Category: Governance

News coverage of CORA lawsuit improves

Two local news sources have recently published stories on the CORA lawsuit on which the City of Salida spent one-fifth of the $600,000 in legal fees it expended in the previous two years.  The Ark Valley Voice put out on Sunday a column on the victory and $20,000 settlement that Tom Bomer received from the City in the Miller-Bomer CORA lawsuit that was filed in 2016 when the City refused to produce two documents, an email and a letter. The AVV article reveals the details of the situation faced by Tom Bomer and Jim Miller as their requests were fought by then City Attorney, Ben Kahn.

To a lesser degree, but encouraging, The Mountain Mail, last Friday and again today, questioned the manner in which the $20,000 settlement was reached and approved by the City. In doing so, the City implicitly acknowledged that Tom Bomer won his claim in a decision of the District Court, citing as its source a March 8th letter-to-the-editor that Tom Bomer wrote to that paper. That decision had been posted in full by One Salida on this site on January 16th. This broke TMM’s two-year silence on the use of executive sessions and the lack of transparency by the City authorizing and approving legal fees.

The procedure used by the City was carefully structured, according to the present Interim City Attorney, Geoff Wilson, a municipal law expert with decades of experience. See his memo to the mayor and city administrator.  That the settlement was a good deal for the City has not been questioned. The Plaintiffs accepted about 30% of the legal fees they expended. It was costing the City more to fight than to settle. The AVV article discusses the numbers.

Press coverage of Tom Bomer’s CORA victory over the City is inadequate.

In fact, the decision of the District Court handed down on January 2, 2018, in Tom Bomer’s favor received no coverage at all in the local press. This left the public vulnerable to misleading reports. One Salida posted on this website a link to the full text of Tom Bomer’s favorable decision on January 15th.  The key language of that District Court decision is as follows:

“Plaintiffs’ Motion for Summary Judgment is GRANTED as to the claim the City violated CORA when they failed to properly respond to Mr. Bomer’s request and when they failed to provide the legal grounds for their denial of disclosure.”

“Plaintiffs’ Motion for Summary Judgment is GRANTED as to the claim the document responsive to the Bomer request was not protected by the attorney-client privilege.“

“[City] Defendants have filed a Cross Motion for Summary Judgment in which they argue the claims asserted by Plaintiffs are moot because the two documents in question have already been disclosed to the Plaintiffs.  … Defendants fail to meet their burden.  Plaintiffs’ Complaint … seeks fees. … Defendants’ Cross Motion for Summary Judgment is DENIED.”

By the court, this 2nd day of January, 2018, 
/s/ Amanda Hunter, District Court Magistrate

Court decides CORA case against City

The District Court has ruled that the City of Salida was wrong in refusing to provide to Tom Bomer a copy of emails between the former mayor and former finance director in response to Mr. Bomer’s request under the Colorado Open Records Act. Mr. Bomer will be entitled to recover attorney fees from the city in an amount to be determined. The ruling was made by the court in a written decision on January 2, 2018. In the ruling the court rejected a motion by the City that argued that the requests were frivolous and sought dismissal of the case as moot because the emails were already available to the plaintiffs. The court also ruled that a request my Jim Miller for a copy of an audit letter from the former city attorney could not be decided without trial. Since the audit letter has already been made public, the trial would only go forward if there remain unpaid attorney fees for Mr. Miller to recover.

Councilmember’s Guest Opinion in TMM reveals political enemies list at City Hall

After being prevented by Mayor LiVecchi from giving her Elected Official’s Report at the October 4, 2017, City Council Meeting (see previous post), Councilwoman Eileen Rogers was afforded the opportunity on October 11th to finish her statement in a Guest Column in The Mountain Mail.  In her guest column, she revealed that, in reading the detailed bills of City Attorney, Ben Kahn, she learned he was directed by the mayor to investigate Salida citizens who express opinions with which the mayor disagreed.

It seems that in one matter called “No. 00272-City of Salida: Elected Official Public Statements” the city attorney’s bills disclosed he was paid $9,767.23 over six months to investigate Councilmembers Rogers and Brown-Kovacic, where he “scoured The Mountain Mail and the internet searching for anything suspicious. Our spoken and written words were closely examined, looking for ‘false public statements and admissions against city interests, public misinformation campaign and fake news promulgation by public officials.’”

Those bills also revealed that “Mayor LiVecchi also directed Mr. Kahn to scrutinize a large number of Salida citizens who have spoken during council meetings, written letters to the editor in The Mountain Mail, published comments on the internet and/or filed requests for copies of official documents using a CORA, the Colorado Open Records Act requests application.”

Email disclosed by City in CORA suit raises questions

On Mayor Jim LiVecchi’s reelection campaign website, he blames $149,000, or about 1/3rd of the City of Salida’s record city attorney bills, on “Frivolous Costly Lawsuits”. The mayor’s website also posts depositions from one of those lawsuits, District Court Case No. 2016CV030028. One deposition, on page 30, refers to Exhibit 2, a document placed in the public court record of by the Salida city attorney. The document was identified in an affidavit by City Clerk Betty Schwitzer as “an authentic, complete and accurate copy of the one and only document responsive to the Bomer request that is an ‘email … [f]rom Mayor LiVecchi to City Finance Director Jan Schmidt, dated April 9th, 2016 at 5:26 PM.’” That email, as obtained from the public records of the District Court, raises a number of questions regarding the decision making process of the City; such questions as:

Why didn’t the City provide this email in response to the CORA request, resulting in no lawsuit costs at all?

What is in this document that gives the City a legal right to withhold it from the public?

What other reason might the City have to conceal the information in these emails from the public?

Did the City not want the public to know that the mayor was not following the City’s established process for approving city attorney bills for payment, but was initiating an opaque process for payments to the city attorney that continues to this day?

Did the City not want the public to see the mayor’s discourteous personal criticism of a city department head, a practice that has been blamed for the decimation of the city administration?

Did the City not want the public to see that the city attorney, from the first month of his employment, had opened an adversarial privileged matter, #173, against the city administrator?

Was the tone and content of the mayor’s email simply too embarrassing?

Should other representations and characterizations on the mayor’s website be checked out?

TMM LTE Exchange Highlights Mayor’s Performance at Mediation

An exchange of Letters to the Editor between Lorene Farney and Kari Mills in The Mountain Mail has highlighted an incident of last December where the Salida Mayor, Jim LiVecchi, walked out of a mediation session in the NRCDC/City/TABOR lawsuit that was pending in District Court.  The incident, reported in the Mountain Mail, helps settle the issue raised in the LTEs.  Follow the links for information on the controversy.  We covered the background of the lawsuit elsewhere.

Council Work Session Taken Over by City Attorney

A Salida City Council work session was held on Aug. 14, at which council members had planned to discuss their views on procedures for directing the City Attorney and for reviewing his work and bills.  The session was preempted when the Mayor invited the City Attorney, Ben Kahn, to lead the discussion.  For nearly two hours, as Kahn explained the protocol he envisioned for the City’s supervision of him, all dialog among council members was limited. While Kahn did invite individual council members to confer with him to present their comments, that was to be in private, out of the view of the public.  See YouTube Video and transcript.

During his presentation, Kahn advised Council that, in his view, the Mayor had complete authority to direct the City Attorney and that Council had no power to overrule him.  He said the Mayor had full advance knowledge of, and approved of, everything Kahn did.

The task remains for Council to exercise responsibility in directing and controlling the City Attorney and in overseeing the quality and cost of his work.  His compensation is on track to reach ½ million dollars by October.

Salida City Council to discuss City Attorney Protocol

At a Salida City Council Work Session scheduled for Monday, August 14, Council is expected to discuss two subjects regarding procedures for controlling and overseeing the work of the City Attorney: 1) Who directs the City Attorney and authorizes the work he does? Council, by a vote? The Mayor? The Mayor Pro-Tem? And if the Mayor or Mayor Pro-Tem, is Council entitled to be informed in advance and given an opportunity to weigh in?  And 2) How are the detailed bills of the City Attorney to be reviewed and approved for payment?  Again, by the City Council? By the Mayor? By the Mayor Pro-Tem? Or by Staff, or at least after a preliminary review and report by Staff?

This will be the fourth item on the Agenda of the meeting scheduled to start at 6 pm.  Be informed and let council members know you’re interested in how they address this issue.  Attend the meeting in Council Chambers at East 1st and C Streets in Salida.

Council Pay Raise Defeated 4-3

How much is a Salida Council Member worth?  It depends whom you ask.  Presently, the salary of each is $150/month. That’s little compensation for those who, in addition to attending regular meetings, review hundreds of documents, participate on numerous boards and committees, research each topic, and communicate with their Wards.  

As a result, council has been dominated by retirees.  It has been recognized by all six council members that increasing pay is needed to attract younger, more energetic, and forward looking candidates. Those candidates tend to be employed or small business owners for whom it would cost money as well as time to serve. 

But faced with recent challenges to incumbents from just such younger candidates, a bare majority on council responded on cue from their designated citizen participant at the 8/1 Council meeting to simultaneously experience a “change of heart”, and voted down the pay raise.