Less than a week after the Durango Board of Ethics began investigating an ethics complaint against him, resident and former Infrastructure Advisory Board member John Simpson netted another legal victory against the city in court.
The Colorado Court of Appeals delivered a ruling in favor of Simpson on March 28.
In the ruling, the appeals court sided with Simpson and the city on different nuances of the case, which revolves around 2021 draft financial documents requested by Simpson and denied to him by the city on the grounds they are “work product” exempt from Colorado Open Records Act requests.
What is “work product” according to the Colorado Open Records Act?
The Colorado Freedom of Information Coalition says the Colorado Open Records Act exempts “work product” from open records request.
Work products are “not subject to disclosure to mean advisory or deliberative materials assembled for the benefit of elected officials to help them reach a decision,” according to CFOIC.
“Work product includes notes and memos on background information as well as preliminary drafts of documents that express a decision by an elected official. Elected officials may release, or authorize the release of, any work product prepared for them. C.R.S. § 24-72-202(6.5),” CFOIC says.
But the bottom line drawn by the appeals court is the draft financial document in question was not “work product” that was “prepared for elected officials” as the city argued.
The ruling says the appeals court’s decision could “well have been different” if the city had provided adequate information about Durango City Council’s purview in approving, denying or modifying financial audits for state review, but the city failed to do so and it bears the burden of proof of showing the documents in question are exempt from open records requests.
The ruling also awards Simpson attorneys fees for the appeal, although the fees have not been determined at this time.
Sixth Judicial District Judge Suzanne Carlson reduced the attorneys fees awarded to him in district court in December before the appeals court ruled on the city’s appeal. That total sum was reduced from $29,965 to $17,614 because hours worked by his Pagosa Springs attorney Matt Roane were “overstated,” according to a 6th Judicial District Court judge’s order.
Simpson did not respond to a request for comment for this story.
City Attorney Mark Morgan said the decision favoring Simpson is “disappointing,” but the judicial ruling did not clearly define what kind of documents qualify as “work product.”
“You want some clear direction from the court on how to handle this type of document or this class of documents going forward. And we didn’t get that,” he said.
He said Durango and other municipalities could use more “legislative clarity” in similar disputes going forward.
The city has maintained releasing drafts of its annual financial reports could deter private or third-party certified public accountants hesitant to work with it because incomplete drafts could misrepresent the city’s finances and the accountants’ work.
“We want independent third party auditors to have free and open discussions with our staff about what we’ve done right, what mistakes we’ve made and what corrections we need to make,” he said.
Twenty-six other states already have laws on the books exempting draft financial documents from open records requests because the drafts will inevitably differ from the final product, and the final product submitted to the state is what’s important to the public, he said.
Examples include Florida, Kansas, Louisiana, Minnesota, Missouri, Nebraska, North Dakota, South Carolina and California, according to a brief Morgan provided.
The city issued a news release announcing the Colorado Court of Appeals’ decision Wednesday morning after The Durango Herald inquired about it.
The release says the appeals court’s decision will affect every municipality in Colorado.
Releasing draft financial documents – specifically, drafts of the city’s annual financial report – before they are finalized by third-party auditors risks causing confusion or spreading misinformation because they aren’t complete, the release says.
Simpson has garnered a reputation for scrutinizing the city of Durango’s finances, but the city has questioned his own conduct while serving on the volunteer IAB.
The Board of Ethics is investigating Simpson after reviewing a complaint that Mayor Melissa Youssef filed against him in January.
Youssef said in her complaint Simpson violated the state open records act and state anti-discrimination laws, adding that he “put his personal vendetta against other city officials above the best interest of the city” in his capacity as an IAB member.
She said he held private email conversations about city business between himself and Councilor Olivier Bosmans and made false allegations about the city manager committing nepotism in hiring an interim chief financial officer, which in turn was an attempt to damage an interim chief financial officer’s reputation.
The ethics board’s investigation could either lead to a hearing or be dismissed, Morgan said last month. If a hearing is held and the ethics board finds Simpson violated an ethics code, City Council could publicly censure him or prohibit him from serving on city boards in the future.
cburney@durangoherald.com
