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Dunafon v. Krupa.

2020 COA 149. No. 19CA1344. Colorado Constitution—Independent Ethics Commission—Public Records—Colorado Open Records Act—Colorado Open Meetings Law—CRCP Rule 106—Amended Complaint. 

October 22, 2020

The Independent Ethics Commission (IEC) received two complaints against Dunafon, the mayor of Glendale, which is a home rule municipality. The IEC determined that it had jurisdiction to investigate Dunafon because Glendale’s ethics code did not create a decision-making body sufficiently independent to adjudicate the complaints against Dunafon. The IEC held nonpublic executive sessions to consider the frivolity of the complaints against Dunafon and ultimately deemed them nonfrivolous. Thereafter, Dunafon requested records of the executive sessions in which the IEC discussed the complaints, arguing that the materials were no longer confidential once the IEC deemed the complaints nonfrivolous. The IEC denied this and a subsequent request. Dunafon then sued to obtain the executive session records under the Colorado Open Records Act (CORA) and the Colorado Open Meetings Law (COML). The IEC moved to dismiss the complaint. The district court dismissed the complaint with prejudice for lack of subject matter jurisdiction.

On appeal, Dunafon argued that the district court had subject matter jurisdiction under CORA to review his request. The IEC is an independent, constitutionally created commission that is separate from the executive and legislative branches and is thus not subject to CORA. Therefore, the district court lacked subject matter jurisdiction to review Dunafon’s records request under CORA.

Alternatively, Dunafon argued that the district court had subject matter jurisdiction to review his request under the IEC’s Records Rule. Any adopted rule must be consistent with CRS § 24-18.5-101(9), which establishes the district court’s subject matter jurisdiction over IEC matters and limits that jurisdiction to review of the IEC’s final actions concerning a complaint. While the Records Rule expressly adopts most CORA provisions, to the extent it may be read to grant the district court jurisdiction to review the IEC’s nonfinal actions, it is invalid because the IEC lacked the power to convey subject matter jurisdiction upon the district court to review denials of record requests.

Dunafon next argued that the district court had subject matter jurisdiction under COML to review his request. IEC is not a state agency under COML. Accordingly, the district court lacked jurisdiction over the COML claims and appropriately dismissed the complaint.

Dunafon further argued that the district court should have granted him leave to amend his complaint to add a Rule 106 claim. Here, Dunafon did not file an amended complaint accompanied by a motion for leave to amend his complaint to add a claim under Rule 106(a)(4). Further, Dunafon’s original complaint and his request to amend were filed outside of the Rule 106 time limit. Accordingly, the district court lacked jurisdiction to review his Rule 106(a)(4) claim and did not abuse its discretion.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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