Colorado Court of Appeals Weighs in on Executive Sessions – Again

If your city council or town board is like most, you’ll probably call executive sessions on occasion—or perhaps regularly—to discuss specific legal questions or another topic for which executive sessions are authorized under Colorado’s Open Meetings Law (OML). If so, you’ll want to be aware of a recent Colorado Court of Appeals decision addressing the OML’s notice requirements and its prohibition on taking action in executive session.

As background, the OML generally requires that meetings of public officials to discuss or take formal action on public business be open to the public. The OML allows a local public body to convene in executive session for discussion of certain topics, including to confer with the entity’s attorney on specific legal questions. However, detailed procedures must be followed: The body must announce to the public the topic for discussion in executive session. The announcement must also include the specific statutory citation that authorizes the session and “identification of the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized.” Further, the OML prohibits taking any action in executive session; specifically, it states “no adoption of any proposed policy, position, resolution, rule, regulation, or formal action…shall occur at any executive session that is not open to the public.”

The recent Court of Appeals decision, issued December 7, 2023, stems from efforts by a local newspaper, The Sentinel Colorado (The Sentinel) to obtain release of the recording of an Aurora City Council executive session held in March 2022. Among other purposes, the executive session was called for legal advice concerning censure proceedings brought against a Councilmember. While the meeting agenda announced the topic of the executive session (legal advice) and the statutory citation authorizing the session (C.R.S. 24-6-402(4)(b)), the Court concluded the announcement violated the OML public notice requirement because it did not identify any “detail” of the topic to be discussed. Citing a 2020 Court of Appeals decision (discussed in this CIRSA Liability Alert), the Court ruled that privilege does not encompass information about the subject matter of an attorney-client communication, and therefore the failure to announce further “detail” of the session violated the OML.

Additionally, the Court of Appeals ruled the City Council violated the OML by taking action in executive session, which action the trial court characterized as “a roll call” taken “as to the direction to be given to legal counsel” concerning the investigation related to the censure. More specifically, the Court concluded the Council improperly adopted “a position…or formal action” when special counsel was “directed and instructed” at the executive session to “end the investigation” and “enter into a stipulation” to dismiss the censure charges. In short, the Court essentially concluded that giving direction to counsel in executive session was formal action in violation of the OML. Finally, while the City Council attempted to “cure” the alleged OML violations at a subsequent public meeting, the Court held that the narrow, court-created concept of allowing a public body to “cure” an OML violation did not apply in this case because The Sentinel’s lawsuit was brought only to gain access to the executive session recording and not to challenge the Council’s decision to end the censure proceedings.

While the Court of Appeals decision remains subject to potential review by the Colorado Supreme Court, it serves as a reminder of some key provisions of the OML that will continue to require close attention irrespective of whether the Supreme Court hears an appeal. First, although determining what to say in an executive session announcement can be a delicate task, The Sentinel decision emphasizes that the transparency standard is high: The matter to be discussed in executive session must be identified “in as much detail as possible without compromising the purpose” for the executive session. Thus, you’ll need to be specific in your announcements calling for an executive session and need to include more than the citations and topic(s) as stated in the OML. We suggest working with staff and legal counsel to help ensure the announcement includes sufficient details to meet OML requirements, and that the additional detail be scripted as part of the agenda and/or public statement made when calling the executive session.

Second, recognize the OML’s prohibition on taking formal action in executive session is similarly a high standard. As noted above, the OML prohibits the adoption of “any proposed policy, position, resolution, rule, regulation, or formal action” in executive session. The Court of Appeals’ decision highlights the breadth of this prohibition: Under the Court’s analysis, a “roll call”—and perhaps only the giving of direction and instructions to counsel—in executive session can constitute prohibited formal action. Thus, you’ll want to work closely with your legal counsel and staff to determine the appropriate limits on executive session discussions and identify any needed actions that may only be taken in open session.

At CIRSA, we’ve seen a steady stream of claims against our members for alleged violations of the OML in the conduct of executive sessions. And the consequences of a violation can be significant. Among other remedies, a court can order the release of an executive session recording that pertains to a violation, invalidate any action improperly taken in an executive session, and award attorney fees[1] to a prevailing citizen.[2] As important, when an OML violation occurs, is it can be hard to recover citizen faith and trust in your entity’s commitment to transparency.

Therefore, as a matter of practice, you’ll want to ensure your entity’s procedures are set up to comply with the substantive and procedural requirements of the OML that govern executive sessions. CIRSA suggests that your entity have and follow a script for calling an executive session, and that elected and appointed officials work closely with legal counsel and staff to ensure any executive session is properly called and conducted.

A CIRSA set of sample executive session procedures can be found here for a Town Board of Trustees, and here for a City Council. Prior to any use of these samples, you’ll want to review them with your municipal attorney and make any revisions needed to reflect local rules or practices.

If you have any questions regarding this article, please call our Liability Hotline at 800.228.7136 to speak to CIRSA’s General Counsel, Sam Light.

[1] While alleged violations of the OML often are not covered by public entity insurance policies, your CIRSA liability coverage does include a sub-limited coverage for defense of claims of violation of the OML. This coverage is solely for actions against the governing body. For claims brought on or after January 1, 2024, this coverage has an increased sub-limited of $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.

[2] In its December 7 opinion, the Court of Appeals ruled The Sentinel was not entitled to an award of attorney fees because the OML mandates such an award to “the citizen prevailing in such action.” The Court held The Sentinel is not a “naturalized person” and thus not a “citizen” under the plain meaning of that term. This holding is also subject to potential review by the Colorado Supreme Court.

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Adding Minors to Your Summer Workforce

Public entities are long-time supporters of youth employment opportunities. Particularly during summer months, the use of minors in the workforce increases, most significantly in park- and recreation-related activities. Minors benefit by gaining useful work experience, and public entities benefit from the channeling of youthful energy into productive endeavors.

If your entity is planning to hire minors for the fast-approaching summer season, you’ll want to have best practices in place for a safe, rewarding, and mutually beneficial work experience for them. And you’ll want to be sure you are following the federal and state laws governing work by minors. This article introduces the legal framework of the laws governing youth employment and provides links to additional information on applicable youth labor requirements. It also addresses, in Q & A format, certain recurring questions we receive about the youth employment laws. In order to reduce risks and potential liability, CIRSA recommends its members closely review and continually monitor their compliance with applicable youth employment laws.

FEDERAL FAIR LABOR STANDARDS ACT & COLORADO YOUTH EMPLOYMENT OPPORTUNITY ACT

Two sets of laws generally govern work by minors (persons under 18) in Colorado: the federal Fair Labor Standards Act (FLSA), and the Colorado Youth Employment Opportunity Act (YEA).

General Framework: The FLSA and YEA use similar approaches. For example, the YEA focuses on permissible occupations at various age levels and includes a list of hazardous occupations that are generally prohibited for any minor. The FLSA regulations similarly set minimum age standards for certain work activities and, via Hazardous Occupations Orders, ban all minors from certain occupations. Generally, both laws severely restrict the types of work that minors under 16 may perform and allow for broader work activities by minors 16-18 but prohibit all minors from particularly hazardous activities (such as operating heavy machinery, working with most power-driven tools, and many others).

Despite their similar approaches, the FLSA and YEA use different verbiage and have different standards in some areas, which can sometimes make the two difficult to reconcile. Importantly, however, when both federal and state laws apply the more stringent standard must be followed. As one example to illustrate this principle, the YEA states operation of a motor vehicle is permissible for minors 16 years of age and older; however, the FLSA essentially prohibits driving by persons under 17 and has strict rules for driving by any 17-year-old. Thus, work-related driving by minors should be avoided altogether, or strictly controlled and supervised to ensure compliance with more stringent FLSA standards. In short, for any proposed work by a minor, each law must be closely reviewed to ensure the more restrictive standard is identified and followed.

Frequently Asked Questions. This section addresses, in Q & A format, some of the youth employment rules that are the frequent source of questions we receive via the CIRSA Liability Hotline.

Q: May a 16-year-old licensed driver who works in our parks and recreation department drive a motor vehicle on public roads to the ballfield complex to perform lawn care?

A: No. The FLSA prohibits employees 16 years of age and under from driving motor vehicles on public roads as part of their jobs even if the employee possesses a valid state driver license.

Q: What if the licensed driver is 17 years old?

A: If the 17-year-old worker and the motor vehicle meet the requirements of the FLSA and YEA, then yes. But is your entity able to ensure related requirements are met? And are the additional risks acceptable?

Under the FLSA, driving by a 17-year-old worker must be limited to two trips per day within a 30-mile radius and be only “occasional and incidental to the employment;” i.e., the driving constitutes no more than 1/3 of the minor’s daily work time, and no more than 20% of the minor’s work time in any workweek. For some types of workers, “drive time” and distance could be difficult to track, and supervisors may forget or ignore the strict limits on time, distance, and number of trips.

Moreover, there’s a reason personal car insurance is more expensive for teens: They have little experience behind the wheel and data shows they are more likely to get into accidents. Thus, all things equal, on-duty driving by your minor employees increases the chances that your entity could be liable for injuries and property damage resulting from an accident. Therefore, if in our scenario an adult employee will also be performing lawn care at the ballfields, you may decide it’s best to have the 17-year-old hitch a ride.

Q: May we hire a 17-year-old employee for the sole purpose of driving a small truck (under 6,000 lbs. GVW) to plow snow on public streets?

A: No. Driving must be occasional and incidental to the minor’s employment.

Q: May our parks and recreation department employ minors to perform lawn care and grounds maintenance?

A: Yes. Minors may be employed in occupations related to parks and recreation. But 14- and 15- year-olds may use only light, non-power-driven, hand tools like rakes, hand-held clippers, shovels, brooms, with personal protective equipment, and may not operate or perform maintenance or repair work on power-driven machinery or equipment like mowers, cutters, trimmers, or edgers. While 16- and 17- year-olds may use mowers and other similar power-driven equipment,
like with adult employees, it’s important to consider the minor employee’s aptitude, experience, and level of training when assigning tasks involving use of potentially dangerous equipment. And separate from FLSA and YEA allowances, your entity made decide as its risk management policy that certain tasks are simply too risky for youthful employees.

Q: May our public works department employ minors to remove snow from public walkways?

A: Yes. Minors 14 years of age or older may perform snow removal from public walkways. However, 14- and 15- year olds may not use power-driven snow removal equipment or machinery like snow blowers or an ATV to which a plow has been attached. Also, no minor may operate a bobcat or skid steer loader or similar equipment with the ability to hoist, under any circumstances.

Q: May we employ minors as lifeguards at our municipally owned public swimming pool?

A: Yes, so long as the minor is 15 years of age or older and employed in compliance with all applicable provisions of the child labor rules under the FLSA, including the restrictions on the hours and times of day applicable to 15-year-old lifeguards, and is trained and certified in aquatics and water safety and as a swimming instructor by the American Red Cross or similar certifying agency. However, a 15-year-old lifeguard may not enter or work in any chemical storage areas, including areas housing filtration and chlorinating systems. Moreover, your entity should take care to ensure proper staffing and training for minor employees and all other employees at the swimming pool, particularly as swimming pools are one of the few types of facilities for which there are not just one, but two, waivers of governmental immunity that can create a path to civil liability. (More specifically, governmental immunity is waived for injuries resulting from the operation and maintenance, as well as a dangerous condition, of a swimming facility).

Q: What if the public property containing the swimming pool also contains a water slide?

A: A minor of 15 years of age or older may be employed as a lifeguard at a “water amusement park,” or a swimming facility with water amusement components, such as wave pools, lazy rivers, baby pools, waterfalls, sprinklers, and elevated water slides, so long as the minor is employed in compliance with all applicable provisions of the child labor rules under the FLSA and holds all requisite certifications. However, no lifeguard under the age of 16 may operate power-driven equipment or serve as attendants at the top of elevated water slides.

Q: What about at our municipal reservoir?

A: A minor must be at least 16 years old to be employed as a lifeguard at natural environment swimming facilities like rivers, streams, lakes, and reservoirs.

Resources: Fact sheets on the FLSA and YEA can be found here (FLSA) and here (YEA). Additional resources are available on the child labor and youth law sections of the federal Department of Labor, Wage and Hour Division website, and the Colorado Department of Labor and Employment (CDLE) website. Each website includes links to applicable laws and regulations. Helpful information on employment of minors as lifeguards can be found in this FLSA Fact Sheet #60.

While a fuller discussion of federal and state child labor laws is beyond the scope of this article, CIRSA members may also obtain a more detailed CIRSA memorandum entitled “Overview of Federal and State Child Labor Laws”. For a copy, contact CIRSA’s Deputy Executive Director/General Counsel Sam Light at saml@cirsa.org or Associate General Counsel Nick Cotton-Baez at nickc@cirsa.org.

Hours Worked by Minors: In addition to meeting minimum age requirements and removing minors from prohibited and particularly hazardous tasks and occupations, employers must be mindful of the FLSA and YEA limits on minors’ work hours. Minors 16 years of age and older may generally work up to eight hours a day and forty hours a week. Minors under 16 have additional restrictions on their hours of work and may only work between the hours of 7:00 a.m. and 7:00 p.m. (except that from June 1 to Labor Day work may extend to 9:00 p.m.).

Enforcement & Remedies: The FLSA and YEA each have their own enforcement provisions and remedies for violations that can be pursued separately by federal and state enforcement officials. As such, a single act may give rise to violations of each law. For FLSA violations, the U.S. DOJ may impose civil penalties of up to $11,000 per offense, and higher amounts (and potential criminal sanctions) for willful violations. By contrast, violations of YEA are misdemeanors and upon conviction for a knowing violation are subject to a fine of up to $100 for a first offense and up to $500 for any subsequent offenses.

All minor employees are also subject to the rights and remedies of the Workers’ Compensation Act of Colorado (Act). Therefore, if a minor employee is injured on the job, whether lawfully engaged or not, they are entitled to the benefits and protections of the Act. Colorado House Bill 23-1196, passed during the 2023 Legislative session, clarifies that benefits under Act are not the only remedy available if a minor is injured while engaging in work or working during hours prohibited under the YEA. In these situations, claimants may pursue tort claims such as negligent supervision which, for public entities, may not be barred by governmental immunity if the YEA violation is willful and wanton. Additional legislation has been proposed in the 2024 Colorado Legislative Session to strengthen remedies for violation of the YEA.

Concluding Thoughts. The employment of minors in your public entity can present great opportunities for your organization and youth in your community. However, the work performed and hours worked by minors must be carefully selected, supervised, and controlled to ensure compliance with federal and state laws and further the safety of your workforce.

If you have questions or would like additional CIRSA assistance regarding the topics addressed in this article, contact CIRSA’s Deputy Executive Director/General Counsel Sam Light at saml@cirsa.org, or 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. Youth labor laws are highly technical and fact-specific, and employers are responsible for ensuring their policies and practices are in compliance with applicable federal and state laws and regulations. CIRSA members are encouraged to consult with their human resources, legal, and safety teams to ensure their youth employment programs comply with applicable laws and regulations and incorporate appropriate safety practices.

Publication Date: 05/01/2024