Freedom of information experts who reviewed Summit School District’s Nov. 19 executive session that was accidentally posted online say parts of it fell out of compliance with Colorado Open Meetings law.  

The Summit Daily News provided Colorado Freedom of Information Center Executive Director Jeffrey Roberts and First Amendment and media lawyer Steven Zansberg with the recording and the district’s original claims that the entire discussion was in compliance with the law. 

Executive sessions are a special exemption from Colorado Open Meetings law that allow public-serving bodies like boards of education or town councils to discuss certain matters behind closed doors. They can be used for things like legal advice, or, in the Summit School District Board of Education’s case at its Nov. 19 meeting, personnel matters. 

Roberts said these conversations are closed to the public for a reason, and they are a space where election officials can have more candid discussions in private. He said parts of the conversation did reflect that and were in compliance with the law, but other parts didn’t. 

The district cited its reasoning for having an executive session as a “superintendent-board of education personnel check-in” and stated it was a part of the superintendent’s performance review. 

Roberts and Zansberg said, in Colorado Open Meetings Law, the term “personnel matters” narrowly refers to the person being discussed. They said in instances like performance reviews or other matters relating to specific employees that warrant some level of privacy and hence an executive session, the employee in question can request the meeting to be public. 

In this case, Superintendent Tony Byrd was the “personnel” in question, so discussion of other district employees or members of the public body weren’t permissible. 

Colorado Open Meetings law states that the exception “shall not apply to discussions concerning any member of the local public body, any elected official, or the appointment of a person to fill the office of a member of the local public body or an elected official or to discussions of personnel policies that do not require the discussion of matters personal to particular employees.”

During the Summit School District executive session, board of education members discussed pushback in the process to create a policy outlining the process for unionization and specifically called out the Summit County Education Association President Joe Kassay a handful of times. Additionally, they discussed concerns about board-elect Jenniffer Gonzalez and some of the things she said on the campaign trial. 

Both Roberts and Zanzberg said the discussion about Kassay, whether they refer to him as a district employee or a union leader, should not have happened because he was not the personnel cited as the reason for the executive session. They said the discussion of elected officials or members of the public body is not permissible in Colorado Open Meetings Law. So, whether Gonzalez was actively serving, she could not be discussed in an executive session. 

“This is as black and white as it gets,” Zansberg said. “In this discussion, (these) topics that they discussed were not within the confines of what is a personnel matter concerning the superintendent’s performance of his official duties.” 

In an Nov. 24 email to the Summit Daily, the district stated “the conversation focused on leadership reflections, governance dynamics, and preparations for an effective transition with the incoming Board.” 

Zansberg said “governance dynamic” and “preparations for an effective transition” are not at all contemplated in Colorado Open Meetings law as being permissible topics of discussions in the personnel matters exemption. 

He said in executive discussion, typically an attorney, if present, is responsible for keeping the conversation within the purview of the exemption cited. At the start of the executive session, board president Consuelo Redhorse noted who was in the room and there was no mention of an attorney being present. Zansberg said, in these cases, it is particularly the responsibility of the board president, but ultimately the entire board, to keep the conversation on track. He said that did not occur Nov. 19. 

“I thought it was ironic that the board president started the executive session by warning the other members of the board that they’re not supposed to stray away from the announced topic,” Roberts said. 

Both Roberts and Zansberg said, if the meeting were not unintentionally released, there could have been enough grounds for a judge to order its release. 

“While the Board acted with the intent to follow the ‘personnel matters’ exemption in good faith, we acknowledge the contention that some aspects of the discussion exceeded the narrow scope permitted by law,” the district said in a recent news release. “We are committed to reviewing this experience and strengthening how executive sessions are managed to ensure continued compliance.”

The release stated the district apologized for the impact this has had on the community: “We apologize for the impact this has had on our community and remain committed to learning from this moment.” 

Zansberg said he thinks this recording is unfortunately indicative of what he has been hearing from reporters and others: school boards in particular are “mistakenly” and “erroneously” discussing matters they shouldn’t in executive sessions.  

Board members reflect and express intent to do better moving forward

The Summit School District Board of Education — equipped with new members Jenniffer Gonzalez, Whitney Horner and Kim Dyer — had a Dec. 4 meeting where members discussed the aftermath of the Nov. 19 executive session. The three new board members replaced former members who were present at the Nov. 19 meeting including Johanna Kugler, Lisa Webster and Chris Guarino. 

Board member Vanessa Agee reflected on the recording and expressed remorse during the “board comments” portion of the Dec. 4 meeting. 

“This has maybe been one of the most self reflective and challenging weeks of my life, and it should be,” she said. “I am deeply sorry that three board members had to leave and three had to come on after what I could only say are really stupid and not judicious comments that I made.”

Agee also gave a private, personal apology to both Gonzalez and Kassay and shared that with the board after getting their permission to share it at the meeting. 

She shared some of the realities of serving on the board of education around the harsh backlash from the community at times, referencing community survey responses where respondents said the board should be “lined up and shot.” 

Gonzalez followed Agee’s comment and showed appreciation for the apology and said she looked forward to working with all the members of the board. 

Board member Julie Shapiro, who was absent from the Nov. 19 meeting, also touched on the recording. 

“I wasn’t there, but I’m part of the team and so I apologize to anyone that was hurt by what was said,” she said. 

Redhorse, the board president, echoed Shapiro’s sentiment of being a team and thanked Agee for her vulnerability. She said she is confident things will get better, and acknowledged that the board faces challenges and it’s not always an easy role to be in.

“It makes me think a lot more about professional decorum, and thinking about how our words can be used for good or for bad…. Lots of times they have been weaponized, and I think (that’s) a hard lesson,” she said.

This story is from Summit Daily.