By Nick Cotton-Baez, CIRSA Associate General Counsel

Published on 11/01/2025

Have you ever wondered what to do after your entity’s governing body discovers or has been accused of an Open Meetings Law (OML) violation? If your community is like most, chances are you probably have. If you haven’t, it’s time to think about it now, particularly in view of the Colorado Supreme Court’s recent decision in O’Connell v. Woodland Park School District, 576 P.3d 197 (Colo. 2025), which has renewed attention to the issue of whether an OML violation can be “cured”—i.e., a remedial action that, if done correctly, can restore the legal validity of a previous action made in violation of the OML.

The O’Connell case began in state district court upon the filing of a complaint by a citizen named Erin O’Connell against the Woodland Park School District alleging that the process used by the Board of Education to approve of a Memorandum of Understanding (MOU)—which was intended to streamline the admission of a school, known as the Merit Academy, into the School District as a charter school—had violated the OML.

The MOU was introduced and approved at a public meeting of the School Board on January 26, 2022, without prior public notice of its substance, appearing on the Board’s agenda under the vague heading “BOARD HOUSEKEEPING.” Following community frustration about how the agenda item was framed—and the Board president’s admission that the January 26 decision lacked transparency—the Board corrected the agenda notice issues and attempted to reapprove the MOU during a public meeting held on February 9. At the February 9 meeting, the Board voted again to approve the MOU. However, while the Board received public comment on the MOU and Merit Academy’s potential admission into the District as a charter school, it didn’t read the agreement into the record or engage in lengthy discussion.

Ms. O’Connell filed her lawsuit against the School District with the District Court on March 30, asserting that the January 26 agenda failed to provide proper notice of the discussion of the MOU with Merit Academy in violation of the OML, and that the subsequent decision to reapprove the MOU at the Board’s February 9 meeting hadn’t cured the OML violation because the Board did not engage in deliberations and merely rubber-stamped its earlier invalid decision.

While the lawsuit was pending, the Board held yet another meeting on April 13, indicating on the meeting agenda that there would be discussion and reconsideration of the reapproval of the MOU. The Board again voted to approve the MOU, this time after a discussion lasting approximately one hour during which each member of the Board made a statement about the MOU.

Ultimately, the District Court held that the School Board cured its January 26 violation of the OML at its April 13 meeting, finding specifically that the School Board’s decision at the April 13 meeting did not merely rubber-stamp its earlier decision.(i) However, the District Court denied Ms. O’Connell’s request for costs and reasonable attorney fees pursuant to C.R.S. § 24-6-402(9)(b) after determining she was not the prevailing party. Following O’Connell’s appeal, a division of the Colorado Court of Appeals affirmed the District Court’s holdings as to cure and as to costs and attorney fees, adding that Ms. O’Connell was not a prevailing party because no outstanding violations of the OML remained after the April 13 meeting effectively cured the January 26 violation.

The case then made its way up to the Colorado Supreme Court after the Court granted Ms. O’Connell’s petition for certiorari. The Court addressed three key issues: (1) whether the cure doctrine contravenes the OML’s plain meaning and longstanding precedent; (2) whether expanding the cure doctrine to intentional violations(ii) of the OML contravenes the plain language and intent behind OML and Supreme Court precedent regarding its interpretation; and (3) whether the Court of Appeals erred by applying the cure doctrine to preclude an award of costs and attorney fees to a plaintiff who successfully proves the original OML violation.

In O’Connell, the Colorado Supreme Court’s decision confirmed, for the first time,(iii) that a public body’s violation of the OML can be “cured” by subsequent action at a later public meeting that complies with the OML, so long as the subsequent action doesn’t amount to a mere “rubber stamp” of the prior action that was the subject of the violation. To arrive at this holding, the Court reasoned that the OML’s goal is transparent decision-making, not permanently condemning decisions made in violation, and that interpreting the OML to prohibit the cure of prior nonconforming acts would be inconsistent with the proper functioning of the government, doing more disservice to the public good than the violation itself.

The Court further held, also for the first time, that the cure doctrine applies to both unintentional and intentional violations of the OML, finding that the OML focuses on the fact of a violation, not on whether an alleged violation was intentional or unintentional. The Court further found that the purpose of the OML is to ensure that public business is conducted in full view of the public, and that by creating incurable categories of violations, public bodies would have little incentive to admit and correct mistakes.

Third, the Court reversed the Court of Appeals decision on the issue of attorney fees and costs, holding that a cured violation does not erase the fact that a violation of the OML occurred, and thus can still trigger an award of attorney fees and costs in instances where a claimant files a lawsuit alleging the original OML violation before the cure occurs and subsequently proves the original OML violation.

Several lessons for public bodies emerge from the Supreme Court’s decision in O’Connell. First and foremost, the decision underscores the importance of clear, transparent notice and agenda practices. Public bodies shouldn’t interpret O’Connell as establishing a license to violate the OML by making decisions in secret for later ratification in an OML-compliant meeting. They should interpret it, instead, as confirming the availability of a remedial action, to be used sparingly, that can restore the legal validity of a previous action made in violation of the OML. Indeed, as a practical matter, it’s much better to comply with the OML at the outset than it is to explain the need to ratify a prior decision to the public and risk being ordered to pay a claimant’s attorney fees and costs. In other words, while a cure is possible, prevention is better. The good news is prevention simply means complying with the OML!

In the event prevention efforts fail and a cure is necessary to ratify a prior decision, public bodies may look to O’Connell for procedural guidance. In general, cure is possible only in a subsequent meeting for which the public body has provided full and timely notice(iv) to the public, including the posting of specific agenda information, and at which the public body does not merely rubber stamp the earlier decision made in violation of the OML.

To avoid a “rubber-stamp” finding, the O’Connell decision confirms that the cure doctrine requires more than inviting the public to comment on the prior action at a subsequent meeting, and that to properly cure a prior action made in violation of the OML, a public body must engage in meaningful deliberations. On that point, the Court noted that at the School Board’s April 13 meeting, the Board discussed the MOU for approximately one hour and each Board member made a statement regarding the MOU.

Finally, if a potential violation arises, it’s important to immediately consult your public entity’s attorney to assess whether a curative meeting is warranted and how to minimize the risk of being ordered to pay a claimant’s attorney fees and costs. As O’Connell shows, time is of the essence!

While alleged violations of the OML often are not covered by public entity insurance policies, for CIRSA members, your CIRSA liability coverage does include a sub-limited coverage for defense of claims of violations of the OML brought under C.R.S. § 24-6-402(9)(b). This coverage is solely for actions against the governing body and does not apply to subordinate boards and commissions. This coverage is not subject to a member deductible and thus provides first-dollar defense for covered claims. Submitting a claim to CIRSA under this coverage is optional; the member may choose to defend such a claim itself. If a member wants to avail itself of this coverage, the claim must be submitted to CIRSA, for handling by CIRSA-assigned defense counsel, at the time of commencement of the action. Coverage is limited to $15,000 in defense costs per action, subject to a $45,000 annual each member aggregate. This coverage does not apply to any award of plaintiff’s attorney fees or costs. Thus, the member would be responsible for payment of any attorney fee award entered against it.

If you have questions about this article, contact CIRSA Deputy Executive Director/General Counsel Sam Light, at saml@cirsa.org or CIRSA’s Associate General Counsel, Nick Cotton-Baez, at nickc@cirsa.org.

Note: This article is intended for general information purposes only and is not intended or to be construed as legal advice on any specific issue. Readers should consult with their entity’s own counsel for guidance tailored to their circumstances and legal advice on specific issues.

i. While the District Court had concluded in an initial order on a motion from O’Connell that neither the February 9 nor the April 13 meeting cured the January 26 OML violation, the court later reversed course in its order granting the School District’s motion for summary judgment, concluding that the School Board had cured the January 26 violation at its April 13 meeting.

ii. This issue stems from the District Court’s finding that the clear priority of the majority of the School Board was to charter the Merit Academy and that the January 26 “Board Housekeeping” item was a conscious decision by the Board to hide its controversial intention to charter the school. Though, as noted by the Court of Appeals, the District Court did not find, specifically, that the Board had intentionally violated the OML.

iii. The “cure doctrine” was first recognized in Colorado by the Court of Appeals in Colorado Off-Highway Vehicle Coalition v. Colorado Board of Parks & Outdoor Recreation, 292 P.3d 1132 (Colo. App. 2012). However, prior to O’Connell, the Supreme Court had never taken up the issue.

iv. Notice is considered full and adequate under the OML if the posted agenda clearly describes items in plain, specific terms so that an ordinary community member can understand what will be discussed. Notice is considered timely if the agenda is posted at designated posting locations (e.g., the public body’s official website) at least 24 hours in advance of the meeting. However, keep in mind that your entity may have local rules that require earlier posting.