on this map to maintain neutrality, but I'm happy to add if you'd like.”
“Don't put my name on the map,” chairman Perez texted back.
Sometimes small groups of commissioners had running conversations: “Chicas, I played with some talking points to support staff map 3,” Commissioner Robin Shepper wrote to two other commissioners at about 6 p.m. on Oct. 9. “Can you take a look and tell me what you think?”
The email conversations show how some voting blocs among the 12 commissions developed in the final days, with coalitions developing among various commissioners.
“Can you give me specifics on No?” Commissioner Buckley wrote to Commissioner Gary Horvath around 5 p.m. on Oct. 11 about a map supported by other commissioners, which they opposed. “It would be helpful to counter their arguments.”
Phone call logs show some of the commissioners spent hours talking outside public hearings in the final days of their work.
Carlos Perez, the commission’s party-unaffiliated chairman, said he and others were under tight deadlines and high pressure to finish the maps, and that they were using email to prepare and coordinate meeting logistics and to share map files. But those email conversations sometimes evolved into what Perez characterized as “on the edge” or “a judgment call” when it comes to public inclusion and transparency.
“You’re going to see emails like this,” Perez said of email conversation where commissioners surveyed others about their inclinations or coordinated their support or opposition to maps, “where emails are sent out in the heat of passion, the fog of war, but put it in the context of the fact that we were meeting every night, having meetings every day, hours and hours and hours of meetings. We were very tired. We were running on fumes.”
Perez pointed out that their own attorney, Richard Kaufman, in the final days of their work, encouraged the commissioners to discuss maps and what they intended to support outside of public hearings.
Kaufman urged the commissioners late on Oct. 11, after they had deadlocked over a final Senate map, to, “talk one-on-one,” he said, “and see if we can come up with something that’s acceptable to everyone.” The next day, the commission adopted a final Senate map.
The redistricting work done outside public view is made clear in emails, text messages and phone records, provided to The Gazette in response to Colorado Open Records Act requests filed after the commission finished their work and submitted their plans to the Colorado Supreme Court for review.
The attorneys working for the commission briefed the commissioners early in the process on what is required by the state’s Sunshine Laws, but stopped short of telling the commissioners not to discuss their work outside public meetings.
“The formation of public policy is public business and may not be conducted in secret,” Nicole Myers, one of the commission’s attorneys, told the commissioners at a public meeting on March 30.
Myers told the commissioners that a “meeting” is defined as any kind of gathering, whether in person, over the phone, electronically or over other medium.
“Advance notice of meetings is an important aspect of the Open Meetings Law,” she told them. “Notice must be given for any meeting at which the adoption of any proposed policy, position, resolution, rule, regulation or formal action occurs, or a majority or quorum is in attendance or is expected to be in attendance.”
Myers also told the commissioners that they should set up a Gmail account to use solely for their commission business, but the records provided to The Gazette show they didn’t always use their commission Gmail accounts and instead sometimes used personal accounts for commission business.
A pair of 2012 court cases, one dealing with utility regulators emailing about legislation affecting their work, and another involving phone and email discussions by members of the Colorado Board of Parks and Outdoor Recreation, found it’s possible to violate the Colorado Open Meetings Law by discussing official business over email without issuing a public notice, which provides the public with who is meeting, a time and location for the meeting, more recently a way to observe or participate in the meeting online, along with basics of what is being covered in the meeting.
In 2018 a district court judge found Basalt town councilors had violated Open Meetings Laws by engaging in “electronic discussions of public business absent public notice and without opportunity for the public to observe and participate in the process.”
Steven Zansberg, the First Amendment attorney who litigated the 2018 case against the town of Basalt, said the redistricting commissioners seem to have made similar missteps with their communications outside their public hearings.
“When two or more people are discussing public business, meaning matters they’re considering or that will be considered, those are meetings and must be noticed, and the public has to be given the opportunity to observe that meeting,” Zansberg said, adding that providing the records of the meeting after-the-fact is not a substitute for providing a proper public notice. “The idea that the emails are later made available to the public, using open records law, doesn’t cure the violation, because the public had their right to the real-time observation of the meeting circumvented.”
Jeff Roberts, the executive director of the Colorado Freedom of Information Coalition, said the content of the emails, and the fact that they were circulating among many of the commissioners, means that they should have been part of public hearings, not behind the scenes.
“These sound like deliberations on things that relate to their policy making function,” Roberts said, meaning that the conversations qualify as a meeting of public officials. “They’re clearly working toward a decision about these maps, and all discussions related to that are public business.”
Earlier this year, state lawmakers passed, and Gov. Jared Polis signed into law, a bill that loosened the Open Meetings Law requirements around elected officials' emails, allowing more email conversations that wouldn’t require public notice. The new law applies to emails that are considered "non-substantive," such as for scheduling purposes or "forwarding information, responding to an inquiry from an individual who is not a member of the state or local public body, or posing a question for later discussion by the public body." The new law specifies that substantive emails mean "any discussion, debate, or exchange of ideas, either generally or specifically, related to the essence of any public policy proposition, specific proposal, or any other matter being considered by the governing entity."
Commission chair Perez emphasized that the first time through the state’s new independent redistricting commission system led to “probably the most open and transparent redistricting process in Colorado ever.”
He noted that some of the content of the commission’s private email conversations were later repeated in public hearings.
“I think it’s good we have this conversation about how we use technology to address openness and transparency. We have technology at our disposal, and we want to use it to serve the public good. There are ways to improve openness and transparency, but we did an excellent job.”