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Interim attorney advises Durango City Council on a new open records dispute

Councilors reject request to release executive session audio
(Jerry McBride/Durango Herald file)

After Durango City Council approved the hiring of a new interim city attorney on Monday, councilors immediately set to work addressing yet another open records request and potential lawsuit.

The open records request was the subject of an executive session on Monday held after City Council approved the hiring of William Tuthill of WATT Legal LLC to fill the interim city attorney position.

The records request was submitted by Pagosa Springs attorney Matt Roane, who has filed two other records requests and subsequent lawsuits against the city since September, naming Faye Harmer, city clerk, in the complaints submitted to district court.

This time, Roane seeks the recording of a City Council executive session held on Dec. 12 regarding an evaluation of Tony Maestas, interim city attorney, who would go on to announce his resignation a week later.

On Dec. 19, the day Maestas’ resignation was announced, Roane filed an open records request that claimed City Council held “substantial discussion of matters other than the annual evaluation of” Maestas, according to background information provided in the Monday City Council special meeting agenda.

That same day, the city denied Roane’s request for the executive session recording on the basis that the meeting was of an administrative nature – the evaluation of Maestas. On Dec. 28, Roane sent an email to the city clerk stating his intent to challenge the city’s denial in another lawsuit, according to city documents.

In a Jan. 4 conversation with Maestas and Harmer, Roane gave the city an ultimatum, documents say: Either City Council approves the release of the requested recording or the city faces another lawsuit. Roane said he would file legal action on or after Wednesday.

As of 4:43 p.m. Wednesday, Mayor Barbara Noseworthy said she had not received any word that he had filed another legal complaint against the city.

Roane’s Dec. 19 records request and following threat of lawsuit resembles his earlier dealings with the city of Durango.

A lawsuit filed by Roane on behalf of Durango resident John Simpson on Sept. 9 alleges Harmer wrongly rejected Simpson’s open records request for the city’s unaudited 2021 financial statements.

In another lawsuit Roane filed on Sept. 25, he again said Harmer wrongly denied an open records request for the recording of a July 27 City Council executive session and the city failed to properly disclose the purpose of the meeting, which city documents describe as negotiations and a possible camp for the unhoused.

City Council eventually approved a settlement with Roane in the second case, admitting no wrongdoing on the part of Durango and agreeing to pay Roane $3,250. City Councilors lamented the settlement but said it was wasting legal expenses and staff time.

Tuthill said state law allows government bodies to have confidential discussions related to personnel matters, such as the evaluation of a city attorney. He advised that city staff are of the position that the Dec. 12 executive session was properly noticed to the public, the purpose of the executive session was appropriately carried out, and under the law City Council would not ordinarily disclose that session.

After the Dec. 12 executive session, Councilor Olivier Bosmans said he was concerned that discussion ventured out of the realm of evaluating Maestas and into the territory of more general city legal department affairs. He raised the same concern on Monday and said Tuthill should have an opportunity to review the Dec. 12 executive session for himself.

“It is important for our community to have trust and confidence in governance. We can disclose those parts,” he said. “There is the option to disclose those parts of the executive session meeting that are not personnel related but associated with the functioning of the legal department.”

Councilor Melissa Youssef asked Tuthill for his advice about open records, personnel matters and executive meetings.

Tuthill said state statute encourages government transparency and public business should be conducted publicly. But discussions about topics such as legal advice, real estate transactions, negotiations, security and safety, and personnel matters can be held in a private setting.

“In particular with personnel matters, I think in general you want to encourage candor,” he said. “In a decent personnel discussion you discuss not only what people are doing well but what they could do better at. And nobody really wants to have that discussion, even though you work for the government, in public. The law recognizes that.”

Tuthill said discussions about the office, roles and responsibilities, expectations, direction and needs – in this case, the city attorney’s office and its workload – all fall within the scope of personnel matters.

“To me, that is an appropriate level of personnel discussion and in my mind it is within what the law permits and anticipates,” he said.

Noseworthy said on Monday she consulted with Maestas after the Dec. 12 executive session to determine if City Council remained on topic. He advised her City Council did stick to the agendized topic. Tuthill said the same on Monday.

“So I cannot support releasing this tape,” she said.

City Council took no further action, effectively setting aside Roane’s request for the audio of the Dec. 12 executive session.

cburney@durangoherald.com

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