By Sam Light, CIRSA General Counsel

As an elected official, you know email can be a useful tool to help you do parts of your job. However, you must be mindful of the legal constraints on your use of email, including how the Colorado Open Meetings Law (OML) applies to email discussions with your fellow city council or town board members.  This article summarizes the OML’s core “openness” requirement as applied to your use of email, as well as recent amendments to the OML on this issue.

The OML states all meetings of three or more members of any local public body—or a quorum, whichever is fewer—at which any public business is discussed or at which any formal action may be taken are “declared to be public meetings open to the public at all times.”  This includes meetings “in person, by telephone, electronically, or by other means of communication.”  The OML further states that if elected officials use email to discuss pending legislation or other public business among themselves, the OML applies to those emails.

These email provisions have long led to debate and claims over what types of email discussions among elected officials will trigger the OML “openness” requirement.  For example, are emails among four council members to discuss available dates for a study session considered a discussion of public business?  Or is an “FYI” email from one trustee to all the other trustees on a topic of current interest a discussion of public business?  If so, how do you ensure these email discussions are open to the public as required by the OML?  And if the discussion is not open, is that an OML violation subject to enforcement (including the power of a district court to award injunctive relief and attorney fees to a successful claimant[i])?

Since its enactment, the OML has declared it is, “the policy of this state that the formation of public policy is public business and may not be conducted in secret.”  But the OML does not define “public business,” leaving elected officials to wonder (and courts to decide) whether emails among the requisite number of council or board members on any item of public business—however weighty or, alternatively, routine or trivial—must be open.

It would seem at first blush that there are straightforward solutions to this uncertainty.  For example, one of the suggested bits of advice is: “Just don’t use email to communicate with fellow council or board members.”  Another is: “Just make the email discussion open to the public.”  But such absolute solutions are generally impracticable. In the first instance, there must be some types of group email discussions that don’t trigger the OML.  And, in the second instance, such a solution can be technically impractical or subject to criticism for placing the burden on citizens to be ever vigilant for email discussions of public business of interest to them.

The Colorado courts have provided some guidance on what constitutes a discussion of “public business” for purposes of triggering the OML.[ii]  Now, with the passage of House Bill 21-1025, the Colorado Legislature has weighed in and amended the OML to more precisely state what types of emails do not trigger the OML’s openness requirement.  In particular, the Bill states that email communication among elected officials “that does not relate to the merits or substance of pending legislation or other public business” shall not be considered a meeting.  This includes email “regarding scheduling and availability” and an email sent by an elected official for the purpose of forwarding information, responding to an inquiry from an individual who is not a member of the body, or posing a question for later discussion by the body.  The Bill also defines “merits or substance” to mean “any discussion, debate or exchange of ideas, either generally or specifically, related to the essence of any public body proposition, specific proposal, or other matter being considered by the governing entity.”

While House Bill 21-1025 identifies some safe harbors for elected officials’ use of email, some points of caution are in order.  First, the Bill’s definition of “merits or substance” is very broad, and thus officials should take care to ensure, for example, that an “FYI” email from one of your members to the board or council does not morph into a thread of substantive discussions around the “FYI” topic.  Second, if your members are exchanging substantive emails about some topic within your wheelhouse as elected officials, it’s hard to then say that topic wasn’t a “matter being considered” by your city or town. In that regard, remember the above-mentioned purpose of the OML is that “the formation of public policy is public business;” that is, not the final announcement or vote.  Thus, be sure to save all “merits or substance” discussions for your duly noticed, open public meeting.

Finally, recognize that House Bill 21-1025 clarifies the “openness” requirement only as applied to elected officials’ use of email.  But the OML also applies to meetings of other public bodies, and there is nothing in the OML exempting emails of other bodies from triggering the “openness” requirement.  Therefore, these bodies must also recognize their obligation to comply with the OML and not engage in prohibited discussions via email.[iii]  Lastly, while beyond the scope of this article, all elected and appointed officials should recognize that emails concerning their public duties or public funds are, for the most part, public records open to public inspection under the Colorado Open Records Act (CORA).  So, irrespective of whether your emails may trigger the OML, you’ll want to be circumspect in your use of email, recognizing that CORA may require your emails be provided to readers well beyond your intended recipient!

House Bill 21-1025 will take effect 90 days after the Legislature adjourns.  While the Bill helps clarify certain aspects of the OML’s openness requirements, CIRSA members should consult with their city/town attorneys on the Bill’s application to specific situations and the practices of your board or council.  Further, CIRSA suggests that elected and appointed officials be regularly trained on the requirements of the OML to minimize the risk of claims and disputes surrounding OML compliance.  And, for general guidance in managing the risks of using email, see this CIRSA training handout with suggested dos and don’ts.

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[i]  An OML violation can be costly in terms of both public trust and financial impact to your entity.  The OML authorizes the district court to award attorney fees to a successful claimant.  For CIRSA members, your liability coverage does include a sub-limited coverage to help cover the costs of defense of a claimed OML violation by your governing body (i.e., City Council or Board of Trustees).  However, this coverage is for defense costs only and does not provide coverage for attorney fees awarded to a successful claimant.  It also does not apply to claimed violations by other boards or commissions.  The current limits for this coverage are $10,000 per claim with a $30,000 annual member aggregate, and coverage is not subject to a deductible.

[ii] For example, in Board of Com’rs v. Costilla Conservancy, 88 P.3d 1188 (Colo. 2004), the Colorado Supreme Court held that “a meeting must be part of the policymaking process to be subject to the requirements of the OML,” thus implying that discussions not part of such process were not subject to the OML’s “openness” requirement.  But Costilla and subsequent decisions are naturally fact-specific, resulting in continued uncertainty as to exactly what type or amount of email discussion will trigger the OML “openness” requirement.

[iii] Although the OML does not expressly address text messaging by name, elected and appointed officials should assume the OML’s requirements also apply to text messaging as those communications are also occurring electronically.