The majority of Colorado Springs City Council members said Monday that they want to change the city’s code to require themselves and future council members to publicly vote whether to approve high-dollar lawsuit settlements.
That practice is done in closed executive sessions, in apparent violation of Colorado’s Open Meetings Law. The council has approved at least seven high-dollar settlements in closed meetings since 2013, totaling about $5.4 million, The Gazette has reported.
The council asked City Attorney Wynetta Massey in June to offer recommendations that would bolster transparency with expensive settlements.
Massey and Tracy Lessig, an attorney for the city, told the council Monday afternoon it can either change the council’s rules or city code to publicly vote whether to approve settlements above $100,000. The two recommended changing the council’s rules.
“This is how this council has decided that they would like to conduct their business. Another council could come in and decide that the way we were conducting settlements before is the appropriate way to conduct settlements,” Lessig said.
But most on the council said they want to change the city’s code instead.
“I want it to be permanent,” Councilman Bill Murray said.
A code change would ensure future councils would vote publicly whether to approve settlements, Council President Richard Skorman said.
“This is a strong recommendation from this council,” Skorman said. “I think we need to err on the side of being as transparent as possible.”
Massey and Lessig also recommended that even with a code change, the council should still enter into executive sessions to discuss the specifics of a given lawsuit. Then the group would meet in public to vote whether to approve the settlements.
If a tentative settlement is already reached, pending council approval, then that public vote could mention the amount, Lessig said. But if such an agreement hasn’t been reached yet, that dollar amount wouldn’t be public until the settlement is finalized, so as not to risk taxpayer dollars.
“The critical piece here is that the public votes will allow us to voice dissension and disagreement with the settlement,” Murray said. “A private, executive session vote does not allow us to express to the public that we don’t agree with it.”
That dissent will have to come in the form of a vote against the settlement, rather than public comments from the dais, Lessig said, because vocal opposition to a case that has not yet been settled could jeopardize the entire case.
Despite legal experts and legislators calling the current practice a clear violation of the state’s open meetings law, Massey has defended the closed-session policy as legal and appropriately transparent.
The City Attorney’s Office’s written recommendations to the council say the city “is not subject to the State Open Meetings Law.”
But Steve Zansberg, a First Amendment attorney who represents The Gazette said that notion is “absolutely mistaken.”
The city charter statute cited by Massey adopts the open meetings law as it was written in 1993, which she says allows for the current practice.
“Colorado Statutes as now existing applying to open meetings of local governments shall apply to the meetings of the City Council and its boards and commissions,” the charter says.
Asked to clarify, Massey acknowledged the adoption of the 1993 law and said the city “is not subject to any amendments … approved since 1993.”
But even that 25-year-old version of the law prohibits the council from voting or adopting a final position behind closed doors, Zansberg said.
“And the city of Colorado Springs is bound by that provision of the Open Meetings Law,” he said.
While some on the council, and in the public, might disagree about settlement practices, Councilman Tom Strand said the conversation on the topic has been healthy.
“I don’t think we’ve done anything wrong,” Strand said. “The reality is that we’re trying to save money for this community or we’re trying to save somebody’s reputation. We’re not trying to walk away from public exposure.”
Massey said her staff needs until about October to draft code changes.