Anzalone v. Board of Trustees of the Town of Del Norte.
2024 COA 18. No. 22CA2181. Administrative Law—Colorado Open Meetings Law—Public Meetings—Executive Sessions—Formal Actions—Censure Proceedings.
February 22, 2024
Anzalone was an elected trustee of the Board of Trustees (board) for the Town of Del Norte (town). Allegations of misconduct were raised against Anzalone that arose from her interactions with the public concerning code enforcement issues, her attempt to call a special board meeting, and her communications with town employees concerning optimum timing for staff replacement. At its regularly scheduled October 13 public meeting, the board scheduled a formal public meeting in November to address whether it should pursue removal of Anzalone from office. But two days after the October 13 meeting, the mayor requested a special meeting of the board, set for October 18. The notice setting that meeting stated that the meeting’s purpose was to receive legal advice concerning trustee removal and board action relating to trustee removal. After about four minutes in the special meeting’s open session, the board approved a motion to convene in executive session. There were no substantive discussions of Anzalone’s removal or censure during the public meeting before the commencement of the executive session, which lasted approximately 90 minutes. Following the executive session, the board returned to public session for about five minutes during which it publicly censured Anzalone. Anzalone then sued the town and board, alleging that the censure was void because it constituted a formal action in violation of the Colorado Open Meetings Law (OML). The district court reasoned that the claim was not viable because the censure did not consider the formation of public policy and was not a proposed policy, position, rule, regulation, or formal action under the OML. The court then concluded that the board’s executive session was not subject to the OML because the censure resulting from that meeting was merely an expression of the board’s opinion on Anzalone’s performance as a trustee and did not concern laws or measures that affect the general public. The court dismissed the claim.
On appeal, Anzalone argued that the court’s order was contrary to the OML. In Sentinel Colorado v. Rodriguez, 2023 COA 118, the court of appeals summarily concluded that a city council’s decision to dismiss a pending censure proceeding amounted to formal action under the OML. And in Board of County Commissioners v. Costilla County Conservancy District, 88 P.3d 1188 (Colo. 2004), the Colorado Supreme Court stated that a local public body may not take formal action in an executive session and then avoid such OML violation by “rubber stamping” the decision through a formal action taken in a public session. If a local public body meets in violation of the OML, any resolution, rule, regulation, ordinance, or formal action made at the meeting is invalid as a matter of law. Here, the board did not conduct a hearing, took no evidence, and received no public comment after exiting the executive session. It is thus reasonable to conclude that the substance of the censure resolution was discussed and agreed upon during the executive session. Based on the undisputed facts, as a matter of law the board exercised its policy-making process during the executive session. Accordingly, the vote taken in the public session only rubber-stamped the formal action taken during the executive session. Therefore, the censure is invalid as a matter of law, and the district court erred by dismissing Anzalone’s claim.
The judgment was reversed and the case was remanded to the district court to enter an order declaring the censure resolution invalid and to determine the amount of Anzalone’s reasonable attorney fees and costs.