Guy v. Whitsitt
| Citation | 469 P.3d 546 |
| Decision Date | 11 June 2020 |
| Docket Number | Court of Appeals No. 19CA0125 |
| Parties | Theodore GUY, Plaintiff-Appellant, v. Jacque WHITSITT, in her official capacity as a member of the Town Council and Mayor of the Town of Basalt, Colorado ; Town Council of the Town of Basalt, Colorado, a home rule municipality; and Pam Schilling, in her official capacity as the Town Clerk and the Records Custodian for the Public Records of the Town of Basalt, Colorado, Defendants-Appellees. |
| Court | Court of Appeals of Colorado |
Azizpour Donnelly, LLC, Katayoun A. Donnelly, Denver, Colorado; Killmer, Lane & Newman, LLP, Thomas D. Kelley, Denver, Colorado; Ballard Spahr, LLP, Steven D. Zansberg, Denver, Colorado, for Plaintiff-Appellant
Law Office of Steven J. Dawes, LLC, Steven J. Dawes, Denver, Colorado, for Defendants-Appellees
Opinion by JUDGE DAILEY
¶ 1 In this action to enforce the Colorado Open Meetings Law (COML), sections 24-6-401 to - 402, C.R.S. 2019, plaintiff, Theodore Guy, appeals that part of the district court's judgment entered in favor of defendants, Jacque Whitsitt, in her official capacity as a member of the Town Council and Mayor of the Town of Basalt; the Town Council of the Town of Basalt, Colorado, a home rule municipality; and Pam Schilling, in her official capacity as Town Clerk and Records Custodian for the public records of the Town of Basalt, Colorado (collectively, the Town Council). Guy also appeals the district court's order on attorney fees.
¶ 2 We reverse the judgment in part, dismiss part of the appeal, and remand for further proceedings.
¶ 3 During four public meetings in 2016, the Town Council went into executive session to discuss a combination of four statutorily permissible topics: (1) the purchase, acquisition, lease, transfer, or sale of property interests (property interests); (2) receiving legal advice on specific legal questions (legal advice); (3) determining positions relative to matters that are or may become subject to negotiations (negotiations); and (4) personnel matters. See § 24-6-402(4)(a), (b), (e), (f), C.R.S. 2019.
¶ 4 In its public announcement of what would be discussed in executive session, the Town Council mentioned only that it would discuss property interests, legal advice, negotiations, and personnel matters, and cited the statutory provisions related thereto. No information was provided about what property interests, legal advice, negotiations, or personnel matters would be discussed.1
¶ 5 Guy (1) asserted, in a letter, that under COML the Town Council had to identify with some degree of particularity the matters to be discussed in executive sessions and (2) requested, under Colorado's Open Records Act (CORA), sections 24-72-201 to - 206, C.R.S. 2019, records of the executive sessions. The Town Council disagreed with Guy's assertion and denied Guy's requests for records either because no records existed, or, if they did, the records were "confidential, privileged, not a public record, and not subject to disclosure."
¶ 6 Guy instituted the present action by filing a combined (1) application for an order under section 24-72-204(5)(a), C.R.S. 2019, requiring the Town Council to show cause why records of the four executive sessions should not be disclosed; and (2) a complaint under section 24-6-402(8) for, as pertinent here, a declaration that the Town Council had violated COML's notice requirement with respect to all four executive sessions. In his pleadings, Guy alleged that the Town Council had failed to identify, as required by section 24-6-402(4), "particular matters in as much detail as possible without compromising the purpose for which the executive session is authorized ...."
¶ 7 At a show cause hearing, the Town Council's attorney confirmed that, in announcing executive sessions, the Town Council's practice was to recite only the statutorily permissible purposes for such sessions and "nothing more."
¶ 8 The Town Council's attorney also testified that a "form" used by the custodian to announce the executive sessions contains a blank space to write in details regarding the "particular matter to be discussed."2 For the four executive sessions at issue in this case, the space in the form was left blank.
¶ 9 Following the hearing, the district court issued a written order. In that order, the district court determined that (1) from its review of the executive sessions' recordings, no impermissible topics were discussed; (2) pursuant to section 24-6-402(d.5)(II)(B), those parts of the sessions pertaining to legal advice were not recorded; (3) the "personnel matters" discussed during those sessions concerned the Town's then-acting Town Manager, Michael Scanlon;3 (4) section 24-6-402(4) had to be interpreted as applying a "reasonableness standard" in identifying "particular matters in as much detail as possible " (emphasis added), because hindsight "could always find some ‘possible’ way to further identify [a] particular matter"; (5) there were no "special circumstances that prohibited the Town [Council] from making a more detailed description" of the "negotiations" and "property issues" (that is, there were no "specific market concerns or other matters that would reasonably prevent the Town [Council] from at least identifying what the property and negotiations were"); but (6) the Town Council did not have to provide any detail in announcing that "legal advice" and "personnel matters" would be discussed in executive session because of the nature of the attorney-client privilege and Scanlon's privacy interests.4
¶ 10 Guy now appeals.
¶ 11 Guy contends that the district court erred in ruling that the Town Council did not have to announce any "particular matter to be discussed" in executive session beyond merely mentioning the statutorily permissible topics of legal advice and personnel matters. We agree.
¶ 12 In analyzing the issue before us, we are not called on to review any findings of fact by the district court because the material facts in this case are undisputed. Instead, we are called on to review the district court's application of the COML, which involves a question of law subject to de novo review. Ledroit Law v. Kim , 2015 COA 114, ¶ 47, 360 P.3d 247.
¶ 13 Section 24-6-402 provides that, generally speaking, meetings of public officials to discuss or take formal action on public business must be open to the public. § 24-6-402(1), (2). It does, however, allow "members of a local public body" to discuss several topics (or "matters") in executive session closed to the public:
The members of a local public body subject to this part 4, upon the announcement by the local public body to the public of the topic for discussion in the executive session , including specific citation to this subsection (4) authorizing the body to meet in an executive session and identification of the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized , and the affirmative vote of two-thirds of the quorum present, after such announcement, may hold an executive session only at a regular or special meeting and for the sole purpose of considering any of the following matters ...: [listing a number of topics].
§ 24-6-402(4) (emphases added).5
¶ 14 The issue in this case is whether, by merely mentioning the "particular matter[s]" of legal advice and personnel matters, accompanied by references to their respective statutory provisions, the Town Council complied with the statutory directive to identify "particular matter[s]" "in as much detail as possible without compromising the purpose for which the executive session is authorized." Id.6
¶ 15 In effect, the district court construed section 24-6-402(4) to require identification of a "particular matter" "in as much detail as reasonably possible without compromising the purpose for which the executive session is authorized."
¶ 16 We need not decide whether the district court erred in interpreting the statute in this manner. Guy does not attack the sufficiency of information provided so much as he does the Town Council's failure to provide any information beyond the mere mention of generic statutory categories of legal advice and personnel matters.
¶ 17 As we read the court's order, it upheld the Town Council's bare-bones notice for legal advice and personnel matters because, in its view, the very nature of the topics precluded the disclosure of any more information. That is, divulging any more information about those topics would (in the language of the statute) "compromis[e] the purpose[s] for which the executive session [was] authorized." § 24-6-402(3).
¶ 18 In our view, the district court misapplied the statute. We address separately each of the subjects upon which the court found no further information was necessary to provide to the public.
¶ 19 As previously noted, the district court determined that the Town Council did not need to divulge any information besides announcing that an executive session has been called to discuss legal advice. The court reached that determination after considering the purposes served by, and the scope of, the attorney-client privilege. It is the court's perceived scope of the privilege that, in our view, lies at the heart of the court's ruling: because "[t]he attorney-client privilege may extend to the subject matter itself as well as to the details," "further information was not required[.]"7
¶ 20 The district court was mistaken. The common law attorney-client privilege codified at section 13-90-107(1)(b), C.R.S. 2019, "extends only to confidential matters communicated by or to the client in the course of gaining counsel, advice, or direction with respect to the client's rights or obligations," Law Offices of Bernard D. Morley, P.C. v. MacFarlane , 647 P.2d 1215, 1220 (Colo. 1982). It "does not protect any underlying and otherwise unprivileged facts that are incorporated...
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State ex rel. Weiser v. Ctr. for Excellence in Higher Educ., Inc.
...and "should be granted only when ‘there is proof of personal bias or under extreme circumstances.’ " Guy v. Whitsitt , 2020 COA 93, ¶ 37, 469 P.3d 546 (quoting United States v. Aragon , 922 F.3d 1102, 1113 (10th Cir. 2019) ). We do not think that the judge who presided over the trial harbor......