A component of the City’s expenses has been legal fees. The mayor blames this on lawsuits by citizens who were denied documents by the City in response to requests under the Colorado Open Records Act (CORA). The mayor claims that the lawsuits cost the City $175,000, and blames the people who filed them. While that $175,000 is small compared to 2.5 million dollars, those legal costs were easily and entirely avoidable had the City not made bad decisions in each case. Here are three examples:
- The City needlessly defended a lawsuit by Walt Harder. He had challenged his removal by the City from the NRCDC board due to the City’s failure to give proper notice before voting on his removal. When the question was raised before Mr. Harder filed his lawsuit, the City had the option of simply re-voting on Mr. Harder’s removal after giving proper notice. Did the City Attorney advise the City of this option? If not, why not? And if he did, why did the mayor authorize the City Attorney to fight in court, rather than simply correct its procedural problem by re-voting on the removal? That decision cost the City $25,000.
- The City arbitrarily withheld an email requested by Mr. Bomer through in a CORA request. The email, now available from the District Court Clerk, contains nothing justifying refusal of Mr. Bomer’s request. (See Mayor’s email.) The City could have provided a copy of that email to Mr. Bomer. Instead, the City denied the request giving Mr. Bomer a right under Colorado law to go to court. Mr. Bomer knew the email existed, but did not have a copy of the document. But Mr. Miller did have a copy of the email, having received it anonymously. Since neither of Mr. Miller nor Mr. Bomer knew whether the email was legally in their possession or could be used without incurring liability, Mr. Bomer did not accept a copy of the email from Mr. Miller, and instead sought a copy through legal channels by filing a CORA request. Nonetheless, the mayor apparently thought it was worth $50,000 to make the point that Mr. Bomer could have obtained a copy of the email from Mr. Miller instead of suing the City. Under such circumstances, would anyone have spent $50,000 of one’s own money rather than turn over a copy of an already available email? But the mayor spent taxpayers’ money and cost the City $50,000.
- The City arbitrarily withheld a letter by the City Attorney to the City’s auditor that Mr. Miller sought through a CORA request. The mayor says the letter was justifiably withheld because it recited the estimated settlement cost of the Dominic Water lawsuit. The City Attorney could have simply redacted the settlement number from a copy of that letter by blacking it out and turning the redacted copy over to Mr. Miller, but Mr. Kahn had a policy of denying CORA requests for documents in their entirety rather than simply redacting sensitive information from them, to “save the city” $15 or $25 dollars he would have charged to redact the letter. The audit letter is also available from the District Court Clerk. (See Kahn letter to auditor.) The decision to withhold that letter cost the City $64,000.
It was the City that made public the documents requested by Mr. Bomer and Mr. Miller. The City Attorney filed them with the District Court, which in turn made them public on March 6, 2017. As a result, the need for the Court to order for the City to produce the documents went away. Only the issue of whether the plaintiffs were entitled to their attorneys’ fees from the City remained. Those total twenty-some thousand dollars. Since that time, however, the City continued to pay Mr. Kahn $40,000 to continue work on the lawsuit and paid Mr. Lee Phillips another $9,000 to take depositions scheduled by Mr. Kahn.
It is notable that the email requested by Mr. Bomer was one from the former city finance director to the mayor trying to propose a workable solution to remain in compliance with the City’s established purchasing policy. The practice the mayor was employing remains in place today, and is why the City is dealing with over $432,000 paid to its City Attorney for just over 17 months work.