Denver City Auditor Tim O’Brien this week filed a lawsuit against Denver City Council seeking to remove limits the council placed on his subpoena powers.
O’Brien, serving his second term as city auditor, publicly sparred with council leadership late last year over plans to audit the council’s operations. Bubbling beneath the surface was a separate dispute over a late change to the subpoena powers bill that the council passed in May.
Council leadership has reacted to the suit by saying they plan to repeal the ordinance that gave the auditor’s office subpoena powers in the first place. In a statement released Thursday, those leaders invited O’Brien to “engage with us to address the serious and legitimate concerns the council has in the matter.”
Subpeona powers mean the auditor has the authority to compel city contractors to provide records, documents or testimony necessary to completing audits if they don’t comply willingly. O’Brien on Thursday said his office already has the right to request and review records and documents but having subpoena powers provides a cheaper, speedier method for that than trips to court.
As outlined in the suit filed this week, O’Brien wants an amendment to the subpoena bill struck down. The amendment granted city agencies and contractors that keep “confidential and/or proprietary records” the power to reject providing copies of those records directly to the auditor’s office for off-site review. Instead, those record-holders have the authority to provide access to those records “on-site.”
O’Brien’s suit contends that giving subjects that kind of leeway flies in the face of best practices for governments audits and violates provisions of the city charter.
In an interview with The Denver Post in December, O’Brien described the off-site amendment, brought forth by Councilman Kevin Flynn, as inappropriate and “the council getting into the auditor’s business.”
Flynn on Thursday said the bill would have failed entirely if not for the amendment which put in guardrails around proprietary data.
On Thursday, O’Brien said that he recently offered three alternatives to Council President Stacie Gilmore and Council President Pro Tem Jamie Torres to resolve the issue; remove the amendment; replace the amendment with language granting a court the authority to dictate the time, place and method that records would be provided to the auditor; or file a suit and let a court decide.
“I think the council leadership has very much misrepresented what we have tried to do in terms of resolving this,” O’Brien said. “We have tried to clarify it and they don’t seem to understand or maybe they don’t want to understand.”
In their statement Thursday, Gilmore and Torres said they were disappointed that O’Brien had taken the matter to Denver District Court. O’Brien rejected offers to work with the council on legislative fixes to his problems with the bill, they said.
The statement emphasized that council members support the auditor’s office having subpoena power, specifically in cases where the auditor is examining compliance with prevailing and minimum wage laws. But, council leaders say, repealing the ordinance and starting over is cheaper for taxpayers than hammering out differences in court.
In an interview Thursday afternoon, Gilmore said that throughout the legislative process last year, O’Brien was resistant to holding stakeholder meetings about the bill even after the Downtown Denver Partnership and Denver Metro Chamber of Commerce expressed concerns. He didn’t participate in the meeting the night the ordinance was passed.
“It’s sort of baffling to me that, for whatever reason, if the legislation was so important for the auditor to get passed, why he would not be ready to answer questions by council (about it) and there were questions,” Gilmore said.
Gilmore has already filed an ordinance that would repeal the subpoena powers section of the municipal code. It will be up for its first reading at Monday’s meeting.
O’Brien has at least one person backing his suit at the city and county building. Councilwoman Candi CdeBaca released a statement on Thursday that described the auditor’s office having subpoena powers as critical to “truly unbiased, transparent audits.”
“I always support anyone’s efforts in utilizing the third branch of government (judicial) when justice and resolution are obstructed by the executive or legislative branches of government,” CdeBaca said in the statement.
This is the second time in three months O’Brien has clashed with the council. His plans for 2021 included an audit of City Council operations. But that audit still has not happened because council leaders insisted that staff would only be made available for interviews if a senior staffer or attorney were also present, O’Brien said.
“Basically, the council leadership was telling me how to conduct an audit and they can’t do that,” he said. “That’s not what the audit function is all about.”
Gilmore on Thursday disputed O’Brien’s characterization of the discussions around how the council audit would operate. Leadership wanted a note taker from the council’s legislative staff to be in the room for interviews to speed up document gathering and “better comply with the audit,” Gilmore said. When O’Brien rejected the first person suggested because he was an attorney, Gilmore said council suggested other members of the legislative staff who don’t supervise any other employees. He rejected that, too.
All during those talks, the issue of the subpoena powers amendment and a possible lawsuit stemming from that lingered, Gilmore said.
“So, as you might imagine, if someone is threatening to sue you on one hand, and on the other hand they want to conduct an audit, it’s an interesting space to be in,” she said.
Updated on March 3, 2022, at 6:30 p.m.Because of an error by a reporter, an earlier version of this story incorrectly described a repeal ordinance that will appear on Monday's City Council agenda.
