DISTRICT COURT, Douglas County, Colorado

DATE FILED: February 14, 2022 6:42 PM

Douglas County Justice Center FILING ID: 385C28251FAC8
4000 Justice Way CASE NUMBER: 2022CV30071
Castle Rock, Colorado 80109
(720) 437-6200

▲COURT USE ONLY▲

ROBERT C. MARSHALL,

v.
Case Number:22-cv-30071
DOUGLAS COUNTY BOARD OF EDUCATION;
MICHAEL PETERSON in his official capacity as a
member thereof; Div. 5
REBECCA MYERS in her official capacity as a member
thereof;
KAYLEE WINEGAR, in her official capacity as a
member thereof; and,
CHRISTY WILLIAMS in her official capacity as a
member thereof.

Attorneys for Plaintiff:

Steven D. Zansberg, CO Bar # 26634

Law Office of Steven D. Zansberg, L.L.C.
100 Fillmore Street, Suite 500
Denver, CO 80206
(303) 385-8698
steve@zansberglaw.com

Eric R. Coakley, CO Bar # 34238

COAKLEY, LLC
2373 Central Park Blvd. - Suite 100
Denver, CO 80238
Tel. (303)500-1778
coakley@coakleylaw.com

MOTION FOR PRELIMINARY INJUNCTION

PROHIBITING FURTHER VIOLATIONS OF
THE COLORADO OPEN MEETINGS LAW
 Plaintiff Robert C. Marshall, by and through his undersigned counsel, hereby submits this

Motion for a Preliminary Injunction as follows:

INTRODUCTION

The Douglas County School District (“DCSD”) is the largest employer inDouglasCounty

serving over 65,000 students with over 8000 employees. The DCSD Board of Education (“BoE”)

supervises the DCSD and is a “Local Public Body” under the Colorado Open Meeting Law § 24-

6-402(1)(a)(I), C.R.S. (the “COML”). The BoE is composed of seven board directors.

As demonstrated in the First Amended Complaint, and in the public statements made by

Defendants, in late January four of the directors gathered together, collectively, in a non-

contemporaenous but extended discussion of public business, regarding the continued

employment of the DCSD Superintendent Corey Wise. None of those discussions, among four

members of the Board, were publicly noticed, nor was the public permitted to exercise its

statutory right to attend and observe those discussions among four members of the BOE.

In their public statements, and in particular at the Special Meeting convened on February

4, 2022, Defendants expressed their firm believe that they can lawfully meet two- at- a-time, in a

series of gatherings to discuss public business (and even come to a collective decision and take

collective action). Thus, they have indicated their clear intention to continue engaging in this

practice.

Deliberately convening such “less than a quorum” meetings in seriatim – a process that

has derisively been referred to by other courts as a “walking quorum” or “constructive quorum”–

purposefully to evade the requirements of public notice and transparency that is the hallmark of

open meetings, is an affront to the spirit of the law, and to common sense. While no Colorado
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appellate ruling has yet to address this duplicitous effort to circumvent the law, multiple other

jurisdictions have found that weaving together multiple two-person meetings to engage in

collective discussion among the requisite number to constitute a “meeting” is no different than if

all the individuals had met simultaneously, instead of in seriatim.

Plaintiff therefore requests that the Court grant a preliminary injunction to maintain the

status quo during the pendency of this litigation (and, thereafter, permanently) to secure the

rights of the Plaintiff (and of the broader public) to receive advance notice and the opportunity to

observe, in real time, the give-and-take discussion among elected officials as they engage in “the

formation of public policy.” See § 24-6-401, C.R.S. (2021) (“[T]he formation of public policy is

public business and may not be conducted in secret.”).

APPLICABLE LAW

1. As the governing body of “a political subdivision” of the State of Colorado (the

Douglas County School District), BoE is a “local public body,” subject to all requirements of the

COML. See §§ 24-6-402(1)(a), -402(2), -402(4), -402(7), -402(8), and -402(9), C.R.S.

2. The COML, which originally was enacted by initiative by the People of Colorado

in 1973, declares that the formation of public policy “may not be conducted in secret. ”§ 24-6-

401, C.R.S.

3. The “underlying intent” of the COML is to ensure that the public is not “deprived

of the discussions, the motivations, the policy arguments and other considerations which led to

the discretion exercised by the [public body].” Van Alstyne v. Housing Auth., 985 P.2d 97, 101

(Colo. App. 1998).

4. “The purpose of the COML, as declared in § 24-6-401, C.R.S. 2006, is to afford

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 the public access to a broad range of meetings atwhich public business is considered; to give

citizens an expanded opportunity to become fully informed on issues of public importance, and

to allow citizens to participate in the legislative decision-making process that affects their

personal interests.” Walsenburg Sand & Gravel Co. v. City Council, 160 P.3d 297, 299 (Colo.

App. 2007) (citation omitted).

The Open Meetings Law was conceived to “afford the public access
to a broad range of meetings at which public business is
considered.” Benson v. McCormick, 195 Colo. 381, 383, 578 P.2d
651, 652 (1978). We have read these provisions to give citizens “a
greater opportunity to become fully informed on issues of public
importance so that meaningful participation in the decision-making
process may be achieved.” Cole v. People, 673 P.2d 345, 347 (Colo.
1983).

Hanover School Dist. v. Barbour, 171 P.3d 223, 227 (Colo. 2007) (emphasis added).

5. Under the COML, all exemptions from the default rule that a public body’s

meetings must be open to the public must be narrowly construed, ensuring as much public access

as possible. See Gumina v. City of Sterling, 119 P.3d 527, 530 (Colo. App. 2004); Zubeck v. El

Paso County Ret. Plan, 961 P.2d 597, 600 (Colo. App. 1998) (construing both the COML and

the CORA in harmony and requiring narrow construction of any exemption limiting public

access); see also Cole v. State, 673 P.2d 345, 349 (Colo. 1983) (“As a rule, [the Open Meetings

Law] should be interpreted most favorably to protect the ultimate beneficiary, the public.”)

6. Under the COML, a local public body can conduct a “meeting” only after

providing 24 hours of notice to the public and thereafter allow the public to attend and observe

the discussion among members of the public body. § 24-6-402(2)(c), C.R.S. (2021).

7. A “meeting” is defined as “any kind of gathering, convened to discuss public

business, in person, by telephone, electronically, or by other means of communication.”

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§ 24-6-402(1)(b), C.R.S. (emphasis added).

8. “All meetings of a quorum or three or more members of any local public body,

whichever is fewer, at which any public business is discussed or at which any formal action

may be taken are declared to be public meetings open to the public at all times.” § 24-6-

402(2)(b), C.R.S.

9. Under the COML, the burden is on the public body that conducted a secret, or

unnoticed, meeting to demonstrate that its actions were proper. Cf. Zubeck v. El Paso County

Retirement Plan, 961 P.2d 597, 600 (Colo. App. 1998).

10. Additionally, “[a]ny person . . . threatened with denial of any of the rights that are

conferred on the public by this part 4 has suffered an injury in fact and, therefore, has standing to

challenge the [future] violation of this part 4.” § 4-1-402(9)(a), C.R.S. (emphasis added)

11. Because the rights to attend and observe the discussion of public business among

members of a local public body are of tremendous value (i.e., not compensable by money

damages), “[t]he courts of record of this state shall have jurisdiction to issue injunctions to

enforce the purposes of this section upon application by any citizen of this state.” Id. (emphasis

added).

RELEVANT FACTS

12. Prior to January 28, 2022, BOE members Peterson, Myers, Winegar and Williams

“gathered,” in a series of one-on-one discussions, in which they collectively discussed public

business – the future of DCSD Superintendent Corey Wise’s employment – and collectively

agreed to terminate that contract if he did not resign immediately.

13. On January 28, 2022, two members of the BOE spoke with Superintendent Wise

and notified him that he had until the end of day the following Wednesday to notify them
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whether he was willing to resign immediately; however, if he refused to do so, four members of

the BOE had already collectively decided they would terminate his contract (i.e., fire him).

14. The BOE did not provide any notice to the public of the gathering between the

four members of the DOE in which they collectively discussed public business. Nor was the

public permitted to attend and observe those discussions of public business among four members

of the BOE.

15. No notice was ever provided to the public (or the other three directors) regarding

their issuing an ultimatum to Superintendent Wise.

16. On information and belief, defendants were advised that they could undertake this

secretive discussion amongst themselves and circumvent Colorado law so long as they limited

their discussions to two of them at a time, but serially included all four of them in that discussion

and decision-making.

17. At a Special Meeting of the BOE convened on February 4, 2022, the four

Defendant BOE members voted to ratify (“rubber stamp”) their prior decision to terminate the

employment contract of Superintendent Wise. Director Christy Williams, apparently speaking

for the four Defendant board members, declared that she (and they) “followed the letter of the

law,” because the COML does not prevent a series of one-on-one meetings that collectively

involve three or more members of the BOE in discussing public business.

18. Accordingly, unless this Court issues the preliminary injunction sought herein, the

four Defendant members of the BOE will continue their practice of violating the COML by

discussing public business among three or more of them without providing public notice and the

opportunity to observe those discussions in real time.

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 A PRELIMINARY INJUNCTION SHOULD ENTER

A preliminary injunction is designed to preserve the status quo or protect a party’s rights

pending the final determination of a cause. City of Golden v. Simpson, 83 P.3d 87, 96 (Colo.

2004). Its purpose is to prevent irreparable harm prior to a decision on the merits of a case. See

id.

In considering a motion for a preliminary injunction, the trial court must find that the

moving party has demonstrated: (1) a reasonable probability of success on the merits; (2) a

danger of real, immediate, and irreparable injury which may be prevented by injunctive relief;

(3) lack of a plain, speedy, and adequate remedy at law; (4) no disservice to the public interest;

(5) the balance of equities favors the issuance of the injunction; and (6) the injunction will

preserve the status quo pending a trial on the merits. Rathke v. MacFarlane, 648 P.2d 648, 653-

54 (Colo. 1982).

As noted above, the COML specifically authorizes the Court to issue injunctive relief to

prevent future violations of the Act. § 24-6-402(9)(b), C.R.S.

(1) Plaintiff Has Demonstrated a Reasonable Probability of Success on the Merits.

By their own admissions of how they colluded to discuss public business in groups of

two, deliberately to evade the quorum requirement of COML, only to convene a discussion

among four of them, Defendants have confessed to having violated the COML. The COML

makes abundantly clear that “any type of gathering” – regardless of the means of communication

or the timing of the gathering – of three or more members to discuss public business of a local

public body, “[is] declared to be [a] public meeting[ that must be] open to the public at all

times.” § 24-6-402(2)(b), C.R.S.

Multiple other courts have determined that efforts to evade the transparency and
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accountability requirements of open meetings laws by engaging in a series of meetings with less

than the minimum number (or “quorum”) are inherently unlawful. See, e.g., Mabry v. Union

Parish Sch. Bd. , 974 So.2d 787, 789 (La. Ct. App. 2008) (describing a “walking quorum” as a

meeting “where different members leave the meeting and different members enter the meeting

so that while an actual quorum is never physically present an actual quorum during the course of

the meeting participates in the discussion.”); Right to Know Comm. v. City Council, 175 P.3d

111, 122 (Haw. App. 2008) (“When Council members engaged in a series of one-on-one

conversations relating to a particular-item of Council business . . . the spirit of the open meeting

requirement was circumvented and the strong policy of having public bodies deliberate and

decide its business in view of the public was thwarted and frustrated.”); Del Papa v. Bd. of

Regents of the Univ. and Community College Sys. of Nev., 114 Nev. 388, 400, 956 P.2d 770, 778

(1998) (“if a quorum is present, or is gathered by serial electronic communications” it violates

the open meetings law); State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St.3d 540,

544, 668 N.E.2d 903, 906 (1996) (“The Ohio Sunshine law cannot be circumvented by

scheduling back-to-back meetings which, taken together are attended by a majority of a public

body.”); Booth Newspapers, Inc. v. Wyoming City Council, 425 N.W.2d 695, 700 (Mich. Ct.

App. 1988) (where council members met privately in separate meetings but the total number of

participating members was a “constructive quorum” that was “in direct circumvention of the

[state statute's] objective of promoting openness and accountability in government”), aff’d in

part, rev’d in part on other grounds, 507 N.W.2d 422); Hickel v. Southeast Conference, 868 P.2d

919 (Alaska 1994) (holding that the state statute was violated when “board members had one-on-

one conversations with each other, in which they discussed [public business] and solicited each

other’s advice”); Stockton Newspapers, Inc. v. Redevelopment Agency, 214 Cal. Rptr. 561 (Cal.
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App. 1985) (holding that a series of one-to-one telephone calls violated the state open meetings

law); Hitt v. Mabry, 687 S.W.2d 791 (Tex. App. 1985) (holding that decisions reached by a

school board by way of private, informal telephone polls or conferences by board members

violated the state’s open meetings law); Brown v. East Baton Rouge Parish Sch. Bd., 405 So. 2d

1148 (La. App. 1981) (recognizing that a “walking quorum” can occur, making the process

subject to state law, when members of a public body who are less than a quorum have

overlapping meetings or telephone conferences to discuss a matter of public business); Blackford

ex rel. Cherokee Junior High Sch. Parent-Teach Ass’n v. School Bd., 375 So. 2d 578 (Fla. App.

1979) (holding that private meetings between individual board members and superintendent

constituted violation of the state’s open meetings law); Blackford v. Sch. Bd. of Orange County,

375 So.2d 578, 580 (Fla. Ct. App. 1979) (holding that “the scheduling of six sessions of secret

discussions, repetitive in content, in rapid-fire seriatim . . . were in contravention of the

Sunshine Law”); Jones v. Tanzler, 238 So.2d 91, 93 (Fla. 1970) (holding that the open meetings

“statute should not be circumvented by . . . small individual gatherings wherein public officials .

. . may reach decisions in private”).

In sum, Plaintiff has a very high likelihood of success on the merits.

(2) There is a Danger of Real, Immediate, And Irreparable Injury Which

May be Prevented by Injunctive Relief.

Based on the statutory text alone, Plaintiff has suffered, and will suffer, injury in fact by

any future violation ofCOML. A preliminary injunction, which the statute specifically

authorizes, will preserve the status quo and prevent further injury until such time as the

allegations in the First Amended Verified Complaint can be resolved.

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 (3) Plaintiff Lacks a Plain, Speedy, and Adequate Remedy at Law.

There is no adequate remedy at law (e.g., money damages) for violation of the COML. It

is for that reason that the COML specifically authorizes courts of this state to issue injunctions to

prohibit future violations of the Act.

(4) The Injunction Will do no Disservice to the Public Interest.

There is no disservice to the public interest by requiring a local public body to comply

with the Open Meetings Law. Requiring that all discussion of public business among three or

more members of the BOE – whether those discussions are contemporaneous or sequential – be

conducted following notice and in public meetings, is clearly consistent with the legislative

intent of the COML, and therefore in the public interest.

(5) The Balance of Equities Favors Issuance of the Injunction.

Defendants can demonstrate no legitimate reason to have undertaken the secretive

meetings and actions in which they engaged. The balance of equities are clearly in Plaintiff’s

favor.

(6) The Injunction Will Preserve the Status Quo Pending a Trial on the Merits.

The injunction requested seeks only a preservation of the status quo (compliance with the

law) until such time as the allegations in the Verified Complaint can be resolved. There would be

no need for a Preliminary Injunction had Defendants simply committed not to continue their

practice od deliberately evading the COML through seriatim meetings of two-at-a-time.

WHEREFORE, Plaintiff respectfully request the Court set this matter for a hearing on

this Motion for Preliminary Injunction and upon completion thereof enter an Order prohibiting

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Defendants from further violating the Colorado Open Meetings Law by engaging in discussion

of public business by three or more members of the BOE through a series of gatherings by less

than three at a time.

Dated this 12th day of February, 2022.

Law Office of Steven D. Zansberg, L.L.C.

s/ Steven D. Zansberg
Steven D. Zansberg

COAKLEY, LLC
Eric R. Coakley

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 CERTIFICATE OF SERVICE

I hereby certify that I served this Motion for Preliminary Injunction upon the following
individuals and entity via email on this 12th day of February, 2022:

Board of Education for the Douglas County School District

c/o General Counsel Mary Klimesh, Esq. (mklimesh@dcsdk12.org)

Michael Peterson (mpeterson@dcsdk12.org)

Rebecca Myers (bmyers@dcsdk12.org)

Kaylee Winegar (kwinegar@dcsdk12.org)

Christy Williams (cwilliams5@dcsdk12.org)

s/ Steven D. Zansberg
Steven D. Zansberg

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