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After getting dinged for lack of transparency, state lawmakers setting up new rules for themselves

Legislative leaders say they’re trying to clarify the line between informal conversations and official business.
The House chamber two days before lawmakers return for the next legislative session at the state Capitol in Denver on Jan. 8. (Hart Van Denburg/CPR News, file)

Colorado’s legislative leaders are hoping to clear up rules around open meetings at the state Capitol and clarify when lawmakers must notify the public and provide a record of their meetings.

The new bill follows a 2023 lawsuit from two Democratic House members that alleged lawmakers were making substantive decisions on policy in caucus meetings, without any real public notice of what they were doing.

“My intent here is not to hide anything or create a less transparent process, but I do think it's inherent that we have understanding and clarity on how to follow the law,” said Democratic Senate President Steve Fenberg, who helped craft the legislation.

Democrats on House committees were accused of regularly meeting together, prior to a bill’s public hearing, to plan out their approach.

Under Senate Bill 157, any meeting that includes a quorum of a voting body – such as all the Democrats on a committee or in the House – and involves a substantive policy discussion would have to be publicly noticed, and recorded minutes would need to be taken.

Democratic committee members could still gather without notification to discuss interpersonal matters and make purely logistical plans.

Fenberg said the goal is to settle key questions such as what counts as public business, what’s the threshold for a quorum, who can be in the meeting if it’s not publicly noticed, and what they can talk about.

“No one's ever truly defined what ‘public business’ means. And so is public business just any conversation about policy issues among legislators, or is it about actual pending legislation and things that they could actually have an influence on and take action on? Those are the questions that we are trying to clarify in law under this bill,” he explained.

The bill, which has its first hearing Wednesday, defines public business as introduced legislation, or other matters going before a statutory committee. But Fenberg notes there are some gray areas, for instance, a policy that’s almost finalized but hasn’t yet been formally introduced could still be considered state business.

Under the measure, emails and electronic communication would not be considered meetings but would be subject to Colorado open records requests, and lawmakers would be allowed to discuss policies one-on-one with each other without having to provide notice or minutes.

This policy follows a consent decree House leaders agreed to resolve last year’s lawsuit, which included no more prehearing meetings by Democratic committee members.

Rep. Judy Amabile said she was advised not to talk to any Democratic colleagues on her committees about policy, even one-on-one, guidance she found frustrating.

“We were just sort of figuring out, do you have support for this policy or do you not? And if you don't, are there some things (we) could do to get support? That seems useful to me. That seems like a good thing for us to be doing. And I know I'm doing a lot less of that,” said the Boulder Democrat.

Amabile said the chill on committee discussions has meant a lot more surprises during hearings, and less ability to meaningfully work through policy differences.

Democratic Rep. Brianna Titone of Arvada agrees that the limits in place this session have made it difficult to try to fully understand the intent of certain bills and to clarify issues and concerns. And she said the restrictions have put a lot more power in the hands of lobbyists, who have become go-betweens for committee members.

“If you can't really go back to the person who's sponsoring the bill to find out ‘is this true?’ or … ‘why are they saying this?’ That's a problem for me because I think that that gives the lobbyists a bit more power in this dynamic,” Titone said.

State Senate President Stephen Fenberg speaks with Colorado Matters host Chandra Thomas Whitfield on Tuesday, Jan. 3, 2023, in a House Leadership conference room. Fenberg represents the 18th district, in Boulder County. (Hart Van Denburg/CPR News, file)

Fenberg said the fear of violating the settlement or accidentally triggering a gotcha moment has had a stifling effect in the building, and hindered the deliberative process.

“I don't know how you solve the toxicity in American politics at large, but what I do know is that there's no way the answer can be to talk to each other less,” he said.

Democratic Speaker of the House Julie McCluskie said she spent the past four months crafting the bill with Fenberg and believes it strikes the right balance.

“Recognizing that we still want to allow members to have one-on-one conversations, talk to each other about their policy, hopes, dreams, how their constituents feel, and be able to do that without concerns that they are violating an antiquated law,” McCluskie said.

The bill does not address some of the other issues covered by the legal agreement, including records retention policies and the concern that lawmakers have been using messaging apps that automatically delete messages, leaving no traces behind.

To read more stories from Colorado Public Radio, visit www.cpr.org.

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