Photo Credit:Frontiers of Freedom
Want the short version of the story? The El Paso County Board of County Commissioners was vague about its reason for going into two executive sessions. County bureaucrats destroyed the records when they knew I was asking for them, and when public attention was heating up. They told me to get an attorney when I asked questions. Then they tried to use their deep pockets —attorneys we all pay for in our taxes— to intimidate me to drop the case.
Do you want the long version? Read on. This is the behavior of your County government.
As the COVID-19 pandemic was beginning, a tipster shared information about El Paso County government spending that concerned them. A $20,500 taxpayer-funded telephone poll had been discussed in two 2019 Board of County Commissioners (BOCC) executive sessions. Executive session refers to part of the meeting that isn’t open to the public. The telephone poll had included questions about commissioner name recognition, as well as questions about how TABOR override money should be used if a question went to the 2020 ballot. I have no axe to grind with any of the County Commissioners. My concern was that El Paso County had spent $20,500 of your tax money for the telephone poll, and decisions were made in secret executive sessions. Why did they feel the need to discuss spending taxpayer money on a poll, away from the view of the taxpayers? It seemed to be an abuse of the executive session privilege.
That is how this nearly year-long saga began. Your friends at SpringsTaxpayers.com asked for spending transparency. That was it.
I eventually filed a lawsuit to get answers. Now that the lawsuit has wrapped up, I want to let our readers know what was going on behind the scenes. Also, I want to share some of my thoughts about the process.
My First CORAs
In February 2020, I first asked for the executive session audio recordings through a Colorado Open Records Act (CORA) request. It was important that taxpayers could hear the discussion that the Commissioners had about the poll, and specifically why the popularity of the Commissioners needed to be on that poll. Taxpayers shouldn’t be on the hook for the cost of finding out the favorability of County Commissioners. That sounds like a political expense.
The County refused my request, claiming that the entirety of the executive session constituted attorney-client privilege, because there was legal advice provided to both the BOCC and the negotiators. Hang on a second: if they talked about a taxpayer-funded poll, that part of the executive session certainly shouldn’t be kept from the taxpayers. So, I filed a second CORA.
With that second request, I specifically asked for the county to redact the audio —meaning that they would remove any conversation from the recording that was legal advice to the County Commissioners. That would have left only the information about the poll. Again, El Paso County refused my 2nd request, citing the same reason previously mentioned.
Elected Representatives Offered No Help
I sent emails directly to the 5 County Commissioners for their comments about the taxpayer-funded poll. I did this because the County bureaucrats —who are unelected— refused to provide the information I was requesting. I thought that Commissioners, who are our elected representatives, would answer my questions. Two of the Commissioners did not respond to my request for comment —Mark Waller and Cami Bremer. A couple of Commissioners said they were very distracted by COVID and that was their focus. Understanding the emergent pandemic situation, I backed off from pursuing the matter for a short time.
In late May, I asked the County public information staff if the audio would be releasable through a vote of the Commissioners. (I now know the answer is “yes.”) At that time, the reply from the County was that I should seek “competent legal counsel”. Rather than give me a straight answer, they told me to hire an attorney!
Here’s the procedure the County Commissioners could have chosen to follow in order to release the records. It’s at page 14, item #4 at the link.
“Privileged attorney-client communication, regardless whether received in Executive Session or otherwise, shall be released only upon the passage of an affirmative simple majority vote of those Commissioners eligible to vote on the matter disclosed. Thus, the attorney-client privilege belongs to the Board as a whole in all attorney-client communications directed by the Board. In all written or electronic attorney-client communications the County Attorney’s Office shall strive to label such communications as confidential.”
If I was able to find this information, the County should have known it as well. Instead, they told me to hire an attorney. Unbelievable.
At no point did the El Paso County Commissioners pose the solution, at least in public sessions, that they could vote for the release of the executive session audio recordings. Because I had emailed all of them directly, they were certainly aware I was seeking the records. While I respect the Commissioners, I’m disappointed in their disregard for transparency in this matter. Any one of them could have spoken up and demanded the release of the audio recordings. One of them could have ensured the public had access to the information regarding the $20,500 poll.
We wrote a blog about that part of the story here.
In late May 2020, a subscriber to the SpringsTaxpayers.com newsletter read that blog. He didn’t like the County’s response to my questions, specifically where they told me to hire an attorney, and he contacted us. He offered to pay for the initial fees for an attorney to see how we might obtain the executive session audio recording.
By June, I had hired an attorney. Matt Roane has 27 years of experience in freedom of information law. No one would have been better qualified to take my case.
Attorney Roane wrote my third CORA request for the executive session audio recordings. Under Attorney Roane’s guidance, this CORA was written with different wording than I normally used. Also, Roane advised me to send it to additional El Paso County staff who are also able to accept CORA requests, as opposed to just the County Attorney. Based on the new language and additional recipients, it was likely clear to the County staff that an attorney was now involved.
Predictably, my CORA request was refused 3 days later. The reason for refusal was that the County viewed the request as duplicative of my previous CORA request submitted on February 18, 2020.
At that same time, the $20,500 telephone poll story was heating up and drawing a lot of publicity. On June 9th, then-District Attorney Dan May asked BOCC to make the executive session audio public.
As all of this was going on, unbeknownst to me, the County deleted the recordings only days after they refused my last CORA request. As I would find out later, during that time, ten El Paso County staff emails flew back and forth about the records’ destruction.
In July, Attorney Roane talked to El Paso County Attorney Diana May (no relation to former DA Dan May.) She told Attorney Roane that the recordings had been destroyed on June 15th. This was after we had asked for them, and after then-DA Dan May asked for them to be released. Diana May admitted that she and County staff had email discussions about the destruction. She voluntarily provided us with a log of email recipients and dates and times, but we received none of the conversation content.
Attorney Roane felt that our chance of success in a lawsuit was very good. Attorney Roane’s arguments were that the meeting announcement was too vague and lacked sufficient detail about the reason for the executive session. At a minimum, the Board could have identified the specific issues associated with TABOR that were subject to negotiation. Read about those requirements here.
Here’s the inadequate announcement published by El Paso County.
“Pursuant to C.R.S. § 24-6-402(4)(b) and (e), the County Attorney’s Office is requesting an Executive Session regarding issues associated with the Taxpayers’ Bill of Rights (TABOR), to include: 1) Conference with the County Attorney’s Office for the purpose of receiving legal advice on specific legal questions, including but not limited to options for ballot questions and/or return of taxpayer funds; and 2) Determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators.”
Notice there was nothing in the language about the $20,500 expense, nothing about the poll, and nothing about its focus on the popularity of County Commissioners.
Since a lawsuit requires an individual be named as plaintiff —not an organization— it was filed in my name. With our generous donor’s offer to fund the initial court fees, I filed the lawsuit.
To be clear, I’m not a litigious person. I have happily had an attorney-free life for 50 years, and was getting by just fine. In fact, I drew up my own will on LegalZoom.com years ago!
I gave the matter a lot of thought. I knew that if I didn’t step up, El Paso County would continue to operate without transparency or accountability to the taxpayers. Proceeding with a lawsuit was the right decision based on the legal advice I received.
My attorney and I asked for 3 things:
- A judge to release the content of the 10 El Paso County staff emails about the records’ destruction.
- A judge’s ruling that the announcement for the executive sessions was inadequate for the public to be fully informed of what happened in those executive sessions.
- A judge’s ruling that the destruction of records was unlawful.
The County Tries Intimidation
Upon my filing the lawsuit, the County struck back at me in their response. They used the scare tactic of threatening to pursue me —personally— for attorney fees if my suit failed. They called the suit “frivolous” and “vexatious.”
The scare tactic did cause me some unease. I was looking at the government using its force and power to try to financially ruin me. Ordinary families like mine don’t have money for attorney fees. We aren’t big spenders. We have twins in college and one headed there next year. Attorney Roane reassured me that a frivolous claim against me was highly unlikely. He had not seen it happen in his 27 years of practice. Still, their words nagged at me for months.
In the fall, the judge reviewed the email records and ruled that he would not allow us to see the County emails from the day the records were destroyed. The fact that he didn’t consider one word in any of the 10 emails free of attorney-client privilege didn’t bode well for me. It was strike one!
In early January, the judge ruled the announcement for the executive sessions was adequate. An ordinary person would read that announcement and have no idea what was discussed in the executive session. This portion of the lawsuit was one we thought was a no-brainer. Nonetheless, the judge ruled. Strike two!
At that point, I looked into my appointed judge. His name is Thomas Kane. He graduated from St. Mary’s High School, the same high school that Colorado Springs Mayor John Suthers attended. According to this article, they were also law school roommates. So, the two men grew up together and roomed together in law school.
SpringsTaxpayers.com is the only watchdog group that has opposed Mayor Suthers and his numerous tax-increasing ballot measures. We know he’s not a fan of our work. Realizing that Suthers and this judge had common history caused me to wonder if the odds were stacked against me.
I discussed options with my attorney. He suggested we drop our 3rd point (that the destruction was unlawful) and appeal the 2nd ruling (that the executive session was not properly noticed.) He said that the odds were in our favor that we would win the appeal. We agreed that we were unlucky in drawing Judge Kane, but an appeal would head to the Denver appeals court system. The process could take up to two years, though. Yikes! I had some decisions to make.
Over the past year, I have stuck my neck out personally, and confronted obvious wrongdoing by the government and public servants. Continuing to fight —while morally right— would come at a potentially high personal cost if another judge similar to Kane was handed the case in the appeals court system.
I am also invested in the work Laura and I do at SpringsTaxpayers.com. There is no other El Paso County government watchdog group —we are it. It’s always David versus Goliath when citizens fight against the deep pockets of the government. Did this battle deserve two more years of our time and court fees? The battle was moral, but the potential personal cost was too high. I decided to end the lawsuit.
Attorney Roane contacted the County attorneys. They agreed to end the dispute. An agreement was drawn up. I will not be pursued for attorney fees. Judge Kane signed off on it. It’s over.
Was it worth it?
We remain convinced that El Paso County did not properly notice the executive session meeting. We believe that they purposely destroyed records that they knew we were lawfully asking for. They were hiding something, and no one will ever know what it was. That is very disappointing to every advocate of government transparency.
Would I do it all over again? In hindsight, yes. While it was certainly stressful on me personally, holding government accountable for transparency and reminding the politicians who they work for was the correct course of action. Reminding government that they work for the citizens, not the other way around, is always the right thing to do. Will El Paso County government choose to act in a more transparent manner going forward? We are hopeful that they now know we are watching.
Local governments and the judicial system should be consistent in following freedom of information laws. We believe that El Paso County and Judge Kane failed us all. Judges should be well-versed in open records laws and follow them consistently when questions arise. We’ll be rooting for attorneys like Matt Roane —those who spend their careers fighting for government transparency and more clarity and consistency in the laws. SpringsTaxpayers.com will continue to be watchful and Roane will hear from us again, if the need arises.
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