Our view: It’s no secret what needs to be done here
Law-making is a practice best reserved as the prerogative of elected representatives rather than judges, a fact painfully evident in the wake of a Colorado Court of Appeals ruling last week.
The court sided with the Fort Morgan City Council, which was defending the indefensible: its practice of filling various board vacancies using secret ballots. The court justified its ruling by noting that Colorado’s Open Meetings Law does not specifically prohibit the practice; ergo: It’s legal.
Slopes don’t get much more slippery than that. Nor could the legislative intent of the law be much clearer:
“It is declared to be a matter of statewide concern and the policy of this state that the formation of public policy is public business and may not be conducted in secret.”
“Public business may not be conducted in secret.” It takes an adept semantic gymnast to contort that into a ruling saying it’s OK for a public body to conduct secret votes. Yet somehow this robust panel of jurists managed to wrap their minds around precisely that concept.
On the other hand, it’s not much of stretch to imagine public bodies in Grand County and elsewhere using the ruling to avoid “hurt feelings” or any number of other weak-kneed excuses for concealing how individuals vote on a particular issue. (For the record, the Fraser Town Board just weeks ago filled a vacancy on the town’s Zoning Appeals Board through a secret ballot. Here’s wishing a quick end to that not so quaint habit.)
It would be difficult to concoct a practice more contrary to the spirit of representative democracy. After all, if it is not apparent how an elected official votes on a given issue – or appointment, for that matter – how exactly is a constituent supposed to determine whose interests that official is representing?
That niggling matter appears to have escaped the attention of the court, whose duty has nothing to do with representative democracy and everything to do with the letter of the law, intent be damned (at least in this case). Thus, back to the beginning: This is why lawmakers, not judges, are charged with making law.
For its part, the plaintiff in the case, the Fort Morgan Times, announced it intends to appeal the ruling to the Colorado Supreme Court. That’s encouraging, as is the fact that several state lawmakers have proclaimed their intentions to add specific language to the Open Meetings Law explicitly forbidding secret votes if this ruling is upheld.
Why postpone the inevitable? Lawmakers shouldn’t waste time waiting for a ruling that could take years.
This matter is important enough – and sufficient mischief could ensure in the interim – that they ought to seize the initiative and make amending the Open Meetings Law a priority in the upcoming session.
As for voters, anyone who cares about democracy would do well to pay attention. If your lawmakers (or board members) are inattentive or indifferent or, worse, if they vote against such an amendment, they should be summarily booted out of office at the polls.
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