city council members

via The Denver City Council in 2019

Denver City Council passed on first reading a motion to repeal an ordinance passed last May granting the city auditor subpoena power Monday night after he filed a lawsuit against the council saying an amendment made to it was unlawful.

The plan is to start over with a better ordinance addressing the matter.

In May 2021, Council passed an ordinance giving the auditor power to issue subpoenas to access records from external agencies if documents for an audit are not voluntarily produced. After it received pushback from the business community, the council added a last-minute amendment creating the option for people or entities to provide the auditor time to look at proprietary and confidential information on-site and in-person, rather than giving him physical or digital copies.

Auditor Tim O'Brien filed a lawsuit saying this amendment was unlawful and an overreach of council's power.

Councilmember Kevin Flynn, who proposed the amendment the auditor challenged, emphasized that the amendment was in the interest of security and protecting proprietary and confidential data and that the bill does not allow anyone to withhold information from the auditor. He said the lawsuit is an attack on the independence of the council and the separation of powers of government, seeking to have the judicial branch usurp the powers of the legislative branch.

“We want the auditor to be able to do proper investigations, but this repeal is necessary to prevent the waste and abuse of taxpayer money that is triggered by the auditor’s ill-advised decision to file a meritless lawsuit,” Flynn said. “... This council last year was frustrated by the auditor’s refusal to engage with us in the legislative process and address very real and serious concerns over how he would handle proprietary and confidential data.”

Councilmember Amanda Sandoval noted that the council’s legislative process is public, and that one does not need an invitation to come to a council meeting especially when a bill they are sponsoring is up for final consideration. An earlier release from the auditor’s office claimed he wasn’t invited to the meeting.

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Sandoval said it’s normal for council to ask robust questions of a bill sponsor when it is called out, and O’Brien was the sponsor for this bill and didn’t attend the final meeting on it.

Councilmember Amanda Sawyer said while she hate’s to repeal this knowing how important she believes the auditor’s ability to subpoena is, repealing the bill is the only way to save taxpayer dollars.

“The process that we went through is the governmental process of the City and County of Denver, and the judicial branch shouldn’t be asked to settle that, especially when it’s gonna cost taxpayer money unnecessarily,” Sawyer said. “... If the auditor’s office had attended the final hearing, maybe things would have been different, but that didn’t happen, and process matters.”

Councilmember Paul Kashmann said this feels like a spat between friends and that the level of discourse around this matter has gotten heated and extreme on both sides.

Councilmember Candi CdeBaca was the only one to vote against repealing the bill. She said the auditor having subpoena power is essential to ensure government transparency the Denver community has demanded and that the auditor has the right to file a lawsuit if he believes council overstepped its power.

“There are three branches of government to serve as checks and balances to each other for a reason,” CdeBaca said. “Because this issue is in litigation, I feel it is an overreach for us to pull the ordinance out completely through a flat out repeal rather than allowing the issue to be resolved either in court or by conducting a brand new process to find a better solution neutrality while this ordinance remains in effect.”

Members of council said they ultimately hope for authentic engagement from the auditor when starting this process over from scratch.

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