2012 COA 146
Colo. Ct. App.2012Background
- Board oversees state parks and OHV program; OHV funds fund grants via an OHV Subcommittee with Board retained final authority.
- OHV funds are collected into the OHV Recreation Fund and used for specified purposes.
- From 2009–2010 the Board held several public meetings about OHV grant program changes and the Subcommittee.
- In 2010, three OML violations occurred: March 19 (email discussion excluding the public), April 28 (telephone/email discussions excluding the public), June 7 (Roundtable meeting largely closed to public).
- COHVCo alleged violations and later asserted the changes were beyond Board authority and sought to invalidate modifications; Board admitted violations.
- July 16, 2010, a publicly noticed meeting occurred where the Board discussed and ultimately approved changes, which the district court found cured prior OML violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board cured the OML violations. | COHVCo contends there was no cure; July 16 meeting was a rubber stamp. | Board asserts July 16 complied with OML and cured prior violations. | Yes; July 16 meeting properly cured violations (not a mere rubber stamp). |
| Whether plaintiffs are entitled to costs and attorney fees. | Board curing prior violations means plaintiffs prevailed in this action. | Because cure occurred before suit, plaintiffs are not prevailing party. | No; plaintiffs not entitled to costs/fees as there was a cure before suit. |
| Whether summary judgment on cure issue was proper de novo review. | Disputed facts on whether cure occurred; improper for summary judgment. | Legal question of cure is pure issue of law; de novo review appropriate. | Yes; standard is de novo, and the court properly affirmed cure as a matter of law. |
Key Cases Cited
- Van Alstyne v. Housing Authority, 985 P.2d 97 (Colo.App.1999) (cure may occur if subsequent meeting not a rubber stamp)
- Bagby v. School Dist. No. 1, 186 Colo. 428, 528 P.2d 1299 (Colo.1974) (open meetings law not to rubber stamp prior defective decisions)
- Hyde v. Banking Bd., 38 Colo.App. 41, 552 P.2d 32 (Colo.App.1976) (remand/reconsideration after noncompliance with OML)
- Gronberg v. Teton County Housing Authority, 247 P.3d 35 (Wyo.2011) (out-of-state authority supporting cure by substantial reconsideration)
- Valley Realty & Dev., Inc. v. Town of Hartford, 165 Vt. 463, 685 A.2d 292 (Vt.1996) (ratification in public session complies with OML)
- Cole v. State, 673 P.2d 345 (Colo.1983) (citizens' participation in decision-making process)
- Tolar v. Sch. Bd., 398 So.2d 427 (Fla.1981) (subsequent proper hearing cures prior violations)
- Alaska Cmty. Colls.' Fed'n of Teachers, Local No. 2404 v. Univ. of Alaska, 677 P.2d 886 (Alaska 1984) (public action governs, not secret decisions)