Dem Bill Compromises Executive Sessions

April 22, 2014

DENVER – School district boards are once again in jeopardy of losing their attorney-client privileges and confidential conversations during executive sessions under a bill reintroduced – if watered down – that will be debated in the Senate on Tuesday.

Senate Bill 182 replaces House Bill 1110 that was withdrawn last month because it opened the door to expensive litigation that would further hurt cash-strapped school districts across Colorado. Both measures are sponsored by Sen. Mary Hodge (D-Brighton) and Rep. Cherylin Peniston (D-Westminster).

Current laws already require school districts to publish the meeting agenda citing the topics of an executive session and limit those protected discussions to employment decisions, real estate transactions and litigation.

Like its predecessor, SB 182 requires meeting minutes be made public within 10 business days and reflect the duration of time spent discussing each topic.

SB 182 also requires that tapes of the executive session be retained for 24 months, but omits a provision specifying that a court judge may listen to the electronic recordings and determine whether they should be made public.

“Colorado Association of School Boards opposes Senate Bill 182 because we believe it is special legislation that feels punitive in nature,” said Jane Urschel, CASB deputy executive director. “This bill, we believe, is an inappropriate response to alleged wrong doing, and I stress alleged, by one or two school districts.”

“We also question the rationale for targeting the bill at school districts and not other local public bodies,” said Urschel, who added that the legislature killed a bill last year that had encompassed all governmental boards.

Proponents of both bills had fought for the election of union-backed candidates and against reform candidates to school boards in Douglas and Jefferson counties last year.

Wendy McCord of Jeffco Kids organization voiced support for SB 182 because it opens the door to more transparency, particularly the 24-month mandate to retain electronic recordings of executive sessions.

“It provides greater accountability by school board members and their (legal) counsel. Should it come to light that there have been inappropriate discussions during one or more executive sessions, there will at least be some basis of information that citizens can use to start asking more questions,” she said.

The recordings, McCord said, will assist taxpayers to “determine whether our elected officials or their attorneys are misusing their powers.”

A former oil and gas corporation attorney, McCord’s comments cracked the door in the future to amending the bill, if passed, and that could compromise the legally protected client-attorney privileges.

Cindra Barnard of Taxpayers for Public Education accused unnamed attorneys of encouraging schools boards to conduct business “behind the veil of attorney-client privilege.”

“Quite frankly, if our boards of education were behaving according to the law, this bill would not be necessary,” said Barnard, who sued her school district in Douglas County last year. A district court judge ruled against all but one plank in her lawsuit, which is still open to appeal.

Barnard said she supports the current proposed legislative bill, but prefers its forerunner, HB 1110, which more readily opened the door to litigation against school districts to publish confidential discussions.

“I have no recourse as a private citizen, I have no proof of a violation” by the Douglas County School Board, complained Barnard.

“You do have recourse. It’s called elections,” responded Sen. Scott Renfroe (R-Greeley). “And you can run for the school board.”

“That takes too long,” said Barnard, noting that the next election would be in 2015.

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