In a letter dated March 23, city attorney Geoff Wilson responds to “commentary in today’s Mountain Mail” about the settlement of Miller-Bomer v. City of Salida, a Colorado Open Records Act lawsuit in which the court ruled in Tom Bomer’s favor.
Wilson, Salida’s interim city attorney, served as general counsel for the Colorado Municipal League for 27 years with a focus on sales and use taxation, open records, open meetings and other legislative issues affecting Colorado municipalities.
“Any insinuation that anything unlawful or deceitful transpired is simply wrong,” writes Wilson, who then outlines the series of events questioned by The Mountain Mail in Brian McCabe’s March 23 article, “Council leaves Salida in the dark over Bomer settlement” (paid content).
“(A) Council convened an executive session on January 16, for the purpose of receiving advice from their attorney on specific legal questions, which included determining positions relative to matters that may be subject to negotiations, developing a strategy for negotiations and instructing negotiators, as expressly authorized in the Colorado Open Meetings Law (OML; see: C.R.S. 24-6-402(4)(b) and (e)(I).
“This ‘negotiations exception’ to the well-known prohibition on taking formal action in executive sessions (see: C.R.S.24-6-402(2)(d)(IV) ) has existed (in) the Colorado OML for decades. In this exception, the (Colorado) General Assembly has recognized that it generally does not serve the public’s interest for the government to publicize its negotiating positions, particularly (as here) in the context of litigation.
“(B) At the executive session, the City council … developed a strategy for the negotiations and instructed the City’s attorneys to attempt to settle the case at or below a specified amount. The particulars of the discussion at the executive session beyond these general facts are covered by the Council’s attorney-client privilege, and are thus not subject to release.
“(C) The City’s attorneys then engaged Plaintiff’s counsel in discussions as to whether it would be possible to settle the case within the parameters established by the Council. The details of these settlement negotiations are not subject to release, either as attorney-client privileged communications or because of Colorado Rules of Evidence, Rule 408 (protecting from release materials in settlement negotiations). The City’s attorneys ultimately were able to reach agreement with plaintiff’s counsel, settling the case within Council’s parameters, for $20,000.00.
“(D) Upon settlement of the case, the City finance department cut a check to plaintiffs, and the Court entered stipulation and dismissal orders. The check was issued according to City protocols and in compliance with all applicable legal requirements.
“The Mountain Mail seems to suggest that some sort of public vote by Council approving the issuance of the settlement check is legally required. I am unable to locate any Colorado law embodying this notion. Indeed, I am unable to locate anything in the Open Meetings Law or any other Colorado law that Council violated, even in spirit, in settling the Miller(-Bomer) case.”