DISTRICT COURT, DOUGLAS COUNTY, COLORADO

Douglas County Justice Center

4000 Justice Way
Castle Rock, CO 80109
(720) 437-6200

Plaintiff: ROBERT C. MARSHALL,

v.

Defendants: DOUGLAS COUNTY BOARD OF

EDUCATION; MICHAEL PETERSON, in his official
capacity as a member thereof; REBECCA MYERS, in her
official capacity as a member thereof; KAYLEE WINEGAR,
in her official capacity as a member thereof; CHRISTY
WILLIAMS, in her official capacity as a member thereof; COURT USE ONLY

Attorneys for Plaintiff:

Case No: 2022CV30071
Steven D. Zansberg, CO Bar # 26634
Law Office of Steven D. Zansberg, L.L.C. Division: 5
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

PLAINTIFF’S REPLY IN SUPPORT

OF HIS MOTION FOR SUMMARY JUDGMENT
 INTRODUCTION

Defendants’ Response 1 shows their disregard for this Court’s prior rulings, and a

willingness to mischaracterize the record evidence to create confusion, when the facts are

unmistakably clear and undisputed : (1) four of the seven Directors met in a series of one-on-one

discussions, outside of public view (and without public notice), at which; (2) they discussed

public business, their mutual desire to fire the superintendent; (3) two of them delivered an

ultimatum to Superintendent Wise, captured on an audio recording: either he resign, effective

immediately, or the Directors would initiate proceedings to terminate him for cause; (4) they also

told Wise that if he did not agree to their request that he resign he’d potentially lose the rest of

the year’s salary; and (5) at the public meeting conducted on February 4, 2022, no public

discussion was allowed prior to those same four Directors simply rubber-stamping their prior

decision to immediately terminate the Superintendent’s contract (albeit, without cause).

As demonstrated in the Motion and further below, these undisputed facts, all supported

by admissible evidence tendered in support of the motion, make clear that Plaintiff is entitled, as

a matter of law, to judgment in his favor on all three claims pleaded in his Complaint.

REPLY ARGUMENT

I. There Are No Material Issues of Disputed Fact

Defendants contend that Plaintiff’s motion was not supported by admissible evidence that

established his entitlement to judgement as a matter of law. Defendants ignore the actual

evidence that Plaintiff tendered and cited to, and they also mischaracterize what Plaintiff claimed

1
Remarkably, Defendants asked for, and received, multiple extensions of time to prepare their
Response, which mostly simply recycles legal arguments regarding what they contend the
COML allows and prohibits, and which this Court has previously rejected on three prior
occasions. The Defendants’ untimely-filed “Amended Response,” which was filed without
seeking leave of the Court or consulting with opposing counsel, is referred to herein as “Resp.”

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(and claims) are the material undisputed facts.

With respect to undisputed fact (1) in the motion, Defendants argue that Plaintiff only

established that Defendants Peterson, Myers, Winegar and Williams are Directors, but cited no

evidence that in a series of one-on-one meetings they “privately discussed their mutual desire to

‘move in a new direction’ with respect to the leadership (Superintendent) of the DCSD.” See

Resp. at 2. Tendered in support of Plaintiff’s motion was the compete transcript of the hearing

conducted on February 25, 2022 on Plaintiff’s Motion for Preliminary Injunction. See Exhibit 1

to the Declaration of Steven D. Zansberg. Although Plaintiff’s counsel inadvertently cited only

to page 59 therein (just after Director Williams had testified about her one-on-one conversations

with three other directors regarding their desire to replace Superintendent Wise, Id. at 57-58),

that transcript contains abundant and uncontradicted evidence to support the statement above.

See, e.g. id at 15:5 - 16:8 (Director Myers’ testimony that “in January, [she] discussed the

concerns [she] had about Superintendent Corey Wise . . . on “more than one occasion” with

President Peterson and Vice President Williams); id. at 20:17 -22 (Director Myers’ testimony

that in January 2022 she learned “through individual conversations” that the other three Directors

shared her view of the need to replace Corey Wise as Superintendent); id. at 22:15 -18 (Director

Myers’ testimony that she was aware, prior to January 28, that Peterson and Williams “would be

communicating [to Superintendent Wise] that four of [the Directors] were committed to changing

leadership of the district”) (emphasis added); id. at 23:19 -22 (Director Myers’ testimony

agreeing that the January 28 meeting with Superintendent Wise was convened because four

Directors “had decided that that would be the kind thing to do, to let him resign rather than vote

to terminate his contract”) (emphasis added); id. at 31:19 -22 (Director Myers’ testimony

confirming her understanding “that the meeting scheduled with Mr. Wise, by Director Peterson

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and Director Williams, was to ask him to resign immediately”); id. at 55:12 - 25 (Director

Williams’ testimony that she had a series of one-on-one phone conversations with the other three

Directors in which they discussed “the need for new leadership in the district”); id at 59: 21-25

(Director Williams’ testimony confirming as accurate that she and the other three newly elected

Directors had “intentionally engag[ed] in one-on-one communications with one another, relaying

what others had told you in those conversations, because you [all] believed that that doesn’t

violate the open meetings law”); id. at 75:4-21 (President Peterson’s testimony that he spoke

individually with Directors Myers and Winegar outside of public view about their displeasure

with Wise’s “performance as the Superintendent” and then relayed those views, and his own

similar view, to Vice President Williams, again, outside of public view); id. at 76:4 -16 (same).

All of the Defendants’ sworn testimony is admissible, see People v. Arrington, 682 P.2d

490, 492 (Colo. Ct. App. 1983), and their recorded out-of-court statements (Exhibits 1 and 2

admitted at the Preliminary Injunction hearing, and Exhibits 2 and 3 to the Motion for Summary

Judgment 2) are not hearsay. See, e.g., C.R.E. 801(d)(2)(A) (2022); People v. Glover, 2015 COA

16, ¶ 40, 363 P.3d 736, 744.

With respect to undisputed fact (2) in the motion, Defendants declare that despite what

Plaintiff said in his motion, “President Peterson never actually asked Superintendent Wise to

resign.” Resp. at 2. In fact, what Plaintiff’s motion actually said was that Peterson and Williams

“asked Wise to consider announcing his immediate resignation . . . and they told him,

unmistakably clearly, that if he chose not to do so, they were prepared to move forward with

terminating his employment contract for cause.” Mot. at 2 ¶ 2.

2
Defendants’ Response cites to the transcript (Exhibit 3) of Superintendent Wise’s audio
recording of his January 28 conversation with Directors Peterson and Williams (Exhibit 2), and
Defendants have not challenged that recording’s authenticity or the accuracy of its transcript.

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 Exhibits 2 and 3 establish beyond any factual dispute, that President Peterson first

informed Superintendent Wise that four Directors (a majority of the Board) were “absolutely

committed” to “moving in a new direction” (replacing him), and then asked him whether he was

willing to retire/resign immediately or face being terminated for cause. See Exs. 2 & 3. And,

Peterson told Superintendent Wise that if he agreed to retire immediately, Peterson would lobby

his fellow board members to pay Wise his salary through the end of the school year; but, “of

course,” Peterson informed Wise, if he did not agree to retire immediately, then the four

Directors were “absolutely committed” to terminating his contract for cause, in which case Wise

would not receive any his salary. Somehow, that portion of the recorded conversation (Exhibit

2) was not mentioned in Defendants’ Response. 3

Defendants continue to engage in the disingenuous hair-splitting semantics game they’ve

employed throughout these proceedings: “We didn’t ask him to resign. We merely asked him to

consider whether he’d be willing to resign ‘voluntarily’ in which case he’d receive his salary, or

we’d be forced to terminate him for cause and cut off his pay immediately.” 4 There’s obviously

no cognizable difference between these two positions; 5 the ultimatum they presented Wise

constituted “constructive discharge” under well-settled Colorado law. See Boulder Valley

3
Under oath, President Peterson testified that at no point in his conversation did he communicate
to Superintendent Peterson that he would be terminated. Exhibit 1 at 94:11-14 .
4
Under oath, President Peterson testified that “it was [not] a request to [Mr. Wise to] resign. It
was a discussion on his future contract.” Exhibit 1 at 80:19-20 (emphasis added).
5
President Peterson has admitted that he informed Superintendent Wise, on January 28, that “We
have four votes. Once you have four [Directors] committed, you know, it’s pretty much a
foregone conclusion, we wanted to see if you wanted to take matters into your own hands?” Ex.
1 at 100:24 – 101:6 (emphasis added). And contrary to his sworn testimony categorically
denying they’d asked Mr. Wise to resign, the audio recording shows Mr. Peterson telling Mr.
Wise “we’re asking you to move up [your planned retirement in two years and not even wait
until the end of this school year, in three months], and really that’s around having four directors
[who] are absolutely committed to moving in a new direction.” Ex. 3 at 5 (emphasis added).

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Sch. Dist. R-2 v. Price, 805 P.2d 1085, 1088 (Colo. 1991) (holding that when a school teacher

was presented with options such that he “felt he had no choice but to resign . . . [he] had been

constructively discharged”), overruled, in part, on other grounds, Cmty. Hosp. v. Fail, 969 P.2d

667, 680 (Colo. 1998); Koinis v. Colo. Dep’t of Pub. Safety, 97 P.3d 193, 196 (Colo. App. 1993)

(constructive discharge occurs when employees are “presented with an option to resign, and . . .

told that if they did not resign, they would be fired”) (citations omitted); C.J.I.-Civ. 31:10 (2022);

Spulak v. K Mart Corp., 894 F.2d 1150 (10th Cir. 1990) (constructive discharge occurred when

employee was given ultimatum either to take early retirement or be fired). 6 Nevertheless,

Defendants continue to claim that they made no decision regarding Superintendent Wise’s

continued employment by the School District until their public vote at the Special Meeting of

February 4, 2022. 7 They simply ignore the fact that following full evidentiary hearing, this

Court expressly rejected that contention.

With respect to undisputed fact (3) in the motion, Defendants concede that they voted to

terminate Wise’s contract without cause in a public meeting at which no public comments were

permitted, but they believe the Court should also consider the fact that a district-wide sick-out

occurred in response to disclosure of the fact that the four directors had constructively discharged

Superintendent Wise.

6
Remarkably, the four newly-elected Directors admitted, on February 4, 2022, that they were
completely unaware of the doctrine of constructive discharge. See Exhibit E at 29:1 – 30:11.
7
It is one thing for Defendants to testify falsely, prior to the disclosure of their recorded
conversation of January 28, that “We did not ask [Mr. Wise] to resign. We just gave him
different options that we were looking at.” Ex. 1 at 68:14-15 (Director Williams); id. at 80:18-20
(Director Peterson testifying that there was not “a request to resign. It was a discussion of
[Wise’s] future contract.”). It is an entirely different matter for their counsel to file a Response,
after that audio recording has been filed with this Court, stating that Peterson and Williams had
only “asked Superintendent Wise to consider his future” with the school district. Resp. at 2. See
Colo. R. Prof. Conduct 3.3(a)(1) & (3).

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 In sum, all of the material facts set forth in the Motion are supported by admissible

competent evidence, and they all remain undisputed.

II. The Undisputed Material Facts Demonstrate That Defendants Violated the COML

With respect to Claim One, which seeks a judicial declaration that Defendants violated

the COML, Defendants do not contest any of the facts set forth in the motion or above; instead,

they urge the Court, yet again, to construe that law differently than it has done on three previous

occasions: (1) in granting Plaintiff’s Motion for Preliminary Injunction, (2) in denying

Defendants’ motion for reconsideration of that ruling, 8 and (3) in denying Defendants’ motion to

dismiss the First Amended Complaint. While the “law of the case” doctrine is discretionary with

respect to this Court’s own prior rulings, “prior relevant rulings made in the same case are to be

followed unless such application would result in error or unless the ruling is no longer sound due

to changed conditions.” In re Office of the State Engineer’s Approval of the Plan of Water Mgmt.

v. Special Improvement Dist. No. 1, 2015 CO 52, ¶ 31, 351 P.3d 1112, 1120 (emphasis added).

Defendants have failed to demonstrate either of the two necessary conditions for a court to

disregard its own prior rulings. 9

8
Indeed, in their Response (at 4), Defendants repeat verbatim, the sentence in their Motion for
Reconsideration (at 5), which declares that the COML puts no restrictions on one-on-one
discussions among three or more board members “other than preventing the members from
‘taking public action.’” (emphasis added). As Plaintiff pointed out in his Response to the
Motion for Reconsideration (at 6 n.5), the words “public action” do not appear in the COML.
Indeed, the words “taking public action” do not appear anywhere in Colorado Revised Statutes.
9
Defendants proffer a purported “expert” opinion from attorney Dylan Woods, who opines that
(1) the COML means what Defendants propose, see infra at 7, and (2) several other public
bodies purportedly conduct themselves in conformity with Defendants’ proposed interpretation.
The first area of purported expert testimony is, quite obviously, inadmissible. See People v.
Lanari, 926 P.2d 116, 123 (Colo. App. 1996) (expert opinion “should not be merely an
interpretation of what the law is”); People v. Williams, 790 P.2d 796, 798 (Colo. 1990) (the “trial
judge ought to insist that a proffered expert bring to the jury more than the lawyers can offer in
argument”). [footnote continued on next page]

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 Ultimately, Defendants’ Response asks this Court (now for the fourth time) to construe

the COML in a way differently than it has thrice, and they propose a new “test” or set of extra-

textual criteria by which they argue the Court should determine whether members of a public

body violate the prohibition on “discussion of public business” outside of public view. See Resp.

at 6. According to Defendants’ new proposal, three or more (or all) members of a public body

may discuss public business without providing public notice or allowing public observation, so

long as they do not engage in (1) multiple, and (2) lengthy, (3) debates (“built around

persuasion”) on a particular issue. Resp. at 7. Defendants are willing to concede (only) that

multiple, lengthy, debates about terminating the Superintendent’s contract “may conceivably

violate the COML,” id., but because two Directors have now sworn they did not engage in

multiple, lengthy, debates (“built around persuasion”) regarding Wise’s termination, Defendants

argue that the undisputed facts bar the Court from concluding that the four Directors violated

their proposed interpretation of the COML.

There is neither any textual basis or common sense grounds to support Defendants’ novel

new theory; instead, the statute says, simply and unmistakably, that any “discussion of public

business” among three or more members of a local public body must occur in a meeting that is

noticed in advance and that the public must be permitted to attend and observe that discussion in

real time. See § 24-6-402(2)(b) (“All meetings of . . . three or more members of any local public

body . . . at which any public business is discussed . . . are declared to be public meetings open to

the public at all times.”) (emphasis added); § 24-6-402 (1)(b) (‘“Meeting’ means any kind of

As to the second point offered by Mr. Woods, it is irrelevant that several other unnamed
public bodies purportedly have also violated the COML. See Order Granting Plaintiff’s Motion
for Preliminary Injunction at 6 (ruling that even if it had been established that this public body
had previously conducted serial meetings of less than a quorum to discuss the same topic of
public business, that would not create a lawful status quo that should be maintained).

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gathering, convened to discuss public business, in person, by telephone, electronically, or by

other means of communication.”) (emphasis added).

Remarkably, too, in arguing (yet again) that COML allows three or more members of a

local public body to discuss public business outside of public view, so long as they don’t do so

simultaneously, Defendants assert that the 2021 amendment to that statute (which exempts

certain non-substantive emails of elected officials from its ambit) did not affect any material

change to the statute and that somehow their view of how that statute is to be interpreted. Resp.

at 5-6. Actually, that amendment proves just the opposite – that the General Assembly intended

to prohibit non-public discussion of “public business” among three or members of an elected

local public body, even when that conversation occurs sequentially instead of simultaneously. 10

If Director 1 sends an email to Directors 2 and 3 it is highly unlikely (practically impossible) that

it will be opened and read by the two recipients at exactly the same time. Yet the General

Assembly declared that such non-simultaneous transmittal and receipt of information

(“discussion”) among three or more members of an elected public body are “meetings” subject to

the COML. See § 24-6-402(2)(d), C.R.S. Recognizing that such a strict prohibition on emails

would hamper public bodies from efficiently conducting governmental business, that provision

was amended in 2021 specifically to exclude emails “that do[] not relate to the merits or

substance of . . . public business”, for example, the decision to fire the superintendent of a school

10
The untimely-filed declaration of former legislator John Evans is also not admissible, unless
and until the Court finds – contrary to its prior rulings herein – that the operative provision(s) of
the Colorado Open Meetings Law is/are ambiguous. See, e.g., Jenkins v. Pan. Canal Ry. Co.,
208 P.3d 238, 241 (Colo. 2009) (“when a statute’s language is ambiguous, we may turn to
its legislative history”). Moreover, even if the Court were inclined to consider that Declaration,
which it should not, the statements therein purporting to recount the contents of Evans’
conversations with unnamed third parties, offered for their truth, are inadmissible hearsay,
C.R.E. 802, as is his unfounded speculation about what he believes other legislators may have
been thinking at the time.

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district. In fact, that amendment makes absolutely clear what types of email communications do

constitute “discussion of public business” that are prohibited from being conducted through a

series of emails, even though the discussion does not occur simultaneously: “For purposes of this

subsection (2)(d)(III), ‘merits or substance’ means any discussion, debate, or exchange of ideas,

either generally or specifically, related to the essence of any . . . matter being considered by the

governing entity.” Id. (emphasis added). The legislature has quite clearly sought to prevent any

private (non-public) discussion – set off by commas from “debate, or exchange of ideas” – via

non-simultaneous communications among three or more elected officials on a local public body.

This statutory text is directly contrary to the non-textual three-part test proposed by Defendants.

For Defendants to claim that this statutory regime supports their position defies both logic and

common sense.

In summary, there are no issues of disputed material fact regarding what transpired prior

to the January 28, 2022 meeting at which Directors Peterson and Williams told Superintendent

Wise that four directors were “absolutely committed” to replacing him and would do so, “for

cause,” if he did not tender his resignation the following Tuesday night. That ultimatum resulted

from a series of one-on-one conversations between those four Directors, that they have admitted

were orchestrated purposefully to avoid having a simultaneous discussion of public business

among three or more of them. This Court has previously ruled that conduct violates not only the

spirit, but “the purpose” of the COML, and that its continued practice would cause irreparable

harm to the public warranting the entry of a preliminary injunction. This Court has also denied

Defendants’ motion to revisit and rescind those conclusions. Nothing in Defendants’ Response

or the attachments thereto suggests any “changed conditions” that render that ruling “no longer

sound” or otherwise compels this Court to disregard its prior determinations.

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III. The Undisputed Material Facts Demonstrate That a Permanent Injunction Must be
Entered To Prevent Defendants from Further Violations of the Open Meetings Law

Defendants argue that Plaintiff failed to establish his entitlement, as a matter of law, to

entry of a permanent injunction because, they claim, he presented “no evidence” (1) that

Defendants would continue to violate the COML or (2) that their doing so would cause “real,

immediate and irreparable harm.” Neither of these arguments has any merit.

Defendants continue to argue that they are not prohibited from discussing public business

among three or more directors outside of public view, so long as they don’t engage in (1)

multiple, and (2) lengthy, (3) debates (“built around persuasion”) on a particular topic, or

otherwise “take public action” (whatever that means). Thus, they are not merely “defending

against the entry of an injunction,” they are affirmatively claiming the Court’s ruling is mistaken

and erroneous; they have indicated that they intend to appeal it, and unless they are enjoined they

will disregard what they perceive to be an improper construction of the statute. President

Peterson did not testify that he had spoken with all of the other Directors and they were all

willing to commit they would henceforth not engage in one-on-one conversations of public

business in seriatim, purposefully to evade the COML’s “three or more” trigger; instead, he

merely declared individually, i.e., not speaking for the other three newly-elected Directors: “No.

I don’t think I am [going to continue engaging in a series of one-one-one phone conversations]. .

. frankly, I’m doing a lot more email. But no, I will probably not [share other directors’ views in

one-on-one oral phone conversations].” Exhibit 1 at 85:11-23 (emphasis added). This testimony

does not constitute a disavowal, by all four newly elected Directors, of their intent to continue

discussing public business (i.e., of the same topic or proposed course of action), among three or

more of them, in seriatim, outside of public view. Quite to the contrary, in their newly-tendered

declarations, Directors Myers and Winegar express their firm belief that three or more Directors

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are permitted by law to discuss public business outside of public view so long as those

conversations are not (1) multiple, and (2) lengthy, (3) debates (“built around persuasion”).

Upon considering that new evidence, along with Defendants’ past actions, and Directors

Peterson’s and Williams’ multiple declarations that they did not violate the COML, the Court

must conclude that Plaintiff has satisfied his burden of demonstrating that injunctive relief is

needed to prevent further violations by these Defendants (while the case is up on appeal).

As for Defendants’ claim that Plaintiff has failed to prove that further violations of the

COML will cause “real, immediate, and irreparable harm,” they overlook the fact that the statute

expressly provides that “[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.”

§ 24-6-402(9)(b), C.R.S. (2022) (emphasis added). Colorado law recognizes that when a statute

expressly authorizes courts to issue injunctions for the benefit of the general public, the Rathke

requirement of showing “real, immediate, and irreparable harm” does not apply. See, e.g., Lloyd

A. Fry Roofing Co. v. State Dep’t of Health Air Pollution Variance Bd., 553 P.2d 800, 808 (Colo.

1976) (holding that real, immediate and irreparable harm need not be shown when a state statute

authorizes injunctive relief and “[t]he injunction . . . was sought in behalf of the public,”); id.

(recognizing that many courts have held that “irreparable injury need not be shown when the

injunction is sought pursuant to statute rather than by the rules of civil procedure”); Kourlis v.

District Ct., 930 P.2d 1329, 1133 (Colo. 1997) (“different statutory provisions for enforcement

through injunctive relief may form an integral part of the legislative design of a particular

enactment”); Cf. Air Pollution Control Com. v. Dist. Ct., 563 P.2d 351, 354 (Colo. 1977)

(“special statutory provisions control over general procedural rules”).

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 Even if the Court were to apply all five of the Rathke factors, notwithstanding the

precedents above, the Court would not abuse its discretion by determining (as it did in issuing

the preliminary injunction) that depriving the public of its right under the COML to notice and

contemporaneous observation of the discussion of public business (“the formation of public

policy”) causes real, immediate, and irreparable harm. Notably, Plaintiff (and the broader

general public) have no right to recover monetary damages as compensation for violations of

their statutory right to observe the formation of public policy. See, e.g. Macleod v. Miller, 612

P.2d 1158, 1160 (Colo. App. 1980) (plaintiff’s future injuries are not “compensable by adequate

damages; thus, an action at law is an inadequate remedy. . . . The injuries would be immediate

and irreparable; only the issuance of an injunction can prevent them.”).

IV. The Undisputed Material Facts Demonstrate That Defendants Did Not Cure Their
COML Violation at the February 4, 2022 Special Meeting

Defendants ask the Court to find that the undisputed fact show they “cured” their January

28 violation of the COML – when they communicated their decision to constructively discharge

Superintendent Wise – at their Special Meeting on February 4 which was properly noticed, open

to the public, and included extended discussion of the Board’s decision to terminate

Superintendent Wise’s contract. Before addressing this argument, it is worth cataloguing the

arguments Defendants have not asserted in their Response, thereby abandoning several

previously raised defenses to this claim: (1) that it presents a non-justiciable “political

controversy”; (2) that the separation of powers doctrine bars this Court from declaring invalid the

BoE’s decision to constructively discharge the Superintendent; (3) that Plaintiff lacks standing

to assert this claim because only Corey Wise, the terminated employee, may do so; and (4) that

this claim is “moot” (incapable of being redressed) because Mr. Wise has accepted employment

with another school district. See Def.’s Motion to Dismiss at 9 n.4, 11 – 15; Defs.’ Resp. to

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Pl.’s Mot. for Prelim. Injunction at 10. Also, while Defendants claim there are disputed material

facts that purportedly preclude the entry of summary judgment, they do not explain which facts

they contend are disputed: Plaintiff does not challenge the accuracy of the transcript of the

BoE’s February 4, 2022 Special Meeting (Exhibit E), which speaks for itself.

At the February 4 Special Meeting, Defendants did not cure their earlier decision, made

outside of a lawful public meeting, to constructively discharge Superintendent Wise on January

28. Although Defendants contend that the Court of Appeals’ ruling in Colo. Off-Highway

Vehicle Coalition v. Colo. Bd. of Parks, 2021 COA 146 (“COHVC”) supports their position, the

facts of that case are readily distinguishable from those of the case at bar in at least three

significant respects: (1) in COHVC, the curative public meeting of the Board was convened prior

to the initiation of the lawsuit challenging its unlawfully made decision, (2) in COHVC, the

Board allowed public comment to inform its decision, considered anew, to change the terms of

the OHV program, and (3) in COHVC, the Board discussed their prior decision, in depth, and

thereafter voted to “ratify” (adopt) that decision.

Here, the special meeting of February 4 occurred after this lawsuit had been filed, and all

the Defendants had been served, which challenged the propriety of the earlier decision to

constructively discharge Superintendent Wise, which Defendants Peterson and Williams

effectuated on January 28. Here, the BoE expressly declined to entertain any comments from the

public at its Special Meeting of February 28. Lastly, and perhaps most importantly, here, the

BoE’s vote (4 -3) on February 4 to terminate Superintendent Wise’s employment contract

without cause, did not mimic, recreate or ratify its earlier unlawful decision, which was to

constructively discharge the Superintendent (i.e., ask him to resign, immediately, or be

terminated for cause) on January 28. Thus, the discussion among the Directors (but no members

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of the public) at the February 4 Special Meeting – about whether to terminate Superintendent

Wise’s contract without cause – did not provide the public with the information to which it was

entitled under COML had it not been barred from observing the “back and forth discussions”

among the four Directors (and the absence of any discussion from three other Directors) that led

them to decide “to ask Mr. Wise to resign his position” because that “was the kind thing to do: to

let him resign rather than vote to terminate his contract” for cause. Exhibit 1 at 23:14-22

(Director Myers’ testimony). See COHVC, 2012 COA 146, ¶ 16 (reciting District Court’s ruling,

affirmed on appeal, that the board had cured its prior violations by “holding a properly noticed

public meeting and openly and fully addressing the matters which formed the basis of the prior

OML violations”) (emphasis added).

In stark contrast, the public discussion at the February 4 Special Meeting, (after this

lawsuit had been filed) concerning an entirely different course of action than the one they’d taken

on January 28 (the prior OML violation) did not provide the public with the information

(discussion) that had lead four Directors to decide to constructively discharge Mr. Wise on

January 28. Indeed, when the two Directors (on behalf of all four) constructively discharged Mr.

Wise on January 28, Vice President Williams told him that the four Directors were prepared to

fire him for cause, and they had “a strong case” for doing so: “I know a lot things that happened

and so we believe we have enough for cause.” Exhibit 3 at 3 (emphasis added). Yet none of

those “things that [purportedly] happened” that the four Directors apparently believed justified

terminating his contract for cause was discussed at the Special Meeting of February 4. Thus, the

public was deprived of the full exchange of views among the four Directors that served as the

basis for their earlier unlawful decision to constructively discharge Superintendent Wise.

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 In short, the February 4 Special Meeting did not cure the Defendant’s prior decision

(reached outside of public view) to constructively discharge Superintendent Wise on January 28.

Therefore, pursuant to § 24-6-402(8), C.R.S., Plaintiff is entitled to a declaration that the BoE’s

earlier decision was invalid.

CONCLUSION
As demonstrated in the motion, and above, based on the undisputed material facts

(established by admissible evidence filed in support of the motion), Plaintiff is entitled to

judgment as a matter of law on all three of his pleaded claims. Accordingly, the Court should

grant his motion for summary judgment in full.

Dated this 11th day of August, 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 declare and certify that on this 11th day of August, 2022 I caused to be served on
counsel for Defendants a true and correct copy of this Plaintiff’s Reply in Support of his Motion
for Summary Judgment via the Court’s e-filing system, ICCES.

s/ Steven D. Zansberg
Steven D. Zansberg

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