City Council Study Session Agenda and Packet 2016 01 12

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Therefore, it is important to recognize that not every gathering of 3 or more Council members or committee members (or 2 members of a 3 person committee) for example, is a meeting under OML, even if matters affecting the City are discussed. It is only when policy making gatherings occur that are convened to discuss or undertake a rule, regulation, ordinance, or formal action, that the gathering constitutes a meeting. Chance meetings and social gatherings where discussion of public business is not the central purpose are expressly exempted from the OML. However, it is equally important to recognize that when ["policy - making] discussions do take place, they must do so during a proper public meeting, duly noticed and with minutes being taken. See Colorado Off - Highway Vehicle Coalition v. Colorado Board of Park and Outdoor Recreation, 292 P.3d 1132 (Colo. App. 2012). Where policy making discussions are held before or after the formal meeting, whether in person, by phone, or e -mail exchange, the OML is violated, exposing the municipality to invalidation of any action it took and a possible award of attorneys fees. Id. Where policy discussions and decisions are made in a private meeting before the public meeting, and the public meeting is a mere rubber stamp, the acts of the public body are invalid. Bagby v. School District No. 1, 528 P.2d 1299 (Colo. 1974) ( "when the majority of the public body's work is done outside the public eye, the public is deprived of the discussions, the motivations, the policy arguments and other considerations which led to the discretion exercised by the Board. ") It is also important to keep in mind that although there are substantial limitations and risks involved in discussions between or among Council members or committee members, those do not apply to discussions between a Council member or committee member and City staff. Staff communications generally do not implicate the OML, though they may still be subject to CORA requests in some circumstances. B. THE OPEN MEETINGS LAW AND DISCUSSION OF PUBLIC ISSUES AMONG COUNCIL MEMBERS OR COMMITTEE MEMBERS VIA E -MAIL 1. The OML explicitly addresses the use of electronic mail, stating: If elected officials use electronic mail to discuss pending legislation or other public business among themselves, the electronic mail shall be subject to the requirements of this section. Electronic mail communication among elected officials that does not relate to pending legislation or other public business shall not be considered a "meeting" within the meaning of this section. C.R.S. § 24- 6- 402(2)(d)(III) (emphasis added). Page 16 of 26