The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY June 11, 2020
2020COA93
No. 19CA0125, Guy, T v. Whitsitt — Administrative Law — Colorado Sunshine Act — Open Meetings Law
Under a provision in the Colorado Open Meetings Law,
sections 24-6-401 to -402, C.R.S. 2019, a local public body may
meet in closed, executive session if, among other things, it identifies
for the public the “particular matter[s]” upon which it is to meet “in
as much detail as possible without compromising the purpose for
which the executive session is authorized,” § 24-6-402(3)(a).
In this case, a division of the court of appeals considers
whether the Town Council of Basalt complied with this provision by
notifying the public only (1) that during executive session it would
discuss “legal advice” and “personnel matters,” § 24-6-402(4)(f)(I);
and (2) of its statutory authority to discuss such matters. The division concludes that the Town Council did not comply
with the provision because it was possible to divulge some
information about the subject of the legal advice or personnel
matters discussed without compromising the purposes for which
the executive sessions were called. The Town Council’s failure to
notify the public of any detail beyond mere recitation of a statutorily
permitted topic violated the Colorado Open Meetings Law. COLORADO COURT OF APPEALS 2020COA93
Court of Appeals No. 19CA0125 Eagle County District Court No. 16CV30322 Honorable Russell H. Granger, Judge
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.
JUDGMENT REVERSED IN PART, APPEAL DISMISSED IN PART, AND CASE REMANDED WITH DIRECTIONS
DIVISION I Opinion by JUDGE DAILEY Harris and Johnson, JJ., concur
Announced June 11, 2020
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 ¶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 Whitsett, 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.
I. Background
¶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
1 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
1For example, for one of the announced executive sessions, the Town Council meeting agenda stated verbatim:
1. The purchase, acquisition, lease, transfer or sale of property interests in accordance with C.R.S. 24-6- 402(4)(a). 2. A conference with the Town’s attorney for the purpose of receiving legal advice on specific legal questions in accordance with C.R.S. 24-6-402(4)(b); 3. Determining positions relative to matters that are or may become subject to negotiations in accordance with C.R.S. 24-6-402(4)(e). 4. Personnel matters in accordance with C.R.S. 24-6-402(4)(f).
2 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.”
3 ¶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
2The line on the form says, “2. ‘The particular matter to be discussed is _________________________.’”
3 Scanlon intervened in the case and filed an affidavit (1) asserting a “privacy interest” in the records of the personnel matters discussed during the executive sessions and (2) not consenting to the release of any of those records “that include discussion or reference to of [sic] any of the following related to me: employment information; educational information; performance evaluations; reasons for separation; medical information; background check information; personal history; financial information; or disciplinary records.”
4 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.
4 Subsequently, the district court ruled in Guy’s favor on a claim that he was entitled under Colorado’s Open Records Act, sections 24-72-201 to -206, C.R.S. 2019, to have access to specific text messages and emails between Town Council members about Town business. Because Guy succeeded on this claim, however, it is not a subject of this appeal.
5 II. The Town Council Did Not Comply with the COML
¶ 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.
¶ 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)
6 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
5 Strict adherence to the procedure is important because “[i]f an executive session is not convened properly, then the meeting and the recorded minutes are open to the public.” Gumina v. City of Sterling, 119 P.3d 527, 531 (Colo. App. 2004).
6 This portion of the statute was added in 2001, see Ch. 286, sec. 2, § 24-6-402, 2001 Colo. Sess. Laws 1072-73, presumably to address a need for further explanation of the purposes for which executive sessions are convened. See, e.g., Estate of Brookoff v. Clark, 2018
7 ¶ 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)
CO 80, ¶ 6 (“When we interpret a statute that has been amended, we presume the statutory amendment reflects the legislature’s intent to change the law.”); Peoples v. Indus. Claim Appeals Office, 2019 COA 158, ¶ 23 (“[W]e do not presume that the legislature used language idly . . . .” (quoting Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 571 (Colo. 2008))).
8 “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.
A. Legal Advice
¶ 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
7 The court reasoned that because the attorney-client privilege can be waived by the voluntary disclosure of information to a third party, “providing additional detail about those confidential discussions [in executive session] carried the risk of an assertion that confidentiality had been waived.”
9 ¶ 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 into a client’s communication to [or with] his
attorney[.]” Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000); id. at
1124 (The attorney-client privilege does not “encompass otherwise
unprivileged facts disclosed in attorney-client relations, and
unprivileged facts cannot become privileged merely by incorporation
into a communication with an attorney.”).
¶ 21 Of more significance here, the privilege ordinarily does not
encompass information about the subject matter of an
attorney-client communication:
[m]erely disclosing the fact that there were communications or that certain subjects were discussed, however, does not constitute a . . . disclosure [waiving the privilege]. The disclosure must be of confidential portions of the privileged communications. This does not include the fact of the communication, the
10 identity of the attorney, the subject discussed, and details of the meetings, which are not protected by the privilege.
Roberts v. Legacy Meridian Park Hosp. Inc., 97 F. Supp. 3d 1245,
1252-53 (D. Or. 2015) (quoting 2 Paul R. Rice, Attorney-Client
Privilege in the United States § 9:30 at 153-56 (2014)); see also
United States v. O’Malley, 786 F.2d 786, 794 (7th Cir. 1986) (“[A]
client does not waive his attorney-client privilege ‘merely by
disclosing a subject which he had discussed with his attorney’. In
order to waive the privilege, the client must disclose the
communication with the attorney itself.”) (citation omitted); Motorola
Sols., Inc. v. Hytera Commc’ns Corp., No. 17 C 1973, 2019 WL
2774126, at *2 (N.D. Ill. July 2, 2019) (unpublished opinion)
(“Courts have consistently held that the facts surrounding
attorney-client communications, including the fact that they
occurred, their dates, topics and subject matter are discoverable
and not privileged.”); GFI Secs. LLC v. Labandeira, No. 01 CIV.
00793, 2002 WL 460059, at *7 (S.D.N.Y. Mar. 26, 2002)
(unpublished opinion) (“The attorney-client privilege is not waived if
merely the fact of the communication is disclosed, the substance of
the communication is not at issue, and there is no prejudice to the
11 opposing party. The substance of privileged communications is
protected while the fact that they may have occurred is not.”); C.J.
Calamia Constr. Co. v. Ardco/Traverse Lift Co., No. CIV.A. 97-2770,
1998 WL 395130, at *3 (E.D. La. July 14, 1998) (unpublished
opinion) (“[T]he attorney-client privilege attaches to the substance of
the communications exchanged; mere inquiry into the subject
matter of the communications is not precluded.”). But see United
States v. Aronoff, 466 F. Supp. 855, 861 (S.D.N.Y. 1979) (“[T]he
privilege ordinarily protects a client from having to disclose even the
subject matter of his confidential communications with his
attorney.”).
¶ 22 That the subject matter of an attorney-client communication is
ordinarily not privileged information is evident from, among other
things, how it is treated under the Freedom of Information Act
(FOIA), 5 U.S.C. § 552(a)(4)(B) (2018), the federal counterpart of
CORA.8
8 Though not identical, CORA and FOIA share the same purpose. “[T]hough our statutory language differs, the intent is the same: an agency cannot improperly withhold agency records, and if it does so, the courts are empowered to remedy the situation.” Wick Commc’ns Co. v. Montrose Cty. Bd. of Cty. Comm’rs, 81 P.3d 360,
12 ¶ 23 FOIA and CORA exempt from public disclosure matters
encompassed in a number of evidentiary privileges, including as
pertinent here, the attorney-client privilege. City of Colorado
Springs v. White, 967 P.2d 1042, 1056 (Colo. 1998); see also § 24-
72-204(1)(a) (recognizing records are not authorized for disclosure if
“such inspection would be contrary to any state statute” and the
attorney-client privilege is codified in state statute).
¶ 24 Under FOIA, when a public entity wishes to prevent the
disclosure of requested public records, the public entity “must
submit an affidavit ‘identifying the documents withheld, the FOIA
exemptions claimed, and a particularized explanation of why each
document falls within the claimed exemption.’” Burton v. Wolf, 803
F. App’x 120, 122 (9th Cir. 2020) (quoting Lahr v. Nat’l Transp.
Safety Bd., 569 F.3d 964, 989 (9th Cir. 2009)). The affidavit is
called a Vaughn index, named for the decision which first imposed
363 (Colo. 2003) (adopting for CORA the test from FOIA whether the public entity improperly withheld a public record, because FOIA is consistent with CORA’s goals).
13 the requirement. See Vaughn v. Rosen, 484 F.2d 820, 826 (D.C.
Cir. 1973).9
¶ 25 A Vaughn index (1) requires, among other things, a specific
and detailed assertion of a privilege, although the index need not be
so detailed that it compromises the purposes served by the
privilege;10 and (2) should provide a specific description of each
document claimed to be privileged where, typically, the description
should provide each document’s author, recipient, and subject
matter. White, 967 P.2d at 1053-54; cf. Rein v. U.S. Patent &
Trademark Office, 553 F.3d 353, 369 (4th Cir. 2009) (“Without
revealing any facts about the documents’ contents, the Agencies
have merely asserted their conclusion that the document is exempt,
employing general language associated with the deliberative process
privilege.”); Campaign for Responsible Transplantation v. U.S. Food &
9 “A Vaughn index is the FOIA equivalent of a [C.R.C.P. 26(b)(5)(A) litigation] privilege log.” Rocky Mountain Wild v. U.S. Bureau of Land Mgmt., No. 18-CV-0314-WJM-STV, 2020 WL 1333087, at *6 (D. Colo. Mar. 23, 2020).
10This requirement is substantially identical to the COML, which requires a description of the particular matter “in as much detail as possible without compromising the purpose for which the executive session is authorized.” § 24-6-402(3)(a), C.R.S. 2019.
14 Drug Admin., 219 F. Supp. 2d 106, 112 (D.D.C. 2002) (Short
descriptions that “only provide a vague hint at the possible
contents,” such as “Internal Memo RE: Xeno,” are insufficient.).
¶ 26 A proper Vaughn index regarding attorney-client privilege
typically includes the author’s name, the recipient’s name, and
some description of the topic. See, e.g., Leopold v. U.S. Dep’t of
Justice, 411 F. Supp. 3d 1094, 1104 (C.D. Cal. 2019) (for emails
sent to receive legal advice, disclosure of subject and participants
and relating to testimony given by specific Federal Bureau of
Investigation employees before congressional committees for
distinct purposes is sufficient); Rocky Mountain Wild, Inc. v. U.S.
Forest Serv., 138 F. Supp. 3d 1216, 1224-25 (D. Colo. 2015)
(Descriptions such as “legal sufficiency review,” “confidential factual
and legal information,” and “legal and policy advice” are “conclusory
statements which do nothing more than recite the legal standard
[and] fail to demonstrate a logical basis” for the claim of
attorney-client privilege and “fail to provide sufficient detail[.]”); All.
of Californians for Cmty. Empowerment v. Fed. Hous. Fin. Agency,
No. 13-CV-05618, 2014 WL 12567153, at *1 (N.D. Cal. Sept. 4,
2014) (remanding for the party to supply an adequate Vaughn index
15 and “sufficiently detailed declarations” where the index contained
entries that merely recite the elements of a claimed exemption, i.e.,
“[t]his document is being withheld in its entirety pursuant to
exemption (b)(5), containing deliberative process and attorney-client
material”); Carter, Fullerton & Hayes LLC v. Fed. Trade Comm’n, 520
F. Supp. 2d 134, 142 (D.D.C. 2007) (describing “Internal memo
between staff attorneys of OPP deliberating/discussing whether to
make recommendations to the Commission concerning the filing of
an amicus brief” was appropriate).
¶ 27 Based on the reasoning in the above-mentioned authorities,
we conclude that (1) it was possible (even reasonably possible) to
describe at least the “subject matter” of what was to be discussed
without waiving the attorney-client privilege, and, consequently, (2)
the Town Council’s failure to provide any information beyond the
statutory citation authorizing an executive session for “legal advice”
did not comply with the statutory requirement of identifying “a
particular matter in as much detail as possible without
16 compromising the purpose for which an executive session was
called.”11 The district court erred in concluding otherwise. 12
B. Personnel Matters
¶ 28 The district court determined that the Town Council could not
identify with any more particularity the personnel matters to be
discussed during the executive sessions because of the privacy
interests of the Town Manager (Scanlon):
11 Indeed, as Guy points out in his opening brief, the Town Council subsequently started announcing the subjects of “legal advice” that would be discussed in executive session. See, e.g., Basalt Town Council, Special Meeting Minutes 3 (Sept. 6, 2016), https://perma.cc/6AUD-AP7B (announcing that legal advice would concern “1) An August 25, 2016 Open Records Act request from Ted Guy and others; and 2) Mike Scanlon’[s] employment and his employment agreement”); Basalt Town Council, Meeting Minutes 4 (Oct. 18, 2016), https://perma.cc/CG6A-2SFQ (announcing that legal advice would concern “the Eagle County District Court Case Guy v. Whitsitt”). These are undisputed matters of public record, and, as such, we may take judicial notice of them. See Peña v. Am. Family Mut. Ins. Co., 2018 COA 56, ¶ 14 (recognizing that a court may take judicial notice of public records).
12 Our conclusion is based on the principle that “ordinarily” the subject matter of an attorney-client communication is not privileged information. To say that something is not “ordinarily’ privileged, however, does not mean that it could never be privileged. We can conceive of extraordinary situations in which a colorable claim of privilege could be made regarding the very fact of a person’s consultation with an attorney. This, however, is not one of them.
17 Had the Town Council given more detail about the purpose of the discussion of the “personnel matters”, i.e., the performance or continued employment of Mr. Scanlon, the Town Council may have violated Mr. Scanlon’s privacy rights and breached the terms of his Employment Agreement. Evidence was presented that Mr. Scanlon has asserted a claim of retaliation for a recent announcement of an executive session involving his current employment. Thus, a more specific identification of the purpose of the executive session to discuss Mr. Scanlon’s performance or continued employment would not be reasonable or possible in accordance with the statute because it would have compromised the purpose of the executive session.
....
[D]isclosing Mr. Scanlon’s employment or performance of [sic] the subject of the executive session exposed the Town to the risk that Mr. Scanlon would contend that his right to privacy would be compromised and that it would be a violation of his Employment Agreement. . . .
In conclusion, this Court finds and rules that due to the specific facts in this case including the contractual provisions, Mr. Scanlon’s objection to any public disclosure of his personnel issues, prior notice to Mr. Scanlon, and the identification that was provided, the provisions of COML were met and the executive sessions regarding Mr. Scanlon were properly convened. The Court also finds that given Mr. Scanlon’s particular sensitivity and strong objections to any public disclosure, this
18 Court’s ruling would be the same even if there was not a contract between the Town and Mr. Scanlon.
¶ 29 We disagree with the conclusions reached by the district court.
Driving our decision is the recognition that, as a public employee,
Scanlon has a narrower expectation of privacy than other
citizens, Denver Publ’g Co. v. Univ. of Colo., 812 P.2d 682, 685 (Colo.
App. 1990), and the public has an interest in knowing employee
compensation, and, in certain instances, employee work
performance. Indeed, CORA affords Scanlon only a narrow privacy
interest regarding his employment, i.e., in his “personnel file.” See
§ 24-72-204(3)(a)(II)(A) (denying, generally, the right of the public to
access “personnel files”).13 It does not, however, protect from
disclosure “any employment contract or any information regarding
13 “‘Personnel files’ means and includes home addresses, telephone numbers, financial information, a disclosure of an intimate relationship filed in accordance with the policies of the general assembly, [and] other information maintained because of the employer-employee relationship . . . .” § 24-72-202(4.5), C.R.S. 2019. “[T]he general term of ‘other information maintained because of the employer-employee relationship’ only applies to those things which are of the same general kind or class as personal demographic information.” Jefferson Cty. Educ. Ass’n v. Jefferson Cty. Sch. Dist. R–1, 2016 COA 10, ¶ 20.
19 amounts paid or benefits provided under any settlement agreement
pursuant to the provisions of article 19 of this title,” § 24-72-
204(3)(a)(II)(B), or “applications of past or current employees,
employment agreements, any amount paid or benefit provided
incident to termination of employment, performance ratings, final
sabbatical reports required under section 23-5-123, or any
compensation, including expense allowances and benefits, paid to
employees by the state, its agencies, institutions, or political
subdivisions,” § 24-72-202(4.5), C.R.S. 2019; see also, e.g.,
Jefferson Cty. Educ. Ass’n v. Jefferson Cty. Sch. Dist. R–1, 2016 COA
10, ¶ 21 (holding that teachers’ sick-leave records are not protected
by CORA).
¶ 30 From these principles, it follows that Scanlon did not have a
privacy interest in his employment contract or certain aspects, at
least, of his conduct as a public employee with the Town. See, e.g.,
Denver Publ’g Co., 812 P.2d at 684 (A settlement agreement is not
protected by CORA: “in light of the clear intent of the Open Records
Act, it is unreasonable for the defendants to have assumed they
could restrict access to the terms of employment between a public
20 institution and those it hires merely by placing such documents in
a personnel file.”).
¶ 31 Nonetheless, the Town Council asserts that, under the terms
of its contract with Scanlon, the Town risked being sued if it
provided the public any notice about anything related to Scanlon’s
employment. The simple answer to this, however, is that the Town
may not, by contract, evade its statutory obligations. Cf. Cummings
v. Arapahoe Cty. Sheriff’s Dep’t, 2018 COA 136, ¶ 43 (contracts that
abrogate statutory requirements violate public policy and are
unenforceable). The Town’s desire to limit its exposure to a possible
legal action by Scanlon did not, in our view, justify negating the
public’s right to know the subject of what its officials would be
discussing in secret.
¶ 32 For these reasons, we conclude that the Town’s
announcement should at least have notified the public that the
personnel matters that would be discussed in executive session
concerned Scanlon. The court erred in concluding otherwise.
C. Remedy
¶ 33 Because the Town Council did not comply with COML’s notice
requirements, Guy is entitled to the recordings and minutes of the
21 executive session (to the extent they exist) involving the matters not
properly noticed. See Gumina v. City of Sterling, 119 P.3d 527, 530
(Colo. App. 2004).
III. Attorney Fees
¶ 34 Section 24-6-402(9)(b) says, “[i]n any action in which the court
finds a violation of this section, the court shall award the citizen
prevailing in such action costs and reasonable attorney fees.” The
district court said that it would award Guy a reasonable amount of
attorney fees only for that part of the case on which he had
prevailed. But the court never determined an amount of fees,
waiting to do so, as the parties requested, until this appeal was
concluded. Because no amount of attorney fees has yet been
awarded, there is no “final” appealable order with respect thereto.
Williams v. Dep’t of Pub. Safety, 2015 COA 180, ¶ 114.
Consequently, that part of Guy’s appeal concerning the district
court’s attorney fees order is dismissed.14
14In any future proceeding, of course, Guy can point out to the district court that he has now prevailed on other aspects of his case as well.
22 ¶ 35 Guy has also requested — and is entitled to — an award of
appellate costs under C.A.R. 39 and attorney fees under C.A.R. 39.1
and section 24-6-402(9)(b).15 We therefore remand the case to the
district court to award Guy his costs and a reasonable amount of
attorney fees incurred on appeal.
IV. Reassignment to a Different Judge
¶ 36 Finally, we note that Guy requests that we order further
proceedings in this case be conducted by a different judge because
the judge here purportedly “repeatedly evinced its disdain for
citizens, like Mr. Guy, who invoke the courts’ authority to compel
public bodies to adhere to the law.”
¶ 37 This is an “extraordinary request,” which should be granted
only when “there is proof of personal bias or under extreme
15 Contrary to the Town Council’s assertion, Guy’s success on his claims should not be ignored or discounted because he cited, in his briefs, an unpublished opinion from this court and unpublished decisions from other courts. In the first instance, the unpublished decision from this court was first permissibly cited for its persuasive value in the district court. See Patterson v. James, 2018 COA 173, ¶¶ 38-43. In the second instance, divisions of this court regularly cite with approval unpublished decisions from other jurisdictions. See, e.g., People v. Sharp, 2019 COA 133, ¶ 36 n.7; Gagne v. Gagne, 2019 COA 42, ¶¶ 20, 36; People v. Garrison, 2017 COA 107, ¶¶ 50, 53.
23 circumstances.” United States v. Aragon, 922 F.3d 1102, 1113
(10th Cir. 2019) (quoting Mitchell v. Maynard, 80 F.3d 1433, 1448
(10th Cir. 1996)).
¶ 38 There is, in our view, no indication that the judge harbored
any personal bias against Guy or his counsel. Nor did the judge fail
to treat Guy’s claims seriously or dispose of them in an arbitrary
manner. Admittedly, the judge was skeptical about the overall
value of Guy’s lawsuit, saying in the order that
“[T]he value to the public of the required highly technical
application of the law is de minimis in this case. This is a
hyper technical ruling that places form over substance
but one that is required by Colorado law.”
“The Plaintiff stated multiple times that this was not a
case about bad faith but rather a case requiring strict
compliance with the statute – regardless of the practical
value to the public. The Court notes the philosophical
public value the case creates, but the Court also notes
24 that in reality this case will more likely cause more harm
to the public than good.”16
¶ 39 But the court’s comments must be viewed in context. The
court had found that
“[i]t is beyond question that each of the executive
sessions was held for a proper purpose”;
Guy had not succeeded on claims that the notice of legal
advice and personnel matters was deficient; and
“there may be considerable dispute regarding the
reasonable amount of attorney fees that should be
awarded. It is possible or even likely, that the cost of
litigating the reasonableness of fees will be greater than
the fees themselves.”
¶ 40 Given the context in which the court made its comments, we
do not perceive an attitude of “disdain” towards those who attempt
to enforce the COML. The court’s comments about the relative
16 The court had also commented during a hearing that (1) “at least as I read the statute, it was not the legislative intent to create a statute that would create an income stream for attorneys”; and (2) “[Y]ou can take it up with the Court of Appeals” [to tell me that you can] litigate for the sake of litigation to enrich attorneys . . . .”
25 value of the case, philosophically and practically, were made
against the backdrop of only limited success by Guy and the
prospect of a hefty attorney fees request to be paid from the public
till.
¶ 41 But things have changed. With Guy’s success on appeal on
other issues, the district court should be under no
misapprehension about the value of his lawsuit.
¶ 42 All things considered, we have no reason to believe that (1) on
remand, the judge would have substantial difficulty in casting aside
his erroneous, previously expressed views; or (2) reassigning the
case to a different judge is necessary to preserve the appearance of
fairness. See Aragon, 922 F.3d at 1113 (listing such considerations
in the decision to reassign a matter to a different judge).
Consequently, we deny Guy’s request for reassignment to a different
judge on remand. See In re Kellogg Brown & Root, Inc., 756 F.3d
754, 763-64 (D.C. Cir. 2014) (“[W]e will reassign a case only in the
exceedingly rare circumstance that a district judge’s conduct is ‘so
extreme as to display clear inability to render fair judgment.’”
(quoting Liteky v. United States, 510 U.S. 540, 551 (1994))).
26 V. Disposition
¶ 43 We reverse the portions of the district court’s judgment
determining that the Town Council did not violate COML’s notice
requirements for legal advice and personnel matters; dismiss the
portion of Guy’s appeal related to district court’s attorney fee order;
and remand to the district court with instructions to enter
judgment for Guy on the parts of the judgment mentioned above
and to award Guy his costs and reasonable attorney fees incurred
on appeal.
JUDGE HARRIS and JUDGE JOHNSON concur.