Re-2 emails spur concern over potential open meetings law violation
The falling out between the Garfield Re-2 school board and its former superintendent, Susan Birdsey, spurred several firsts for the veteran board.
Specifically, it was the first time in the past eight years that the board has been questioned on potentially violating the state’s open meetings law, said board President Chris Pearson.
“This is the first time in eight years that this has ever come up,” she said.
Her statement is in response to concern over an email conversation involving all five board members 28 days prior to publicly deciding to enter into a separation agreement with Birdsey. The emails — obtained through a Colorado Open Records Act request — discuss differing opinions on the decision to part ways with Birdsey, and hopes of avoiding a split vote of no confidence in public.
That conversation constitutes a discussion of public business among three or more board members and is therefore subject to Colorado’s Open Meeting Law, said Steven Zansberg, president of the Colorado Freedom of Information Coalition.
The law defines a meeting as “any kind of gathering, convened to discuss public business, in person, by telephone, electronically or by other means of communication.”
As a public meeting, which the law defines as “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,” full and timely public notice must be given prior to the meeting, Zansberg said.
While that is true, the assertion that the board was discussing public business in the emails is not quite cut and dry, said Brent Case, an attorney representing the school board. Citing a 2012 Colorado Court of Appeals decision in Intermountain Rural Electric Association vs. Colorado Public Utilities Commission (PUC) — which found that numerous email exchanges by PUC members did not violate the open meetings law because commenting on the legislation discussed in the emails was not connected to the commission’s policy-making function — Case said the definition of “public business” has been narrowed and that in his opinion the board did not violate the open meetings law.
The first email provided in response to the records request was from Pearson to board member Scott Doherty, with the other three board members copied in the email, on July 1 with the subject line “eval process.” Pearson wrote that she could sense Doherty’s frustration during a phone call the day before, adding that she too shared the same frustration. The email discusses the process for evaluating Birdsey, as well as explanations for delays in the process.
Sensing a split vote, she asked board members Patrick Burwell and Shirley Parks for their thoughts on “moving in a new direction with a new superintendent.” The majority — consisting of Burwell, Parks and Pearson — agreed that it was ready to move in a new direction, according to the email.
Later that day, board member Anne Guettler sent an email to the other board members stating Birdsey had mentioned to Doherty that she would be willing to resign, which “would avoid a split vote of no confidence and the outcry that would ensue, and allow us the time (to) get our act together.”
Doherty responded, “she actually mentioned that she thought it would be more appropriate for her to be given the opportunity to resign. I’m not sure if she would, depending on the implications for the buyout. She did not quite say she would be willing to resign.”
Had it been a single email from Pearson explaining the situation up to that point, there could be a potential opening for debate on whether or not that constituted a discussion of public business, Zansberg said, but the ensuing emails discussing how the board should conduct a decision regarding the highest level administrator in the district qualifies as a discussion of public business.
“Maybe one member of the school board sending one message to all the other members may … not violate the open meetings law, but certainly the following discussion among the others constitutes exactly what the open meeting law describes as such,” Zansberg said.
Even if the board did violate the law, it remedied the situation by releasing the emails, Case said, adding that the actual decision to enter into the separation agreement was made in a public and noticed school board meeting.
No malicious intent
The board was not intentionally attempting to withhold information, said Pearson, who added that “it’s very rare” for board members to communicate via email.
In response to the open records request, which asked for all emails between the five board members from May 24 through July 30 using the search terms “Birdsey” and “Susan,” five emails were disclosed. Emails protected under attorney-client privilege were not disclosed.
“The thought never entered my mind, you know? I just wanted everyone to be aware of what was going on. There was no malicious intent or anything behind it,” Pearson said.
She reiterated the fact that board members are volunteers, and added that she received minimal training when she joined the board nearly eight years ago. That included the topic of open meeting law.
After new board members are elected, the district provides them with a copy of the book “Leadership in School Boards” from the Colorado Association of School Boards (CASB), according to information provided by the district. Additionally, board members are “highly encouraged” to participate in the new board workshops at the annual winter CASB conference.
When the board officially announced the separation agreement with Birdsey, it did so less than four months before the November election, which will bring three new members to the board. Pearson and Doherty are both at the end of their two-term term limit, while Burwell decided not to run for a second term due to what he referred to as too many commitments.
The three new board members will likely go through the “new board member orientation,” a practice implemented in 2013 that allows new members to meet with each director and ask questions.
Re-2 board members received positive feedback last spring after delivering a presentation on the orientation process at a CASB meeting.
Following the decision to cut ties with Birdsey, the board announced it would be reviewing certain policies and procedures. Pearson, whose time on the board is coming to a close, said she was unaware if further education on the state’s open meetings law would be part of that review.
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