The Colorado Springs City Council moved forward in its goal of increasing council transparency, but issues remain. At a council work session Monday Assistant City Attorney Tracy Lessig put forward options for how the council can increase accountability and transparency without compromising the city’s ability to negotiate the best deal for taxpayers in settling claims and lawsuits.
Members of the council have expressed discomfort with closed-door settlement authorizations for years. In May, under pressure from the media to disclose how much public money was spent settling claims and lawsuits, the council asked City Attorney Wynetta Massey to begin work on proposals to improve transparency.
The issue is whether Council members’ “head nod” or “thumbs up/thumbs down” approvals of a proposed settlement in a closed executive session is legal, appropriate, or even accurate.
Of the informal nature of executive session approvals, Councilman Don Knight explained, “Does the majority of the council agree with it? The one case I remember the head nods were miscounted.”
According to the Colorado Open Meetings Law (COML) any decision on “policy, position, resolution, rule, regulation, or formal action” by the council must be done in an open public meeting. The question is does authorizing a settlement fall within those boundaries? Lessig said that settlement approvals do not but instead fall under an exception for negotiations in the COML.
“One of these provisions applies and we can always point to it. The negotiation provision is a pretty broad exception,” said Lessig.
City Attorney Wynetta Massey told the Colorado Springs Gazette in May that the council can approve settlements in closed meetings because it isn’t taking legislative action.
Council members expressed concern about the negative optics of making secret settlements and agreed that it warrants discussion. The alternatives offered by Lessig differ in detail, but all require that council hold a recorded public vote on the proposal after confidential discussions in executive session.
The new rules would prohibit council members from discussing the facts of the case or why they chose to vote as they did until after the settlement is finalized.
The discussion also brought up the issue of when the name of the claimant and/or the court case number could be released to the public. Massey’s plan calls for withholding the information until the settlement is finalized.
Currently, Massey provides council with a written quarterly update on in-process litigation that is available to the public. Council members asked Massey to consider more frequent updates, perhaps monthly.
Defending keeping anticipated litigation secret, Councilman David Geislinger said, “you don’t want to bring up a potential claim that somebody doesn’t think about and so the city gets sued because the city attorney is proactive.”
Council President Richard Skorman and Councilman Bill Murray voiced concerns about the use of executive sessions where the council has been asked to make decisions not related to settlements.
Murray called the issue “my 800-pound gorilla in the room” meaning what he called “non-settlement executive sessions where a decision is made that may impact issues.”
Skorman said, “I felt that during some of our executive sessions in the past it didn’t seem like we needed to be in executive session. In fact, I wanted to be able to talk about an issue in public, it was about a big land use issue.”
“We’ve had several requests by the city attorney to take action, which we have taken action on, that did not come to a formal vote,” Murray said.
In a terse exchange Massey replied, “I do not believe our office has brought anything to council where the council has taken action.”
Murray said, “You specifically came and asked us to authorize…”
Massey immediately interrupted Murray and said, “Okay, I would please ask you not to disclose anything that has been discussed in close session.”
Murray paused, then said, “What I’m requesting is a line item of code change that indicates that unless there is a specific exception within the concept of the rules and regulations that any authorization to the city attorney be done with a public vote.”
Responding later to the off-topic exchange Geislinger said, “The process that we are dealing with right now is a process that is focusing on the city council’s relationship with the city attorney as it relates to settlement negotiation.”
“We need to keep focus on that,” he continued. “There may be other things to do.”
Council expressed the desire to place the changes in the city code as opposed to making them rules of the council, which offers more permanence as council members change. Massy was asked to present a revised proposal to that effect in about six weeks.
The 800-pound gorilla will have to wait a bit longer it seems.
