the recording of the executive session of the Longmont City Council held on June 23, 2009,which was expressly convened for the authorized and limited purpose to “
legal adviceon specific legal questions,” § 24-6-402(4)(b), C.R.S., exceeded the bounds of that limitedstatutory authorization, and, as has been conceded by the City Council, violated the COML byincluding a “substantial discussion of any matters not enumerated” in that provision, see § 24-6-402(2)(d.5)(II)(C), C.R.S., and included further the “adoption of . . . a position” by the CityCouncil to instruct the City Attorney to file an appeal of an adverse judgment.
See, e.g., City of McCall v. Buxton
, 201 P.3d 629, 639 (Idaho 2009) (holding that decision by a city to initiatelitigation in a court of law is one that must be made in a public meeting);
Farrell v. Board of Comm’rs of Lemhi Cty.
, 64 P.3d 304, 315 (Idaho 2002) (decision to accept proposed settlementof a lawsuit must be made in a meeting open to the public);
Zorc v. City of V ero Beach
, 722 So.2d 891, 901 (Fla. Ct. App. 1998) (same, under Florida’s open meetings law);
Houman v. Mayor and Council of Borough of Pompton Lakes
, 382 A.2d 413, 424-27 (N.J. Super. 1977) (final voteon whether to file certain tax appeals and to retain counsel to do so was unlawful “formalaction,” since statute authorized only “discussion” in executive session, not “deciding a course of action”).
SECOND AFFIRMATIVE DEFENSE
In reply to ¶ 29 of the Answer, the plaintiffs state that they unquestionably have standingto assert their request for relief herein. The COML expressly authorizes any citizen to file thistype of action to invoke the district court’s authority to determine (1) whether substantialgrounds exist to believe that a violation of the COML occurred; and (2) upon finding that suchgrounds exist, to conduct an
review of the recording of the executive session and torelease as a public record any portions of the recording that demonstrate a violation of theCOML.
§§ 24-6-402(2)(d.5)(II)(C) & 24-72-204(5.5), C.R.S. Unquestionably, any memberof the public who was improperly denied access to a discussion by a local public body thatshould have been conducted in a public meeting, has suffered an injury in fact that is redressibleby an order of this Court pursuant to the COML.
§ 24-6-402(9), C.R.S. (granting “anycitizen of this state” to the right to enforce the requirements of the COML);
WorldWest LLC v.Steamboat
Springs Sch. Dist. RE-2 Bd. of Educ.
Case No. 07-CA-1104, 37 Media L. Rep.(BNA) 1663, slip
op. at 8 (Colo. App. Mar. 26, 2009) (“[W]e conclude from the plain languageof the [COML] that it confers certain legally protected interests on all citizens of the state.”);
seealso Citizens Progressive Alliance v. Sw. Water Conservation Dist.
, 97 P.3d 308, 311 (Colo.App. 2004) (holding that SWCD “had standing to seek declaratory and injunctive relief” because“SWCD is an entity whose rights were affected by a request made pursuant to CORA”);
Town of Palm Beach v. Gradison
, 296 So. 2d 473, 477 (Fla. 1974) (holding that a “mere showing
Because the original COML was modeled after Florida’s Sunshine Act, Coloradocourts look to Florida decisions as particularly instructive in interpreting and applying provisionsof the COML.
See James v. Board of Comm’rs
, 611 P.2d 976, 977 (Colo. 1980). The pertinenttest of Florida’s states is as follows: “[N]o resolution, rule, or formal action shall be consideredbinding except as taken or made at [an open, public] meeting.”
Fla. Stat. Ann. § 286.011(1).