The Pagosa Springs Town Council recently voted in favor of paying my attorney fees, much to my relief.
The total bill came to $35,063. The Council voted 5-to-1 in favor of making the payment.
Much to my relief.
About a year ago, my attorney Matt Roane and I filed a complaint in District Court, asking for access to an audio recording of a closed-door “executive session” that I knew, in my heart, had violated Colorado’s Open Meetings Law.
On the advice of Town Attorney Bob Cole, a previous Town Council had convened behind closed doors to discuss a proposal to build — with taxpayer funding — a $7 million bridge and connecting road that would greatly benefit three local developers known as the Springs Partners. In violation of Colorado law, the previous Council had allowed the Springs Partners to participate in that closed-door meeting — while keeping the the discussion hidden from the general public.
Part 4 of article 6 of title 24, Colorado Revised Statutes — otherwise known as the Open Meetings Law, or “OML” — originated in a citizen initiative known as the “Colorado Sunshine Act of 1972″… and although it’s been subsequently amended, its purpose has remained constant: “that the formation of public policy is public business, and may not be conducted in secret.” The law is clearly intended to afford the public access to a broad range of meetings at which public business is considered.
The Colorado Courts have interpreted the law broadly “in order to further the legislature’s intent to give citizens a greater opportunity to meaningfully participate in the decision-making process by becoming fully informed
on issues of public importance.” The law allows closed-door executive sessions for a few, select types of discussions, such as — for example, in Section (4)(e):
(e) Determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators.
When the Town Council voted to convene in an executive session on September 17, 2015, their Denver-based attorney, Bob Cole, of Collins Cockrel & Cole, had advised them that the above exemption allowed the entire Council to meet behind closed doors — not with the Town’s negotiator, but with the very parties with whom the Council was negotiating: the Springs Partners LLC.
That advice from Mr. Cole seemed to me to be stretching the meaning of Section (4)(e) far beyond what the Colorado legislature had intended, and I warned the Council — before they closed the doors — that there was a good chance I would file a lawsuit. Nevertheless, the doors were closed to the public, and a lengthy conversation took place between the Springs Partners and the Town Council.
For the two months following, I begged the Council to allow a District Court judge to listen to the audio recording of this meeting, so we could get a judgement on the legal status of the meeting — without getting involved in a lengthy and expensive lawsuit. Receiving no response to that request, I hired attorney Matt Roane to represent me, and we filed a complaint aimed at putting that audio recording in front of a judge.
A couple of days after filing the lawsuit, Mr. Roane, received a letter from attorney Bob Cole. A slightly intimidating letter, perhaps.
It read, in part:
I hope that you will reconsider seeking judicial review of the executive session tape from September 17, 2015. If not, the Town will seek its legal fees and costs in having to respond to this frivolous claim… An in-camera review will only confirm that the Town adhered to both the letter and spirit of the law in convening an executive session under C.R.S. §24-6-402(4)(e)… The Court will deny your application and the Town will then seek its fees and costs…
You can read the full letter here.
I honestly have no idea what approximate dollar figure Mr. Cole may have had in mind, as he wrote that the Town would “seek its fees and costs,” once I (inevitably) lost my lawsuit. I know that attorneys typically charge in the neighborhood of $200-$300 per hour, so we can easily guess that — had I lost this lawsuit, and had the Town indeed sought its “fees and costs” as promised by Mr. Cole — I might have been left basically bankrupt.
This is one of the problems with the Colorado Sunshine Law. The legislature wrote the law without assigning anyone to enforce it; there’s no “police force” watching our governments to make sure they adhere to legal processes. Enforcement of laws like the Open Meetings Law is basically left up to individual, concerned citizens.
But in order for a private citizen to use the law to protect the public’s right to transparent government, he has to risk possible bankruptcy. Not a pleasant prospect.
As fate would have it, District Court Judge Greg Lyman agreed with the arguments put forward by Mr. Roane on my behalf, and ordered the Town to release the audio recording of their meeting with the Springs Partners. That decision allowed me to seek, from the Town, full payment of Mr. Roane’s attorney fees. Which I did seek.
Mr. Roane is a thoughtful, hardworking professional. That’s one of the reasons I chose him to represent me; he does not do sloppy work. And he kept meticulous track of the hours he spent keeping me out of bankruptcy court. When the hours spent on my behalf were totaled, the bill came to $35,063.
At the October 20 Town Council meeting, mayor pro tem Tracy Bunning spoke for about 5 minutes, summarizing his belief that Mr. Roane’s fees were excessive, and recommending that the Town continue its legal wrangling over the issue. His arguments, however, failed to sway any of the remaining Council members, and as mentioned above, the vote was 5-to-1 to pay Mr. Roane’s fees, as submitted to the court.
A few moments later, Mr. Bunning invited comments from the audience, as happens at the end of every Council meeting — and Jim Garrett, the reporter from the weekly Pagosa Springs SUN, stood and addressed the Council.
Mr. Garrett noted that — in the objections to Mr. Roane’s fees filed by the Town’s attorney in the case, CIRSA attorney Steve Dawes — the argument was not that Mr. Roane’s hourly fee was unreasonable, but rather that Mr. Roane had spent too many hours working on my case.
A few selections from Mr. Garrett’s testimony:
“Mr. Roane reported that he spent something on the order of 172 hours — that’s a little bit more than four weeks of work…
“I was a federal prosecutor for 36 years. I handled hundreds, maybe even thousands of cases, from start to finish, because that’s what you do as a federal prosecutor…
“You know, I’m trying to rack my memory about this — and I handled complicated cases, but also when I was younger, I did handle some pretty simple cases — I really don’t believe I ever spent less than four weeks on any case that I handled from start to finish.
“So, for what it’s worth, litigation — if you involve yourself in litigation, and if you are conscientious — you devote a lot of hours to it. You really do.
“And frankly… well… I’ll just let it go at that. Thank you very much.”