Face the State

Marshall and Ritter share information with California attorneys but not Colorado voters
Face The State Staff Report

DENVER – State Rep. Rosemary Marshall, D-Denver, is in the process of designing a change to state law that would make it more difficult for the public to obtain documents from elected officials. The development comes as Marshall faces a lawsuit over her refusal to disclose documents requested from Gov. Bill Ritter under Colorado's open records law.

The lawsuit, Marshall v. Jones, is set to be decided by a Denver District Court within the next week. In the case, Marshall has objected to the release of a document requested by Face the State that contains excerpts of legislation she drafted that, if introduced and passed, would have granted state employees collective bargaining rights.

Marshall contends that the excerpts Jones, managing editor of Face The State, seeks fall under an exception in the Colorado Open Records Act (CORA) that shields draft legislation from disclosure to the public. That exception was included to preserve the privileged nature of communications between legislators and attorneys in the capitol who assist in the drafting of bills.

The case was initiated by Ritter, who invoked an option in the open-records law that allows custodians of contested documents to petition the court for a ruling on the need for disclosure. In court filings, Ritter has sided with Marshall's legal position. Calls to Ritter's office for comment went unanswered by press time.

Jones contends that since Marshall willingly shared the bill with an outside entity, the labor union, she must accept the consequences of that third party’s disclosure of the information to the Governor. “Why is Rep. Marshall drafting legislation that would change the law to favor secrecy?” Jones asked. “Her arguments in court say the law is on her side now. If that’s the case, it’s hard to understand why she would be preparing to change the statute in her favor.”

If the court sides with Jones in rejecting Marshall's arguments, the new legislation she is proposing would provide the type of protection she claims she already has. Specifically, the bill would make sweeping changes to current law, redefining legislative “work product,” while also restricting public access to documents relating to legislation and legislative activity.

While the legislation, if passed, would not affect the outcome of the lawsuit but it would shield government officials from being compelled to release documents like the one currently sought by Jones. A former high level staffer who served in the administration of former Republican Gov. Bill Owens, spoke to Face The State on condition of anonymity and said it was “ironic and delicious” Marshall seeks to change the law to prevent disclosure of information that has been shared with third parties. “Our advice to all employees was to never hit ‘send’ on an e-mail if you weren’t okay with the contents being published on the cover of the Denver Post.”

Republicans first learned of Marshall's attempt to alter state law in her favor after she approached Senate Minority Leader Andy McElhany, R-Colo. Springs, seeking his sponsorship of her bill in the Senate.

McElhany questioned Marshall's willingness to share the document in question with attorneys in California, but not with Colorado residents seeking to learn more about the issue at hand. Currently, the document Jones is requesting is in the possession of Gov. Bill Ritter, who has not released it at the request of Marshall. The document is politically sensitive in that it pertains to a legislative option for a stronger role for unions in state government. After it was revealed publicly such a plan was in the works, Ritter opted to institute a collective-bargaining structure through executive order.

“If she sends a document to someone in California who then turns around and sends it in a letter to the Governor, [Ritter] should cough it up,” McElhany said.

Ritter withheld the document’s addendum on Marshall’s request, made in an Aug. 28 letter to Trey Rogers, the governor’s legal counsel. In that letter, Marshall speculates that the source of the open-records request was “Andy McElhany and or the republican party.”

While Marshall’s collective bargaining bill was never introduced in the 2007 General Assembly, excerpts came to be in Ritter’s possession as part of a memorandum sent to him by Steven Ury, an attorney for the Service Employees International Union. Jones’ attorney, Scott Gessler, said in oral arguments Jan. 7 that Jones does not seek Marshall’s draft legislation itself, but merely the entire, unredacted Ury memorandum. That distinction is important in that the CORA makes a distinction between “documents” and the “contents” of those documents. There would be no current basis in the law for the disclosure of the document itself, obtained directly from Marshall.

The first four pages of that memorandum were produced in Ritter’s response to an August open-records request made in the course of this web site’s reporting activities.

Ritter issued an executive order dated Nov. 2, 2007 which granted state employees the right to affiliate with labor unions for the purposes of negotiating issues “of mutual interest,” including pay and benefits. Taxpayers advocates and business groups have loudly opposed the move, which prompted a rare front-page editorial condemning Ritter from the Denver Post.

Editor's Note: Face The State is unable to contact Rep. Marshall regarding either her collective-bargaining or open-records bills due to the pending litigation involving our staff. We endeavor to interview all involved parties for FTS Special Reports, when ethically appropriate.