By: Alan Schindler, Esq. and Anna Goldman, Esq.
The Sentinel Colorado v. Rodriguez
December 7, 2023
Division II, Opinion by Judge Furman; Judge Roman and Judge Fox concur.
Decision: Reversed
On appeal from District Court, Arapahoe County, Judge Volz.
Factual background and district court holding:
Plaintiff, a local news source, filed a complaint against the defendant, the City Clerk and Records Custodian for the City of Aurora. Plaintiff sought the release of the recording of a city council executive session, during which the city council allegedly committed Colorado Open Meetings Law (OML) violations under section 24-6-402, C.R.S. 2023. Defendant argued that the meeting was shielded by attorney-client privilege. The district court found that a subsequent public city council meeting cured the council’s OML violations, so the defendant need not release the recording.
Issue on appeal: Whether the city council cured its OML violations by holding a subsequent public meeting.
The court first determined that the defendant could not use attorney-client privilege to avoid releasing the record of the session. Section 24-6-402(4)(b) allows for a limit circumstance in which a local public body can hold an executive session to confer “with an attorney… for the purposes of receiving legal advice on specific legal questions.” But “[m]ere presence or participation of an attorney at [the] executive session” does not satisfy the statute’s requirements. § 24-6-402(4)(b). The public body must also properly announce to the public the subject of the session.
Further, when an attorney-client privileged communication is subsequently disclosed to a third party, the protection afforded by the privilege is impliedly waived. Wesp v. Everson , 33 P.3d 191, 198 (Colo. 2001).
Here, the subsequent public meeting informed the public exactly what its legal counsel instructed it to do, and that the council took its legal counsel’s advice. Therefore, the court concluded that because the subsequent public meeting clearly identified what took place in the closed session, the council waived any attorney-client privilege.
The court then determined that the council could not cure its OML violations because it waived its attorney-client privilege regarding its communications at the session.
Seaman v. Heather Gardens
December 28, 2023
Division VII; Opinion by Judge Brown, Judges Tow and Schock concur.
Decision: Reversed and remanded.
On appeal from District Court, Arapahoe County, Judge Elizabeth Beebe Volz.
Factual Background and District Court Holding:
The Colorado legislature enacted the Colorado Common Interest Ownership Act (CCIOA), §§ 38-33.3-101 to -402, C.R.S. 2023, to “establish a clear, comprehensive, and uniform framework for the creation and operation of common interest communities.” § 38-33.3-102(1)(a). Common interest communities are managed by unit owners’ associations organized under section 38-33.3-301. Section 38-33.3-317 provides that unit owners are entitled to reasonable access to information about the operation, administration, and finances of their owners’ association. To give the owners reasonable access, section 38-33.3-317(1) requires an association to maintain eighteen categories of records “for purposes of document retention and production to owners.” § 38-33.3-317(1)(a)-(p).
In this case, the district court denied plaintiff’s complaint against defendant, a common interest community, which sought an injunction compelling defendant to disclose certain bank statements related the defendant’s PPE loans to him under the CCIOA. The district court dismissed the complaint on the basis that section 38033.3-317 does not require defendant to produce the bank statements.
Issue on Appeal: Whether bank statements may be “[d]etailed records of receipts and expenditures affecting the operation and administration of the association” under section 38-33.3-317(1)(a).”
The division agreed with plaintiff that bank statements must be made available to unit owners for examination under section 38-33.3-317(2) even though they are made by a third party. The division concluded that bank statements fall into one of the categories of records an association is required to maintain and make available to owners: “[d]etailed records of receipts and expenditures affecting the operation and administration of the association.” § 38-33.3-317(1)(a).
Because the relevant terms are not defined in the CCIOA, the division relied on their dictionary definitions, concluding that a bank statement is a “detailed record” because it is a written document that provides specifics about the account itself and the transactions occurring on the account. Therefore, the district court erred in dismissing plaintiff’s complaint.
Bartenders and More, and Kristina Eccles v. Colorado Department of Labor and Employment
December 21, 2023
Division VI; Opinion by Judge Lipinsky, Judges Welling and Gomez concur.
Decision: Reversed and remanded.
On appeal from District Court, City and County of Denver, Judge Karen L. Brody.
Factual Background and District Court Holding:
Plaintiffs, providers of staffing for private and corporate events, appeal the district court’s order dismissing their complaint for judicial review of the decision (the “Decision”) of the Colorado Department of Labor, Division of Labor Standards and Statistics (the “Department”) that plaintiffs are liable for finders under the Colorado Wage Claim Act, sections 8-4-101 to 125, C.R.S. 2023. The district court found that plaintiffs failed to timely file its complaint for judicial review within the 35-day deadline specified in section 8-4-111.5(5), reasoning that the Decision informed plaintiffs that it was mailed on April 12, 2022, by listing that date as the decision date, so plaintiffs’ time to appeal began to run on that date. The district court decided that even if the Decision did not inform plaintiffs of the date the Decision was mailed, the receipt of the Decision was sufficient to start the clock for the appeal period on April 12, 2022.
Issue: Whether an appeal of an agency decision is timely where the applicable statute specifies that the time for appealing begins to run when the agency mails its decision, the aggrieved party could not discern from the decision when it was mailed, and the aggrieved party filed its appeal after the designated time if the agency mailed the decision of the date it was issued.
The division concluded that plaintiffs could not discern the date on which the Decision was mailed, so could not determine the deadline for its appeal. The certificate of service in the Decision only indicated the date that the Department sent the document to the document management staff to be prepared for service, not the date that the staff actually put the Decision in the mail. Under section 8-4-111.5(5), it is the “mailing of the decision by the [D]ivision,” not the date on which the Division provides the Decision to a third party for mailing, that triggers the deadline to appeal.
The division further rejected the notion that regardless of the mailing date, plaintiffs should have known that the statutory period would expire 35 days from April 12, 2022, because that was listed as the decision date. Section 8-4-111.5(5) specifies that an appeal of a decision of the Division must be initiated “within thirty-five days after the date of mailing of the decision by the [D]ivision,” not within thirty-five days of the date of the decision.
