Category: Legal Costs

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.

City Memo Refutes Ex-Mayor’s Statement that Kahn was Cleared of Overbilling the City

On March 7, ex-mayor Jim LiVecchi published a column asserting: “The city recently completed a thorough analysis of every invoice Mr. Kahn submitted. After cross-referencing 95-plus matters and more than 20,000 time entries, the city concluded there was never any double billing or overbilling.”

This column prompted the City Finance Department to issue an Executive Memo to Council effectively stating that no such analysis had been conducted by the City and that such overbilling could not be determined from examination of the invoices alone.

In his tenure as City Attorney, Ben Kahn opened 107 billing matters for the City, and sent the City 478 invoices on those matters totaling $543,700.82 (see chart). These invoices contained, probably, in excess of 4,000 time entries.  An example of one of the invoices is invoice #2  for matter 272, where Kahn charged the City $9,767.23 to investigate and discourage public statements of two council members.

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.

Does the Mayor know how much he is paying the City Attorney?

In his campaign speeches, the mayor continuously states:  That, “this year, our attorney has only cost us $36,000.”  (YouTube Video of Candidate Forum, 10/18/2017, @ 2:03:27).  But the bills paid log on the City’s website shows the following payments to the City Attorney, “The Conundrum Group” for 2017, January through August:

January                $46,079.89

February              $12,414.01

April                     $27,856.86

May                      $22,174.15

June                      $41,469.93

July                       $40,653.73

YTD Total           $190,648.57*

The bills paid lag the bills sent by about one month.

* The bills paid YTD, as posted on the city’s website, are only through August, 2017.  The Mountain Mail of October 19, 2017, reports that the total paid Kahn’s firm, The Conundrum Group, according to a spreadsheet provided by the City, is $249,971.55, year to date. That is exactly the total of the bills we reported dated 12/25/2016 through 8/10/2017.  It does not include the bill dated 9/5/2017, or any received by the City after that.  It includes no charges for services performed since July.  The Mountain Mail article also states an amount paid by the City to special counsel Lee Phillips, which is $34,785.08. Perhaps that is what the mayor was referring to in his campaign speeches.

Mayor authorizes over-payment of $18,906.28 to City Attorney

In the controversy over Mayor Jim LiVecchi’s exclusive control of the City Attorney, the Mayor’s approval of legal bills, merely from a list and without reading the bills themselves, has been called into question. (See posts below.) As expected, this practice not only omits oversight of the City Attorney, but invites costly errors. A review of public records shows that this has indeed been the result.

In August 2017, the City Attorney submitted his bills that included charges through July.  Individual bills (not publicly available) as well as a bill summary dated 8/11/2017, were sent by the City Attorney to the mayor who, according to his practice, files them only on his personal laptop computer, and not on the City’s server for others who might understand them to see. It is not publicly known whether the mayor ever looked at the detailed individual bills, but he did approve and initial individual charges on the bill summary and authorized payment to the City Attorney of $18,906.28.

Then in September 2017 another bill summary dated 9/5/2017 for items totaling $31,238.46 was received by the mayor along with three detailed bills dated 9/1/2017 totaling $12,328.18. The 22 other matters on the summary seemed to lack detailed bills. These undocumented other matters happened to total $18,906.28, the exact amount approved by the mayor for payment to the City Attorney in the previous month. A look at the 9/5/17 bill summary does show that these other items were dated one month earlier than the three documented items. Comparing the two summaries shows that they were in fact duplicates of the charges already approved for payment by the mayor in the previous month. Nonetheless, the mayor approved them again, authorizing payment to the City Attorney of another $31,238.46 when only due $12,328.18 was due, which would be an over-payment of $18,906.28.

And another point: Why has the City Attorney not yet billed for work done since July?