An attorney involved in the lawsuit alleging Douglas County School Board members violated open meetings law has responded to some directors who said they are confused about how to comply with a judge’s order prohibiting serial meetings.
The letter came amid ongoing efforts to dismiss the lawsuit, and ahead of what could become a months-long court dispute.
In a letter to the board, open government attorney Steve Zansberg said he contacted the board’s legal representation in the lawsuit at Hall and Evans, a Denver law firm, after observing directors’ March 11 special meeting, where some board members said they wanted more clarity about a preliminary injunction in the case.
Douglas County resident Robert Marshall sued the board in February alleging majority Directors Mike Peterson, Becky Myers, Christy Williams and Kaylee Winegar broke open meetings law by using a chain of private, one-on-one meeting to discuss removing then Superintendent Corey Wise.
As a result of those discussions, Peterson and Williams met with Wise on Jan. 28 and asked him to retire or resign and said a board majority was prepared to remove him if he did not.
On March 9, Judge Jeffrey K. Holmes granted a preliminary injunction instructing directors to follow open meetings law. Holmes’ order said directors’ actions did not only violate the spirit of the law, but its purpose.
Zansberg’s letter said he wanted to offer the board a different perspective from legal advice they might be receiving. Directors indicated on March 11 that in attorney-client privileged communications, the board’s lawyers viewed the judge’s order as “legally erroneous,” Zansberg wrote.
Hall and Evans attorneys did not respond to requests for comment. Board President Peterson declined an interview for this story.
Zansberg reiterated that Marshall’s lawsuit never sought to prevent two board members from having legal, one-on-one conversations about public business. For local public bodies, Colorado law allows school board directors to speak about district business outside of open meetings, two at a time. Gatherings of three or more to discuss official business or take formal action should be an open meeting.
Marshall sought to stop three or more directors from conducting business out of the public’s eye, Zansberg wrote, including through serial meetings. In that form of a gathering, local public officials meet in twos but then relay views or stances from those discussions with additional board members outside of public meetings.
The judge’s preliminary injunction did just that, Zansberg wrote. President Peterson can, for example, meet with any single member of the board to discuss public business, Zansberg wrote.
“Thus, so long as communications between any two members of the board are not thereafter shared (in person, by phone, email, text, or any other means of communication) with a third member of the board — outside of a public meeting — the injunction will not be violated,” Zansberg wrote. “It’s not a terribly difficult concept to understand and to abide by.”
Zansberg said majority directors have confessed to violating open meeting laws, and so did some of their attorneys’ court filings in the case. Defense attorneys wrote that Peterson had contacted Williams “to relay” to her two other directors’ stances on Wise’s employment with the district.
“It is obvious and straightforward what constitutes the violation: the ‘sharing,’ ‘relaying,’ or cross-communicating to a third board member the views expressed by two other board members on a particular topic,” Zansberg wrote. “Sharing the views, positions, or thoughts of three or more members of the board on any matter of public business — whether or not a decision is reached by a majority of the board — is what the law, and the injunction enforcing it, prohibit.”
Zansberg also argued that whether some board members believe Colorado Open Meeting Law is cumbersome for conducting board business is irrelevant. The judge’s duty is to apply the law as written, he said.
Zansberg said “the only appropriate forum for such complaints and efforts to revise the law is the general assembly, not a court of law.”
Majority board members have consistently maintained they followed open meeting law to the letter and did not act illegally in meeting privately with Wise or conferring with one another. They have repeatedly emphasized they only spoke one-on-one.
On March 11, the board debated for 90 minutes about how to respond to the judge’s injunction. While some majority directors said they did not understand the judge’s order, minority directors said it only required directors to follow the open meetings law.
Majority directors expressed interest in appealing the order. Peterson said an appeal could get directors and other boards more clarity on what the injunction means. Minority directors emphasized insurance will not pay for the lawsuit and DCSD would need to fund an appeal process. The board agreed to revisit the issue at their March 22 meeting.
Earlier in the case, the board’s attorneys filed a motion to dismiss the lawsuit. That motion partly argued an injunction would halt directors’ ability to reasonably conduct district business. Zansberg told Colorado Community Media his client’s deadline to respond to the request for a dismissal is due next week, but that months of litigation could follow if the lawsuit is not tossed or if DCSD appeals.
South Metro Editor Thelma Grimes contributed to this report.
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