The city of Durango will pay $3,250 to settle a lawsuit that accused the city of failing to properly notice an executive session and improperly denying an open records request.

Durango City Council voted 4-0 Tuesday to settle the lawsuit filed by Pagosa Springs attorney Matt Roane. Councilor Olivier Bosmans was not present for the vote.

Roane said in a legal complaint that city failed to properly disclose the purpose of a July executive session in which negotiations about the transfer of real property to La Plata County for a homeless camp were discussed. The complaint also said Faye Harmer, city clerk, violated the Colorado Open Records Act by denying Roane’s requests for a copy of the meeting recording.

City Council met in executive session for nearly two hours to receive legal advice from interim City Attorney Tony Maestes before voting to settle the lawsuit.

Terms of the settlement agreement require the city to pay Roane $3,250. In exchange, Roane agrees to dismiss all claims with prejudice, Maestes said. The public records request at the center of the lawsuit will be dropped and not pursued again; and Roane cannot use the records request dispute in future litigation.

The settlement was made “in the spirit of compromise,” and neither the city nor Roane admit any liability to claims made in the legal action, the interim city attorney said.

“Any claim of wrongdoing or liability is expressly denied,” he said.

Besides the city’s payment o Roane, each party will pay their own legal fees.

Roane filed a complaint Sept. 25 in La Plata County District Court accusing Harmer, in her official capacity as city clerk, of improperly refusing to release a recording of a July 27 City Council meeting held in executive session.

The complaint says Roane requested a recording of the executive session on Aug. 16, and on Aug. 18 Harmer “politely declined” to provide the recording on the basis it was made in an executive session and contained “privileged information” and was not subject to the Colorado Open Records Act.

Roane told the city clerk he intended to file a lawsuit to have the disagreement reviewed in court; he again requested the recording on Aug. 29, and on Sept. 2 and was again denied, the complaint says.

The complaint says the recording of the executive session is a public record as defined by CORA, “memorializes an open meeting,” is not privileged information and that City Council failed to sufficiently describe the intent of the closed door meeting.

“Certainly, the City Council could have provided more than three substantive words – ‘possible camp for the unhoused’ – when describing its intended topic of discussion in the private session,” the complaint says.

Roane’s complaint argues City Council could have disclosed the purpose of the executive session was to discuss potential campsites, their locations and the transfer of property to La Plata County for homeless residents, without harming the purpose for an executive session.

The complaint requested that Harmer appear in court and show cause for why she denied Roane’s requests for the July executive session recording, a court order saying she defied CORA, another order requiring the city clerk release the recording and an award of legal fees to Roane.

The complaint resembles another complaint filed by Roane on behalf of Durango resident John Simpson in September, although the latter complaint regarded city finances and has not yet been resolved.

City Council members were embittered by Roane’s legal action but said the settlement was the proper way to move forward and in the best interest of the city to avoid more wasted legal expenses and staff time.

Councilor Melissa Youssef said it is “unfortunate” the city was placed into the position it was.

“I want to reiterate for the public that no mistakes were made on the part of the city, that the executive session was properly noticed, that the discussions were limited to the stated purpose,” she said. “I believe that council has made the right decision to settle to avoid any further legal expenses and use of staff time.”

She said the lawsuit benefited no one except possibly Roane, who she said has exhibited a pattern of pursuing lawsuits against governments and “Durango has fallen prey.”

Noseworthy expanded on Youssef’s comments about Roane. She said part of his legal practice involves going after school districts and governments with lawsuits.

“We have fallen prey to it as well,” she said. “In the interest of not pursuing staff’s time and increased legal fees, it is a compromise I am willing to make to settle this for expediency. But I do want to say that this is a pattern. We have a second case before us by the same individual and it is a pattern.”

Roane could not immediately be reached for comment Wednesday.

Noseworthy addressed Harmer, saying she knows the lawsuit was stressful for the city clerk, that Harmer did nothing wrong and that City Council maintains “full confidence” in her. She said the same for former city attorney Dirk Nelson, who was also named in the lawsuit.

“It is unfortunate that someone can take up so much time and resources for something that was – there was never an ill intention or wrongdoing,” Councilor Jessika Buell said. “So forward and progress, and I think this is in the best interest of our community.”

Councilor Kim Baxter said City Council is compromising with Roane, but doing so in the “best interest of the city and in the best interest of our taxpayers” and affirmed her colleagues’ statements that no wrongdoing occurred on behalf of the city.

Roane has made a career out of fighting open records issues against government bodies. In a 2020 interview with The Durango Herald, he described his practice as “helping the little guy fight for his rights.”

He has filed lawsuits against the town of Pagosa Springs, Archuleta County, Archuleta School District, Montezuma-Cortez School Board and the city of Durango since moving to Pagosa Springs in 2007. The Denver Post reported in August that Roane was involved with at least 33 lawsuits against school districts and boards alleging violations of the state’s open meetings law.

cburney@durangoherald.com