The Colorado Springs City Council recently approved a $160,000 settlement to an Army veteran suffering from post traumatic stress after he was rousted from his home by a tactical police team, tear gas and explosives.
The team’s midnight blast in May 2012 shattered every window in Ronald Brown’s home in southeast Colorado Springs, flung fragments of wood into his leg and broke his left shin bone, according to a 2014 lawsuit he filed against the city claiming police used excessive force.
But none of these details or Brown’s payout were publicly discussed last month at City Hall when the council agreed behind closed doors to settle the lawsuit.
Brown’s closed-door settlement is one of many. The approval reportedly came the day The Gazette previously reported that the council has doled out about $5.4 million in secret meetings to settle a string of cases including racial and gender discrimination. And it came after multiple council members expressed their unease with the process for settling high-dollar cases and said they want to make a change.
The closed-door practice continues at the behest of City Attorney Wynetta Massey, who is urging the council to stay the course until a formal code change can take place, City Council President Richard Skorman said.
“If what we are doing is legal, the essence was we will continue to do that until we come up with the better plan,” Councilman Don Knight said, summarizing Massey’s rationale. “But we still want the better plan sooner rather than later.”
Massey has defended the legality of the council’s practices. Even a $190 million settlement regarding the city’s retirement obligations could have been approved behind closed doors, she reasoned to the council in documents obtained by The Gazette. The council still opted to approve that 2014 settlement in public for the sake of transparency and accountability.
The documents, written by Massey in 2016, show that the council has questioned the legality of closed-door settlements for years. In her advisories, she maintains that the city’s laws don’t require high-dollar settlements to be approved in public and that the council can informally direct her to take action through head nods or thumbs up, without a formal recorded vote.
But legal experts have repeatedly said those actions violate Colorado’s open meetings law, and some local legislators agree.
“As a 50-year resident and citizen of Colorado Springs, I think it’s only reasonable for the citizen to know what these settlements are,” said state Rep. Larry Liston. “If there is a big settlement, there needs to be some accountability by the City Council … somebody’s paying for that, and it’s the citizen.”
There are legitimate reasons to hold executive sessions, state Sen. Kent Lambert said, including negotiating settlements or handling private, personnel matters.
“But my understanding is when you take the vote, that should be a more open process, a more public process,” Lambert said. “If they’re trying to say ‘we’re not going to record meetings, we’re not going to allow records or discussions or something that communicates at least the votes’ then I think that’s very problematic.”
Massey’s 2016 memoranda do not mention state law.
After the settlements are approved, they are made public, Massey told The Gazette through a city spokeswoman. Court records are available upon request and the expenditure of public funds can be found in the city’s annual budget.
Asked to clarify the difference between the accessibility of records and transparency by City Council in taking actions that eventually result in those compiled records, Massey said transparency is a concept subject to broadly differing interpretations and it has not been defined by any Colorado law.
But Knight said there is a distinction between the two.
“Transparency to me as a City Council member, is that every decision made, the constituents know how I voted and that includes settlement agreements,” Knight said.
Often, council members oppose the settlements, said Councilman Bill Murray. Such was the case with Brown’s settlement, though Murray declined to specify who opposed the move, citing confidentiality rules.
The council will continue discussions on how best to change city code in late August, Knight said. One concern is whether open discussions about tentative settlement agreements could put the city at financial risk.
“The issue is whether we should make comments from the dais about why we voted yes or no, because that could put the city into additional liability,” Skorman said.
Negotiations must remain confidential, and even tentative settlement agreements could pose a risk to the city if brought into the open, Councilman Dave Geislinger has said.
As a compromise, Knight said the council could opt to vote in public and authorize the city attorney to settle high-dollar lawsuits within the range discussed in executive sessions.
“(The public will) know what case is being settled and they’ll know who opposed it. They won’t know the dollar amount,” Knight said. “Because this is not the final settlement. You won’t know the dollar amount until the settlement is reached.”