Tom Bomer, Salida, recently won his portion of a lawsuit, Miller-Bomer v. City of Salida, when District Court Magistrate Amanda Hunter issued a summary judgment against the city for two violations of the Colorado Open Records Act.
Judge Hunter’s ruling states, “The City violated CORA when they failed to properly respond to Mr. Bomer’s request and when they failed to provide the legal grounds for their denial of disclosure.”
Bomer said his original CORA request asked for all letters between Mayor Jim LiVecchi and Salida Finance Director Jan Schmidt from Feb. 1 until April 30, 2016; three days later, he received an email from Deputy City Clerk Christian Samora stating that the requested records accompanied the email.
Bomer said he received an anonymous phone call alerting him to a missing email, at which point he filed another CORA request for that specific email, sent by LiVecchi to Schmidt April 9, 2016.
“The city then said they would have to create a privilege log and estimated it would cost $100,” said Bomer. “I sent back another request to find out the statute being invoked to deny releasing the letter.”
Bomer said he received a letter from Samora June 17, 2016, stating the letter Bomer requested “is privileged” and the “request is denied,” indicating City Attorney Ben Kahn’s involvement.
Judge Hunter’s ruling in favor of Bomer finds that the city broke the law by refusing to provide Bomer with the April 9, 2016, email requested under CORA. (A copy of that email is available here.)
While Miller’s portion of the lawsuit was dismissed, Hunter also denied the city’s cross motion for summary judgment, undercutting the claim that Miller’s lawsuit was frivolous.
In spite of Hunter’s rulings, former mayor pro tem Hal Brown called the Miller-Bomer lawsuit “ill-conceived” and “baseless” while LiVecchi labeled the lawsuit “ridiculous” and “frivolous,” as publicized in The Mountain Mail (“Comments on Jim Miller suit,” Hal Brown letter to the editor, March 5; “Apology due to Kahns, council,” Jim LiVecchi guest opinion, March 7.)
Miller said, “The magistrate dismissed my portion of the claim based on the fact that I did not ask on what grounds they were claiming privilege. I asked who was claiming privilege. … I think my ruling would be overturned on appeal. But I’m not interested in fighting with the current city council, and I don’t want to punish the community.”
In his March 5 letter to the editor, Brown asserts: “The city spent approximately $80,000 defending against Jim Miller. The city spent approximately $55,000 defending against Tom Bomer,” a total of $135,000.
The city paid an additional $20,000 settlement to Bomer, which, Bomer said, did not cover his legal expenses.
Miller said the whole process “snowballed. … The other CORA requests had already been submitted, and the egregious costs they cited for those got me started.” Miller said his biggest concern was a letter from Kahn to the city’s auditor.
“In years past that letter was always public information. It was never hidden. I often got copies of it on the spot,” said Miller. “I was quite concerned when they denied (the CORA request).”
Miller added, “They could’ve redacted one sentence and submitted the document, but they chose not to do that. It was an easy solution that would have cost no one any time or money.”
When this all started, Bomer said, “we thought the attorney would write (the city) a letter and get it resolved, but it got way out of hand. … Kahn made a point of not yielding one bit.”
After a failed mediation session, the city hired attorney Lee Phillips, who specializes in municipal law.
“The next thing we know, instead of just setting a trial date and going to court, Phillips demanded that we have depositions,” said Bomer. “There wasn’t really anything to be discovered, but they insisted, driving up attorney costs for us and the city. … It was clearly obvious they were trying to bleed us (financially).”
In March 2017, the documents requested by Tom Bomer and Jim Miller were made public by the city, leaving Miller and Bomer’s claims for fees ‒ approximately $33,000 at that point ‒ as the only matter undecided in the lawsuit.
City records show that, since that time, the city, under LiVecchi’s leadership, spent an additional $75,000 opposing the plaintiffs’ claims for fees in addition to the $20,000 settlement paid to Tom Bomer. In other words, the city’s refusal to pay the plaintiffs’ claims a year ago cost the city an extra $62,000.
In his Mountain Mail guest opinion, LiVecchi claims a group of local citizens “paid for these frivolous lawsuits against the city.”
But in his deposition, Miller states that he received a total of $4,200 in contributions from local residents toward approximately $25,000 in legal expenses with additional legal expenses yet to be billed at that time.
LiVecchi’s guest opinion also states, “Jerry Mallett retained their lawyers,” a claim that Mallett denies.
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