DENVER — Two Democratic lawmakers have sued Democratic leadership in the state House, accusing the House Speaker and other lawmakers of violating Colorado’s open meetings law.
State Rep. Elisabeth Epps, D-Denver, and State Rep. Bob Marshall, D-Highlands Ranch, filed the lawsuit in Denver District Court on Friday.
It claims that both Democrats and Republicans violate the Colorado Open Meetings Law by using self-deleting digital communications platforms, like Signal.
It names House Speaker Julie McCluskie, D-Dillion, House Majority Leader Monica Duran, D-Wheat Ridge and House Minority Leader Mike Lynch, R-Wellington.
The lawsuit also contends that Democrats who served on every House committee, “met outside of public view, usually weekly, to discuss pending legislation.”
After a bill is introduced in the House, it is assigned to a House committee, where an odd-numbered group of lawmakers decides if the bill gets amended, dies or moves on to the next step of the legislative process. Lawmakers are assigned to committees by the House Speaker and leadership. The party in power gets more members assigned to a committee.
Colorado Democrats control the House with 46 members, compared to 19 Republican representatives.
Epps and Marshall claim that the meetings with committee members were never publicly noticed and included presentations by bill sponsors and discussion of how the committee members expected to vote.
The lawsuit also claims that leadership directed legislative aides to “omit or disguise” the mandatory meetings from the calendars for the representatives. The lawsuit also accuses Republican committee members of having similar, undisclosed meetings.
Beyond committee meetings, Epps and Marshall accuse both Democratic and Republican lawmakers of meeting in secret throughout the legislative session. They claim a majority of House Democrats met twice weekly “outside of public view” to “discuss public business.”
Epps and Marshall, both Democrats, also claim that a majority of Republican lawmakers met weekly, “outside of public view, to discuss public business and the formation of public policy.”
The lawsuit did not provide evidence of how the two Democrats believed Republicans were doing this in secret.
Regarding the use of Signal, the lawsuit said committee members used the digital communications platform to hold “meetings within meetings.”
Epps and Marshall claim that committee lawmakers used Signal to consider witness testimony and discuss their expected votes.
Signal messages can be set for automatic deletion, from weeks to one second, and the lawsuit claims that these communications were not available for the public to observe and were automatically deleted “via a disappearing messages function.”
“We have a University of Denver law school student who has written an excellent report for us on the use of disappearing and encrypted messaging apps," said Jeff Roberts, executive directorof the Colorado Freedom of Information Coalition. "Now, I kinda wish we’d gotten it out already I was, sort of, trying to nail down how extensive the use of these apps is before we put it out there.”
Roberts said that report will be released soon.
Though, this lawsuit by Epps and Marshall, may provide more detail than research.
“It’s really important to have legislators, who are on the inside of this, bringing this lawsuit," Roberts said. "They have access to certain records that the public may not have access to.”
When two or more lawmakers meet to discuss policy or make decisions, even if it is in an app that deletes messages, the lawsuit, and Roberts, contend that it creates a meeting that should be open to the public.
“The open meetings law says that the formation of public policy is public business and shall not be conducted in secret," Roberts said.
On May 8, House Republican lawmakers staged a walkout and refused to vote on the property tax bill that was passed by Democrats and will appear on the November ballot. The bill asks voters to forgo their Taxpayer Bill of Rights refunds, for at least 10 years. In return, the equation to determine property tax values would change, reducing property tax values. It is not simply a property tax reduction bill/ballot issue because property taxes will still go up, just not as much, and because it requires voters to also allow the state to keep future TABOR refunds.
The lawsuit claims that walkout was coordinated through Signal.
Roger D. Hudson, deputy chief of staff for House Republicans, told Next with Kyle Clark via text that the walkout was coordinated through a Republican caucus meeting in the House Minority offices on the second floor of the state Capitol.
In a statement, McCluskie and Duran said, “House Democratic leadership is committed to open and transparent government and ensuring a fair and public process for policymaking. We are still reviewing the complaint in full, and we stand by our caucus - dedicated public servants who work tirelessly on behalf of their constituents.”
Epps and Marshall also state in the lawsuit that as early as the third day of the legislative session, which would have been Jan. 11, they individually and together brought these concerns to McCluskie and the Office of Legislative Legal Services (OLLS). OLLS includes lawyers who help lawmakers with legislation.
The lawsuit said that Epps and Marshall were assured that these issues would be addressed, but that they persisted instead.
Marshall responded to a text message and phone call, but said he did not want to do an on-camera interview so as to not appear to be grandstanding with his colleagues or conducting self-promotion. Though, he is taking them to court.
He said that the legislature has an institutional problem and just wants the leadership to acknowledge that and stop.
He said he does not want this to be seen as a partisan issue.
Marshall has sued the conservative Douglas County School Board regarding open meetings violations. He said that this lawsuit shows that it does not matter what political party is doing the quesitonable activity.
In a statement for House Republicans, Hudson wrote: “This lawsuit is what Coloradans hate about politics at the Capitol. The infighting and expense is only a distraction to the priorities that they care about; improved schools, safer communities, more jobs at higher wages, and better roads throughout our state. Republicans continue to believe that the people of Colorado deserve access to their government through comprehensive open meetings and open records laws — we welcome any conversation that will update our statutes to keep up with rapidly evolving technology.”
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