The city of Durango will appeal the ruling of a 6th Judicial District Court judge who ruled in favor of a Durango resident in an open records lawsuit.
City Council voted 4-1 this week to appeal District Judge Suzanne Carlson’s ruling in favor of John Simpson, a Durango resident and self-appointed watchman of the city’s finances.
Carlson shot down the city’s argument that draft financial documents requested by Simpson are “work products” and thus not subject to open records requests. She ordered the city to disclose the requested documents and awarded court costs and attorney fees to Simpson.
Councilor Olivier Bosmans voted against pursuing an appeal. He said he was in favor of disclosing the documents requested by Simpson in the first place and now the city wants to spend more money fighting the verdict.
Bill Tuthill, interim city attorney, warned City Council that although there is adequate basis for an appeal, there is no guarantee of victory. And, should the city lose another bout against Simpson, it will be on the hook for the fees of his attorney, Matt Roane of Pagosa Springs.
“On the other hand, if we prevail, we won’t have to pay the attorney’s fees to date, which we’re currently under order to do,” he said.
Tuthill said some legal costs have been covered by CIRSA, the Colorado Intergovernmental Risk Sharing Agency, but there is a cap of about $10,000 on those resources and the city will likely exceed it moving forward.
He said total legal expenses spent on the lawsuit so far would be made available Monday.
Councilor Kim Baxter made a motion to direct Tuthill to proceed with the appeal and Councilor Jessika Buell seconded the motion.
Bosmans said the lawsuit against the city, which requests draft 2021 financial reports be made available for review, concerns him. He said despite the well-reasoned argument that draft financial reports could give the wrong impression about the city’s financial condition, that can be easily resolved by labeling draft documents as such.
Even a draft document about the city’s finances and its funds holds value, he said.
He said financial reports are typically due by June and suggested the city charter might require financial reports to be available before the city’s budget cycle starts.
On Friday, Tuthill said to his knowledge the charter does not specify a due date for annual financial reports.
“I do not support an appeal and I think this whole matter should have been prevented in the first place,” Bosmans said.
Tom Sluis, spokesman for the city, said the city is looking forward to a final judgment from the court on concerns raised by Bosmans and Simpson to gain clarity of best practices moving forward.
Mayor Barbara Noseworthy said City Council received in-house and external legal advice about whether to oblige Simpson’s records request and took that advice.
“The recommendation to us is this is a working document and we need the opportunity to revise and work through that in an appropriate manner,” she said.
cburney@durangoherald.com
