AURORA | In what free-press proponents say is a critical ruling, the Colorado Supreme Court on Tuesday made clear that news organizations have standing under state open meetings laws to file lawsuits against government agencies and can collect attorneys fees if they prevail.
“This is an important win for the public’s right to know,” said Jeff Roberts, executive director of the Colorado Freedom of Information Council. Ensuring that news entities have standing in the law ensures journalists, backed by their newsrooms, can pursue issues regarding government transparency and accountability.
The ruling is linked to a 2022 open meetings lawsuit filed by Sentinel Colorado against the City of Aurora where the Sentinel accused the city council of meeting illegally to decide a previous censure issue against Councilmember Danielle Jurinsky.
After a state appeals court ruled last year that the city did indeed violate state open meeting laws, the court panel ruled against the Sentinel’s request for attorney’s fees from the city. The three-judge panel said that, under state open meetings law granting “persons” and “citizens” standing to collect attorney fees, the Sentinel, as a newspaper entity, did not qualify.
The high court on Tuesday reversed that position, saying the intent of legislators and language is clear in regards to the state’s open meetings laws, and that the Sentinel would certainly have standing.
The high court, however, also ruled Tuesday for the city in a narrow question about whether lawyers for Aurora waived any attorney-client privilege by disclosing some highlights of the secret meeting in a letter, days after the meeting.
The case was remanded back to the trial court for proceedings consistent with the Supreme Court’s findings about the Sentinel’s requests for meeting records and attorney fees.
Counsel for the Sentinel, provided by the Reporters Committee for Freedom of the Press, said the lower court will determine whether the city must release tape recordings of the secret meeting and grant the Sentinel attorney fees.
“We look forward to being able to report to the public what compelled city council members to quash a public censure proceeding against a fellow council member, in a closed meeting with the target of the proceedings and her attorneys in the room at the time,” said Sentinel Editor Dave Perry. “Without the power of open meeting laws, and courts that uphold them, the press, and the public it reports for, are unable to provide critical transparency and details.”
“The Colorado Supreme Court agreed with Aurora today and stated that the city did not waive the attorney-client privilege as the Sentinel alleged,” city officials said in a statement. “The Supreme Court also stated that a corporation in Colorado indeed meets the definition of a “citizen” under the Colorado Open Meetings Law for purposes of being awarded attorney’s fees if a citizen wins a lawsuit against a governmental entity. “However, because the Supreme Court ruled that Aurora did not waive its attorney-client privilege, the case is being sent back to the District Court to analyze whether the Sentinel did, in fact, prevail in its lawsuit. Aurora City Attorney Pete Schulte believes it did not pursuant to today’s order from the Colorado Supreme Court.”
The original case stems from when then-Councilmember Juan Marcano initiated censure proceedings against Jurinsky in early 2022 after Jurinsky told a regional talk radio show host how she had encouraged then-police chief Vanessa Wilson to replace deputy chief, Darin Parker. Jurinsky also criticized Wilson’s leadership of the Aurora Police Department, referring to the chief as “trash.”
Marcano accused Jurinsky of violating a section of the City Charter that prohibits council members from meddling in the appointment of employees who fall under the authority of the city manager.
He also said Jurinsky’s statements about Wilson went against part of the council’s rules of order and procedure, which require members to “conduct themselves in a professional manner at all times” when interacting with city staffers.
A supermajority vote of the council to censure Jurinsky would have been required before Jurinsky could be punished for her statements. However — during a closed-door meeting on March 14, 2022 — a majority of the council voted to halt the censure process and pay more than $16,000 in fees for an attorney hired by Jurinsky.
Council rules stipulated at the time that, while an executive session could be called to receive legal advice regarding the process of disciplining an elected official, “no action or decision may occur in the executive session.”
Colorado’s Open Meetings Law also limits what city councils are allowed to do outside of the public eye and generally prohibits groups from adopting “any proposed policy, position, resolution, rule, regulation or formal action” in secret.
If a court finds that a group took such action anyway, recordings of that meeting must be made available for public inspection.
Because the council’s actions appeared to violate the state Open Meetings Law, and because the city also failed to announce the specific topic of the closed-door meeting ahead of time, which is required under state law, Sentinel Colorado requested the electronic recording of this private meeting from the city.
The city refused, with City Clerk Kadee Rodriguez writing that the recording was “privileged attorney / client communication and is exempt from disclosure.”
Arapahoe County District Court Judge Elizabeth Beebe Volz ruled in 2023 that the city did not have to the release the recording, finding that Aurora failed to provide proper notice of the private meeting but that the council “cured” the Open Meetings Law violation by including information about what was discussed March 14 in its March 28 council meeting agenda packet.
Volz acknowledged that there was a “roll call” taken during the closed-door meeting to decide how to proceed, but she said this did not constitute “formal action” in the context of the Open Meetings Law.
A trio of appellate judges overturned Volz’s ruling, saying among other things that the district court made a “clear error” when it found that the council’s secret vote did not violate state law.
The opinion was written by Judge David Furman and joined by judges Terry Fox and Gilbert Román. In his opinion, Furman said Volz erred when she relied on a 2012 ruling by the Court of Appeals that said that a public body can validate a decision made inappropriately in secret through a subsequent public meeting.
In addition, the Sentinel argued that not only did the meeting violate state law because a formal decision was made by lawmakers, but Sentinel sources revealed that Jurinsky’s attorneys were also in the closed meeting. The city has also argued that the meeting is exempt from state open meeting laws because it was an opportunity for “attorney-client” advice that should not be disclosed to anyone outside the city council.
Sentinel Colorado did not challenge the decision to end the censure process itself but rather the decision to deny the newspaper a recording of the illegal closed-door meeting.
The Colorado Court of Appeals also found that the council waived its claims to attorney-client privilege when the city published information about the March 14 private meeting.
“We conclude that the City Council violated … the OML by improperly convening and taking a ‘position … or formal action’ in deciding to end Jurinsky’s censure proceedings during the March 14 executive session,” Furman’s decision reads.
“Because we have concluded that the City Council waived the attorney-client privilege regarding its communications at the March 14 executive session, the recording of this session must be released.”
The state Supreme Court ruled against that position, saying that the city did not waive its privilege by releasing a written outline of what was discussed in secret.
Between April 2022 and November 2023, the city racked up more than $27,000 in expenses for the Law Offices Of Hoffmann, Parker, Wilson & Carberry, P.C. to represent it in the case and fight the release of the meeting recording, according to information obtained by Sentinel Colorado through a records request.
Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, said last year after news that Aurora would fight the appeals court ruling, that the case highlights important provisions of Colorado’s Open Meetings Law and that it will have “precedent-setting value.”
In all fairness to Kadee Rodriguez she may have signed the denial of the Sentinel’s demand, but I would bet dollars to donuts the denial came after consultation and direction from the City Attorney. There is no way a demand for a recording of a controversial executive session, poorly noticed, perhaps purposefully, with a Councilperson up for consideration of censure, and with that Councilperson represented by a lawyer, was not routed directly to the attention of the City Attorney.
Here we are, 3 years after Queen Bully, Jurinski, waded into the hiring process of the police chief, calling the acting chief “trash.” She gets her sorry behind censured for unprofessional behavior. And then later, in an illegal meeting, she and her lawyers bullied the council into regracting the well-deserved censure. Now, I wonder how much this court case has cost taxpayers? We elected her to solve city problems. All she has done is eliminate a tax that she had to pay as a business owner, which has thrown the city into a severe budget shortage. How much longer are we going to put up with her crap? Vote her out! Micky Mouse would be a better choice!
This is sad news indeed, that the case still hasn’t been decided and Danielle Jurinsky is up for re-election next month. It’s too bad voters are still unable to know what took place in a meeting that the City has fought so hard to keep quiet.