HOUSE 3rd Reading Unamended February 13, 2014 HOUSE Amended 2nd Reading February 12, 2014Second Regular Session Sixty-ninth General Assembly STATE OF COLORADO REENGROSSED This Version Includes All Amendments Adopted in the House of Introduction LLS NO. 14-0357.01 Bob Lackner x4350 HOUSE BILL 14-1110 HOUSE SPONSORSHIP Peniston, SENATE SPONSORSHIP Hodge, House Committees Senate Committees Education A BILL FOR AN ACT Concerning procedures governing discussions by boards of education of school districts while meeting in executive session. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) Under current law, the minutes of a meeting of a local public body during which an executive session is held are required to reflect the topic of the discussion at the executive session. In the case of a meeting of a local board of education (school board) during which an executive session is held, the bill additionally requires the minutes to reflect the amount of time each topic was discussed while the board was meeting in executive session. Under current law, if, in the opinion of the attorney who is representing the local public body and who is in attendance at an executive session that has been properly announced, all or a portion of the discussion during the executive session constitutes a privileged attorney-client communication, no record or electronic recording of the part of the discussion that constitutes a privileged attorney-client communication may be made. The bill eliminates this requirement for school boards. Accordingly, discussions occurring in an executive session of such body that must be electronically recorded include all or any part of the executive session that is claimed by the attorney representing the local public body either to constitute a privileged attorney-client communication or to be subject to protection as trial preparation material. The bill additionally requires a school board to maintain a privilege log that will allow identification of each portion of the executive session as to which the claim of privileged attorney-client communication or right to protection as trial preparation material is made. The privilege log is required to describe the topic of the communications not disclosed, and the approximate time in the executive session during which the communications not disclosed were discussed, in such manner that, without revealing information itself privileged or protected, other parties are enabled to assess the applicability of the privilege or right to protection. The bill further permits the school board to make a separate recording of that portion of the executive session as to which the claim of privileged attorney-client communication or right to protection as trial preparation material is made. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 22-32-108, amend (5) (a); and add (5) (d) as follows: 22-32-108. Meetings of the board of education - legislative intent. (5) (a) All regular and special meetings of the board shall be open to the public, but the board may require any person who disturbs good order to leave. At any regular or special meeting the board may proceed in executive session in accordance with the requirements of this paragraph (a) and paragraph (d) of this subsection (5). Only those persons invited by the board may be present during executive session, and the board shall not make final policy decisions while in executive session. At the special meeting of the board called pursuant to section 22-32-104 (1), each board member shall sign an affidavit stating that the board member is aware of and will comply with the confidentiality requirements and restrictions applicable to executive sessions of the board, as described in section 24-6-402, C.R.S., regardless of whether the board member participates in the executive session in person or electronically in accordance with the board policy adopted pursuant to subsection (7) of this section. The school district shall keep and preserve the affidavits with the minutes of board meetings and other board documents. (d) (I) In the case of a meeting of a board of education during which an executive session is held, the minutes of the meeting must indicate the topic of the discussion at the executive session in accordance with the provisions of section 24-6-402 (2) (d) (II), C.R.S., as well as the amount of time each topic was discussed while the board was meeting in executive session. The minutes along with the amount of time each topic was discussed must be posted on the web site of the board of education not later than ten business days following the meeting at which the minutes are approved by the board. If the board of education does not maintain a web site, the minutes must be published in the same manner as the board regularly provides public notice. (II) Notwithstanding any other provision of law, in the case of a board of education, the recording of an executive session that is required by section 24-6-402 (2) (d.5) (II) (A), C.R.S., must include all or any portion of the executive session that is claimed by the attorney representing the board of education either to constitute a privileged attorney-client communication or to be subject to protection as trial preparation material. The board of education shall maintain a privilege log that will allow identification of each portion of the executive session as to which the claim of privileged attorney-client communication or right to protection as trial preparation material is made. The privilege log must indicate the topic of the communications not disclosed, and the approximate time in the executive session during which the communications not disclosed were discussed, in such manner that, without revealing information itself privileged or protected, a court may assess the applicability of the privilege or right to protection under section 24-6-402, C.R.S. Any portion of the executive session as to which the claim of privileged attorney-client communication or right to protection as trial preparation material is made may be recorded separately from the recording of the portion of the executive session to which no claim of privilege or right to protection as trial preparation material is made. (IV) The courts of record of this state have jurisdiction to issue injunctions to enforce the provisions of this paragraph (d) upon application by any citizen of the state. SECTION 2. In Colorado Revised Statutes, 24-6-402, amend (2) (d.5) (II) (B) as follows: 24-6-402. Meetings - open to public - definitions. (2) (d.5) (II) (B) Except as otherwise provided in section 22-32-108 (5) (d), C.R.S., if, in the opinion of the attorney who is representing the local public body and who is in attendance at an executive session that has been properly announced pursuant to subsection (4) of this section, all or a portion of the discussion during the executive session constitutes a privileged attorney-client communication, no record or electronic recording shall be required to be kept of the part of the discussion that constitutes a privileged attorney-client communication. The electronic recording of said executive session discussion shall reflect that no further record or electronic recording was kept of the discussion based on the opinion of the attorney representing the local public body, as stated for the record during the executive session, that the discussion constituted a privileged attorney-client communication, or the attorney representing the local public body may provide a signed statement attesting that the portion of the executive session that was not recorded constituted a privileged attorney-client communication in the opinion of the attorney. SECTION 3. Applicability. This act applies to meetings of local boards of education that take place on or after the effective date of this act. SECTION 4. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.