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Colorado Springs possibly breaking state law by doling out millions in secret sessions

May 20, 2018 Updated: May 22, 2018 at 6:14 am
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In closed executive sessions that some legal experts say violate Colorado's open meetings law, the Colorado Springs City Council has doled out about $5.4 million to settle a string of cases, including racial and gender discrimination. (The Gazette file)

In closed executive sessions that some legal experts say violate Colorado's open meetings law, the Colorado Springs City Council has doled out about $5.4 million to settle a string of cases, including racial and gender discrimination.

The council's closed-door process is so secretive that it remains unclear how long it's been going on, where much of the money comes from and how much has been spent.

The city's attorneys settled at least seven such cases since 2013, and neither public votes nor official council records approving the payments could be found by The Gazette.

The newspaper's review included a search of legal filings obtained from the city through a Colorado Open Records Act request.

The city declined to respond to questions about public votes, discussions and the history of the council's practices.

City spokeswoman Jamie Fabos said that would be an inappropriate use of time for the city's attorneys.

Experts decry the actions - which date back years, if not decades - as a flagrant breach of the state's open meeting laws. Governmental entities and other public bodies are prohibited from making decisions in closed sessions under the state's open meeting law. The Gazette recently reported two instances in which the council appeared to break that law.

Even informal council actions, such as giving direction to City Attorney Wynetta Massey through head nods, constitute a decision, says Denver First Amendment attorney Steven D. Zansberg, who has represented The Gazette.

Many council members have expressed unease with the protocol, and Councilman Don Knight is pushing to change the city's code and end the secret settlements.

Knight said Massey assured him the practice of approving such settlements in confidential executive sessions is legal. Massey said that approval for settlements can come behind closed doors because the council isn't taking legislative action. She said talks about such settlements are protected by attorney-client privilege.

"We can continue with our practice because there's never been a Colorado law (on this), and our attorney thinks we're doing OK," Knight said. "I never agreed with that. What are we protecting?"

Most lawsuits filed against the city are dismissed. But recent city settlements include:

- $2.5 million for 12 female police officers after a federal judge ruled in their favor, deciding that a physical aptitude test discriminated against women and damaged their careers.

- $425,000 to a New Mexico-based nonprofit alleging thousands of Clean Air Act violations at the Martin Drake Power Plant.

- $120,000 to a former accounting supervisor at the Colorado Springs Airport who claimed she was denied a promotion and adequate training and faced retaliation because of her race.

At least one settlement was detailed in a city news release after it was finalized. Others are accessible only through court documents or CORA requests.

Public left in dark

Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, questioned why the council believed it needed to go behind closed doors to approve settlements.

"How does the public know about these settlements, some of which it sounds like are being paid for with public money, unless they talk about it in a public meeting?" asked Roberts. "That's the intention of the law, that government business ought not be conducted in secret. And especially when they're talking about the expenditures of public funds."

But the open meetings law has few teeth, Roberts said.

The first step would be to request recordings from the executive sessions in question to investigate the council's actions, he said.

City staff denied Gazette requests for several such recordings.

The next step is to sue, Roberts said.

"The judge could issue an injunction saying, 'Don't do this again.' They could also nullify any decisions that were made in executive sessions," he said. "But there aren't fines or things like that."

The council's practice almost certainly violates the intent of the law, said former state Rep. Bob Hagedorn, who helped revise the open meeting law in the 1990s.

Politicians prefer closed meetings too often, Hagedorn said. Hiding behind closed doors limits the public's knowledge of the government's operations and diminishes elected officials' accountability, he said.

"I've seen how executive sessions can be stretched," he said. "Sometimes running a government agency gets a little messy, but this is what having an open government and democracy is all about."

Massey defends the secret settlements as legal. The amounts eventually are made public through court records, quarterly reports from her office and the city's budgeting process, she said.

But those quarterly reports do not contain settlement documents and often do not detail settlement amounts.

"An attorney has to keep communications with clients closed. There is no transparency there. The transparency comes in the expenditure of public funds," Massey said. "You don't have a right to get inside the heads of the people making the decisions. You get to know what those decisions were, but the thought process is one of those things protected in the confines of an executive session."

Mayor John Suthers was out of town but said by email he stands by Massey's explanation.

Fort Collins, Pueblo and Salida settle lawsuits similarly. Salida's City Council might have breached the open meeting law by approving a $20,000 settlement in an executive session in March, the Salida Mountain Mail reported.

But other Colorado cities are more transparent.

The Boulder City Council doesn't hold executive sessions, said Councilwoman Lisa Morzel. Settlement agreements are voted on in public.

The Greeley City Council also votes publicly on settlements, said City Attorney Doug Marek.

The Denver City Council likewise always votes in public on settlements, said Councilman Rafael Espinoza.

Unlike the Colorado Springs council, the Denver council plays no part in settlement negotiations, he said.

"If you're negotiating anything in executive sessions, it's almost like how you get the votes. 'I'm going to work this until I get the requisite number of votes one way or the other,'" Espinoza said. "That creates a situation that's prone to corruption."

Some Colorado Springs council members take issue with Massey's defense.

Councilman Bill Murray has been extremely critical, saying the council repeatedly and frequently breaches open meeting laws. Murray walked out of a February executive session in protest, for which he was condemned by some of his council colleagues.

Others echo Murray's sentiments.

Knight said it's "astounding" that millions in settlements were approved without a public vote, and he's been uncomfortable with the practice since 2016. The issue has taken a back seat for years due to other pressing issues and because settlements are infrequent, he said.

Knight said he's asked Massey for clarification twice. And twice he's received the same answer, copied and pasted from the same email.

He did not vote for Massey's $4,400 pay raise approved by the council in February. Neither did Murray.

Ask ethics experts

Council members often lean on Massey for advice, but the city's Independent Ethics Commission should be the guiding authority in most cases, Knight said.

"The city attorney is not a judicial branch; they're an advisory branch," he said. "If she told us, 'You don't need to come out to vote on it,' that doesn't mean that we on council can't turn around and say we still want to vote on it."

If the secret settlements don't end soon, Knight said, he'll likely submit a letter to the ethics commission.

"If we violate the open records act, it's an ethics violation as well as legal," he said. "The Independent Ethics Commission is set up to be our actual adjudicators, to go in, look at the case hard and recommend to the council whether the covered person has committed a violation or not."

Rather than operating on the honor system or updating the council's rarely read rules of conduct, Knight said, the best solution is to change the city code to mandate public votes for high-dollar settlements. Five council members would have to approve that change. Six votes would be needed to override a mayoral veto.

Suthers said he has no objection. "If a majority of City Council members want to change the procedures for executive sessions, they are free to do so," he said.

A majority of the council said they are willing to discuss a change, but need to see specific language before committing their support.

"The public needs that (transparency)," Councilman Tom Strand said. "They deserve some kind of ability to know what we're doing with their money."

But negotiations still must take place in closed meetings so as not to expose the city to more liabilities, Strand said.

Settlements don't necessarily indicate fault on the city's part, he said. Rather, they often represent a good deal by saving taxpayer dollars on court costs and legal fees.

Council President Richard Skorman also said negotiations should be private. But, once the two parties reach a tentative agreement, the council should vote publicly on that pact, he added. That public process will give residents insight into which council members support or oppose the move and why, he said.

The council also should explain specifically why executive sessions are being held, Skorman said. Those descriptions, which are required by law, have been too vague and haven't always met the narrow guidelines that allow the group to hold a closed meeting, he said.

"I'd like to see us err on the side of being as public as we can," Skorman said.

Councilman Dave Geislinger said he could support a code change, adding, tentative settlements can change, so the council should take care in that regard.

While Council President Pro Tem Jill Gaebler might support a more robust description of closed sessions, she said she probably wouldn't support a code change for public votes on settlements.

"It's a slippery slope to say we're going to make changes," Gaebler said.

Two settlements coming up

At least two high-dollar settlements could come before the council soon. One is from a lawsuit filed in February alleging that the city hasn't complied with the Americans with Disabilities Act, a problem Colorado Springs has faced for decades. And a second could spring from a high-profile lawsuit filed in 2016 by the Department of Justice on behalf of the Environmental Protection Agency, demanding solutions to contaminated stormwater runoff affecting downstream communities.

Settlements exceeding $100,000 must be approved by the council.

At least one of the seven cases settled in recent years was not approved by the council, Massey said. Although that settlement was for $103,000, the figure was split between multiple people, and no payment exceeded $100,000, she said.

Another settlement totaling $180,000 might not have gone before the council because it followed an employee complaint, rather than a lawsuit.

Colorado Springs doesn't always foot the entire bill for its settlements. Some are paid by the city's enterprises, such as Colorado Springs Utilities or the Colorado Springs Airport.

Others are paid through insurance companies, though the city pays a deductible, Fabos said.

The 2015 lawsuit that resulted in a $2.5 million settlement this year for a dozen female police officers was paid by the city's former insurance company, Starr Indemnity & Liability Company, Inc.

The city's policy with Starr Indemnity ended in 2016 after the company quoted a nearly 40 percent premium increase and the city opted for a less expensive plan, Fabos said.

The city has paid a total of $927,896.13 in settlements since 2014, Fabos said.

Council members say they expect to discuss changes this week. And Knight said a code change could be completed in weeks, not months.

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