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Office of the Attorney Office of the Attorney Bryan Treu 970-328-8685 Bryan.Treueaglecounty.us www.eagl ecou nty. us EAGLE COUNTY June 1, 2021 Heather Flannery Senior Assistant Attorney General Colorado Department of Law Business and Licensing Section Ralph L. Cart Colorado Judicial Center 1300 Broadway, 8th Floor Denver, Colorado 80203 (720) 508-6387 heather.flannery @ coarov Re: Violations of Colorado Open Records Act and Colorado Open Meetings Act; Pre Litigation Hold Notice and Request to Preserve All Relevant and Potentially Relevant Evidence. Dear Ms. Flannery, This communication addresses violations by your client, the Colorado State Board of Equalization (“SBOE”), of the Colorado Open Records Act, C.R.S. § 24-72-201, et. seq. (“CORA”) and the Colorado Open Meetings Law, C.RS. § 24-6-402 (“COML”). It provides written notice of Eagle County’s intent to file an application with the district court in Denver for a show cause order pursuant to C.R.S. § 24-72-204(5)(a). It also provides written notice of Eagle County’s intent to seek all legal remedies available for the SBOE violation of the COML, including review of the recorded executive session meeting that occurred during the March 26, 2021 meeting of the SBOE (the “March 26 Meeting”). This should be treated as a pre-litigation notice in order to prevent destruction of relevant or potentially relevant evidence, including but not limited to the recording of the executive session at the March 26 Meeting. 1. CORA As you know, on March 30, 2021, representatives of Eagle County made a request to your clients under CORA to inspect certain public records of the Colorado State Board of Equalization (“SBOE”). In particular, the request sought a) the electronic recording of the March 26 Meeting and b) certain communications of SBOE board members related to matters discussed during the March 26 Meeting. Some responsive records were sent on April 14, 2021. The response was later supplemented with additional responsive records on April 21, 2021. 1 On April 27, 2021, Eagle County inquired about records that appeared to be missing or improperly withheld from production. On April 29, 2021, you asserted that the only responsive records withheld from production were a) the recording of the executive session at the March 26 Meeting; and b) an email from Barbara Brewer (SBOE board member) after the March 26 Meeting to you. See Attachment B. On April 30, 1 responded with a detailed explanation of public records of communication that were obviously missing from the records produced, including at a minimum: a) Correspondence on or before March 2, 2021 between SBOE Board Member, Representative Cathy Kipp (“Rep. Kipp”) and SBOE Board Member Senator Chris Hanson (“Senator Hanson”) -- a snippet of which was forwarded by Rep. Kipp to SBOE Board Chair Dickey Lee Hullinghorst (“Ms. Hullinghorst”). See Attachment A, p. 17 (“From Senator Hansen: Good plan, i’ittfollow Dickey Lee’s lead on this”); b) Correspondence related to Ms. Hullinghorst’s comment about JoAnn Groff being fine with the “idea” for a “public Zoom meeting of the Board after March 24” and her invitations to Board Members Marty Flaum and Barbara Brewer related to the same. See Attachment A, p. 17; and c) Text-message correspondence occurring on March 26, 2021 during the SBOE public meeting, between Ms. Hullinghorst and Rep. Kipp. See Attachment A, p. 17, and Attachment B. On May 7, 2021, Brett McPherson, Communications and Marketing Specialist for the Colorado Department of Local Affairs, responded with a letter detailing final accounting of all costs for production of records, along with a single-page image of the missing text correspondence identified in paragraph 2(c) above (i.e., the Hullinghorst-Kipp text message). We have paid the invoiced amount; however, I have received no response from you directly regarding any of the above referenced deficiencies, or from any representative of SBOE or DOLA regarding paragraphs 1(a) and 1(b) above. This is unfortunate, because it is beyond dispute that there are communications between Senator Hansen and Rep. Kipp responsive to the March 30 CORA request, and that we have been denied the right to inspect those public records. In addition, it appears that other written communications responsive to the CORA request were likely inappropriately withheld. 2 Pursuant to C.R.S. § 24-72-204(5)(a), please provide some dates and times that you will be available to meet by telephone to determine whether this CORA dispute may be resolved without involvement of the court. 2. COML The wrongful withholding of public records is really quite concerning to my clients, particularly given that the records that were actually produced clearly demonstrate a violation of the COML. See Attachment A, pp. 1-21 summarized as follows. a) On February 10, 2021, in response to a request for legislative audit of the DPI — sent by the Eagle County Board of County Commissioners to Rep. Kipp and Senator Hanson — Rep. Kipp began arranging a non-noticed, non-public meeting between three SBOE Board Members: Rep. Kipp, Senator Hanson and Ms. Hullinghorst. See Attachment A, pp. 1-10. b) On February 12, 2021 at 3 p.m., without any notice to the public, the SBOE held a private remote meeting that was not open to the public. The meeting was not recorded and no minutes were taken. See Attachment A, pp. 11 and 15, and lack of any meeting minutes at https://cdola.colorado.gov/state-board-of-equalization. c) On or before March 2, 2021, Senator Hansen and Rep. Kipp conducted a private meeting, electronically through text message, to discuss a “plan” that would be led by Ms. Hullinghorst. This meeting was not open to the public or recorded and no minutes were taken. See Attachment A, p. 17, and lack of any meeting minutes at https://cdola.colorado.gov/state-board-of-egualization. d) On March 2, 2021, Rep Kipp and Ms. Hullinghorst conducted a private meeting, not open to the public, to communicate Senator Hansen’s position on the matter, and discuss their idea for a “potential solution” to set up the March 26, 2021 meeting. This meeting was not open to the public or recorded and no minutes were taken. See Attachment A, p. 17, and lack of any meeting minutes at https://cdola.colorado.gov/state-board-of-equalization. e) As a result of the illegal February 12 through March 2 meetings, Rep. Kipp informed the legislative representatives for San Miguel County (Senator Don Coram and Representative Marc Catlin, collectively the “San Miguel Representatives”) that Rep. Kipp and Senator Hansen, as legislative representatives of the SBOE, met and determined that they were satisfied with the performance of Property Tax Administrator Joann Groff (“Ms. Groff’). As a result, Rep Kipp took formal action to ask the San Miguel Representatives to 3 stand down on the request of the San Miguel Board of Commissioners for an audit of the DPI. See Attachment A, p. 15. The SBOE is a “state public body” as defined in COML at C.R.S. § 24-6-402(l)(d)(I). Pursuant to C.R.S. § 24-6-402(2), “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 are declared to be public meetings open to the public at all times.” (Emphasis added). C.R.S. § 24-4-402 (2)(d) requires minutes of any meeting to be taken, promptly recorded, and open to public inspection. C.R.S. § 24-4-406(2)(d.5) requires the electronic recording of meetings of the SBOE. Pursuant to C.R.S. § 24-6-402(1)(b) and (2)(c)(I), any meeting where any proposed policy, position, resolution, rule, regulation, or formal action occurs shall be held only after full and timely notice to the public. All meetings held by members of a state public body to consider dismissal, discipline, promotion, the investigation of charges or complaints against a public official or employee shall be open to the public unless said official or employee requests an executive session. See C.R.S. § 24-6-402(3)(b). It was a violation of COML for three members of the SBOE, a state public body, to conduct a private, non-public meeting on February 12, 2021. The SBOE further violated the COML by failing to take and record minutes of that meeting. In addition, the SBOE failed to record the February 12, 2021 meeting in the same manner that all other regular meetings of the SBOE are recorded. Finally, the SBOE failed to give any public notice of any of meetings of the SBOE that occurred between February 12, 2021 and March 25, 2021. The fact that the SBOE later held a properly noticed public meeting on March 26, 2021 to discuss the same subject matter does not cure the February 12, 2021 and/or other COML violations. It is inappropriate for a state public body to hold a private meeting, and then subsequently adopt at a public meeting, decisions it had already privately made. Bagby v. School District No. 1, 528 P.2d 1299, 1302 (Cob. 1974). The COML is intended as a prohibition against conducting public business in private. Id. That Rep. Kipp and Senator Hansen took formal action approving of Ms. Groff’s handling of the issues raised by Eagle, La Plata and San Miguel Counties, before holding the public March 26 Meeting to consider those very issues clearly evidences that the March 26 Meeting was intended as a rubber stamp of previously decided matters.
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