1888 Sherman Street

Suite 370
Denver, CO 80203
(303) 376-2400 | Phone
(303) 376-2401 | Fax
Steven D. Zansberg
(303) 376-2409
szansberg@lskslaw.com

April 14, 2015

VIA EMAIL (bot@erieco.gov)
Members of Board of Trustees
Town of Erie
Erie Town Hall
645 Holbrook Street
Erie, CO 80516
Re:

CEASE AND DESIST VIOLATION OF COLORADO OPEN

MEETINGS LAW

Dear Members of the Erie Board of Trustees:

This law firm represents Aaron Harber, a citizen and resident of the Town of Erie,
Colorado. On Mr. Harbers behalf, we write to respectfully demand that the Board of Trustees
(Town Board) cease and desist from its policy and practice of convening private meetings in
advance of scheduled public meetings of the Board at which public business is discussed outside
of properly noticed meetings that are open to the public. Should the Town Board continue on
with its standard operating procedure of convening such meetings, in violation of Colorados
Open Meetings Law (COML), Mr. Harber has authorized us to seek judicial relief, including
(1) a declaration that such meetings are a violation of the COML, (2) an injunction prohibiting
any future such unlawful meetings by the Town Board to discuss public business, and (3) an
award of Mr. Harbers reasonable attorneys fees for succeeding in obtaining the two orders
above.
If you fail to provide your commitment to cease and desist in writing, as demanded
above, by close of business on April 28, 2014, we will so proceed. I hope and trust that will not
be necessary. This demand also is made for all other Town of Erie boards and commissions
(such as the Town of Erie Planning Commission), and the Towns commitment to cease and
desist in such practices must specifically include a commitment applicable to all of the Towns
public bodies COML.
It is our understanding that most, if not all, times the Town Board convenes a formal
meeting open to the public (for example, at 6:30 p.m. this evening), three or more members of
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April 14, 2015
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the Town Board convene at Town Hall, along with other Town personnel, approximately half an
hour prior (e.g., at 6:00 p.m.) to the formal meeting and, in that prior meeting, the Town Board
members discuss public business specifically the agenda for the formal meeting and the
presentation of speakers who will address various topics included in the agenda. These premeetings have been conducted, for quite some time now, without any notice to the public and
they are not open to the public to attend.
If our understanding of the above facts is correct, then the Town Boards regular practice,
though of some historical vintage in Erie, is, nevertheless, a flagrant violation of the COML, and
it must therefore not continue.
As you know, the COML defines a meeting of a local public body such as the Town
Board, of any type of gathering of three or more members of the Board, at which public business
is discussed. 24-6-402 (2)(a), C.R.S. (2014). Unquestionably, the revision of an agenda for a
public meeting of the Board, and discussion of which speakers will appear to address various
topics on that agenda (including which and how Trustees may address certain issues), are public
business of the Board. Public business most certainly includes the operations, procedures, and
the agenda of a public meeting of the Board. Therefore any such discussion by three or more
members of the Board must occur at a properly convened public meeting, absent circumstances
that fit within one of several specific statutory exemptions. See 24-6-402(2)(b), C.R.S.
Put simply, the public is entitled to witness and observe all Board discussions of such
public business concerning the very means and processes by which policy will be
formulated. See Board of County Commrs., Costilla Cty. v. Costilla Cty. Conservancy Dist., 88
P.3d 1118, 1194 (Colo. 2004) (an open meeting must be held for any discussion having a
meaningful connection . . . [to] the policy-making powers of the public body). The reason for
this statewide statutory policy is obvious; as the Colorado Court of Appeals aptly put it:
The purpose of the [C]OML, as declared in 24-6-401, C.R.S. 2006, is to afford
the public access to a broad range of meetings at which public business is
considered; to give citizens an expanded opportunity to become fully informed on
issues of public importance, and to allow citizens to participate in the . . .
decision-making process that affects their personal interests.
Walsenburg Sand & Gravel Co. v. City Council, 160 P.3d 297, 299 (Colo. App. 2007) (citation
omitted) (emphasis added); see also Van Alstyne v. Housing Auth., 985 P.2d 97, 101 (Colo. App.
1998) (the underlying intent of the COML is to ensure that the public is not deprived of the
discussions, the motivations, the policy arguments and other considerations which led to the
discretion exercised by the [public body].).
Accordingly, the pre-meetings of the Board are themselves meetings subject to the
notice, minutes, and public attendance requirements of the COML.

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Were the Town Board to defend its weekly practice as coming within the exception to the
definition of meetings for chance meetings or social gatherings at which the discussion of
public business is not the central purpose, 24-6-402 (2)(e), C.R.S. (2014), it would be of no
avail. These meetings, as we understand it, are regularly scheduled; thus, they are not chance
meetings. Furthermore, these meetings are convened with regularity and with a mutual shared
understanding among Board members that the purpose of the meeting is to go over the agenda
for the public meeting that follows immediately thereafter and to determine which speakers and
in which order those speakers will present at the meeting. Such discussion and decision-making
concern the conduct of a public meeting is certainly not a social gathering.
Finally, please be reminded of our courts view that [a]s a rule, [the COML] should be
interpreted most favorably to protect the ultimate beneficiary, the public. Cole v. State, 673
P.2d 345, 349 (Colo. 1983); Bagby v. Sch. Dist. No. 1, 528 P.2d 1299, 1302 (Colo. 1974)
(holding that the COML should be construed broadly because it was designed precisely to
prevent the abuse of secret or star chamber sessions of public bodies) (citation omitted)
(emphasis in original). Courts must strive to honor the goals of the COML by interpreting [the
statute] broadly to further the legislative intent that citizens be given a greater opportunity to
become fully informed on issues of public importance so that meaningful participation in the
decision-making process may be achieved. Bd. of County Commrs v. Costilla Cnty.
Conservancy Dist., 88 P.3d 1188, 1193 (Colo. 2004) (emphasis added); Darien v. Town of
Marble, 159 P.3d 761, 765 (Colo. App. 2006) (We must interpret and apply the [language of the
statute] in a manner that is consistent with the [C]OMLs purpose of ensuring that public policy
is not formulated in secret.), revd on other grounds, 181 P.3d 1148 (Colo. 2008); see also
Gumina v. City of Sterling, 119 P.3d 527, 531 (Colo. App. 2004) ([T]he purpose of the Open
Meetings Law[] is to assure that . . . the workings of the government are not unduly shielded
from the public eye.) (emphasis added).
Should the Town Board persist in convening meetings that are not open to the public,
Mr. Harber has authorized this firm to seek a judicial declaration that the meeting was conducted
in violation of the COML, and an injunction against future such violations. A plaintiff who
obtains such a judicial declaration is statutorily entitled to an award of his or her reasonable
attorneys fees. See 24-6-402(5), C.R.S.; Van Alstyne v. Housing Auth., 985 P.2d 97, 99-100
(Colo. App. 1998).

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April 14, 2015
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Sincerely,
LEVINE SULLIVAN KOCH & SCHULZ, LLP

By:
Steven D. Zansberg
Thomas B. Kelley
SDZ/cdh
cc:
Aaron Harber
Mark Shapiro, Esq. (Eerie Town Attorney)

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