2025 CO 55, 24SC34, O'Connell v. Woodland Park School District

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE
September 15, 2025

# 2025 CO 55

No. 24SC34, O'Connell v. Woodland Park School District-Colorado's Open
Meetings Law-Purpose of Open Meetings Laws-Costs and Fees.

The cure doctrine provides that a public body may resolve a violation of
Colorado's Open Meetings Law (the "COML"), §§ 24-6-401 to -402, C.R.S. (2024),
by holding a subsequent meeting that complies with the COML and that does not
merely rubber-stamp the earlier decision. The doctrine was first recognized in
Colorado by the court of appeals in Colorado Off-Highway Vehicle Coalition v.
Colorado Board of Parks & Outdoor Recreation, 2012 COA 146, 292 P.3d 1132
("COHVC"). The supreme court granted certiorari to consider whether COHVC
was wrongly decided or, in the alternative, wrongly applied by the division of the
court of appeals below, and whether O'Connell is entitled to costs and reasonable
attorney fees as a prevailing party. O'Connell v. Woodland Park Sch. Dist.,
No. 22CA2054 (Dec. 7, 2023).

The supreme court affirms the division in part, holding that the cure
doctrine does not contravene the COML or longstanding precedent. It further

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concludes that the COML focuses on the fact of a violation, not on whether an
alleged violation was intentional or unintentional. However, the court reverses
the division's holding regarding attorney fees and concludes that O'Connell is a
prevailing party because she successfully proved the original COML violation by
the Woodland Park School District Board of Education, which was not cured until
after O'Connell filed suit. Accordingly, she is entitled to an award of costs and
reasonable attorney fees pursuant to section 24-6-402(9)(b), C.R.S. (2024). The
supreme court, therefore, reverses that part of the division's opinion and remands
the case with instructions that the matter be returned to the district court to
determine and award O'Connell her costs and reasonable attorney fees.

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# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2025 CO 55

Supreme Court Case No. 24SC34
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 22CA2054

Petitioner:

Erin O'Connell,

V.

Respondents:

Woodland Park School District; Woodland Park School District Board of
Education; Chris Austin, in his official capacity as Board Member; Gary Brovetto,
in his official capacity as Board Member; David Illingworth II, in his official
capacity as Board Member; Suzanne Patterson, in her official capacity as Board
Member; and David Rusterholtz, in his official capacity as Board Member.

Judgment Affirmed in Part and Reversed in Part
en banc
September 15, 2025

Attorneys for Petitioner:
Lamitie Law, LLC
Carrie Lamitie
Louisville, Colorado

Eric Maxfield Law, LLC
Eric Maxfield
Louisville, Colorado

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Attorneys for Respondents:
Miller Farmer Carlson Law
Bryce D. Carlson
Colorado Springs, Colorado

Attorneys for Amicus Curiae American Civil Liberties Union Foundation of
Colorado:
Timothy R. Macdonald
Sara R. Neel
Denver, Colorado

Attorneys for Amici Curiae American Civil Liberties Union Foundation of
Colorado, Colorado Freedom of Information Coalition, League of Women
Voters of Colorado, National Freedom of Information Coalition, and Parents-
Safety Advocacy Group:
Azizpour Donnelly, LLC
Katayoun A. Donnelly
Denver, Colorado

Zansberg Beylkin LLC
Steven D. Zansberg
Denver, Colorado

Attorneys for Amicus Curiae City of Aurora:
Hoffmann, Parker, Wilson & Carberry, P.C.
Corey Y. Hoffmann
Katharine J. Vera
Denver, Colorado

Attorneys for Amicus Curiae Colorado Association of School Boards:
Rachel Amspoker
Hilary Daniels
Denver, Colorado

Attorneys for Amicus Curiae Colorado Charter School Institute:
Philip J. Weiser, Attorney General
Joseph A. Peters, Senior Assistant Attorney General
Denver, Colorado

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Attorneys for Amicus Curiae Department of Regulatory Agencies:
Philip J. Weiser, Attorney General
Russell D. Johnson, Deputy Solicitor General
Zach W. Fitzgerald, Assistant Attorney General
Denver, Colorado

Attorney for Amici Curiae Reporters Committee for Freedom of the Press,
Colorado Press Association, and Colorado Broadcasters Association:
Rachael Johnson
Denver, Colorado

JUSTICE BERKENKOTTER delivered the Opinion of the Court, in which
JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE
HART, and JUSTICE SAMOUR joined.
CHIEF JUSTICE MÁRQUEZ concurred in part and dissented in part.

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JUSTICE BERKENKOTTER delivered the Opinion of the Court.

11
1 The cure doctrine provides that a public body may resolve a violation of
Colorado's Open Meetings Law (the "COML"), §§ 24-6-401 to -402, C.R.S. (2024),
by holding a subsequent meeting that complies with the COML and that does not
merely rubber-stamp the earlier decision. The doctrine was first recognized in
Colorado by the court of appeals in Colorado Off-Highway Vehicle Coalition v.
Colorado Board of Parks & Outdoor Recreation, 2012 COA 146, 292 P.3d 1132
("COHVC"). Petitioner Erin O'Connell asks us to hold that COHVC was wrongly
decided or, in the alternative, wrongly applied by the division of the court of
appeals below. O'Connell v. Woodland Park Sch. Dist., No. 22CA2054 (Dec. 7, 2023).

12 We granted certiorari to consider (1) whether the cure doctrine squares with
the plain meaning of the COML and longstanding Colorado precedent; (2) if it
does, whether the doctrine applies only to unintentional COML violations; and
(3) whether O'Connell is entitled to costs and reasonable attorney fees as a
prevailing party.

13 We affirm the division in part, holding that the cure doctrine does not
contravene the COML or longstanding precedent. We further conclude that the
COML focuses on the fact of a violation, not on whether an alleged violation was
intentional or unintentional. However, we reverse the division's holding
regarding attorney fees and conclude that O'Connell is a prevailing party because

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she successfully proved the original COML violation by the Woodland Park
School District Board of Education (the "School Board"), which the Board did not
cure until after O'Connell filed suit. Accordingly, she is entitled to an award of
costs and reasonable attorney fees pursuant to section 24-6-402(9)(b), C.R.S. (2024).
We therefore reverse that part of the division's opinion and remand the case with
instructions that the matter be returned to the district court to determine and
award O'Connell her costs and reasonable attorney fees.

## I. Facts and Procedural History

14
In November 2021, four new members were elected to the School Board.
These four-David Rusterholtz, David Illingworth II, Suzanne Patterson, and
Gary Brovetto -joined Chris Austin, the other member of the five-member School
Board. At the newly constituted School Board's first regular meeting on
December 8, Rusterholtz, Illingworth, and Austin were elected School Board
president, vice president, and secretary, respectively.

15
All the new directors had campaigned on the issue of school choice, and one
of their priorities was to make a school known as Merit Academy a charter school
of the Woodland Park School District (the "School District"). A year earlier, Merit
Academy had applied to become chartered in the School District, but its
application was unanimously denied by the previous board due to concerns
surrounding transportation, food service expense, and financial viability. Instead,

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Merit Academy opened as a contract school. It continued, however, to pursue
admission into the School District as a charter school.

16 At a special board meeting on December 15, the School Board directed the
School District's superintendent, Dr. Mathew Neal, to find a way to streamline
Merit Academy's admission into the School District as a charter school. Neal and
the School District's counsel, Brad Miller, reasoned that because Merit Academy
had recently applied to become chartered and was already operating as a contract
school, it would be redundant to begin the application process anew. They
proposed that the School District and Merit Academy execute a Memorandum of
Understanding ("MOU"), the purpose of which was to allow Merit Academy to
skip the application process and move directly to negotiating a potential charter
school contract with the School District.

17
Rusterholtz, Neal, and Miller met before the next board meeting to set the
meeting agenda. Miller had several topics he wished to discuss with the School
Board, including the proposed MOU, which he suggested discussing under an
agenda item broadly titled "BOARD HOUSEKEEPING." The proposed agenda
did not mention Merit Academy or the MOU. Only Miller, Neal, Rusterholtz, and
Illingworth saw the MOU before the next board meeting, held on January 26, even
though they intended to present and discuss the MOU to the School Board at the
meeting.

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18 At the beginning of the meeting, Austin indicated that he was "not
comfortable approving the agenda" because he did not understand what the
"BOARD HOUSEKEEPING" agenda item meant, and he believed that the public
would not either. Miller responded that, "from a purely legal perspective, ... it's
not an absolute necessity to provide granularity to the public" or "to tell the public
in advance about every single thing that's being issued." Austin continued to
express his concerns about the lack of notice and transparency, asking whether the
agenda item was left ambiguous "so that we don't have a houseful of people who
have opinions" about chartering Merit Academy.

19 Rusterholtz commented that he was "concerned about Mr. Austin's
concern" and that the "only reason that it [was] on the agenda as housekeeping . . .
[was] because of advice of counsel." Ultimately, the School Board approved the
agenda in a 4-1 vote, with Austin casting the sole no vote. Miller subsequently
introduced the MOU during the discussion of the "BOARD HOUSEKEEPING"
agenda item. He and Neal then explained the purpose of the MOU, and after
making an amendment to the original draft, the School Board approved the MOU
in a 5-0 vote.

110 When Rusterholtz opened a School Board work session the next day, he
apologized for the January 26 agenda's lack of transparency regarding the agenda
item titled "BOARD HOUSEKEEPING." He explained that he had received calls

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from multiple members of the community expressing frustration with how the
agenda item was framed, and he admitted that he could have been more
transparent about what that agenda item entailed.

111 The agenda for the next regular school board meeting, held on February 9,
listed "Re-Approval of MOU with Merit Academy" as an action item. At the
meeting, Neal explained that even though this was discussed and approved in a
previous meeting, the MOU was being "reapproved ... for the sake of full
transparency." The School Board received public comment during the meeting,
including from O'Connell, but it did not read the MOU into the record or engage
in lengthy discussion regarding the document. The School Board voted
unanimously to approve the MOU again.

112 On March 30, O'Connell filed a verified complaint against the School Board,
along with an emergency motion for a preliminary injunction, alleging that its
members had violated the COML. She asserted that the School Board's January 26
agenda failed to provide proper notice regarding the discussion of the MOU with
Merit Academy as required under section 24-6-402(2)(c). She further claimed that
the notice provided by the School Board's February 9 agenda was inadequate
under the COML and that, because the School Board did not engage in
deliberations, the School Board's vote at that meeting merely rubber-stamped its
invalid January 26 decision.

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113 On April 13, two weeks after O'Connell filed suit, the School Board held
another meeting. The agenda for this meeting indicated that there would be a
"Discussion and Reconsideration of Re-Approval of MOU with Merit Academy"
by the School Board. This time, the School Board discussed the MOU for
approximately one hour, and each School Board member made a statement
regarding the MOU. The four new members voted in favor of the MOU; Austin
cast the sole no vote.

114 Several weeks later, the district court held a hearing on O'Connell's motion
for preliminary injunction. All five School Board members, Neal, and O'Connell
testified. The School Board argued that even if the January 26 discussion of the
MOU with Merit Academy violated the COML, the subsequent two meetings
cured the violation.

115 In its written order granting the injunction, the court found that the "clear
priority of the majority of the [School] Board was to charter Merit" and that the
January 26 "'BOARD HOUSEKEEPING' [a]genda item was a conscious decision
to hide a controversial issue regarding Merit, the MOU[,] and intent to charter."
The district court further found that an "ordinary member of the community could
not have understood or known what 'BOARD HOUSEKEEPING' . . . meant."

116 The court rejected the School Board's argument that the February 9 or
April 13 meetings cured the January 26 COML violation, instead concluding that

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the School Board merely rubber-stamped the January 26 decision at the two
subsequent meetings. The district court issued an injunction against the School
Board, ordering it to "comply with the [C]OML by clearly, honestly[,] and
forthrightly listing all future [a]genda items regarding Merit Academy. Perhaps
something as simple as 'Merit Academy Charter School Application."

117 In June, O'Connell filed a motion for contempt against the School Board,
alleging that the agenda for its May 4 meeting failed to comply with the court's
injunction. Following a hearing on the contempt motion, the court concluded that
the School Board did not violate the COML or, by extension, the preliminary
injunction at the subsequent meeting. After the parties filed cross-motions for
summary judgment, the court granted the School Board's motion. The district
court partially reversed course in that ruling, concluding that the School Board
cured the January 26 violation at its April 13 meeting. Applying COHVC, the court
specifically found that the School Board's decision at the April 13 meeting did not
merely rubber-stamp its earlier decision. Further, the district court held that
O'Connell was "not the prevailing party" and thus denied her request for costs
and reasonable attorney fees pursuant to section 24-6-402(9)(b).

118 O'Connell appealed the district court's entry of summary judgment,
asserting several bases for her appeal. First, she invited the division to conclude
that the court of appeals erred in adopting the cure doctrine in COHVC because

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the doctrine contravenes the plain language of the COML. It does this, she
claimed, by allowing public bodies to make decisions in secret and then benefit
from a backdated effective date by later holding a compliant meeting.
Additionally, O'Connell contended that the doctrine upends longstanding
Colorado precedent regarding the interpretation of the COML.

119 O'Connell further asserted that even if COHVC was decided correctly, it was
distinguishable and thus inapplicable to her case. In her view, COHVC stood for
the proposition that a public body could only cure a prior violation if it proved
there was (1) an unintentional violation of the COML, (2) prompt admission of the
violation, (3) a change in course prior to the filing of a lawsuit, and (4) the
occurrence of a subsequent compliant meeting. Here, according to O'Connell, the
School Board's violation was intentional.

T20 Next, O'Connell contended that even if COHVC controlled, the School
Board did not cure its prior violation. Finally, O'Connell argued that because she
proved that the School Board violated the COML, the district court erred in
declining to award her costs and reasonable attorney fees under
section 24-6-402(9)(b).

T21 The division was not convinced. In its view, the reasoning in COHVC was
persuasive because "the purpose of the [C]OML is to require open
decision-making, not to permanently condemn a decision made in violation of the

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statute." O'Connell, 1 18 (quoting COHVC, 1 31, 292 P.3d at 1137). The division
was also unmoved by O'Connell's contention that the cure doctrine would
improperly incentivize public bodies to make decisions in secret if decisions made
in violation of the COML could later be backdated by a compliant vote. Id. at 1 20.
It reasoned that, "[i]f anything, it would be more cumbersome to try and flout the
statute's requirements since any action would eventually have to be ratified at a
subsequent complying meeting, and those members might have to explain why
they decided to make their decision outside of the public purview." Id.

122 Additionally, the division endorsed the rationale in COHVC that without
the ability to give retroactive effect to prior invalid actions, the work of public
bodies would be stymied, and this "may do more disservice to the public good
than the violation itself." Id. at | 21 (quoting Alaska Cmty. Colls.' Fed'n of Tchrs.,
Loc. No. 2404 v. Univ. of Alaska, 677 P.2d 886, 891 (Alaska 1984)). The division
further determined that COHVC did not upend longstanding precedent. Id. at
[ 22. In its view, neither of the cases relied on by O'Connell precluded the
conclusion that a prior invalid action can be cured. Id.

123 The division was also unpersuaded by O'Connell's argument that the cure
doctrine as adopted in COHVC only applies to unintentional violations of the
COML. Id. at 126. The distinction between intentional and unintentional
violations, the division emphasized, "never factored into the [COHVC] division's

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analysis on whether the entity had cured its prior violations." Id. Additionally, it
noted that, in granting summary judgment, the district court did not find that the
School Board had intentionally violated the COML. Id.

124 Turning to O'Connell's argument that the subsequent meetings did not cure
the January 26 violation, the division explained that a subsequent compliant
meeting is one that conforms to the COML, including the requirement that the
meeting is "held only after full and timely notice to the public." Id. at [ 28 (quoting
§ 24-6-402(2)(c)(I)). Applying this standard, the division determined that "an
ordinary member of the community would have understood what the [April 13]
agenda item labeled 'Discussion and Reconsideration of Re-Approval of MOU
with Merit Academy' would cover." Id. at [ 30.

125 The division reached this conclusion after highlighting the extended
controversy and press coverage surrounding Merit Academy's admission into the
School District and the fact that the April 13 meeting was the third time the MOU
had been presented to the public. Id. Furthermore, it observed, O'Connell gave
public comment at both the February 9 and April 13 meetings. Id. She had also
testified at the preliminary injunction hearing that Merit Academy was the
"primary focus" of the School Board at the meetings. Id. Therefore, the division
concluded that there was sufficient evidence in the record to show that an ordinary

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member of the public had full notice of what would be discussed at the April 13
meeting. Id.

126 The division then assessed whether the School Board merely
rubber-stamped the MOU at the April 13 meeting. Like the district court, it
determined that because every School Board member made a statement on the
record during the April 13 meeting and one of the School Board members even
changed his vote, the School Board did not merely rubber-stamp the MOU at the
April 13 meeting. Id. at 131. Because the School Board held a subsequent
compliant meeting on April 13 and did not merely rubber-stamp the MOU at that
meeting, the division concluded that the School Board cured its January 26
violation. Id. at 1 32.

127 Finally, the division concluded that O'Connell was not a prevailing party
because no outstanding violations of the COML remained after the April 13
meeting effectively cured the January 26 violation. Id. at 1 35. Thus, the division
affirmed the district court's denial of her request for costs and reasonable attorney
fees. Id.

128 O'Connell then petitioned this court for certiorari review, which we
granted.1

1 Specifically, we granted certiorari to review the following issues:

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## II. Analysis

129 We begin by explaining the standard of review and our rules of statutory
interpretation. Next, we examine the COML and relevant case law in greater detail
before turning to the three issues presented here. Then, applying the COML and
relevant case law, we affirm the judgment of the court of appeals in part and
reverse in part. Specifically, we affirm the division's determinations that (1) the
cure doctrine does not contravene the COML or longstanding precedent; and
(2) the doctrine does not distinguish between intentional and unintentional
violations of the COML. However, because we conclude that the School Board did
not cure its January 26 COML violation until April 13, after O'Connell filed suit,

1\. Whether the judicially created cure doctrine allowing public
bodies to "cure" prior violations of Colorado's Open Meetings
Law (COML) contravenes COML's plain meaning and
longstanding precedent.

2\. Whether expanding the judicially created cure doctrine to apply to
intentional violations of statutory notice requirements for the
purpose of addressing a controversial issue outside the public eye
contravenes the plain language and intent behind COML and this
court's mandates regarding its interpretation.

3\. Whether the court of appeals erred by expanding the judicially
created cure doctrine to permit formal actions under
section 24-6-402(8), C.R.S. 2023, to be reinstated retroactive to the
date of the original violation and thereby preclude an award of
prevailing-party attorney fees under section 24-6-402(9), C.R.S.
2023, to the plaintiff who successfully proved the original
violation.

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we reverse the division's holding regarding costs and reasonable attorney fees.
O'Connell was the prevailing party with respect to the violation that precipitated
her lawsuit; thus, we remand the case with instructions that the matter be returned
to the district court to determine and award O'Connell costs and reasonable
attorney fees pursuant to section 24-6-402(9)(b).

### A. Standard of Review and Rules of Statutory Interpretation

130 Because our interpretation of the COML involves a question of law, we
review the division's decision de novo. Bd. of Cnty. Comm'rs v. Costilla Cnty.
Conservancy Dist., 88 P.3d 1188, 1192 (Colo. 2004). As we interpret the COML, "we
are guided by well-established principles of statutory construction." Id. We
"construe the statute as a whole to give 'consistent, harmonious[,] and sensible
effect to all its parts."" Id. (quoting People v. Luther, 58 P.3d 1013, 1015 (Colo. 2002)).
We must also interpret the statute in a manner that gives effect to the General
Assembly's intent. Id. at 1193. To do this, "we begin with the language of the
statute, giving words their plain and ordinary meaning." Id. We must respect the
legislature's choice of language, meaning we may not add or subtract words from
the statute. UMB Bank, N.A. v. Landmark Towers Ass'n, 2017 CO 107, 1 22, 408 P.3d
836, 840. If the statute is unambiguous, we look no further. Luther, 58 P.3d at 1015.

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### B. Colorado's Open Meetings Law

131 The COML provides that all meetings of "three or more members of any
local public body ... at which any public business is discussed or at which any
formal action may be taken" are "public meetings open to the public at all times."
§ 24-6-402(2)(b). Additionally, the COML mandates:

Any meetings at which the adoption of any proposed policy, position,
resolution, rule, regulation, or formal action occurs or at which a
majority or quorum of the body is in attendance, or is expected to be
in attendance, shall be held only after full and timely notice to the
public .... The posting shall include specific agenda information
where possible.

§ 24-6-402(2)(c)(I) (emphasis added).

132 When the General Assembly adopted the COML, it declared it "to be a
matter of statewide concern and the policy of this state that the formation of public
policy is public business and may not be conducted in secret." § 24-6-401, C.R.S.
(2024). The legislature "clearly intended to afford the public access to a broad
range of meetings at which public business is considered." Benson v. McCormick,
578 P.2d 651, 652 (Colo. 1978). This court has, accordingly, "interpreted [the
COML] broadly to further the legislative intent that citizens be given 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. State, 673 P.2d 345, 347 (Colo. 1983); see also Bagby v. Sch. Dist. No. 1, 528 P.2d
1299, 1302 (Colo. 1974) (holding that because the COML is "designed [p]recisely

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to prevent the abuse of 'secret or "star chamber" sessions of public bodies,"" the
COML "should be interpreted most favorably for the beneficiary, the public"
(quoting Dobrovolny v. Reinhardt, 173 N.W.2d 837, 840 (Iowa 1970))).

133 Importantly, the COML provides that "[n]o resolution, rule, regulation,
ordinance, or formal action of a state or local public body shall be valid unless
taken or made at a meeting that meets" these requirements. § 24-6-402(8). The
COML, however, does not address whether a public body may cure a violation
after a noncompliant meeting. As the court of appeals reasoned in COHVC,
"existing Colorado case law interpreting the [C]OML implies that a state or local
public body may [cure a violation], provided the subsequent meeting is not a mere
'rubber stamping' of an earlier decision." 11 25, 28, 292 P.3d at 1136.

134 In reaching this conclusion, the COHVC division primarily relied on two
cases: Bagby, 528 P.2d at 1300, and Van Alstyne v. Hous. Auth., 985 P.2d 97, 98 (Colo.
App. 1999). In Bagby, this court held that a school board violated the COML when
it made decisions regarding pending business in private and then adopted the
decisions at public meetings afterward. 528 P.2d at 1300. We concluded that the
COML's prohibition against making final policy decisions and taking formal
action outside of "a public meeting is not meant to permit 'rubber stamping'
previously decided issues." Id. at 1302. In Van Alstyne, which involved COML
violations by a housing authority, a division of the court of appeals interpreted

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Bagby to mandate that "a public body's meeting is not in compliance with the
[COML] if it is held merely to 'rubber stamp' previously decided issues." 985 P.2d
at 101.

135 Considering the rationale in these two cases, the COHVC division
determined that a public body could cure a COML violation because

if, under Van Alstyne and Bagby, a state or local public body could
violate the [C]OML by merely "rubber stamping" an earlier decision
made in violation of the [C]OML, then it follows that a state or local
public body would not violate the [C]OML by holding a subsequent
complying meeting that is not a mere "rubber stamping" of an earlier
decision.

1 28, 292 P.3d at 1136. The COHVC division also considered out-of-state cases
interpreting similar open meetings laws as permitting public bodies to cure
violations. Id. at 1 30, 292 P.3d at 1137 (collecting cases). Last, the division
emphasized that "the purpose of the [C]OML supports our interpretation that a
state or local public body may 'cure' a prior [C]OML violation" because its
purpose "is to require open decision-making, not to permanently condemn a
decision made in violation of the statute." Id. at 1 31, 292 P.3d at 1137. For these
reasons, the COHVC division concluded that a public body may cure a prior
COML violation with a subsequent complying meeting, provided it does not
merely rubber-stamp its earlier decision. Id. at 1 33, 292 P.3d at 1137-38.

136 With this background in mind, we turn to O'Connell's arguments.

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## C. Public Bodies Can Cure COML Violations

137 O'Connell contends that COHVC was wrongly decided. Specifically, she
argues that the cure doctrine runs afoul of the COML and existing precedent
because it eliminates the remedy of invalidation and the mandatory award of costs
and reasonable attorney fees under section 24-6-402(8) and (9)(b). She asserts that
the plain language of the COML prescribes remedies that are narrowly tailored to
ensure transparency while also allowing public bodies to move forward after
COML violations. In her view, section 24-6-402(8) invalidates formal actions taken
in violation of the COML but invites public entities to re-take the action in a
compliant meeting, meaning that such action is only effective prospectively, once it
is re-taken at a compliant meeting.

138 O'Connell also contends that longstanding case law reaffirms the "simple
proposition" that invalidation under section 24-6-402(8) renders the original action
null and void but does not bar the subsequent taking of the same action in a
compliant meeting. See, e.g., Van Alstyne, 985 P.2d at 99 (concluding that the
defendant complied with the plaintiff's request to reconsider a formal action in
full compliance with the COML); Darien v. Town of Marble, 159 P.3d 761, 766 (Colo.
App. 2006) (requiring the town to give public notice in accordance with the COML
if it intended to vote on the project again), rev'd on other grounds, 181 P.3d 1148,
1151 (Colo. 2008).

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139 According to O'Connell, allowing the School Board to retroactively cure its
January 26 violation effectively allowed the School Board to "erase" the original
violation, thereby undermining the specific remedies prescribed in
section 24-6-402(8) and (9)(b). We disagree.

140 First, as we have emphasized, there is no language in the COML that
suggests a violation can never be cured. Rather, it simply states no "formal
action ... shall be valid unless taken or made at a meeting that meets the
requirements of subsection (2) of this section." § 24-6-402(8). To "cure" a COML
violation does not mean that there was no prior violation or that the subsequent
action erases a prior violation. Instead, to "cure" a violation means that, under the
COML, an entity can conduct a complying meeting after a violation and confirm
the prior action, retroactive to the first meeting.

141 Requiring a governmental body to start all over (i.e., not allowing the
"cure") would be inconsistent with the proper functioning of the government and,
consequently, the COML. This is because the focus of the COML "is on the process
of governmental decision making, not on the substance of the decisions
themselves." COHVC, 1 31, 292 P.3d at 1137. As we explained in Cole, the "intent
of the [COML] is that citizens be given the opportunity to obtain information about
and to participate in the legislative decision-making process." 673 P.2d at 349. It
follows, then, that when a public body provides an opportunity for citizens to

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participate in the decision-making process in a subsequent compliant meeting,
that opportunity-so long as it is not a mere rubber stamp-cures the prior
violation. This aligns with the purpose of the COML.

142 The cure doctrine also squares with this court's conception of the "full and
timely notice" requirement in section 24-6-402(2)(c)(I), the COML provision at the
heart of the dispute in this case. This part of the statute, we have explained,
establishes a flexible standard pursuant to which courts consider both the public's
interest in open access to a public body's meetings and the body's interest in
reasonably conducting its business. Town of Marble, 181 P.3d at 1152.

143 We agree with the division and those jurisdictions that have concluded that
an overly rigid "vacation of decisions made in nonconformity with the [COML]
may do more disservice to the public good than the violation itself." Alaska Cmty.
Colls.' Fed'n of Tchrs., 677 P.2d at 891; see also Valley Realty & Dev., Inc. v. Town of
Hartford, 685 A.2d 292, 295 (Vt. 1996) ("Without an effective way of curing a
violation, necessary public action may become gridlocked."). That is, it is
important to provide "a mechanism through which public bodies can promptly
cure prior invalid actions [to enable] them to carry out their duties without undue
hindrance." O'Connell, [ 21. Because the work of public bodies would be stymied
without the ability to give retroactive effect to prior invalid actions, we read the

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COML to guarantee public access to public bodies' decision-making processes
while simultaneously allowing necessary public action to progress.

144 We also note that the General Assembly has amended the COML since the
holding in COHVC and has not changed the language in section 24-6-402(8), which
this court interprets "as evidence of [the General Assembly's] acquiescence to the
judicial construction of the terms." City of Colo. Springs v. Powell, 156 P.3d 461, 467
(Colo. 2007); see also Tompkins v. DeLeon, 595 P.2d 242, 243-44 (Colo. 1979) ("When
the legislature reenacts or amends a statute and does not change a section
previously interpreted by settled judicial construction, it is presumed that it agrees
with judicial construction of the statute."). In sum, the cure doctrine does not
violate the plain language or purpose of the COML.

145 We are similarly unpersuaded that longstanding Colorado precedent
prohibits the cure of prior nonconforming acts. To be sure, the cases cited by
O'Connell affirm that formal actions taken at a noncompliant meeting are null and
void. See, e.g., Wisdom Works Counseling Servs., P.C. v. Colo. Dep't. of Corr.,
2015 COA 118, 1 25, 360 P.3d 262, 267 ("[T]he [C]OML voids any of the listed
actions taken at a meeting that does not comply with the requirements of
section 24-6-402(2)."); Colo. Med. Bd. v. Boland, 2018 COA 39, 1 24, 488 P.3d 5, 8
("[A] formal action taken at a meeting that does not comport with the [COML] is
'null and void."") (quoting Van Alstyne, 985 P.2d at 100), aff'd on other grounds,

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2019 CO 94, 451 P.3d 848; Rogers v. Bd. of Trs., 859 P.2d 284, 289 (Colo. App. 1993)
(same). But none of these cases speak to whether a violation can be cured in a
subsequent compliant meeting.

146 O'Connell's reliance on Van Alstyne, which holds that noncompliant actions
"cease to exist or to have any effect, and may not be rekindled by simple reference
back to them," is similarly misplaced. 985 P.2d at 101 (emphasis added). A
subsequent meeting that complies with the COML is significantly different than a
"simple reference back to" a prior noncompliant action. Thus, Van Alstyne is
consistent with the conclusion that noncompliant actions may be cured once the
public body holds a subsequent complying meeting. COHVC, 1 33, 292 P.3d at
1137-38; see also Bjornsen v. Bd. of Cnty. Comm'rs, 2019 COA 59, 1 32, 487 P.3d 1015,
1022 ("But under [COHVC], retroactive notice does not cure an improperly
convened [public meeting].").

147 For these reasons, we affirm that part of the division's opinion holding that
the cure doctrine does not contravene the COML's plain meaning or longstanding
Colorado precedent.

## D. The Cure Doctrine Does Not Distinguish Between Intentional and Unintentional Violations

148
O'Connell next contends that even if COHVC were correctly decided, the
cure doctrine was never intended to apply to public bodies that use it to
intentionally thwart the COML's transparency goals. She argues that the division

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expanded the doctrine to include intentional violations. It should only be
available, she posits, in limited situations like those in COHVC, where the public
body promptly admitted the violation and voluntarily came into compliance with
the COML prior to the filing of a lawsuit. Permitting boards that act in bad faith
to circumvent the requirements of the COML would, she asserts, undermine its
purpose.

149
☐
O'Connell's argument rests on shaky ground. First, the district court did
not find that the School Board intentionally violated the COML. See O'Connell,
T 26. Moreover, she misconstrues COHVC. The question of whether the public
body in that case committed an intentional or unintentional violation did not
factor into the COHVC division's analysis of whether the entity had cured its prior
violations. See IT 33-34, 292 P.3d at 1137-38.

150 More problematically, O'Connell's proposed approach is at odds with the
purpose of the COML, which, as we have emphasized, is to ensure that public
business is conducted in full view of the public. By creating incurable categories
of violations, public bodies would have little incentive to admit and correct
mistakes.

151 For all these reasons, we conclude that the COML is concerned with the fact
of the violation, not with whether an alleged violation was intentional or
unintentional.

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## E. A Prevailing Party Is One Who Proves a COML Violation

152 O'Connell next contends that the division erred because it used the cure
doctrine to eliminate the School Board's original violation. This, she argues,
effectively precluded her from recovering prevailing-party costs and reasonable
attorney fees despite the district court and the division both concluding that the
School Board violated the COML at the January 26 meeting. The division's
interpretation, she asserts, contravenes the "General Assembly's establishment of
mandatory consequences for a violation of the statute." Van Alstyne, 985 P.2d at
100. She proved that the School Board violated the COML and thus contends that
she is entitled to costs and reasonable attorney fees.

153 Section 24-6-402(9)(b) mandates that "[i]n any action in which the court finds
a violation" of the COML, "the court shall award the citizen prevailing in such
action costs and reasonable attorney fees." (Emphasis added.) That is, the statute
explicitly requires that the court find a violation of the COML. See, e.g., Zubeck v.
El Paso Cnty. Ret. Plan, 961 P.2d 597, 601 (Colo. App. 1998) (awarding attorney fees
upon finding that the governmental entity violated any provision of the COML);
Anzalone v. Bd. of Trs., 2024 COA 18, 11 48-49, 549 P.3d 255, 265 (same).

154 The School Board counters that O'Connell was not a prevailing party
because the School Board conceded the violation in its cross-motion for summary
judgment. We are not persuaded.

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155 As we already noted, curing a COML violation does not mean that there
was no prior violation or that the subsequent action erases a prior violation.
Instead, to "cure" a violation means that, under the COML, an entity can conduct
a complying meeting after a violation and confirm the prior action, retroactive to
the first meeting.

156 Additionally, the logical consequence of the School Board's position would
take the teeth out of the COML. By conceding a violation, a public body could
effectively prevent the award of costs and reasonable attorney fees to prevailing
plaintiffs even though they are a mandatory consequence for a violation of the
statute.2 To interpret section 24-6-402(9)(b) in this manner would contravene the
General Assembly's unequivocal mandate. This is something we may not do.

157 The School Board also expresses concern that allowing plaintiffs like
O'Connell to recover costs and reasonable attorney fees will incentivize them to
misuse the COML. These plaintiffs, in the School Board's telling, would force
public bodies into litigation not to compel compliance with the COML, but simply
to recover costs and reasonable attorney fees. To the extent the School Board is
concerned about misuse of the COML, its concern is a policy matter that is best left
to the General Assembly.

2 Of course, a prompt concession may reduce the award to a prevailing party of
costs and reasonable attorney fees.

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158 Moreover, while an award of attorney fees to a prevailing party is a
mandatory consequence for a violation of the statute, the COML requires district
courts to assess the specific circumstances of each case in deciding who is a
prevailing party. Only those plaintiffs who, "through the exercise of their public
spirit and private resources, caused a public body to comply with the [COML]" are
prevailing parties entitled to their costs and attorney fees. Van Alstyne, 985 P.2d at
100 (emphasis added). And, as the COML explicitly provides, the award of
attorney fees to a prevailing party is not without limit: the court shall award "costs
and reasonable attorney fees." § 24-6-402(9)(b) (emphasis added).

159 Here, because the January 26 meeting violated the COML and this violation
was not cured until April 13, after O'Connell filed suit, O'Connell is the prevailing
party and is entitled to costs and reasonable attorney fees. We, accordingly,
remand the case with instructions that the matter be returned to the district court
to determine and award costs and reasonable attorney fees.

## III. Conclusion

160 We affirm the division's conclusions that the cure doctrine does not
contravene the COML or longstanding precedent or distinguish between
intentional and unintentional violations. However, we reverse the division's
decision regarding costs and reasonable attorney fees. Because O'Connell
successfully proved the original COML violation, which was not cured until after

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she filed suit, she is the prevailing party and, accordingly, is entitled to costs and
reasonable attorney fees as mandated by section 24-6-402(9)(b). Therefore, we
remand the case with instructions that the matter be returned to the district court
to determine and award O'Connell costs and reasonable attorney fees.

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CHIEF JUSTICE MÁRQUEZ, concurring in part and dissenting in part.

161 I agree with the majority that when a public body makes a decision at a
meeting that violates Colorado's Open Meetings Law (the "COML"), §§ 24-6-401
to -402, C.R.S. (2024), the public body may cure the violation by holding a properly
noticed meeting at which the body does not merely rubber-stamp that decision.
Maj. op. 141. I also agree that the Woodland Park School District Board of
Education (the "School Board") cured its violation in this case. Id. at [[ 29, 59.
162 However, having applied the cure doctrine to the conduct of the School
Board, the majority erroneously concludes that Petitioner Erin O'Connell is
entitled to an award of costs and reasonable attorney fees. Id. at 159. This
conclusion is logically inconsistent with the cure doctrine. Section 24-6-402(9)(b),
C.R.S. (2024), requires a court to "find[] a violation of" the COML to justify an
award of costs and reasonable attorney fees. But as a matter of logic, a court cannot
"find[] a violation" of the COML if the violation has been cured. A cure is a
complete remedy; it fully repairs the legal defect of the earlier act. We know this
because (as the majority correctly holds) a cure operates retroactively to validate
an otherwise invalid act. Maj. op. 11 40, 55. Critically, the legal validity of the
earlier act is possible only because the defect has been fully remedied. Simply put, the
violation no longer exists. Here, because the violation was cured (allowing the
School Board's initial decision to have legal effect), a court cannot "find[] a

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violation" under section 24-6-402(9)(b) to serve as a basis for an award of costs and
fees. The majority errs in holding otherwise. For this reason, and because I fear
that today's ruling will have adverse consequences beyond this case, I respectfully
dissent in part.

## I. The COML Focuses on Open and Transparent Processes

163 The Colorado General Assembly has declared that "the formation of public
policy is public business and may not be conducted in secret." § 24-6-401, C.R.S.
(2024). Importantly, the COML focuses on "the process of governmental decision
making, not on the substance of the decisions themselves." Colo. Off-Highway
Vehicle Coal. v. Colo. Bd. of Parks & Outdoor Recreation, 2012 COA 146, 1 31, 292 P.3d
1132, 1137 ("COHVC"); see also Cole v. State, 673 P.2d 345, 349 (Colo. 1983) ("The
intent of the [COML] is that citizens be given the opportunity to obtain
information about and to participate in the legislative decision-making process.").
Before a meeting at which a public body takes formal action, the COML requires,
for example, "full and timely notice to the public," including the posting of
"specific agenda information where possible." § 24-6-402(2)(c)(I).

164 The COML also makes clear that "[n]o ... formal action of a state or local
public body shall be valid unless taken or made at a meeting that meets the
requirements" of the statute. § 24-6-402(8). Put differently, a decision reached by
a public body without following required processes is legally ineffective.

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165 Under section 24-6-402(9)(b), any citizen may file suit "to enforce the
purposes of [section 24-6-402]." If the court "finds a violation" of section 24-6-402,
the court shall award the prevailing citizen costs and reasonable attorney fees.
§ 24-6-402(9)(b). These provisions make clear that the COML is not intended to
serve as a vehicle to challenge a public body's substantive decisions, but to ensure
that open and transparent processes are followed to arrive at those substantive
decisions. In general, open meetings laws exist to deter misconduct, encourage
government to be responsive to constituents, allow for public input, foster public
acceptance of governmental action, and promote accurate reporting of
governmental processes and decisions. See Alaska Cmty. Colls.' Fed'n of Tchrs., Loc.
No. 2404 v. Univ. of Alaska, 677 P.2d 886, 891 (Alaska 1984). The rights at stake are
the rights of the public, not individuals. Thus, when a public body deliberates
openly and transparently to arrive at a decision, the purpose of the COML has
been met. § 24-6-401.

## II. A Violation That Has Been Cured Is Fully Remedied and No Longer Exists

166 Colorado courts first recognized the cure doctrine in the COML context in
COHVC. The COHVC division held that a public body can cure a COML violation
by holding a compliant meeting that is not a mere "rubber stamping" of the earlier
violation. 1 33, 292 P.3d at 1137-38. The majority adopts this view. Maj. op. 1 41.
I fully agree. However, the majority holds that O'Connell is nonetheless entitled

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to an award of costs and reasonable attorney fees because she "successfully proved
the original COML violation." Id. at 11 3, 60. But how can a court logically "find[]
a violation" when that violation has been cured? The majority's decision defies
the logic of the cure doctrine.

167 Merriam-Webster defines "cure" as "a complete or permanent solution or
remedy." Cure, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/cure [https://perma.cc/KAR3-TZH6]. Similarly,
Black's Law Dictionary defines "cure" as "[t]o remove one or more legal defects to
correct one or more legal errors." Cure, Black's Law Dictionary (12th ed. 2024).
Under Colorado law, an act that cures a violation protects the curing party from
further liability. See, e.g., § 8-43-304(4), C.R.S. (2024) ("If the violator cures the
violation within such twenty-day period, .. . no penalty shall be assessed."); Foster
Lumber Co. v. Weston Constructors, Inc., 521 P.2d 1294, 1298 (Colo. App. 1974)
("From the creditor's point of view, it is as though a default had not occurred since
any harm resulting from late payment has been cured.").

168 In the context of the COML, when a public body cures a violation by
subsequently holding a compliant meeting, the process violation is fully remedied.
As a result, the cure doctrine treats the public body's earlier decision as though it
were COML-compliant in the first place, and the earlier decision is rendered valid
and effective as of the date it was made. Importantly, the initial decision is

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rendered valid only because the earlier violation has been fully remedied and no
longer exists. But if there is no violation, then there is no basis for an award of costs
and fees.

169 The majority acknowledges that the cure doctrine applies retroactively,
allowing a public body to conduct a compliant meeting after a violation that
validates the earlier decision. Maj. op. 11 40, 55. This is critical because it allows
the original decision to have full legal effect. See id. I wholeheartedly agree. Yet,
having determined that the violation was fully cured for purposes of giving legal
effect to the School Board's original decision, the majority insists that the violation
still exists for purposes of awarding costs and fees. Id. at 11 59-60. The majority
cannot have it both ways. If the cure doctrine reaches back in time to cure the
original violation of the COML, as the majority holds, then no violation remains
to justify the award of costs and fees.

170 Notably, the majority's interpretation strays from the text of
section 24-6-402(9)(b): that provision requires a court to "find[] a violation" of the
COML before awarding a prevailing plaintiff costs and fees. It does not mandate
an award of costs and fees to a plaintiff who "successfully prove[s] the original
COML violation." Maj. op. 1 60. To the extent the majority relies on Van Alstyne v.
Housing Authority, 985 P.2d 97 (Colo. App. 1999), to conclude that a plaintiff is
entitled to an award of costs and fees when she causes a public body to comply

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with the COML, its reliance is misplaced. The division in Van Alstyne did not
address the cure doctrine; the issue was not raised in that case. See id. Indeed, the
Housing Authority in that case argued that its subsequent compliance with the
COML rendered its initial violation moot. Id. at 99. Thus, the division's analysis
in Van Alstyne does not support the majority's application of it here.

171 The majority's decision today loses sight of the purpose and logic of the cure
doctrine. When a public body cures a defective decision-making process, there no
longer exists any violation of the COML. Indeed, that truth is the only basis for
giving legal effect to the public body's earlier decision.

172 Under the majority's reasoning, a "cure" remedies a violation for purposes
of establishing the validity of the School Board's action. Again, I agree. But having
so concluded, the majority cannot logically also hold that the violation still exists
for purposes of awarding costs and fees under section 24-6-402(9)(b). The majority
attempts to escape its own internally inconsistent logic by redefining a "cure" to
mean retroactive confirmation of an earlier decision. Maj. op. 11 40, 55. This
reasoning obscures the distinction between the substance of the public body's
decision and the process followed to reach that decision. Retroactive
"confirmation" simply reaffirms the substance of the earlier decision. In contrast,
a cure (in this context) remedies the process followed to arrive at the decision.

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Only the latter can give legal validity to an earlier decision that was reached
through a defective process.

173 In this case, the School Board cured the COML violation on April 13, and
the district court did not issue its findings until April 29. Because the School Board
cured the violation, its decision-making process was fully remedied. As a result,
there was no violation for the court to "find" as part of its April 29 ruling. I would
therefore affirm the division's holding that O'Connell is not entitled to an award
of costs and reasonable attorney fees.

## III. Policy Considerations

174 To the extent the majority is concerned that a logically consistent application
of the cure doctrine would "contravene the General Assembly's unequivocal
mandate," id. at [56, its concern is misplaced. Applying the cure doctrine to
preclude a fee award where a violation has been cured fully aligns with the
purpose of the COML and the plain language of section 24-6-402(9)(b). Such an
approach still (1) entitles plaintiffs to an award of costs and fees when public
bodies fail to cure violations of the COML; (2) achieves the core purpose of the
COML; and (3) discourages misuse of the fees provision of the COML, particularly
with respect to public bodies with few budgetary resources.

175 First, a court can find a violation under section 24-6-402(9)(b) when a public
body fails to cure the defect in its decision-making process. The cure doctrine

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validates a defective process only when a public body fully complies with the
strictures of the COML. If a public body fails to hold a compliant meeting or
otherwise chooses not to cure its violation, a plaintiff is entitled to an award of
costs and fees under section 24-6-402(9)(b). The majority's fear of contravening an
unequivocal mandate to award costs and fees is unfounded.

176 Second, public bodies have natural incentives to comply with the COML for
the simple reason that a violation will render invalid any decisions the body has
made. The idea that precluding fee awards in cases where a public body has cured
a COML violation will somehow incentivize public bodies to simply disregard the
COML makes little sense. The purpose of the law is to foster transparent formation
of public policy and offer citizens the opportunity to meaningfully participate in
the decision-making process-not to generate attorney fees. Permitting public
bodies to cure violations without invariably bearing costs and fees achieves that
purpose. After today's decision, however, public bodies can expect to be
penalized regardless of whether they cure a COML violation.

177 Third, the majority's interpretation encourages citizens to initiate litigation
even in circumstances that may not warrant it and forces public bodies to shoulder
the costs, even when the violation has been fully remedied. For example, if a
citizen discovers even a relatively inconsequential violation before the public body
has an opportunity to cure it, the citizen need only file a lawsuit and prove the fact

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of the violation in order to recover attorney fees - even if the public body promptly
admits and later cures the violation.

178 To the extent the majority construes section 24-6-402(9)(b) to enable such a
scenario, it loses sight of the COML's primary goal: to ensure transparency in the
formation of public policy. See § 24-6-401. I fear that today's decision will
incentivize shrewd citizens (and their attorneys) to take advantage of even
inadvertent violations of the COML simply because proving the violation
guarantees that their court costs and fees will be covered. Moreover, public bodies
in Colorado's under-resourced communities now stand to suffer even more from
the personnel challenges and funding shortfalls that can lead to inadvertent
violations of the COML in the first place. Cf. Brief for Colorado Association of
School Boards as Amicus Curiae Supporting Respondents, at 12 (describing the
challenges Colorado's rural school districts may experience in attempting to
comply with the COML).

179 In sum, as currently formulated, the General Assembly clearly requires a
court to "find[] a violation" to award costs and fees to a plaintiff. § 24-6-402(9)(b)
(emphasis added). As a matter of logic, once a public body cures a COML
violation, the violation has been fully remedied; there no longer exists a violation
to serve as a basis for costs and fees.

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## IV. Conclusion

180 Under the cure doctrine, a public body's violation of the decision-making
process is fully remedied, as if there had been no violation. This cure is what allows
the public body's earlier (otherwise invalid) decision to have retroactive legal
effect. Once the cure has remedied the violation, there is no basis for an award of
costs and fees. Because the district court logically cannot "find[] a violation" in a
decision-making process that the School Board has properly cured,
§ 24-6-402(9)(b), there is no basis for an award of costs and fees in this case.
Accordingly, I respectfully dissent in part.