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Guy v. Whitsitt.

2020 COA 93. No. 19CA0125. Colorado Open Meetings Law—Executive Session.

June 11, 2020

During four public meetings, the Town Council of Basalt (Town Council) went into executive session to discuss a combination of four statutorily permissible topics: property interests, legal advice, negotiations, and a personnel matter. In its public announcement of what would be discussed in these executive sessions, the Town Council stated that it would discuss property interests, legal advice, negotiations, and personnel matters, and cited the statutory provisions allowing this. No further details were provided.

Plaintiff asserted in a letter that under the Colorado Open Meetings Law (COML), the Town Council had to identify with some degree of particularity the matters to be discussed in executive session, and he requested records of the executive sessions under the Colorado Open Records Act. After his request was denied, plaintiff sued for an order requiring the Town Council to show cause why the records should not be disclosed and a declaration that the Town Council had violated COML’s notice requirement with respect to all four executive sessions. The district court ruled in the Town Council’s favor.

On appeal, plaintiff argued that the district court erred in ruling that the Town Council did not have to announce with particularity the matters to be discussed in executive session beyond merely mentioning the statutorily permissible topics of legal advice and personnel matters. CRS § 24-6-402 allows members of a local public body to discuss certain topics in executive session closed to the public where such meeting is announced and the particular matters to be discussed are identified in as much detail as possible without compromising the purpose of the executive session.

On the issue of legal advice, the district court relied on the attorney-client privilege to find that no further information was required to be disclosed. However, the attorney-client privilege does not extend to information about the subject matter of the communication, and the Town Council could and should have described at least the subject matter of what was to be discussed. As to personnel matters, the district court relied on privacy interests of the town manager to find that no further information was to be disclosed. But a public employee has a narrower expectation of privacy than other citizens, and the Town Council should have at least identified the person who was the subject of the personnel matter to be discussed in executive session. Plaintiff was thus entitled to the recordings and minutes of the executive sessions (if they exist) involving the matters not properly noticed.

Plaintiff also appealed the district court’s order on attorney fees. The district court stated that it would award plaintiff attorney fees for that part of the case on which he might prevail but it never determined an amount, because the parties requested that this determination wait until the appeal concluded. Accordingly, there is no final order with respect to attorney fees.

The portions of the judgment determining that the Town Council did not violate COML’s notice requirements for legal advice and personnel matters were reversed. The portion of plaintiff’s appeal related to the district court’s attorney fee order was dismissed. The case was remanded with instructions to enter judgment for plaintiff on the parts of the judgment mentioned above and to award him his costs and reasonable attorney fees incurred on appeal.

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

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