Public barred from marijuana cultivation tour

DENVER – State legislators asserted the right Wednesday to exclude the public from some of their meetings, a move that an open-government advocate said was a violation of Colorado’s sunshine laws.

The House and Senate agriculture committees took a field trip Wednesday morning to a marijuana cultivation warehouse operated by a company called iVita. The trip was noticed on the Legislature’s daily agenda as a meeting of the two committees. But when a Herald reporter attempted to enter, a lobbyist for iVita told him it was closed to the public.

Legislators have several marijuana-related bills to decide before their session ends next Wednesday, and iVita – like many companies in Colorado’s booming marijuana industry – has hired lobbyists to influence legislation. Wednesday’s tour was closed to everyone but legislators, their staff and the company’s employees and lobbyists.

The chairman of the House Agriculture Committee, Rep. Randy Fischer, D-Fort Collins, said iVita’s owners asked for the meeting to be closed because of proprietary information about their marijuana business. Legislators got an opinion from their lawyers that it was OK to exclude the public “based on the finding that we weren’t conducting any official business,” Fischer said.

But Steve Zansberg, president of the Colorado Freedom of Information Coalition, disagreed.

“The exclusion of the public from this fact-finding mission of a legislative committee … was a violation of the open-meetings law. The public cannot be excluded from a meeting that is noticed as a public meeting,” said Zansberg, a lawyer specializing in First Amendment issues.

In general, the law requires that a meeting must be open if two or more legislators are discussing public business.

A lobbyist for iVita said neither he nor anyone at the company would comment.

Sen. Gail Schwartz, D-Snowmass Village, is chairwoman of the Senate Agriculture Committee. She said the tour was educational, and iVita can be proud of its operation, but she could understand why the company wanted privacy.

“Having a young industry like this – security, and handling of their funds – probably for good reason, they’re being cautious,” Schwartz said.

Before they took the tour, Fischer and Schwartz sought advice form the Legislature’s lawyers.

Dan Cartin, director of the Office of Legislative Legal Services, wrote to the agriculture committees that the private tour would not violate the open-meetings law.

“No formal action can or will be taken by the joint committee, either during the tour or at a meeting convened to act formally on a decision made in the facility during the tour,” Cartin wrote in an email to the committee’s staff.

Members of the public could sue, but they would be unlikely to win, he wrote.

“Of course, that does not ensure against public or media criticism of a closed tour, even though, again, that seems unlikely here,” Cartin wrote.

The House and Senate agriculture committees meet jointly most Wednesday mornings for educational briefings, but they don’t vote jointly on bills. Cartin’s email raised doubts about whether legislators have to consider other joint meetings as open to the public.

“In fact, it is unclear whether the Joint Committee has any authority with regard to taking formal action or policy-making,” Cartin said.

But that exception would swallow the rule, Zansberg said.

“The public is entitled to know what information is being gathered and promulgated to these legislators in their policy-making function. That’s the whole reason there is a public-meeting law,” Zansberg said.

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Public barred from marijuana cultivation tour