Chalkbeat and six other media organizations are suing Denver Public Schools for the recording of a five-hour closed meeting board members held the day after a student shot two administrators at East High School.
When school board members emerged from the meeting, they voted unanimously to return police officers to Denver high schools — a major policy change — with no public discussion.
Colorado’s open meetings law declares that the “formation of public policy is public business and may not be conducted in secret.”
Colorado law requires public bodies to meet in the open, except under particular circumstances, such as discussing a student or employee or to receive legal advice. Before entering a closed meeting, elected officials have to announce the topics they’ll be discussing “in as much detail as possible without compromising the purpose for which the executive session is authorized,” along with the legal basis for entering a private meeting.
The complaint filed Friday alleges that the Denver school board’s March 23 meeting was not properly noticed. That could render the closed meeting unlawful.
The law also requires that policy decisions happen in public. The lawsuit alleges that the Denver school board made a policy decision behind closed doors that was merely rubber-stamped with a public vote.
“No public discussion, whatsoever, preceded the Board’s historic about-face concerning its policy of preventing armed ‘School Resource Officers’ inside the District’s high schools,” the lawsuit reads. “None.”
The March 23 board agenda said the purpose of the closed meeting was to discuss “matters required to be kept confidential by federal or state law or rules and regulations as a result of the incident that occurred on March 22,” security arrangements and investigations, and sensitive matters pertaining to individual students.
When board members emerged from the closed meeting, President Xóchitl “Sochi” Gaytán entered a memorandum into the record that suspended a previous board policy removing police from schools, called for police to be stationed at all district high schools, and directed Superintendent Alex Marrero to come up with a long-term safety plan by June 30.
The executive session notice made no mention that official safety policies would be discussed or that new safety policies would be proposed. Nor did the notice mention discussion of a potential executive order from Mayor Michael Hancock placing police in schools. Board Vice President Auon’tai Anderson said several days after the closed meeting that the possibility of an executive order influenced the board decision.
“You need to inform the public what you are going behind closed doors to discuss,” said attorney Steve Zansberg, who is representing the media organizations with attorney Rachael Johnson of the Reporters Committee for Freedom of the Press. “And even if it had been a properly convened executive session, they are not allowed to make a decision behind closed doors.”
Zanzberg said it was a clear-cut violation of the open meetings law.
“They adopted a policy without any public discussion. So clearly they discussed it and reached that decision and drafted that memo behind closed doors,” he said.
In addition to Chalkbeat, the plaintiffs are The Denver Post, Colorado Newsline, KDVR Fox 31, KUSA 9News, Colorado Politics, and The Denver Gazette. Each of the media organizations filed requests for the recording or for minutes of the meeting after the closed-door session. In each case, Denver Public Schools custodian of records Stacy Wheeler responded that the district has responsive records but would not release them because they are not subject to disclosure under the open meetings law.
The lawsuit asks a Denver district court judge to release the entire recording on grounds that the meeting was not properly noticed and was not a lawful closed meeting. If the judge won’t release the entire recording, the lawsuit asks that the judge listen to the recording and release a redacted version if the judge feels that certain portions should remain private.
A bill under consideration in the legislature would make it harder for the public to challenge closed meetings that are not properly announced to the public. The bill would allow elected officials to fix the way they announced the meeting after the fact and avoid a lawsuit.
Under current law, not properly announcing an executive session can render a closed meeting unlawful. Members of the public can seek the release of recordings of those meetings.
Jeff Roberts of Colorado Freedom of Information Coalition said the Denver case gets to the heart of why Colorado voters adopted the open meetings law in the first place. The law states that matters of public interest and public policy should be discussed in public, and there is significant public interest in how the board makes decisions about whether to have armed police in schools, he said.
Members of the public, in particular some parents at East High School, also have criticized the board’s use of executive sessions.
The school board responded to criticism of its closed meeting with an unsigned statement posted to the district website. “Due to the nature of an executive session we cannot disclose what was discussed,” the statement says. “However, the Board of Education is confident that it has conducted all meetings in accordance with applicable laws.”
But at an April 20 board meeting — after the board had learned of the media organizations’ intent to sue — some members balked at going into executive session, citing public criticism of past sessions.
“We’ve received a lot of feedback from the public and community members about meeting in public and staying in public unless there’s an absolute reason,” board member Scott Baldermann said. “And I think I am going to honor that.”
The agenda listed two items for private discussion: security arrangements at McAuliffe International School, where the principal has been critical of district leadership and announced plans to have parents help with security, and the superintendent’s contract.
Anderson said he believes the board has used closed session meetings appropriately, and public perception was stopping the board from discussing important issues.
“I am very concerned that if we have something about safety that we’re not willing to go into executive session for, what other matters will we start saying we cannot go into executive session for,” Anderson said at the meeting.
The board ultimately voted 4-3 not to enter executive session for either item.
“It’s not a bad thing for them to examine their use of closed-door meetings and whether they are doing more of that than they need to,” Roberts said.
Chalkbeat reporter Jason Gonzales contributed reporting.
Bureau Chief Erica Meltzer covers education policy and politics and oversees Chalkbeat Colorado’s education coverage. Contact Erica at emeltzer@chalkbeat.org.
