Town of Marble v. Darien

Justice MARTINEZ,

dissenting.

I disagree with the majority's holding that the public received "full" notice of the January 8th meeting. At this meeting, the Council decided the highly contentious issue of the TOU project, and yet none of the proponents of the project attended. In my view, the notice failed to fairly inform the public that the Council would take formal action on the TOU project at this meeting. Accordingly, I dissent.

Colorado's Open Meetings Law requires that the public receive "full and timely notice" of a public meeting. § 24-6-402(2)(c), C.R.S. (2007). This notice requirement establishes "a flexible standard aimed at providing fair notice to the public." Benson v. McCormick, 195 Colo. 381, 383, 578 P.2d 651, 653 (1978); see maj. op. at 1152. Thus, as the majority correctly notes, this court must apply an objective standard, assessing the notice from the perspective of "an ordinary member of the community to whom it is directed." See maj. op. at 1152; see also Benson, 195 Colo. at 383, 578 P.2d at 653.

Nevertheless, the majority fails to apply this objective standard and instead incorrectly focuses on the Council's subjective intent in using the term "update" in the January 8th meeting notice. The majority notes that the term "update" in the agenda item "Mill Site Committee Update" indicated that the Council intended to "consider" the Committee's work, see maj. op. at 1154, but did not have any preconceived plan to take formal action on the TOU project. See id. The majority also observes that the Council previously discussed the TOU project under agenda items such as "Mill Site Update," see id. at 1153, and regularly took formal action under agenda items labeled as "update." See id. at 1154. Hence, the majority concludes that "the term 'update' [did not] suggest that formal action would not be taken on the TOU project." Id. at 1153-1154.

While generally the term "update" may include taking formal action, the content of the January 8th meeting notice excluded the possibility that the Council would take formal action on the TOU project at the meeting. The notice contained an agenda item "Mill Site Committee Update" as well as a specific description of that item-"Authorization for Mill Site Committee survey expenditure(s)" and "Endorse replacement of [Mill Site Committee] member." Moreover, the notice also stated that the next Mill Site Committee meeting would take place a week later, on January 15th.

*1157As used here, the term "update" modified the word "Committee" rather than the words "Mill Site," thus suggesting the Council would discuss housekeeping matters concerning the work of the Committee rather than the TOU project itself. Additionally, the specific description of the agenda item provided content to the word "update," which further indicated to the specified matters. Finally, while the Committee's work was not limited to the consideration of the TOU project, the TOU project was a divisive and publicized issue that was in the forefront of the Committee's activities Thus, as used here, "update" was a term of limitation, which, read together with the information on the next Mill Site Committee meeting, strongly implied that a decision on the TOU project was not imminent. Consequently, an ordinary member of the community did not have fair notice that the Council would take formal action on the TOU project. Indeed, none of the proponents of the TOU project attended the January 8th meeting.

This conclusion is entirely consistent with Benson's requirement that providing full notice not interfere with "the ability of public officials to perform their duties in a reasonable manner." Benson, 195 Colo. at 384, 578 P.2d at 653. According to the majority, requiring that the notice include more than "Mill Site Committee Update" would in effect prevent the Council from conducting business in a reasonable manner and thus would violate Benson. See maj. op. at 1158. However, the majority's discussion of Benson fails to take into account the amendment of section 24-6-402(2)(c), adopted after Benson was decided, requiring that a notice of a public meeting be posted and that "[the posting ... include specific agenda information where possible." See ch. 142, see. 1, § 24-6-402(2)(c), 1991 Colo. Sess. Laws 815, 816. Following this amendment, the statute encourages, but does not require, advance planning as to what matters are going to be transacted at a public meeting.

Here, the Council indicated that the "update" would concern funding of a survey to be conducted by the Committee and replacement of a Committee member. Consequent ly, while the notice here exceeded the notice in Benson in specificity, see maj. op. at 1158, in contrast to Benson, the Council limited the seope of action that might be taken with respect to the Committee's work. Holding the Council to the limitation it chose to impose on itself does not, in any way, restrict the Council's ability to conduct its business in a "reasonable manner." Rather, it is consistent both with section 24-6-402(2)(c) and Benson.

Because the notice of the January 8th meeting did not fairly inform the public that the Council would take formal action on the TOU project, I dissent.