Opening School Board Executive Sessions to Lawsuits Faces House Scrutiny

April 30, 2014

Rep. Cherylin Peniston

Rep. Cherylin Peniston

DENVER – A measure to expose school boards to lawsuits over executive sessions will be debated Wednesday in the state House. The bill had required school boards to retain electronic recordings of the sessions for 90 days, but was amended to 24 months in order for litigants to probe evidence for lawsuits filed against the school districts.

Rep. Cherylin Peniston (D-Westminster), who is sponsoring the Senate measure in the state House, described it as a “Mini-Me” version of House Bill 1110 that she and co-sponsor Sen. Mary Hodge (D-Brighton) killed last month.

Peniston said SB 182 requires school boards to make public the time each issue is discussed during a school board executive session, including protected attorney-client conversations.

“This is a very small change but worthwhile for transparency,” said Peniston, noting that public entity boards are already required to post topics and cite state statute for closed door meetings.

Like its predecessor, SB 182 only targets school board executive sessions, makes them vulnerable to lawsuits and potentially compromises confidentiality of protected conversations.

SB 182 was amended in the Senate to require school districts to retain tapes for 90 days, the rule that applies to any other public governing board that tape-records executive sessions. However, Peniston amended the bill Monday in the House Education Committee to require a minimum of 120 days.

“The original bill asked for retaining those recordings for 24 months to fit with the (state) statute of limitations,” said Peniston, who added the tapes could be used in discovery if a complaint is filed through the court system.

Two parents, one from Jefferson County and another from Douglas County, testified for the measure and the 120-day requirement to keep recordings. Both individuals said they had no proof of wrongdoing by the school boards, but wanted the option to access the tapes of private discussions to fish for evidence of abuses.

“Colorado Association of School Boards opposes Senate Bill 182 because it is special legislation brought about, we believe, in response to alleged wrongdoing by a very small number of school boards,” said Jane Urschel, the association’s deputy director.

Urschel said a similar bill was killed last year, but it had applied to all public governing bodies. This bill aimed at school districts is unfair and does not solve the complaints voiced by a few people against school boards in Jefferson and Douglas counties.

“Colorado Open Records law expressly states that executive session tapes are not subject to discovery in any administrative or judiciary proceeding,” Urschel said. “Therefore even if school boards are required to retain the tapes for 24 months, they will not be available to a plaintiff through discovery except under very limited circumstances.”

Urschel said, the bill “will only create additional costs and administrative burdens on school districts.”

Peniston contended that the tapes could be used in discovery when court challenges are filed to find school board abuses of executive sessions. The ultimate decision would be made the court judge, she said.

That seemed to echo the language from this bill’s predecessor that was killed last month because it would lead to expensive litigation and the costs would further hurt financially burdened schools.

The Democrat-controlled House is likely to pass SB 182, but unless it is amended to the 90-day tape retention the bill will be returned to the Senate. It would then require a conference committee to determine its outcome.

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