When Colorado lawmakers in March made the first major changes to the state’s open meetings law since the 1990s, top Democrats promised it wouldn’t reduce government transparency.
“This bill is not attempting to create less transparency than we have today,” Senate President Steve Fenberg, a Boulder Democrat who sponsored the measure, said at the first committee hearing for Senate Bill 157.
But open government advocates say legislative Democrats earlier this month used the new law to do just that, barring news outlets from two caucus meetings where lawmakers discussed the prospect of a special session to reduce property taxes.
On Aug. 8, Senate Democrats wouldn’t allow The Colorado Sun to attend a virtual caucus meeting. House Democrats did the same a day later, preventing a Denver Post reporter from attending.
“Barring journalists from caucus meetings — what is that if not reducing transparency?” said Jeff Roberts, the executive director of the Colorado Freedom of Information Coalition, an open government advocate who represents news outlets and other groups. “To me, it certainly goes against the spirit of the open meetings law and what it is about.”
But while the private caucus meetings provided a clear test case for how the new law would be used, they were far from the only secret discussions held in the lead-up to next week’s special session.
And media outlets weren’t the only ones left out.
In recent weeks, a small group of lawmakers from both parties re-entered negotiations with Gov. Jared Polis’ office and Michael Fields of Advance Colorado in a bid to get the conservative political group to withdraw two proposed property tax measures from the November ballot.
The negotiators — including Sen. Barbara Kirkmeyer, R-Brighton, and Sen. Chris Hansen, D-Denver — struck a deal to pass new tax cuts, and Polis called lawmakers into a special session that starts Monday.
But rank-and-file Democrats now say they feel backed into a corner by a negotiation that they and their constituents weren’t allowed to have a say in. And at a Thursday caucus meeting — this one open to the public — a number of House Democrats complained about the lack of transparency, saying they don’t even know who was sitting at the table when the deal was struck.
“Who are these stakeholders?” said Rep. Emily Sirota, a Denver Democrat. “I would just appreciate a little more clarity and transparency, because it does feel like some folks are part of a conversation, some folks are not.”
The growing frustrations over the dealmaking process has created an unpredictable environment as lawmakers return to Denver on Monday.
Kirkmeyer has issued public warnings to lawmakers not to tinker with the deal, otherwise the ballot measures might go forward in November. Meanwhile, some Democrats are suggesting they won’t be tied to a deal they never agreed to.
“We have a gun to our heads. Gov. Polis, Mr. Fields, they’re making us the proverbial offer that we can’t refuse,” said Rep. Steven Woodrow, a Denver Democrat. “I just want to put on record that that’s a pretty terrible way to legislate. This is rushed.”
Redefining “public business”
The first sentence of the Colorado Open Meetings Law, first passed by voters in 1972, declares that “the formation of public policy is public business and may not be conducted in secret.”
But the bill limits the definition of “public business” to the point that the “formation of public policy” — like discussing a proposed property tax deal — isn’t necessarily subject to the open meetings law until a proposal is formally drafted into a bill.
In an interview, House Speaker Julie McCluskie, a Dillon Democrat, told The Sun that during the closed caucus meeting, she shared the proposed tax deal with her caucus and heard opinions about a potential special session, which the governor hadn’t formally announced until the following week.
They also discussed the status of an electoral campaign to defeat the conservative measures at the ballot box, she said.
“We were not looking at bill drafts,” she said. “We were not taking votes.”
Fenberg, meanwhile, said the Senate caucus meeting “really wasn’t a policy conversation” at all, even though copies of the tax proposal were distributed at the meeting.
“It wasn’t the purpose of the meeting,” he said. Instead, he was trying to update members on where things stood with a potential special session and clear up some of what was being reported in the media at the time.
“I don’t think anyone was trying to hide anything,” Fenberg said.
Supporters said changes to the open meetings law were needed because it was preventing lawmakers from having informal conversations with one another without worrying about running afoul of the law. It defines any gathering of two lawmakers as an open meeting if they discuss public business.
Senate Bill 157 redefined public business as “introduced legislation or proposed legislation,” and excludes “matters that are by nature interpersonal, administrative, or logistical or that concern personnel, planning, process, training, or operations.”
“Sometimes those brainstorming meetings do need to be able to happen in a safe space where you don’t necessarily have the lobbyists who are going to oppose your effort looking over your shoulder,” Rep. Chris deGruy Kennedy, a Lakewood Democrat, said before the bill was passed in March.
Additionally, emails and other electronic communications are no longer considered meetings, and are instead accessible only through the Colorado Open Records Act.
McCluskie noted the new law isn’t set in stone forever. The bill assigns the Colorado Legislative Council to consider further changes on an annual basis.
“I think we have seen what happens when members don’t talk to each other and try to understand different perspectives,” McCluskie said. “We worked very, very hard to ensure that transparency and that openness, while still remaining committed to being able just to talk with one another and understand each other and learn from each other.”
Republicans voted unanimously against the open meetings bill.
When asked if their caucuses met about the special session as well, Minority Leader Paul Lundeen said Senate Republicans “had some informal conversations.” Laurel Boyle, a spokesperson for the House Republicans, told The Sun they did not have a formal caucus meeting, but “a handful of members met in an informal meeting” to talk about the timing of the session.
Secret negotiations frustrate lawmakers
On Thursday, McCluskie told her caucus she didn’t believe a special session was needed.
But, she added, going forward it “needs to be a fair and open process” that allows lawmakers to bring bills of their own or propose changes to the negotiated deal.
Some questioned whether that was possible at this point.
“I just want to say that I feel like this still continues to be a very top-down sort of process,” Woodrow said. “I hear that we’re allowed to bring other bills, and I appreciate that. But I’m also hearing that certain changes are so-called ‘deal killers.’ And so I’m just concerned: Is it really going to be an open deliberative process if certain ideas are being rejected before we even start?”
Earlier this month, members of the state’s bipartisan Property Tax Commission expressed similar frustrations when they were briefed on the deal — as well as last session’s property tax cut, Senate Bill 233.
“It felt to me as a member of this commission that the feedback we were providing didn’t really matter,” said Guyleen Castriotta, the mayor of Broomfield. “I’m sorry to say but it’s like the cake was already made, and whoever was behind the curtain making decisions, it was already a done deal.
“I feel like this is kind of the same thing,” she added. “If this (meeting) is just window dressing to have stakeholders then that’s really disappointing.”
Already, lawmakers are offering tweaks to the deal itself — while putting together other bills that would be voted on separately.
McCluskie on Thursday said she added a section to the proposal that would provide some state assistance to fire districts and others that stand to lose revenue under the tax cut. She also wants language that would repeal the legislation if the ballot initiatives aren’t withdrawn as expected.
But with just days left until the session begins, much of her caucus remained unsure how to proceed amid all the secrecy.
“I feel very much left in the dark about what’s going on and where things are,” said Rep. Tammy Story, a Democrat from Conifer. “And it seems like there are many other parties and stakeholders that have a whole lot more information than we do.”
Colorado Sun staff writer Jesse Paul contributed to this report.