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School board transparency bill jumps first hurdle

The full House will get a chance to debate a bill that seeks to put guardrails around school boards’ use of executive sessions, an issue that’s become controversial in some districts.

The House Education Committee voted 7-6 to pass House Bill 14-1110, with majority Democrats providing the votes necessary for passage and all committee Republicans voting no.

Part of the bill’s backstory is use of executive sessions by the conservative Douglas County school board and worry on the part of unions and some parent groups about new board majorities in the Jefferson County and Thompson districts. But no witnesses during the 90-minute hearing cited specific examples of abuse of executive sessions.

Sponsor Rep. Cherilyn Peniston, D-Westminster, went out of her way to avoid mentioning specific districts or alleged abuses. Among comments she made to the committee were:

  • “It’s not a bill targeted to any particular school boards.”
  • “Perhaps some school boards were misusing the executive session privilege.”
  • “I can’t give you a number.”
  • “It’s not my intention … to call out any particular district.”
  • “I know there are issues. I’ve talked to constituents.”

Here’s what the bill would do, in the words of the legislative staff summary:

Under current law, minutes must be taken whenever a local school district board of education has a public meeting, and a separate recording must be made whenever the board enters an executive session. If, in the opinion of the attorney representing the board, portions of the discussion held during an executive session constitute a privileged attorney-client communication, those portions are not recorded. This bill requires continuous recording of executive sessions, even when the discussion is claimed by the representing attorney to be privileged, or subject to protection as trial preparation material. The bill also requires a local school board to keep a privilege log to identify the approximate times the privileged discussion takes place and the nature of the communication, without revealing details of the privileged information discussed. These portions of an executive session may be recorded separately from the remaining recording of the executive session.

The idea behind the bill is that individuals or groups who suspect a board was abusing use of executive sessions could ask a judge to review recordings to determine if that had happened. In general, state law limits executive sessions to discussion of personnel matters, real estate deals and protected discussions between a board and its lawyer.

Peniston proposed a similar bill last year. But it would have applied to all local governments, not just school districts, so it died after intense lobbying by other local government groups.

Some witnesses at Monday’s hearing mentioned specific districts, but none offered details of alleged abuses.

Cindy Barnard, a prominent critic of the current Dougco board, said “on one or two occasions I have witnessed votes and decisions taken behind the veil of executive sessions.”

Jeffco parent and PTA member Shawna Fritzler complained about a recent district board decision to hire a new lawyer.

Lori Goldstein, a Northglenn High School special education teacher and Colorado Education Association member, named specific districts but was vague about details. “I’ve seen this in Jeffco. Loveland is another area of concern. I’ve heard things from Douglas County too.”

Rep. Jim Wilson, R-Salida, asked, “How many are we talking about?”

Goldstein still didn’t offer any details, saying, “There’s a possibility that there could be more … we don’t know.”

Opposing the bill was Debbie Lammers, a member of the St. Vrain school board who was representing the Colorado Association of School Boards, “This bill will seriously chill” discussions between school boards and their lawyers, she said.

Sonja McKenzie, general counsel for the Cherry Creek schools and representing the Colorado Bar Association, and David Olson, general counsel for the Colorado School Districts Self-Insurance Pool, also opposed the bill, echoing the same concerns about possible threats to attorney-client privilege.

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