Durango City Council voted Wednesday to settle two lawsuits involving a Pagosa Springs attorney who has a history of pursuing open records litigation against the city.
The most recent dispute was centered around an ethics complaint filed Feb. 10.
City Council directed special counsel for the city to negotiate settlements in the two cases. Negotiations could result in two payments to Pagosa attorney Matt Roane totaling $8,250.
Councilors held a closed-door meeting Wednesday to seek legal advice and consider a settlement. After the executive session, Mayor Melissa Youssef said Councilor Olivier Bosmans recused himself partway through the discussion.
Bosmans also recused himself from voting on whether to negotiate settlements in both cases. City Council voted 4-0 to initiate negotiations.
In an interview Thursday, Bosmans said he recused himself because his name is mentioned in board of ethics documents at the center of the dispute and he felt it would be more appropriate to exclude himself. He has taken a position in the past that the city’s legal issues around perceived open records violations could be prevented with greater transparency and proper processes on the part of the city.
“This settlement reflects the council’s desire to restore transparency and confidence in the ethics process,” said Councilor Jessika Buell in her motion to direct negotiations.
Roane’s lawsuit accused the Durango Board of Ethics of unlawfully screening an ethics complaint in an executive session and failing to properly notice the executive session.
The ethics complaint screened by the Board of Ethics was likely filed by Bosmans, who announced on his official Olivier for City Council Facebook page on Feb. 10 his intent to file an ethics complaint. He said he filed the ethics complaint the same day.
Roane argued that the Board of Ethics’ failure to screen the ethics complaint in a public setting prevented himself and the public from “witnessing the Board conduct public business,” court documents say.
He sought a declaration by the court that the ethics board violated open records law; the board failed to cite the proper subsection of law authorizing executive sessions for complaint screenings; the executive session in which the Feb. 10 ethics complaint was screened be deemed a public meeting; and an order prohibiting the city and Board of Ethics from holding future executive sessions in the same way.
He also requested an award of costs, expenses and attorney fees.
Buell said settlement negotiations in the case include a cost to Roane of up to $3,250.
The city filed its own lawsuit against Roane, in somewhat of a procedural move, in connection with the Feb. 10 ethics complaint, which Roane had sought access to through an open records request in March, according to court documents.
The city cites the Board of Ethics’ procedure for receiving and resolving ethics complaints, which says publicly distributing complaints prior to screening by the board is prohibited because doing so “could harm a person’s reputation and is contrary to public interest.”
The city sought a court order directing the city not to release the ethics complaint in question; an in camera review by the court of the ethics complaint to determine if the city properly withheld it; a hearing for the court to investigate further, if necessary; and a judgment finding the requested ethics complaint exempt under the Colorado Open Records Act and not subject to disclosure.
The city also requested a court order denying Roane’s recovery of attorney fees and legal costs.
Buell said settlement negotiations in the lawsuit include paying costs to Roane of up to $5,000.
This is not the first instance in which the city and Roane have butted heads.
In December, City Council settled another case filed by Roane, which included a payment of $3,250 to the Pagosa Springs attorney.
Roane similarly alleged in that lawsuit the city failed to properly notice an executive session and improperly denied an open records request.
Councilors expressed displeasure with the outcome of events, although they admitted no wrongdoing by the city and said the settlement was reached to avoid further legal expenses and use of staff time.
At the time, Youssef 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.”
Former mayor Barbara 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.
Roane could not be reached Thursday for comment.
In March, the city outright lost a lawsuit filed against it by Durango resident John Simpson, who was represented by Roane. Simpson said the city unlawfully withheld draft financial documents he asked for in an open records request.
Tom Sluis, spokesman for the city, said the city is pursuing an appeal in that case but an outcome isn’t expected for months.
cburney@durangoherald.com
