A settlement has been reached in the unusual lawsuit filed this summer by two Democratic state representatives alleging “pervasive” violations of the state’s open meetings laws by members of the Colorado House.
State Reps. Elisabeth Epps of Denver and Bob Marshall of Highlands Ranch offered Tuesday to enter into a court-enforced deal, known as a consent decree, with the Colorado House of Representatives, the chamber’s Democratic and Republican caucuses and partisan leadership in the chamber.
As part of the settlement, which must be approved by a judge, the defendants agreed to not discuss public business or take a “formal action” during a meeting where a quorum of a state body is expected to be in attendance without first providing public notice of the gathering and promptly making minutes of the meeting publicly available.
Also, two or more members of the House “shall not discuss public business through any electronic means (including, without limitation, any instant messaging platform or application) unless written minutes of such meetings are made publicly available upon request.” Those minutes would have to be released under the Colorado Open Records Act.
Finally, the defendants agreed to pay the lawyer representing Epps and Marshall $13,000 within 45 days to cover his fees. Taxpayers would be on the hook for the sum.
“The settlement of this dispute does not establish wrongdoing by any party,” the agreement says.
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Epps and Marshall filed their lawsuit in July, alleging that Colorado House Democrats’ near-weekly caucus meetings, during which pending legislation is discussed, should be publicly noticed and that meeting minutes be recorded and offered to the public. The lawsuit claimed members of the House Democratic caucus “directed legislative aides to omit or disguise these mandatory meetings from representatives’ calendars.”
The lawsuit also argued that House Democrats’ use of Signal, an encrypted smartphone messaging system in which messages can be automatically deleted, also violates the state’s open meeting and public records laws. According to the legal action, representatives used Signal to discuss witness testimony and how each lawmaker would vote on bills.
The legal action argued that House Republicans have violated open meetings laws, too, through their regular caucus meetings and communications on Signal, an app through which users can send and automatically delete encrypted messages.
Lawmakers’ use of Signal, which was first released in 2014, has become more widespread over the past two or three years.
As part of the consent decree, state representatives would be instructed to no longer be able to use Signal’s automatic deletion function.
The lawsuit was highly unusual since Epps and Marshall sued their own caucus and its top leaders, House Speaker Julie McCluskie and House Majority Leader Monica Duran. It heightened tensions in the House Democratic caucus that built through the 2023 legislative session.
During the final day of the term, during a meeting of the House Democratic caucus, Epps directly criticized McCluskie’s leadership, saying she had been too lenient with Republicans and had allowed last-minute bills to be forced through by Democrats.
“You asked to do this,” Epps said. “I’m asking you to do much, much more.”
McCluskie, of Dillon, and Duran, of Wheat Ridge, said in a joint statement Tuesday that Colorado House Democrats “believe deeply in the values of transparency and open government.”
“Through this agreement, we continue our commitment to ensuring full public access, transparency and fairness in the legislative process,” the statement said.
The consent decree, if approved by a judge, would also apply to House Minority Leader Mike Lynch, R-Wellington, and the chamber’s GOP caucus.
Marshall, in an interview with The Colorado Sun, celebrated the agreement.
“It’s going to get us where we need to go, I hope,” he said.
Marshall said the next step is pursuing a bill aimed at modernizing Colorado’s open meetings and public records laws. The consent decree says the agreement would be in effect until the laws are amended, hinting that changes are coming.
If a judge signs off on the consent decree, the agreement would be enforceable by the courts.
The legislature isn’t in session. The 2024 lawmaking term begins in January and runs 120 days.