The rivalry between the city of Durango and self-appointed government watchdog John Simpson intensified this month when Simpson and his attorney Matt Roane filed another lawsuit against the city.
The lawsuit was filed Nov. 8 with La Plata County District Court and names city clerk Faye Harmer, city manager José Madrigal and city attorney Mark Morgan in their official capacities as defendants.
Simpson is disputing the results of an open records request he made with the city in September.
A letter of complaint filed with the court says he requested emails between Durango City Council, Madrigal and Morgan concerning development of the city’s Financial Advisory Board’s governance document.
The city initially declined to provide any emails on the basis that each one contained information subject to attorney-client privilege, the letter says. After two phone calls between Simpson’s and the city’s legal counsels in October, the city provided Simpson with “a set of heavily redacted correspondences dated Aug. 30.”
Simpson is not satisfied with the redacted versions of the emails or the reasons the city redacted them, according to the complaint.
According to the letter of complaint, Simpson is seeking court orders to require Harmer, Madrigal and Morgan to appear in court to show cause for why the requested emails cannot be made available; for an in-camera inspection of the emails in question, in which a judge looks at evidence outside the presence of litigants or third parties; and orders to make the emails subject to open record requests and awarding legal fees to Simpson.
Neither Simpson nor Roane responded to requests for comment for this story.
This is not the first legal quarrel between the city, Simpson and Roane. Simpson won another lawsuit against the city early this year after a 6th Judicial District Court judge ruled the city must hand over 2022 draft financial documents Simpson requested and was denied. The city is seeking an appeal in that case.
Harmer, the city clerk named in Simpson’s lawsuit, said attorney-client privileged information is outside the scope of records requests, and this is not the first time she’s been caught under the threat of legal action for following open records statute.
“We always try to err on the side of transparency, for sure. But there are just certain things, like attorney-client privilege and executive sessions, that A., fall outside the scope of records requests, and B., quite honestly, according to statute, I’m not allowed to release,” she said.
Harmer and city spokesman Tom Sluis questioned why Harmer was personally named in Simpson’s most recent lawsuit and previous lawsuits filed by Simpson or Roane.
Sluis said naming city employees in lawsuits when the employees are doing their regular jobs and haven’t demonstrated malicious behavior or bad intent “throws a wrench into” the employees’ work.
“If you’re going to be suing somebody individually in a city perspective, it’s got to have demonstrated some pretty bad intent,” he said. “Not just the regular course of duties that they’re performing for the citizens.”
Sluis said Simpson himself tried to skirt around open records rules when he was on the city’s Infrastructure Advisory Board.
Sluis said city board and commission members are subject to open records requests, but that didn’t stop Simpson from placing disclaimers in emails from him to Councilor Olivier Bosmans, stating the emails aren’t subject to open records requests – which is not a legal method of subverting the Colorado Open Records Act.
At least some of Simpson’s emails are already publicly available online from past searches by residents via the city’s Open Records Portal, Sluis added on Saturday. Simply searching “Simpson” produces at least seven results.
The Durango Herald filed an open records request with the city of Durango on Tuesday seeking the emails in question.
On Friday, The Herald received an anonymous envelope containing six screenshots of emails from Simpson to Bosmans dated Jan. 16, 2022, Feb. 22, 2022, Aug. 4, 2022, July 26, 2022, March 2, 2023, and one undated email.
The envelope was not addressed from the city of Durango and did not contain a signature, and the city’s online Open Records Portal still lists the Herald’s request as “pending.”
Five of the six emails contain disclaimers by Simpson stating they are not subject to the Colorado Open Records Act.
In the email dated Jan. 16, 2022, Simpson says in a message to Bosmans, “If you have any questions about the discussions that occurred at the IAB (Infrastructure Advisory Board) water rate study, I would be glad to discuss further. Feel free to call.”
Simpson included a disclaimer at the bottom of the email that says, “This message is not subject to any CORA request.”
In the July 26, 2022 email, Simpson advises Bosmans about perceived debt in the form of certificates of participation, regarding the property trade of the former 9-R administration building and River City Hall between the city and Durango Fire Protection District.
“As part of the fire/police building discussion on 7/27, you will be discussing Certificates of Participation (COP),” Simpson says in the email. “They are going to try to convince you that COP’s are not debt, but 99.9% of the citizens would consider these financial instruments to be debt.”
He continues, saying a COP would tie future councils’ hands by committing them to COP payments, and skipping a payment would ruin the city’s credit.
“A debt is a great tool to pay for infrastructure, but Council cannot tie the hands of future councils without a vote of the people,” he said. “The people presenting at the study session are going to try to convince you otherwise.”
COPs are not legally considered debt in the state of Colorado. The Colorado General Assembly says in a 2018 issue brief about COPs, “The Colorado Supreme Court has ruled on two occasions in the last few decades that COPs are not considered a form of long-term debt and thus do not require prior voter approval before issuance.”
At the bottom of the email, Simpson included another disclaimer in parentheses, saying, “This message is private and not subject to any CORA request.”
“You’ve got somebody who is complaining about the Open Records Act while simultaneously, he’s got emails that are public record that are showing he’s trying to avoid those emails being covered by open records,” Sluis said.
He said Simpson’s actions are “hypocritical” and “ironic.”
Emails aren’t the only thing Simpson faces scrutiny over. Morgan, the city attorney, served Simpson with a cease and desist letter in late October ordering him to stop harassing city staff, officials and elected leaders, under the threat of legal action.
The letter accuses Simpson of “false allegations of ill practice” and “misogynistic” and “racist statements” that accuse the city manager of nepotism. The letter also accuses Simpson of libel and slander about city officials, as well as “meritless questioning of professional qualifications … to harass city officials.”
Morgan sent another cease and desist letter to the Colorado Division of Water Resources where Simpson works as an assistant engineer in Division 7, a detail revealed in a Herald editorial titled, “Our View: Measuring harassment in correspondence.”
In the letter addressed to DWR director Tracy Kosloff, Morgan orders Simpson to “cease and desist from any action in his capacity as an official with authority over the City of Durango’s water rights, whether direct or implied to influence, intimidate, or threaten the City of Durango or its officials.”
Morgan said Simpson visited his office wearing a shirt with a Colorado DWR logo, demanding unaudited 2023 financial records and threatening more legal action.
Chris Arend, communications director for the Colorado Department of Natural Resources, told Herald editorial writer Ann Marie Swan any decisions about Durango’s water would be reviewed by or under the direction of the division engineer, not an assistant engineer.
“It’s interesting that they responded from the director level, that well, he’s (the director) going to make the decision. But directors don’t make decisions unless they’ve got input from all their staff,” Sluis said.
Separately, Durango resident Charles “Chris” Elias submitted a campaign finance violation complaint to the Colorado Secretary of State Office in October, accusing Simpson of failing to report campaign contributions and expenditures for a political committee he formed in 2018.
Simpson created the committee, Citizens for Durango’s Future, to advocate against a municipal ballot item asking voters for approval of a sales and property tax increase. The committee created and distributed fliers and mailers ahead of the election. In the end, the ballot measure to increase taxes failed by over 20%.
The SOS Office dismissed the complaint on the grounds it was about an explicitly municipal matter, then forwarded the complaint to Harmer in the city clerk’s office.
On Friday, Roane delivered a motion to dismiss the complaint to the city clerk’s office.
In the motion, Roane argues Elias has not filed a complaint with the city itself, and therefore “there is no pending matter ripe for adjudication.”
Harmer said she asked the SOS Office for instructions on how to handle the complaint, and she was told to consider the complaint to be official.
“I intentionally emailed them back and said, ‘Do I need to reach out to him (Elias) and tell him that he has to refile with me, or do I accept this electronic version from you (SOS) as an official complaint?’ And the state instructed me to accept the electronic version as an official complaint,” she said.
The city can approach campaign finance violation complaints in three ways – dismissal, a cure process or a hearing for further legal review. She said she and the city attorney agreed the cure process would be “the most expedient and the cleanest” solution.
She said she told Simpson if he cured his reporting by identifying who was on the Citizens for Durango’s Future political committee, where money came from and how it was spent, then the city would dismiss the complaint against him.
Harmer said statute allows municipalities to charge $50 a day for every day someone is late filing campaign finance reports. But the city isn’t trying to bankrupt Simpson or hammer him with fees.
“If you accumulate five years, it is a fairly substantial amount. We’re just asking for the paperwork, we’ll file it, and let’s move on,” she said.
If Simpson refuses to release his committee paperwork, and Roane’s motion to dismiss the complaint is denied, the issue will be addressed in a public hearing. That involves hiring an objective third party hearing officer, providing due notice of the hearing and the hearing process itself, all of which costs the city taxpayer dollars.