In yet another apparent violation of the state's open meetings law, the Colorado Springs City Council approved a lawsuit settlement worth nearly half a million dollars without a public vote.
The lawsuit alleged thousands of Clean Air Act violations at the Martin Drake Power Plant.
WildEarth Guardians, the New Mexico-based nonprofit that filed the suit last year, hailed the settlement as a victor.
But it's a source of anger, confusion and surprise for some council members.
Councilman Bill Murray is chief among them. He said the council approved the settlement during an executive session April 9.
Murray said he was the sole voice opposing the vote but would have supported it had it been done publicly.
"There was no range of offers here. It was a precise settlement," Murray said. "I argued very precisely that if we are going to talk specific numbers, we need to come out of executive session and vote in public."
He said City Attorney Wynetta Massey told the council the matter didn't need to be discussed publicly, and the ordeal left him "pissed."
City Code requires the council to approve lawsuit settlements of more than $100,000. Massey said through a city spokeswoman that the authorization can come in an executive session.
But the city is governed by the Colorado Open Meetings Law, which bars the council from taking a position behind closed doors, said Steven Zansberg, a Denver First Amendment attorney who has represented The Gazette.
The council can advise Massey how much the city is willing to pay, Zansberg said. But, "it cannot decide to enter into a settlement agreement, and accept all of the terms proposed in that agreement, in an executive session."
Those terms were filed in U.S. District Court on Tuesday morning without any public vote by the council.
"If they are going to settle a lawsuit, use taxpayer money to settle a lawsuit, isn't that something the public is entitled to hear about in a public session?" asked Jeff Roberts, executive director of the Colorado Freedom of Information Coalition. "It's interesting how these keep coming up ... (Governments) just don't feel like they need to involve the public in these things."
Some council members expressed confusion about how the agreement was finalized.
Councilman Andy Pico said the council still can approve the settlement in the coming days or weeks. But Councilman Tom Strand said it's too late for that. The settlement is final.
Strand and Council President Richard Skorman said they believed the council was approving a maximum dollar amount, not a final figure.
"I just thought we were advising in negotiations, but once it was accepted, we would come out and accept it openly," Skorman said. "I just don't know what the process is on this."
Strand agreed but denied any legal violation. The lapse can be attributed to a miscommunication between the council and Massey, he said.
"We need to now have an open discussion with the city attorney and her staff about when we're in executive session, what are we agreeing to or authorizing with those so called 'head nods' or 'giving direction' situations," Strand said Tuesday.
But that's exactly what Massey did with the council in February, after a similar apparent violation was reported.
In that session, she told council members they could give her direction in closed meetings, though Roberts and Zansberg disagree.
Tuesday, Skorman said the city should change its process for settling lawsuits. It's imperative that negotiations be kept confidential, but the final settlement should be approved in public, he said.
Councilman Don Knight wasn't at the executive session but agreed that the vote must be made publicly. Such has been the case for other high-profile lawsuits in the past and should be the case moving forward, he said.
Strand and Murray confirmed in February that the council directed Massey in an executive session to pursue sanctions against a clean air activist.
Massey and Strand maintained at the time that the council is allowed to give such direction behind closed doors.