Senate President Steve Fenberg seemed genuinely surprised Wednesday in a committee hearing by the backlash to his bill adding exemptions to open meetings laws for state lawmakers.
But he should have known his legislation, as drafted, goes way too far.
If this becomes law, for example, an entire committee could meet a week before the session begins to discuss a hypothetical bill they are likely to hear in the next session, hammer out the details of that bill, and not violate the open meeting laws. The official committee meeting a few weeks later to discuss the bill in public — now that it has been introduced and is “public business” — would be a sham.
The legislation does clearly require interim committees that study issues and recommend legislation to be open to the public, however.
In the face of stout opposition — and a little name-calling — Fenberg postponed the first vote on his bill — a wise move. Small adjustments to the legislation will take it from being a disaster for transparency to a workable improvement over the current law.
Senate Bill 157 is an attempt to allow lawmakers to talk amongst themselves about potential legislation without the fear of violating requirements that public business be conducted in public. The uncertainty about vote counting, stakeholder meetings, and general conversations about legislation before it is introduced at the Colorado General Assembly is real — as detailed by former Speaker of the House Terrance Carroll on these very pages last year.
But that must be balanced with Coloradans’ right to observe an open and honest debate about bills. The more that those conversations take place behind closed doors, the less the public will trust the outcome.
Across the state from all types of public bodies, we see evidence of public business being moved out of public forums. When complex legislation or proposals come forward, and they are approved without public officials asking important questions — usually it’s because those questions and debates have occurred out of the public eye.
More and more public bodies are rubber-stamping their public business because it’s all been worked out in private. Denver Public Schools was recently admonished by a judge for this very thing. City council meetings are full of consent calendars that approve multimillion-dollar contracts with zero public discussion.
And we learned just how much public business was already happening in the shadowy reaches of the General Assembly when Colorado Reps. Elisabeth Epps and Bob Marshall filed a lawsuit against leaders of their own party for using messaging apps to discuss legislation and potential votes and for holding secret meetings to do the same.
State law, approved by voters, requires that if a quorum of lawmakers meet to discuss “public business,” they must post advanced notice of the meeting for the public and allow the public to attend.
Senate Bill 157 would define “public business” so the term wouldn’t include legislation that hasn’t been introduced.
This is simply too far. Legislation in its draft form is clearly public business, even if it never gets introduced or undergoes substantial revision.
A far better solution to the problem is to simply define what isn’t considered public business for elected state lawmakers rather than narrowly defining what is public business.
The bill already does that, exempting meetings that are “interpersonal, administrative or logistical” or concerning “personnel, planning, process, training or operations.” All of that seems fine, and if lawmakers want to also exempt conversations between “cosponsors or potential cosponsors about the legislation they have introduced or will introduce together;” we think that would be appropriate.
Fenberg could also add in language that enables lawmakers to discuss legislation amongst themselves on the floor of the House or Senate as long as the body has convened for the day in a public session. The public may not be able to hear the words spoken, but just the scrutiny of other lawmakers being present, reporters being on the floor, and the gallery observing would prevent the kind of closed-door scheming we are worried about.
Finally, Fenberg attempts in his legislation to exempt written communications from open meetings requirements. This opens the floodgates for abuse.
We do think that exempting electronic and written communications from the portion of the law that requires public notice of a meeting is appropriate. Lawmakers should be able to communicate via e-mail or text. However, if those conversations are about public business, they should be required to post that conversation on the bill’s website within 48 hours of the correspondence.
That is how we would thread this needle of allowing lawmakers easier access to ideas and feedback without rendering every committee hearing and public vote a foregone conclusion.
There’s no need to get all hyperbolic about this legislation. All that is required is some thoughtful tweaks to make sure lawmakers can do their jobs and that the public can still scrutinize the process. Luckily Fenberg’s bill will be aired in public meetings that are honest debates and assessments of the pros and cons of this legislation rather than between lawmakers who naturally want to make their own jobs easier.
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Updated Feb. 22, 2024 at 3:25 p.m. An earlier version of this editorial incorrectly described how the proposed law handles interim committees. Those committees would be subject to the open meetings laws. The editorial also misstated when public notice of a meeting is required. Notice is only needed if there is a quorum.
