1977, February, Pg. 210. Public Meeting Statutes and Public Sector Collective Bargaining.

• Author: by Mark L. Fulford

6 Colo.Law. 210

Colorado Lawyer

1977.

1977, February, Pg. 210.

Public Meeting Statutes and Public Sector Collective Bargaining

210Vol. 6, No. 2, Pg. 210Public Meeting Statutes and Public Sector Collective Bargainingby Mark L. Fulford and William F. SchoeberleinMark L. Fulford is associated with, and William F. Schoeberlein is a partner in the firm of Dawson, Nagel, Sherman & Howard.211The Colorado Supreme Court handed down its decision in Littleton Education Association v. Arapahoe County School District No. 6, ___ Colo. ___, 553 P.2d 793, (1976) (the "LEA decision") on August 23, 1976, holding that a collective bargaining agreement between the defendant school district and Plaintiff LEA was null and void because the school district had violated Colorado's Public Meetings Law, C.R.S. 1973, § 29-9-101 et seq. (as amended, 1974) in the process of its negotiations with the LEA. [(The Public Meetings Law, C.R.S. 1973, § 29-9-101 et seq. (as amended, 1974) is distinct from the Open Meetings Law, which is Part Four of Colorado's Sunshine Law, C.R.S. 1973, § 24-6-101 et seq.; hereinafter both statutes will be referred to together as the "public meetings laws" and individually as the Open Meetings Law and the Public Meetings Law).](fn1)

The application of the Public Meetings Law to collective bargaining introduces an entirely new and foreign element into public sector collective bargaining, the scope of which is barely hinted at in the LEA decision. In addition, reflections in the LEA decision on the legality of public sector collective bargaining showed that such bargaining is permissible, although the proper topics, procedure, enforcement, and results of such bargaining are uncertain. More questions were raised than were answered by the LEA decision.

PUBLIC MEETINGS LAW PRECEDENT

The Colorado DecisionsThe first Colorado appellate decision dealing with Colorado's public meetings laws(fn2) was Bagby v. School Dist. No. 1, Denver, 186 Colo. 428, 528 P.2d 1299 (1974), in which the Colorado Supreme Court held that "superintendent's conferences" at which extensive discussion of matters was held pursuant to prior notice, although without formal action being taken, constituted "meetings" within the terms of the Public Meetings Law, and affirmed an injunction against holding such meetings unless public notice was given and they were open to the public.(fn3) In defining the word "meetings," the Court held that the Public Meetings Law applied to gatherings "held following notice by someone in authority to all available members of the Board," that were held regularly at a designated time and place, "for the purpose of dealing with one or more items of concern to the board."(fn4) The phrase "dealing

212with" deserves attention; the court stressed that the Public Meetings Law had not met with compliance just because the final vote was public.Since much of the work of the public meeting was already done at the conference, the public and news media were deprived of the discussions, the motivations, the policy arguments and other considerations which led to the discretion exercised by the Board and influenced the vote announced without discussion at the later public meeting. One has not participated in a public meeting if one witnesses only the final recorded vote.(fn5)

The holding in Bagby cannot be considered a surprise because the Colorado Public Meetings Law refers to "all meetings" and does not speak of disclosing merely "actions." The Denver School Board did not seek an exemption from disclosure on the basis of the subject matter of the meeting, but only argued that the fact that no final action was taken exempted them from the statute; the very terms of the statute dictated the result. Had the School Board argued that, because of particular subject matter to be considered, they had gone "into executive session for consideration of documents or testimony given in confidence," then the distinction would become crucial, between "consideration" on the one hand, and, on the other hand, making "final policy decisions," and adopting or approving "any resolution, rule, ordinance, regulation or formal action...."(fn6)

The cases cited by the Colorado Supreme Court in Bagby, however, presaged a broad reading for the Public Meetings Law. Although the language of the Bagby decision could support the proposition that the Public Meetings Law would not have applied had the public consideration of matters discussed in the "superintendent's conferences" been anything less than perfunctory rubber-stamping, the decision in Board of Public Instruction of Broward Co. v. Doran, 224 So.2d 693 (Fla. 1969), cited in Bagby, indicates that any private discussion in closed session might be forbidden, even if the public still attended subsequent consideration. The Florida Court upheld "the right of the public to be present and to be heard during all phases of enactments by boards and commissions."(fn7) The Court held that the school board was to be enjoined from holding "any meeting or conference session. . . at which are held any discussions on matters pertaining to the duties and responsibilities of the Board. . . ."(fn8)

Two other cases cited in Bagby also refuse to read any exceptions into public meeting laws. City of Miami Beach v. Berns, 245 So.2d 38 (1971) again dealt with Florida's Sunshine Act, and refused to find exceptions for executive sessions "for the discussion of condemnation matters, personnel matters, pending litigation or any other matter relating to city government." The Florida Court simply said that if the legislature had intended these exceptions they would have been included in the law. This hard-nosed approach may have come about as a result of numerous attempts to include exceptions in Florida's Sunshine Act during its legislative consideration,(fn9) although the Miami Beach opinion does not mention legislative history. In disallowing any exception for any kind of privilege in the Florida Sunshine Act, the Court stated:If a public official is unable to know whether by any convening by two or more officials he is violating the law, he should leave the meeting forthwith.

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In this area of regulating, the statute may push beyond debatable limits in order to block evasive techniques. An informal conference or caucus of any two or more members213permits crystalization of secret decisions to a point just short of ceremonial acceptance.(fn10)

An earlier Arkansas case, also cited in Bagby, had also refused to find an attorney-client privilege in the Arkansas Freedom of Information Act, Ark. Stat. Ann., 12-2801 et seq. (1947, Repl. 1967). Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968). The uncertainty, however, of relying upon citations to other court's decisions as an indication of the Colorado court's inclination is shown by the fact that Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 263 Cal. App. 2d 41, 69 Cal. Rptr. 480 (3rd Div. 1968) was also cited in Bagby. In this case the California Court read into a California statute similar to Colorado's Public Meetings Law(fn11) an exception for attorney-client communications, although California's statute, like the Florida and Arkansas acts, had no express exception for confidential or privileged subjects. The California Appeals Court held that "informal sessions or conferences of the board members designed for the discussion of public business" must be open to the public.

In Associated Students of Univ. of Colo. v. Regents of Univ. of Colo., ___ Colo. ___, 543 P.2d 59 (1975) the Colorado Supreme Court held that the Open Meetings Law was completely inapplicable to meetings of the University of Colorado Board of Regents because by statute and under the Colorado Constitution the Regents are granted "the general supervision" of the University and the authority to "enact laws for the government of the university."(fn12) Since the Open Meetings Law would require invalidation of an act of the Board of Regents, it was held to be in conflict with the constitutional and statutory provisions granting authority to the Board of Regents, and since the latter constitutional and statutory provisions were held to be "special provisions, conferring upon the Regents specific and particular powers," and the Open Meetings Law was held to be a general statute, the Open Meetings Law therefore could not have repealed the statutes and constitutional provisions granting the Board of Regents.(fn13)

In the LEA decision the Colorado Supreme Court held illegal and therefore void a collective bargaining agreement which had been entered into after the school board had "met in executive sessions with its negotiating team to review the progress of negotiations and to determine

214policy as well as strategy." The Court brushed aside the argument that the Public Meetings Law had met with compliance because the Board's final vote was public, because the Court felt that the record indicated that the Board's decision to make a final offer had been made in private.

The most disquieting aspect of the LEA decision is its reliance upon Justice Adkins' dissenting opinion in Bassett v. Braddock, 262 So.2d 425, 429 (Fla. 1972), and its rejection of the majority's opinion in that case. In Bassett the Florida Court had finally managed to find an exception in Florida's Sunshine Act, writing its first opinion limiting the coverage of that Act after a string of decisions that...