Update below: It only took a day for the Department of Revenue to blink. The DOR had planned for this morning's first meeting of its new medical marijuana advisory working group to be closed to the public. But thanks to complaints from two notable MMJ advocates, Cannabis Therapy Institute's Laura Kriho and Colorado Coalition for Patients and Caregivers' Robert Chase, it's been postponed, with the public invited to the next one. Here's how it happened.
Last Friday, before Westword confirmed the names of all 25 working group members, CTI's Kriho got wind of a meeting for this week. To get more information, she e-mailed DOR's Matt Cook, the person overseeing rule-writing for HB 1284, the measure recently signed into law by Governor Bill Ritter that's designed to regulate the state's medical marijuana industry.
In response to Kriho's question about committee members, as well as where and when the meeting would be taking place, Cook responded, "I am awaiting a release before I can ID the people on it... it is NOT a public meeting... if it was we would not be able to get anything done."
DOR spokesman Mark Couch confirmed that in the post linked above. However, he emphasized to Westword's Joel Warner that the public wouldn't be excluded from the process. "This is a group made up of representatives of various stakeholders and is not going to be making a final decision," Couch said. "It will be making recommendations to the state licensing authority, and those recommendations will be made public. Ultimately, anything that will go forward will have a full public hearing and everyone will get a chance to speak."
That didn't fly with Kriho, who complained on Monday in this space about the supposed "emergency" nature of the MMJ working group meeting. That's the same term slapped on a November health department meeting at which the board voted to strike language pertaining to marijuana caregivers following a decision in the Stacy Clendenin case. The Clendenin ruling stated that caregivers needed to do more for patients than simply provide them with MMJ.
Two days after the health department action, MMJ attorneys filed a petition in Denver District Court to throw out the decision, using the argument that the "emergency" designation had prevented the public from fully participating in the process -- and the following week, Judge Larry Naves agreed, voiding the decision.
Kriho was also concerned about the public being muscled out of the DOR process. "This new rule-making authority is going to have to realize there's a lot of public interest in what's going on, and they're going to have to accommodate people and let them give public comment," she said on Monday. The next day, she contacted Westword to argue that by closing the working group get-together to the public, the revenue department was violating Colorado's Open Meetings Law, also known as the Sunshine Law, which requires meetings of "any public body" to be open to the public. She also noted that "state public body is defined in the law as:
"Any board, committee, commission, or other advisory, policy-making, rule-making, decision-making, or formally constituted body of any state agency, state authority, governing board of a state institution of higher education including the regents of the university of Colorado, a nonprofit corporation incorporated pursuant to section 23-5-121 (2), C.R.S., or the general assembly, and any public or private entity to which the state, or an official thereof, has delegated a governmental decision-making function but does not include persons on the administrative staff of the state public body."
Seems cut and dried to the layman -- but when DOR spokesman Couch was contacted shortly thereafter, he said the operative part of the passage above is the phrase "has delegated a governmental decision-making function."
In Couch's words, "the Sunshine Law requires that a decision-making authority be making a decision at the meeting, and that's not what this is. The decision-making person in rule-making for the department is the executive director" -- Roxy Huber -- "or her delegate. This is a meeting with parties to hear sides and try to put a framework around what the rules should address and deal with -- and the rules will be published on our website for folks to submit their comments on everything for a formal public hearing at some future point."
He added, "There's no attempt to keep the committee's work secret."
Given that the working group includes such prominent MMJ attorneys as Rob Corry and Brian Vicente, it's likely this explanation is legally sound. But was it politically wise? That's a matter of debate given what happened next.
Yesterday afternoon, CCPC's Chase wrote a letter of complaint about the closed status of the meeting, copying a large number of government officials. In it, he maintained that the revenue department was violating the Sunshine Law, and referenced the health department's November fiasco:
"The recent history of regulation of medical cannabis by the Colorado Department of Public Health and Environment (which was found by the Denver District Court to have violated the Sunshine Law in 2007 and again last November with respect to its rulemaking with respect to medical cannabis) makes it imperative that meetings of the Rulemaking Working Group be open to the public if the integrity of the rulemaking is to have any credibility within the medical cannabis community," he wrote. "The attempt to close Wednesday's meeting to the public belies Mr. Cook's effulgences on the subject of how open the DOR seeks to be in regulating medical cannabis and it is a very poor start for the process."
Faced with such objections, Cook, who's been praised for his outreach to the MMJ community by the likes of attorney Jessica Corry, pulled the plug. In a 5 p.m. e-mail to the working group, he wrote, "In light of the concerns expressed about this meeting I will reschedule it at a later date."
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As for the nature of those concerns, Couch subsequently confirmed that they involved the meeting's closed status. "The Executive Director has directed that these work-group meetings be treated as open meetings," he wrote via e-mail. "As a result, Matt Cook canceled tomorrow's meeting and will reschedule it when we have time to do the notice."
In other words, the fear of not getting anything done at the meetings was trumped by the appearance of doing things out of public view.
At this writing, a new meeting hasn't been scheduled. We'll let you know when it is -- because for this one, anyone can attend.
Update, 9:31 p.m.: Read about new developments in this post: "Medical Marijuana Activists Want Revenue Dept. to Re-open MMJ Committee to Public Application."