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Focus on ‘surgical’ solution to ‘gotcha’ litigation

As is, HB 1259 like ‘burning down house to roast a pig’
Steve Zansberg

Bad facts make bad law. This phrase usually describes judicial ruling, but it will aptly apply to the Legislature if it were to foolishly adopt House Bill 1259.

Last December, The Durango Herald and The Journal called out Matt Roane, an attorney in Pagosa Springs, for his business model of suing – or threatening to sue – more than 45 school districts across the state, in his own name, for violating a provision of the Colorado Open Meetings Law that requires all “local public bodies,” including school boards, to publicly announce the topic of a proposed “executive session” discussion (i.e. behind closed doors) with as much specificity as possible without undermining the purpose of that nonpublic discussion.

Roane’s practice is to settle these suits for a standard “fee” of $3,750. As president of the Colorado Freedom of Information Coalition, I was quoted in that column expressing my concern that Roane’s unsavory business tactics might someday prompt lawmakers to amend the COML and roll back the salutary transparency it provides all Coloradans.

Well, that’s what has happened. HB 1259, brought forth by the Colorado Rural Schools Alliance, seeks to rid school boards of the pesky fly that is Roane. And I have no gripes with their objective. However, the “solution” they are advancing is far worse than the problem. If passed into law in its current form, it will do exactly as I had predicted last December – it will gut a key provision of the law that has served Coloradans very well for the 22 years it has been on the books.

Of course, there is a simple, straightforward and “surgical” measure that would put Roane’s money-making enterprise literally out of business. And, thankfully, that measure was added to the bill on the House floor before the cumbersome, confusing and dreadful longer bill was passed on to the Senate. That provision simply bars Roane, and any other copycat lawyer who might seek to profit from his style of “gotcha” litigation/extortion, from being allowed to recover any attorney’s fees in litigation that challenges the sufficiency of a topic announcement for an executive session meeting. Done. (Sorry, Matt, you either have to continue your noble crusade for government transparency on your own time and dime, or have an actual client (i.e. an actual constituent of the school district) ask you to represent him or her in challenging an egregious or recurring deficiency in such announcements.)

This single provision fully solves the “shakedown” problem the rural school districts have faced. And, the public will not be harmed one iota by barring attorneys from profiting from bringing their own lawsuits under this provision of the COML.

But the problem, and it’s a big one, is everything else in HB-1259, which is not only unnecessary – it completely dismantles the statutory mechanism by which actual concerned members of the public can hold any of their local government officials accountable. Remember, the bill is not limited to all 178 Colorado school districts, it applies to every city council, board of county commissioners and special district in the state.

Under the bill, no lawsuit can be brought challenging a deliberate, even nefarious violation – such as announcing “Board Housekeeping” or merely “Personnel Matters” –unless the putative challenger provides notice of a planned challenge at least 14 days before a regular meeting of the public body. And public bodies can “cure” their prior violation without notifying all of the members of the public who attended the prior public meeting at which the intentional violation occurred. And if the citizen ultimately loses the lawsuit, (s)he must pay the local public body’s attorney’s fees and costs –sometimes exceeding $100,000! (on top of fees for his/her own attorney) – for the unsuccessful effort to bring a government body into compliance with law.

There’s a saying in some judicial opinions that certain measures can be likened to “burning down the house to roast a pig.” As currently drafted, HB-1259 is one such measure. Colorado’s lawmakers should reject it and instead adopt only the “surgical” solution to a very small, but pesky problem posed by Roane’s business model.

Steve Zansberg is a First Amendment attorney in Denver and president of the Colorado Freedom of Information Coalition. Zansberg has represented The Durango Herald and The Journal.