Court delivers mixed rulings for city, Durango watchdog

The 6th Judicial District Court on Wednesday ruled that a former Durango Financial Advisory Board member violated the Colorado Open Records Act when he withheld emails sought in a records request.

The city was seeking emails between former FAB member John Simpson and then Councilor Olivier Bosmans to fulfill a November 2023 records request filed by The Durango Herald.

Sixth Judicial District Judge Suzanne Carlson ruled Simpson violated CORA by withholding two emails between himself and Bosmans. But she also ruled another component of the city’s complaint doesn’t violate CORA.

The city also requested these summary judgments from the court:

Taking up the question of whether marking an email subject to CORA with a disclaimer that it isn’t subject to CORA would violate open records law, the court initially declined to issue a judgment in favor of the city.

However, in another order filed Thursday, the court issued a judgment on the matter that favored Simpson.

“Improperly marking emails with ‘not subject to CORA’ language is an action that is contrary to the public policy behind CORA,” the ruling said. “... However, a CORA violation occurs upon withholding of public records, not upon marking such records. Thus, marking alone does not constitute a CORA violation.”

City Attorney Mark Morgan said the court found the “not subject to CORA” does not technically violate open records law, but it does violate the spirit of the law, and the issue could be taken to trial.

Carlson declined to issue a judgment about the Board of Ethics’ investigation, which itself pertains to whether Simpson violated CORA.

Simpson argued the district court must decide whether the ethics board has jurisdiction over a CORA violation.

The ruling said that determining jurisdiction over a CORA violation before the ethics board has made its own determination “would be even more preemptive than reviewing an administrative decision that is not a final decision.”

“Every court has authority to hear and decide the question of its own jurisdiction,” the ruling said, quoting “In re Water Rts. of Elk Dance Colorado, LLC,” a 2006 Colorado Supreme Court decision.

Simpson and Morgan had different takeaways from the court’s ruling.

Simpson said he respects the court’s decision, but the city was already in possession of the emails he withheld. He said withholding emails “was a result of actions taken under the advice of a city-appointed attorney.”

Morgan said that is a misrepresentation: Simpson’s secret emails to Bosmans were outside the city’s purview and created a conflict with the city. Morgan could not represent Simpson when the Herald issued its records request, he said. But nonetheless, Simpson deserved representation – so the city appointed an attorney to represent him.

When that attorney declined to turn over public records on behalf of Simpson, Morgan said, the city decided it would not pay for that attorney, and billed them for $750.

On a pending Board of Ethics complaint against Simpson, Simpson said the court did not issue a ruling on it.

“The Board of Ethics’ investigative report did not find these two emails to be in violation of the city's code of ethics,” Simpson said. “The court also explicitly refused to resolve the fundamental question of whether the Board of Ethics has jurisdiction over CORA matters, leaving that key issue unresolved.”

Morgan said Simpson had withheld “dozens and dozens” of more emails from the city, and the city petitioned the court to address that, but it never did.

He said the ruling “exposes the hypocritical and disingenuous nature of Mr. Simpson’s criticism of city leaders” and Simpson withheld public records from the public.

A pretrial conference is scheduled for Friday afternoon.

cburney@durangoherald.com

This article has been updated to reflect additional comments from Simpson and Morgan.