March 16, 2026 · 3,554 words · 5 speakers · 96 segments
. Thank you. Thank you. All right. Let's call to order the review and comment hearing for proposed initiative 2526 number 261. Sorry for the delay, anyone who's listening. We'll go around the room and introduce ourselves.
For the record, my name is Julia Jackson with Legislative Council staff.
Rebecca Bayetti with the Office of Legislative Legal Services.
I'm John Caldera, proponent.
Beth Hendricks, proponent. And Shane Madsen, counsel for proponents. And I'm just saying for the record, although they are not presently here, Our co-counsel are Chris Beal, Brett Lilly, and John Zacham. You may have noticed our limited in how many counsel we can list on our email addresses. It doesn't prevent them from billing, however.
Perfect. All right.
Section 140.105.1, Colorado Revised Statutes, requires the directors of the legislative council staff and the Office of Legislative Legal Services to, quote, review and comment on initiative petitions for proposed laws and amendments to the Colorado Constitution. We have submitted our comments and questions to you in a memorandum that you received on initiative number 261 and we'll go over that here today. The purpose of this statutory requirement of the directors of legislative council staff and the Office of Legislative Legal Services is to provide comments and questions intended to aid the designated representatives and the proponents they represent in determining the language of their proposal and to avail the public of the contents of the proposal. Our first objective is to be sure we understand your intended purposes of the proposal. We hope that the comments and questions that you received in the memorandum provide a basis for discussion and understanding of the proposal. Discussion between designated representatives or their legal representatives and employees of the legislative council staff in the Office of Legislative Legal Services is encouraged during review and comment meetings, but comments or discussion from anyone else is not permitted. I'm going to turn it over to Rebecca to go
over the purposes. The major purposes of the proposed amendment to the Colorado Constitution appear to be 1. 2. Establish a fundamental constitutional right for all persons to know the affairs of all levels of state and local government, which guarantees access to public proceedings and public records. 2. Specify that this fundamental right applies to all public affairs of government and does not apply only when the demand of individual privacy or another highly compelling state interest clearly outweighs this fundamental right 3 Require any government office official officer employee or public body asserting an exemption to the public access requirements of the proposed initiative to demonstrate by clear and convincing evidence that the government affairs at issue are exempt 4. Impose a civil penalty of at least $1,000 on any public official, officer, employee, or agent for each instance in which they knowingly violate the provisions of the proposed initiative except for ministerial acts. Five, prohibit any state or local government from enacting legislation to limit or restrict the provisions of the proposed initiative. And six, preempt any ordinance, rule, regulation, charter, or statute that conflicts or is inconsistent with the provisions of the proposed initiative. Do these major purposes align with the intent of the proposed initiative?
I would just make one clarification for the record. Shane Madsen, counsel for the proponents. In paragraph one, the last phrase, which guarantees access to public proceedings and public records, seems to limit the overall intent of the initiative. The initiative intent is the establishment of a new fundamental constitutional right to the extent that phrase indicates any limitation that was not our intent. We do see paragraphs two through six as provisions that implement the fundamental right.
All right, we'll move on to the substantive comments and questions. Number one, Article 5, Article 1, 5.5 of the Colorado Constitution requires all proposed initiatives to have a single subject. What is the single subject of the proposed initiative?
A single subject is to create a fundamental right for all persons to know the affairs of all levels of state and local government.
Question 2. The amending clause of the proposed initiative places this language as a new Section 33 in Article 2 of the Colorado Constitution. Because Article 2 outlines the state's Bill of Rights, is it the proponent's intent that this new fundamental right be weighed equally against other fundamental constitutional rights, For instance, the right to privacy.
We believe the correct way of establishing that, although constitutional scholars will debate about this, no doubt, is it's not a matter of weight equally. It's a matter that it will be given due regard as all constitutional provisions are. There have been other amendments to Article 2 of the Colorado Constitution.
Question 3. In the declaration of the proposed initiative in subsections 1D and 1E, there is a finding that Colorado state and local governments have infringed on the fundamental right created in the initiative. Do the proponents intend this finding to create any legal liability on the part of any government for the declared infringement?
The answer is no. We don't see that any declaratory language ever creates potential liability when it's not intended to become part of the Constitution.
And just to clarify, when you say when it's not intended to be part of the Constitution, this is intended to be shown in the Constitution?
No. It's part of the ballot, but it's not going to be incorporated in the Constitution.
Okay. The way that this is written... I think just because it's under your section headnote.
Yeah. It's under your section headnote, and it is in small caps. We will clarify that. I've been going back and forth about all the technical requirements. Small caps, big caps. Underline, not underline. Yes, we will clarify that.
That's very helpful. And that's why we ask these questions.
That's what it's for.
That's what it's for. So question four. There are no definitions included for any term used in the proposed initiative. To ensure that the initiative accomplishes the proponent's intent, consider defining some of the key terms used, such as affairs of government, state and local governmental entities, ministerial acts, public body, public record, and public proceeding. What is meant by these key terms?
It is our position that these terms are well known in law and in the public, in the legislative arena, and in the courts, and we don't see a reason to specifically define in our measure.
Question 5, this is a multi-part question. Subsection 2 of the proposed initiative establishes the fundamental constitutional right to quote know the affairs of all levels of state and local government. Throughout the proposed initiative it is stated that this fundamental right guarantees other rights including the right to access and examine public records, the right to access public proceedings, and the right to observe the meetings, deliberations, discussions, and presentations of all public bodies. 5A, are all of these subsidiary rights
their own fundamental constitutional rights? We believe that they are implementing the primary purpose of the initiative. And they will be given fundamental right status in a case-by-case basis as the courts move to enforce them.
B, alternatively, are these examples of ways that the fundamental right to know the affairs of all levels of state and local government can be protected or infringed, but are not fundamental rights in and of themselves.
Again, we're not really referring to these as alternative rights. They're part of one overall fundamental right.
C, subsection 1B of the proposed initiative specifies that the fundamental right to know the affairs of all levels of state and local government guarantees the right to observe the meetings, deliberations, discussions, and presentations of all public bodies of state and local governments. How is this different from the right to access public proceedings?
Section 1B is a declaration of the people. It may not be considered binding law.
Is this the proponent's intent? Why did the proponent choose not to include this language in section 2 of the proposed initiative?
We will be clarifying that along with clarification of the declaration.
Question 6, which has multiple kind of sub-questions. Subsection 3 of the proposed initiative establishes certain standards and exceptions for violations of the fundamental right to know the affairs of all levels of state and local government. The following questions relate to those exceptions and standards. Question 6a. The proposed initiative states that no person shall be, quote, deprived or unreasonably burdened, unquote, in the exercise of this fundamental right. Because unreasonably burdened is a subjective standard, how would government entities or courts determine what constitutes an unreasonable burden in practice?
Again, we believe that reasonableness is in fact an objective criteria and an objective test on its own. But all of these measures will be addressed by courts on a case-by-case basis using a balancing test. Those kinds of balancing measures are well-known in American Jewish students.
Question 6b. The proposed initiative states that the right to know the affairs of government applies unless a matter is private, such that the demand of individual privacy or other highly compelling state interest clearly exceeds the merits of the public's fundamental right to know the affairs of government Who decides whether a state interest is highly compelling or whether individual privacy clearly exceeds the merits of this fundamental right Again this is a matter for the courts and for future enforcement Question 6C. The proposed initiative requires any governmental entity or public body that asserts that any governmental affairs should be exempt from disclosure or access to the public to demonstrate this exemption by clear and convincing evidence. Question 6C1. Is it the proponent's intent that this specific evidentiary standard applies to the public body holding a meeting or the initial records custodian making a denial at the administrative level, or does this solely apply to a judicial officer reviewing a denial in a legal proceeding?
In answer to that, it could be the first reviewing officer and most likely will be the courts in any enforcement action. But again, it's a balancing test, that's specific, case by case.
Question 6C2. If this is intended to apply kind of at the first administrative level, how does a governmental entity, public body, or records custodian practically demonstrate clear and convincing evidence at the moment a records request is denied or a meeting is closed?
Well, it's really no different than what current law is requiring that they demonstrate. So again, it's fact specific that we reviewed by the courts or future legislation if they so desire.
Question seven. The following questions relate to how the proposed initiative will interact with existing statute or other legal frameworks. A, how will the proposed initiative interact with existing statutory frameworks like the Colorado Open Records Act, the Colorado Open Meetings Law, or those governing criminal justice records?
Again, we intend the new fundamental right to be the lodestar and to judge all other existing statutory provisions accordingly. To the extent they're inconsistent, then obviously they would be superseded.
B is that the proponent's intent to invalidate all existing exemptions to public records access, such as those protecting ongoing criminal investigations, the addresses of survivors of domestic violence, trade secrets, or attorney-client privileged communications unless they meet the new standard for individual privacy or another highly compelling state interest?
I think that the question is a little misleading because obviously it's not the intent of the measure to per se undo all of these existing statutory provisions. It's merely to provide the standard in which they are measured. And to the extent that it is an attempt to withhold transparency, they will be judged accordingly by court at the end of the day.
C, statute currently allows public bodies to enter into executive session for specific limited reasons. Is it the proponent's intent that executive sessions would be entirely abolished unless the topic meets the new standard for individual privacy or another highly compelling state interest?
There is no intent to do away with executive sessions altogether. But again, as with all of the other questions, they would have to meet the fundamental definition.
D, subsection 4 of the proposed initiative declares that any provisions in local ordinances, state or local rules or regulations, local charters, or state statutes that are in conflict or inconsistent with the proposed initiative are preempted and inapplicable. And then D1, who determines whether an ordinance rule regulation, charter, or statute is in conflict or inconsistent with the proposed initiative and is therefore inapplicable?
Subsection 4 is basically duplicative of many other constitutional amendments that were added to the Colorado Constitution by initiative. The same provision has been well established in law and incorporated and enforced in other circumstances. I would just suggest that you look at either campaign finance provisions or the new ethics in government initiative. They both have similar provisions.
New ethics in government initiative? Ethics in government, it's article.
Amendment 42 or something? The one in the Constitution.
The constitutional amendment that established ethics for government.
I think it's 49? 41, sorry. Yeah, we've been so around 41 all over the place.
Okay. Blame it on them. Sorry, it was the word new that tripped me up. Okay. New within the century. Okay. And then D2. Is it your intent that ordinances, rules, regulations, or charters that are determined to be in conflict or inconsistent with the proposed initiative be repealed?
It would not be enforceable. Again, similar provisions in Amendment 41 and Amendment 29, I believe.
And then D3, does this create ambiguity or liability for records custodians who must decide whether to follow existing statutory mandates or to independently determine if those statutes are preempted and inapplicable by operation of the proposed initiative?
Again, that will be for the courts to determine at the end of the day.
And then 7e, how does the proposed initiative interact with the Colorado Governmental Immunity Act, which typically protects public employees from personal liability when acting within the scope of their employment? Expand on that just a little bit for me. And put in the impact of the word knowingly in your discussion.
I think what we're getting at here is whether the sort of front-line administrative person from the prior discussion could be legally liable for these decisions.
Is that inaccurate? And maybe as we get to the.
We added two words, knowingly and ministerial. And the ministerial acts.
Yeah. Are you seeing the same issue with those additions? Help me with that.
We do have a question kind of later on that maybe we'll expound a little bit about what you mean by ministerial acts.
That would be great. Thank you.
That would be fine.
Yeah. Okay, question 8. Subsection 5 of the proposed initiative allows state and local governmental entities to enact legislation to facilitate the operation of the proposed initiative and to enact measures reducing the costs of obtaining access to examine or inspect government affairs but prevent state and local governmental entities from limiting or restricting the provisions of the initiative. The following questions relate to subsection 5. Question 8a. Who determines whether legislation facilitates the operation of the initiative or restricts its provisions?
Ultimately, the courts.
Question 8b. Does this provision mean that the General Assembly or local government is prohibited from passing laws that allow governmental entities to charge reasonable fees to recover the time, labor, and resources required to fulfill public records requests.
Again, the dispositive term being reasonable, and whether or not it unreasonably implicates the right of access. And laws that merely set a timeline while they would be judged against the touch tone the ultimate fundamental right we creating here It not a specific direction that no timeline can be adopted and implemented or that fees cannot be adopted and implemented. It's just that they have to be balanced against the requirement of transparency and access.
Okay. So I'm going to ask the last part of the question just for the record even though I think you answered it already. I appreciate it. about laws that set a time frame for completing public records requests and
include an ability to extend that time frame? Same answer, thank you. And so what
I think I heard you say is that although this subsection 5 doesn't include any idea of the balancing test or any there's no reasonableness in here right it just says in no way shall such legislation limit or restrict the provisions of this section 33, but you're importing the reasonableness and the balancing test into this in no way.
We are. Okay.
I would potentially think that could be helpful to include if that's intended. Okay. 8C, I think. Yes. Question 8C. Would existing laws that allow governmental entities to charge reasonable fees to recover the time, labor, and resources required to fulfill public records requests, or that set a time frame for completing public records requests, restrict the provisions of the proposed initiative and therefore be considered conflicting provisions of law?
Not on its face. But again, that would be a court decision.
Okay. Okay. 8D. Would the following types of laws facilitate the operation of the proposed initiative or restrict its provisions? A law that defines the terms used in the proposed initiative.
Could be facilitating, but then again, a court would have to make that determination.
A law that establishes a process by which a person could request access to a public record. There's nothing on the face of the measure that would prohibit that, but it must be measured against the intended purpose of the fundamental law. And finally, a law that specifies what notice is required for a public meeting. There's no provision of adopting such a measure, but it would have to be measured against the fundamental right. Okay. Question 9, which is the last one, but again a multi-part. Subsection 8 of the proposed initiative provides that any public official, officer, employee, or agent who knowingly violates the provisions of the proposed initiative is subject to a civil penalty of at least $1,000 for each violation, except for ministerial acts. A. Ministerial acts are typically those acts that are a routine part of an individual's employment and that are non-discretionary. What is meant by a ministerial act and the proposed initiative?
We intend to adopt the well-known definition of ministerial. Would not, in our view, include front-line administrative personnel. Only personnel that has decision-making authority. Again, subject to the knowing standard.
B. What is the proponent's intent in exempting ministerial acts from the provisions of subsection 8 of the proposed initiative?
Not to subject front line personnel who have no ability to impact the decision from being held viable.
C. Is it the proponent's intent that frontline governmental employees, such as administrative assistants or clerks, be held personally liable if they deny a record in good faith based on their agency's directives or their understanding of existing law?
It is not our intention.
D. Is it the proponent's intent that individual governmental employees be held personally liable if they deny access to a meeting of their governmental agency based on a policy adopted by that agency?
I think it goes to the definition of ministerial.
Any answers to that question? E. Who enforces the sanctions provision and by what mechanism?
The sanctions provisions are, again, based on campaign finance amendment and the ethics in government, so it would be the same processes that are in place with those.
F. What entity, agency, or judicial body is authorized to assess and collect this minimum civil penalty? To whom or to what fund would the assessed penalty be paid?
If there's further legislation defining it, then of course that would be in charge of this particular answer, or the courts would be involved. But the measure itself does not set up an administrative process.
G. This provision includes a minimum $1,000 civil penalty. Is there an intended maximum limit to the civil penalty that can be assessed per violation? If so, who determines the maximum penalty?
Again, that would be a court decision in the future, or the legislature could adopt further direction on that measure.
Okay, and that further direction wouldn't be restricting the provisions of this by setting a maximum penalty?
Defining it.
Should they act? Then H, the $1,000 minimum penalty is, quote, for each violation. What constitutes a single violation? For instance, in the case of a public meeting, is the closure of any part of one public meeting only a single violation, or is the closure of each item during one public meeting its own violation?
I think that would have to be developed in future legislation or court action.
Okay. That includes our substantive comments and questions. We don't need to read the technical comments for the record, but if you have any questions or anything you want to discuss with those, we can do that now. No, we don't. I am not personally confident to make those changes. So the people who do will do so. All right. Anything else for the good of the order here?
Thank you very much.
No, thank you.
Thank you.
We will adjourn this meeting. Thank you. Thank you.