COML Cure Doctrine Confirmed; Prevailing-Party Fees When Violation Is Proven and Cure Occurs Only After Suit

Introduction

This Colorado Supreme Court opinion addresses how a public body may remedy (“cure”) a violation of Colorado’s Open Meetings Law (COML), §§ 24-6-401 to -402, C.R.S. (2024), and—critically—when a citizen-enforcer is entitled to mandatory attorney fees under § 24-6-402(9)(b).

Petitioner Erin O’Connell sued the Woodland Park School District Board of Education (the “School Board”) after it approved a Memorandum of Understanding (“MOU”) related to Merit Academy under an ambiguously labeled agenda item (“BOARD HOUSEKEEPING”), allegedly failing the COML’s notice requirements. The case posed three interrelated questions:

• Whether Colorado recognizes a “cure doctrine” under the COML at all;
• Whether any cure doctrine is limited to unintentional violations; and
• Whether a plaintiff can be a “prevailing” party entitled to fees even if the violation is later cured.

Summary of the Opinion

The court affirmed the court of appeals on the first two issues and reversed on attorney fees.

• Cure doctrine upheld: A public body may cure a COML violation by holding a subsequent meeting that complies with the COML and does not merely “rubber-stamp” the earlier decision.
• No intent limitation: The COML “focuses on the fact of a violation,” not whether it was “intentional or unintentional.”
• Fees reinstated: O’Connell is a “prevailing party” because she proved an original COML violation that was not cured until after she filed suit; therefore, she is entitled to costs and reasonable attorney fees under § 24-6-402(9)(b).

The case was remanded for the district court to determine and award O’Connell her costs and reasonable attorney fees.

Analysis

1) Precedents Cited

A. The origin and shape of the cure doctrine

The court treats Colorado Off-Highway Vehicle Coalition v. Colorado Board of Parks & Outdoor Recreation, 2012 COA 146, 292 P.3d 1132 (“COHVC”), as the foundational Colorado decision recognizing cure. COHVC reasoned that because Colorado law condemns post hoc “rubber stamping,” it implies that a truly open reconsideration can fix (cure) the defect.

COHVC’s logic is tied closely to two earlier Colorado cases:

• Bagby v. Sch. Dist. No. 1, 528 P.2d 1299 (Colo. 1974): The Supreme Court held a board violated the COML when it made decisions in private and then adopted them publicly afterward, explaining the COML is not meant to permit “rubber stamping” of previously decided issues. This created the doctrinal baseline: public meetings must be real deliberations, not ceremonial confirmations.
• Van Alstyne v. Hous. Auth., 985 P.2d 97 (Colo. App. 1999): Building on Bagby, the court of appeals reiterated that a meeting is not COML-compliant if it merely rubber-stamps previously decided issues. The majority in O’Connell reads Van Alstyne as consistent with cure because Van Alstyne rejected “simple reference back” to invalid action, not a genuinely compliant, non-rubber-stamp reconsideration.

B. Purpose-driven COML interpretation

The opinion anchors its approach in longstanding COML purpose statements and “broad” interpretive principles:

• Benson v. McCormick, 578 P.2d 651 (Colo. 1978): cited for the proposition that the General Assembly intended broad public access to meetings.
• Cole v. State, 673 P.2d 345 (Colo. 1983): relied upon for the principle that COML is construed broadly to enable citizens to become fully informed and meaningfully participate.
• Dobrovolny v. Reinhardt, 173 N.W.2d 837 (Iowa 1970): quoted through Bagby for the anti–“star chamber” rationale.

C. Notice flexibility and balancing

On the “full and timely notice” requirement, the majority cites Town of Marble, 181 P.3d 1148 (Colo. 2008), emphasizing that § 24-6-402(2)(c)(I) embodies a flexible standard balancing open access with the practical needs of government operations.

Relatedly, the opinion references Darien v. Town of Marble, 159 P.3d 761 (Colo. App. 2006), rev’d on other grounds, 181 P.3d 1148, to illustrate that invalid action can be revisited with proper notice—supporting the compatibility of cure with existing practice.

D. Out-of-state persuasive authority supporting cure

To justify cure as a practical necessity, the opinion relies on the same policy concern embraced by the court of appeals:

• Alaska Cmty. Colls.' Fed'n of Tchrs., Loc. No. 2404 v. Univ. of Alaska, 677 P.2d 886 (Alaska 1984): quoted for the idea that rigid vacation of decisions can “do more disservice to the public good than the violation itself.”
• Valley Realty & Dev., Inc. v. Town of Hartford, 685 A.2d 292 (Vt. 1996): used to support the concern that without cure, public action could become “gridlocked.”

E. “Invalid means invalid,” but does not answer cure

The court distinguishes precedent emphasizing that noncompliant actions are void—because those cases do not decide whether a later compliant meeting can cure:

• Wisdom Works Counseling Servs., P.C. v. Colo. Dep't. of Corr., 2015 COA 118
• Colo. Med. Bd. v. Boland, 2018 COA 39, aff’d on other grounds, 2019 CO 94
• Rogers v. Bd. of Trs., 859 P.2d 284 (Colo. App. 1993)
• Bjornsen v. Bd. of Cnty. Comm'rs, 2019 COA 59

F. Fee-shifting examples

For the mandatory fee award once a violation is found, the opinion cites:

• Zubeck v. El Paso Cnty. Ret. Plan, 961 P.2d 597 (Colo. App. 1998)
• Anzalone v. Bd. of Trs., 2024 COA 18

G. Statutory interpretation framework

Although not COML-specific, the court grounds its method in: Bd. of Cnty. Comm'rs v. Costilla Cnty. Conservancy Dist., People v. Luther, and UMB Bank, N.A. v. Landmark Towers Ass'n. It also invokes legislative acquiescence principles via City of Colo. Springs v. Powell and Tompkins v. DeLeon.

2) Legal Reasoning

A. Cure doctrine fits the COML’s text and purpose

The court’s principal textual move is straightforward: § 24-6-402(8) declares invalid any “formal action” not taken in a compliant meeting, but the statute is silent on whether a later compliant meeting can cure an earlier noncompliant one. With no express statutory bar, the court reads cure as consistent with the COML’s goal—open process—so long as the later meeting is genuine and not a rubber stamp.

The court expressly conceptualizes cure as retroactive validation: after a compliant, non-rubber-stamp meeting, the body may “confirm the prior action, retroactive to the first meeting.” That retroactivity is justified as necessary for the practical functioning of government and consistent with COML’s focus on process over substance.

B. No “intent” carve-out

The court rejects an intent-based limitation for two reasons:

• Doctrinal: COHVC did not make intent part of the cure analysis; the key question is whether the later meeting is compliant and not a rubber stamp.
• Policy/structure: Creating “incurable categories” could reduce incentives to admit and correct violations; COML aims to get the process into the open, not to litigate subjective intent.

The court’s framing is important: COML “is concerned with the fact of the violation,” i.e., whether the process requirements were met—not why they were not met.

C. Prevailing-party fees: cure does not erase the violation for fee purposes

The opinion’s sharpest doctrinal development concerns fees. The court treats § 24-6-402(9)(b) as a mandatory fee-shifting statute: once a court “finds a violation,” it “shall award” the “citizen prevailing” costs and reasonable attorney fees.

The court rejects the notion that cure eliminates the predicate “violation” for purposes of fees. It emphasizes:

• Curing “does not mean there was no prior violation” and does not “erase” the violation; it fixes the governmental process going forward (and may validate action), but the original noncompliance remains a proven statutory breach.
• Allowing a public body to avoid fees by conceding a violation (or by curing after suit begins) would “take the teeth out of the COML” and undercut the legislature’s mandatory consequence.
• The “prevailing party” inquiry is circumstance-specific, and the court relies on the principle that prevailing plaintiffs are those who, “through the exercise of their public spirit and private resources,” caused COML compliance (Van Alstyne v. Hous. Auth.).

Applying that framework, the timing was decisive: the January 26 meeting violated COML, and the School Board did not cure until April 13—after O’Connell filed suit on March 30—making her the “prevailing party” on the violation that precipitated litigation.

D. The partial dissent: a competing logic of “cure”

Chief Justice Márquez agreed on the existence and application of cure but dissented on fees, arguing:

• A “cure” is a complete remedy; because cure retroactively validates the act, “the violation no longer exists,” so a court cannot “find[] a violation” under § 24-6-402(9)(b).
• Awarding fees notwithstanding cure risks incentivizing opportunistic litigation, especially burdensome for under-resourced public bodies.

The majority’s holding therefore sets up a meaningful doctrinal divide: whether “violation” in the fee statute refers to the historical breach (majority) or only to an uncured, legally operative defect at the time of judgment (dissent).

3) Impact

A. For public bodies: cure remains available, but “process repair” must be real

• Public bodies can still salvage governmental continuity by curing—i.e., holding a later meeting with compliant notice and non-rubber-stamp deliberation.
• But the “rubber stamp” bar retains teeth: mere re-votes without meaningful reconsideration remain vulnerable.
• The decision underscores that COML compliance is evaluated by objective process facts (notice, openness, deliberation), not intent narratives.

B. For citizen-enforcers and litigators: timing now drives fee exposure

• If cure happens only after suit is filed, the plaintiff who proves the original violation is positioned to recover fees as a prevailing party.
• This creates a strong incentive for public bodies to cure promptly—potentially before litigation is filed—and to document genuine reconsideration.
• Conversely, it may increase pre-suit demand practice (letters/requests to cure) and sharpen disputes about whether a later meeting was truly non-rubber-stamp.

C. Doctrinal clarification: “cure” and “fee liability” are decoupled

The majority effectively decouples cure’s effect on validity of governmental action from cure’s effect on fee liability: cure can validate action retroactively, yet fees may still be owed if a plaintiff proves an earlier violation that was cured only after suit. That is the opinion’s most consequential clarification.

Complex Concepts Simplified

“Cure doctrine”

A judicial rule that allows a public body to fix an open-meetings violation by later holding a meeting that fully complies with the COML and genuinely reconsiders the matter in public.

“Rubber stamping”

A later public meeting that only performs a formal vote on a decision already made in private, without meaningful deliberation or openness. Under Bagby v. Sch. Dist. No. 1 and Van Alstyne v. Hous. Auth., rubber stamping does not satisfy the COML.

“Full and timely notice” and “specific agenda information where possible”

COML requires advance posting that reasonably informs the public what will be discussed and acted upon. The statute contemplates specificity when feasible, but the court recognizes practical flexibility (Town of Marble).

“Formal action” and invalidity

Under § 24-6-402(8), a formal action taken at a noncompliant meeting is not valid. Cure allows the body to later take compliant action that can validate the earlier decision.

“Prevailing party” under § 24-6-402(9)(b)

A citizen who prevails in an action where the court finds a COML violation is entitled to mandatory costs and reasonable attorney fees. Here, the Supreme Court holds that proving the original violation suffices when the violation was not cured until after suit was filed.

Conclusion

O'Connell v. Woodland Park School District cements Colorado’s cure doctrine as consistent with the COML and clarifies that cure is available regardless of whether a violation was intentional. The opinion’s most significant new guidance concerns fee-shifting: a public body’s post-suit cure does not defeat prevailing-party status where the plaintiff proved the original COML violation and the cure occurred only after litigation commenced. The partial dissent flags the logical and policy tension this creates, ensuring that future COML litigation will focus not only on whether a cure was adequate, but also on when it occurred and whether fees remain mandatory despite retroactive validation.