Nicolais: Local government boards keep breaking law meant to require transparency and accountability

Local government bodies have often been good ol’ boys (and gals) clubs. Usually, they consist of concerned citizens who have a vision for their communities. But when disagreement and dispute arise, they can become Machiavellian pits of raw political power plays, nontransparency and a lack of accountability.

The past week has highlighted that outcome.

Last Friday a Douglas County judge issued a long-awaited ruling against four members of the Douglas County School Board. Four members of the board used a series of one-on-one meetings to reach the decision to fire former Superintendent Corey Wise in February 2022.

Those actions prompted a local resident, now State House Rep. Bob Marshall, to file a lawsuit declaring the action illegal. He sued the DougCo School Board and those four board members individually (in full transparency, I represent two board members who were not involved in the secret conversations and not individual parties to the lawsuit).

Those four members spent a year and half and $150,000 in legal fees, not counting the fees accrued by Marshall that they will likely have to pay after losing, just so they could say they didn’t break the law. 

Except now a judge has ruled that they did.

They should have had the discussions in an open meeting where the public could participate and hear both the evidence and rationale. They should have engaged in a data-driven review and allowed Wise a fair opportunity to defend his record. Even after they broke the law, they could have cured the problem by doing all that.

Instead, they “rubber-stamped” their secret decision. As the judge said, their failure to allow public comment at a following hearing and quick timing demonstrated they had already made up their minds.

That is the cost to DougCo for their arrogance and deceit. And it is cowardly. 

The only reason those four board members decided to make their plans behind closed doors was because they did not have the courage to make such a brazen choice in front of voters. They were too afraid of the outrage it would cause among teachers, administrators, students and parents. 

So they locked all of them out and just did it. And, as we now know, they broke the law.

Of course, the DougCo School Board is not the only entity that practices this type of realpolitik. Less than a week later a Denver District Court judge ruled there was “reasonable belief” that the Denver Public Schools Board of Education violated the state open meetings law as well.

The DPS Board met in private for five hours after a student shot two administrators and later took his own life. When they resumed their public meeting, they immediately produced and adopted a memo that suspended a prior policy policy banning police in schools. They engaged in no debate before taking their vote.

See the pattern? See the problem?

Six news organizations filed a lawsuit — represented by the same attorney representing Marshall in DougCo, Colorado’s Sunshine Law godfather, Steve Zansberg — to have the private meeting recording made public.

The judge will now review the recording and decide what, if any, should be disclosed to the public. That could potentially open up all the statements and positions board members were too afraid to say before their constituents. Not only will they need to explain those positions, but also why they hid them.

But at least they made a recording for the judge to review.

A couple years ago, I brought a case against a rural fire district that went into executive session without voting to do so. That automatically makes the entire executive session open to review for the public.

But they spent nearly two years fighting against my client. Despite a videotaped recording of the public portion of the meeting demonstrating that the board failed to vote. When the judge who finally heard the matter sided with us, the district admitted they had nothing to turn over. 

They had not recorded the executive meeting at all — something the law requires. Instead, their attorney certified, only after our complaint was filed, that the contents of the executive session were attorney-client privileged. This despite testimony from their board secretary that they never recorded executive sessions and proof that they discussed privileged information.

I have never come so close to reporting another attorney for unethical behavior in my 15 years practicing law.

Each one of these cases demonstrates the lengths to which local governments can go, in their fear and arrogance, to exercise their power. That is particularly true in the most controversial circumstances.

Let that be a fair warning to keep your eyes wide, and their doors open, or risk them governing without transparency or accountability to anyone.

Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq.