Wisdom Works Counseling Servs., P.C. v. Colo. Dep't of Corr.

• Decision Date: 27 August 2015
• Docket Number: Court of Appeals No. 14CA0341
• Citation: 2015 COA 118,360 P.3d 262
• Parties: WISDOM WORKS COUNSELING SERVICES, P.C.; Denis Leveille; Roger Mollenkamp, Plaintiffs–Appellees and Cross–Appellants, v. COLORADO DEPARTMENT OF CORRECTIONS; Rick Raemisch, in his official capacity as Executive Director; Steve Hager, Division of Adult Parole, Community Corrections and Youthful Offender Systems, in his official capacity as Interim Director; Approved Treatment Provider Review Board, by and through its members; Dr. Todd Helvig; Bennie Lombard; Jeff Geist; Maryse Osborn; Amberly Chalberg; Liesl Schumacher, Defendants–Appellants and Cross–Appellees.
• Court: Colorado Court of Appeals

360 P.3d 262

2015 COA 118

WISDOM WORKS COUNSELING SERVICES, P.C.; Denis Leveille; Roger Mollenkamp, Plaintiffs–Appellees and Cross–Appellants,

v.COLORADO DEPARTMENT OF CORRECTIONS; Rick Raemisch, in his official capacity as Executive Director; Steve Hager, Division of Adult Parole, Community Corrections and Youthful Offender Systems, in his official capacity as Interim Director; Approved Treatment Provider Review Board, by and through its members; Dr. Todd Helvig; Bennie Lombard; Jeff Geist; Maryse Osborn; Amberly Chalberg; Liesl Schumacher, Defendants–Appellants and Cross–Appellees.

Court of Appeals No. 14CA0341

Colorado Court of Appeals, Div. IV.

Announced August 27, 2015

Finger & Newcomb, P.C., William S. Finger, Evergreen, Colorado, for Plaintiffs–Appellees and Cross–Appellants.

Cynthia H. Coffman, Attorney General, Kristin A. Lockwood, Assistant Attorney General, Denver, Colorado, for Defendants–Appellants and Cross–Appellees.

Opinion

Opinion by JUDGE WEBB

¶ 1 Colorado's Open Meetings Law (OML), sections 24–6–401to –402, C.R.S. 2014, prohibits public business from being conducted “in secret.” But suppose a public body opposes a claim under the OML by asserting that its regulations or long-standing practices allow certain official action to be taken without a meeting? Does the OML require such a public body to meet, merely provide a remedy to invalidate formal action that the public body has taken without meeting, or neither? These are novel questions.

¶ 2 We conclude that while the OML does not require public bodies to meet, the remedy of voiding certain actions taken without meeting applies to a public body, even if its regulations or practices do not require a meeting. On this basis, we affirm the trial court's OML ruling in favor of plaintiffs, Wisdom Works Counseling Services, P.C., Denis Leveille, and Roger Mollenkamp (Wisdom Works), and against defendants, the Colorado Department of Corrections and its executive director, sub-entities of the Department of Corrections, including the Approved Treatment Provider Review Board, and various employees or members of those sub-entities (DOC). We also affirm the court's other holdings.

I. Background

¶ 3 This appeal and cross-appeal include two consolidated lawsuits brought by Wisdom Works arising from its failed applications to the Approved Treatment Provider Review Board (the Board) for certification as an approved provider of sex offender treatment for DOC parolees. The Board denied both applications based on independent reviews by two of its members—but without a meeting among the members of the entire Board. Then Wisdom Works filed these lawsuits against the DOC, which created the Board and authorized it to certify and approve treatment providers.

[360 P.3d 3]

In the trial court, Wisdom Works primarily asserted that the Board's failure to announce and hold a public meeting to review the applications violated both the OML and the Administrative Procedure Act (APA), sections 24–4–101to –108, C.R.S.2014. Alternatively, it sought a writ of mandamus under C.R.C.P. 106ordering the Board to hold a public meeting on the applications.

¶ 5 Following a bench trial, the court concluded that the Board had violated former DOC Regulation 250–23 (2011) by denying the applications without meeting. This regulation required that “[a]t a minimum, two members of the [Board] shall meet, as needed” to “[r]eview completed applications,” “[a]pprove or deny treatment programs,” and “[a]pprove or deny therapists.” The court held the denials invalid under the OML and awarded Wisdom Works fees and costs.

¶ 6 But after concluding that section 17–1–111, C.R.S.2014, exempts the Board's actions from the APA, the trial court held that it lacked subject matter jurisdiction over the APA claim. And the court rejected Wisdom Works's C.R.C.P. 106claim, concluding that to order mandamus was “beyond [its] purview ... simply because” the Board should have implemented “a better procedure.”

¶ 7 The DOC appeals the court's OML ruling on the basis that DOC Regulation 250–23 did not require the Board to meet on applications. On cross-appeal, Wisdom Works contends the trial court erred in holding that the APA did not apply to the Board's actions and in denying C.R.C.P. 106relief.

¶ 8 We affirm the trial court's ruling that the Board's failure to meet on the applications renders the denials void under the OML. But unlike the trial court, we leave aside the question whether DOC Regulation 250–23 required a meeting. SeeThyssenkrupp Safway, Inc. v. Hyland Hills Parks & Recreation Dist.,271 P.3d 587, 589 (Colo.App.2011)(Appellate court “may affirm a trial court's ruling on any grounds that are supported by the record.”). In light of this OML holding, the C.R.C.P. 106claim is no longer ripe. We also affirm the trial court's ruling on the APA claim.

II. The Board Violated the OML by Denying the Applications Without Holding a Meeting

¶ 9 Because we conclude that the denials are void under section 24–6–402(8) of the OML, we begin there and decline to address whether DOC Regulation 250–23 required that the Board meet to consider the applications.

A. Preservation and Standard of Review

¶ 10 Both parties raised the OML issue based on the undisputed fact that the Board denied both of Wisdom Works's applications without meeting. The court applied the OML, thereby placing this issue before us.

¶ 11 “[I]nterpreting the OML presents a question of law that we review de novo.” Colo. Off–Highway Vehicle Coal. v. Colo. Bd. of Parks & Outdoor Recreation,2012 COA 146, ¶ 22, 292 P.3d 1132. Doing so involves a familiar paradigm.

¶ 12 “[W]e begin with the language of the statute, giving words their plain and ordinary meaning.” Bd. of Cnty. Comm'rs v. Costilla Cnty. Conservancy Dist.,88 P.3d 1188, 1193 (Colo.2004). If the language is unambiguous, “we look no further.” Id.But “[i]f the language is ambiguous, we may look to legislative history, prior law, the consequences of a given construction, and the goal of the statutory scheme to ascertain the correct meaning of a statute.” Colo. Off–Highway Vehicle Coal.,¶ 22(internal quotation marks omitted). And whether applying plain language or resolving ambiguity, “[w]e avoid interpretations that would lead to an absurd result.” Reno v. Marks,2015 CO 33, ¶ 20, 349 P.3d 248.

B. Law

¶ 13 The OML was enacted to ensure that “the formation of public policy is public business and may not be conducted in secret.” § 24–6–401. It is “intended to afford the public access to a broad range of meetings at which public business is considered.” Benson v. McCormick,195 Colo. 381, 383, 578 P.2d 651, 652 (1978).

The OML defines a “state public body” as “any board, committee, commission, or other advisory, policy-making, rule-making, decision-making, or formally constituted body of any state agency.” § 24–6–402(1)(d). A “meeting” is “any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication.” § 24–6–402(1)(b). Subsections 24–6–402(2)(a)–(d) require state public bodies to comply with various meeting requirements, including “full and timely notice” of meetings to the public under section 24–6–402(2)(c). And section 24–6–402(8) invalidates any “formal action” taken contrary to the OML.

C. Application

¶ 15 Wisdom Works argues that because the Board “took formal action to deny [its] applications without meeting and conducting a process conforming with the requirements of law,” the denials are “clearly invalid.” We agree.

1. Application of the OML

¶ 16 To begin, is the Board's considering and denying the applications action subject to the OML? The DOC agrees that the Board is a “state public body” under section 24–6–402(1)(d). Also, the DOC does not dispute that the denials constituted “formal action.”¹Thus, the Board's action is subject to the OML. But determining the validity of that action, taken without meeting, begins with using supreme court precedent to fill some interstices in the OML.

¶ 17 The OML does not identify what types of meetings conducted by public bodies are subject to its requirements. Still, our supreme court has held that it applies to meetings occurring for the purpose of policy making. SeeCostilla Cnty.,88 P.3d at 1194(“[A] meeting must be part of the policy-making process to be subject to the requirements of the OML. A meeting is part of the policy-making process if it concerns a matter related to the policy-making function of the local public body holding or attending the meeting.”). Also, the OML does not define “policy making.” But our supreme court has held that the requisite link between a mandatory meeting and policy making exists “when the meeting is convened to discuss or undertake one of the actions enumerated in the remedy provision of the OML such as a rule, regulation, ordinance, or formal action.” Id.

¶ 18 While informative, these cases are not dispositive because they discuss whether various conduct constituted a meeting, albeit not a public one. But because no such conduct occurred here, the OML applies to the Board, and the denials were formal actions, we turn to whether Wisdom Works has a remedy under section 24–6–402(8) of the OML.

2. Remedy Under the OML

¶ 19 The DOC agrees that under the OML, the following three categories of meetings must be “open to the public”:

• “All meetings of two or more members of any state public body at which any public business is discussed or at which any formal action may be taken....” § 24–6–402(2)(a);

• “All meetings of a quorum or three or more members of any local public body, whichever is fewer, at which any public business is discussed or at which any formal action may be taken....” § 24–6–402(2)(b); and

• “Any meetings at which the adoption of any proposed policy, position, resolution, rule, regulation, or formal action occurs or at which a majority or quorum of the body is in attendance, or expected to be in attendance....” § 24–6–402(2)(c).

¶ 20 The DOC continues, “Although the Open...