It’s no secret to any business leader that we live in a litigious age. You get sued by your customers, your clients, your suppliers, your employees, your business partners and by people and organizations you’ve never heard of. And you’re in the game too: suing subcontractors, suppliers, accountants, attorneys, real estate brokers and people and organizations you’d never heard of — until you realized they were scamming you.
Think you’re being targeted unfairly? Imagine being Colorado Springs Mayor John Suthers or Colorado Springs Utilities CEO Jerry Forte.
City Attorney Wynetta Massey represents both entities. With an annual budget of more than $5 million, she employs 27 attorneys and 14 support staff. Much of their time is devoted to the minutiae of government: writing ordinances, rendering opinions and guiding officials in their day-to-day business.
It’s slow, methodical, unexciting and necessary. Her office, according to the 2017 budget, “provides assistance in transactional matters and employment matters on behalf of the city and all its enterprises; reviews, updates and maintains the City Code and provides legal services to special district annexation and finance issues.”
At any given time, the city and its enterprises are involved in scores, even hundreds of legal disputes. Many involve disaffected or dismissed employees, dissatisfied contractors or disgruntled residents. Although the individual sums involved are relatively insignificant, the aggregate amounts are large.
In that context, it makes sense to mount a vigorous defense to most claims, and to have an equally formidable offensive capability.
That’s life in the big leagues. Taken together, the city and its enterprises can be compared to a multi-billion dollar diversified private company, with all the challenges of such an organization. And since the city isn’t a private company, its legal dilemmas are magnified.
Want to get rid of an obstinate, low-performing senior employee? A private employer can usually do so quickly and discreetly, avoiding embarrassing fallout. Not so in the public sector, where routine termination agreements become politicized fodder for partisan agendas.
Governmental transparency comes with a price. Every action is subject to media scrutiny and potential mischaracterization by the media and the public. The cumbersome, convoluted machinery of citizen input can seem to stifle innovation and decisive action. But if legal issues are involved, there’s an escape hatch.
The Colorado Open Records Act allows the mayor and city council to receive legal advice from attorneys in closed, confidential meetings. In theory, no decisions are made and no votes are taken.
Is that the case? Since no minutes, recordings or videos of any such meetings have ever been released, there’s no way of knowing.
Clearly, personnel matters, lawsuit settlements and real estate transactions are covered by the CORA exemption, but what if larger policy questions are in play?
Since 1981, only four people have served as city attorney: Jim Colvin (1981-1998); Pat Kelly (1998-2011); Chris Melcher (2012-2014) and Massey (2014-present).
Massey, Colvin and Kelly each put in more than 25 years as city employees, while Melcher was an outlier without city experience.
Colvin, Kelly and Massey created and defined the city attorney’s office.
Think of it as a long-established family law firm — careful, publicity-shy and devoted to the interests of its longtime clients. That’s good in most cases. But what if the insular firm is the sole arbiter of legal matters for an organization that must be open and transparent to function effectively? Does secrecy trump transparency when law and policy intersect?
Judging from the record, yes. The city attorney’s office sometimes values secrecy above the public’s right to know.
Consider the botched U.S. Olympic Committee retention deal, the city’s futile attempt to stiff PERA after the Memorial Health System lease deal, the single-source contract between Neumann Systems Group and Colorado Springs Utilities and the ongoing battle between Leslie Wiese and CSU. City strategy in each case was guided by legal advice given in closed session or without council present. There may have been lively debate and skeptical questioning — or council may have passively accepted their attorney’s advice. In retrospect, a more open process might have led to better decisions for the city and its residents.
I remember quizzing then-councilor Tom Gallagher about the USOC deal as he emerged from a closed session. Gallagher gave me a pained look.
“I can’t talk,” he said. “That’s the law.”
I would have told Tom about my experiences in closed sessions, but I couldn’t. Like Tom, I’d taken an oath.