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Those public records, which include staff reports, notes and other documents accumulated during the Pena administration, were taken to the offices of a private law firm. That firm, Friedlob, Sanderson, Raskin, Paulson & Tourtillott, is being paid $275,000 to represent the city in a federal Securities and Exchange Commission investigation of whether Webb or other city officials engaged in "pay to play" arrangements in the awarding of DIA bond contracts.
The airport was financed with billions of dollars in bonds; the SEC seeks in part to determine whether lucrative underwriting contracts for those bonds were awarded on the basis of whether firms had provided campaign contributions to Denver elected officials.
Pena's DIA files were included in roughly 125 boxes of material the former mayor donated to the state when he left office in 1991. The documents have sat mostly untouched in the archives since that time. In fact, Scott Moore, a Colorado State University political science professor who's writing a book about the politics of DIA, says archivists have told him he's the only person who bothered to look at the materials prior to the Webb administration's interest.
Moore says he spent two weeks poring over the files last summer, getting through about fifteen boxes before he had to go back to Fort Collins to resume teaching. But when he returned this spring break to continue his research, he was informed that the records were no longer available. "I was just flabbergasted," says Moore. "When somebody says someone hauled away fifty boxes you wanted to look at, it's pucker time."
State archivist Terry Ketelson says his office was notified early this year that Webb's office wanted the Pena files. Ketelson says that in late January, more than fifty boxes crammed with assorted documents, notes and letters were removed by a contingent of city employees. Ketelson says the city's request for the documents came in a letter from Webb himself. That procedure apparently was followed because control over the Pena files technically rests with the sitting mayor.
"The logic is that these are the records of the mayor's office and not an individual mayor," Ketelson says. "So the successor to the mayor that created the materials has a decision to make."
According to Ketelson, items such as the Pena files are considered public records but usually come with a ten-year restriction. During that period, persons wishing to view the materials are supposed to ask for permission from the mayor's office. However, Moore says he was given free access to the files without obtaining such permission.
Having the documents removed after his staff spent hours organizing them was "not the most desirable" arrangement, says Ketelson. "Yet at the same time, logistics and legal issues would definitely come into play and that's what happened here."
Ketelson says the city assured him that the records would "come back in the correct order" and that care would be taken to ensure the documents weren't lost or misplaced. But his office hasn't been told when the items will be returned, he adds. Ketelson says his office will send the city a followup notice after ninety days and further notices every thirty days after that until the items are brought back. However, the archives lacks any legal authority to demand their return.
What exactly is in the files? Queried by Westword, Webb spokesman Briggs Gamblin said that members of the public must file written Freedom of Information requests if they wish to view the Pena documents. But Assistant City Attorney Helen Raabe later said the files were available for viewing as long as they didn't include items covered by "privilege."
And though the city's private attorney, Raymond L. Friedlob, said last Thursday afternoon that he wasn't sure when the documents would be returned, Raabe said Friday morning--after Westword's inquiries--that Friedlob had informed her his office was in fact finished with the documents. The Pena files, Raabe says, may be returned to the archives as early as sometime this week.
The Pena files were taken from the archives, Friedlob says, because it was more "cost effective" to make copies of the items at his office. Having the job done at the archives was prohibitively expensive, Friedlob says, because the state charges $1.25 per page for copies. He says his firm will charge Denver taxpayers 15 cents per page.
The law firm's contract has been a source of controversy since it was proposed last year. City Auditor Bob Crider refused to sign the contract for months, arguing that it wasn't proper for taxpayers to pay to defend elected officials who may have engaged in "pay to play" schemes. In an April 17 letter to City Attorney Dan Muse, Crider said he believed that if Webb and other elected officials wanted lawyers to represent them in the SEC investigation, they should foot the bill themselves.
(The city has spent more than $1 million defending itself in the "pay to play" matter and a separate SEC probe of whether the city fully disclosed problems at DIA to bond investors. The federal agency has yet to accuse any Denver official of wrongdoing.)
Crider finally signed the Friedlob contract late this month after Muse sent him a letter May 18 insisting that the SEC probe "has only been minimally concerned with political contributions" and blaming the media for concocting the "pay to play" tag, which he described as a "misnomer." However, Muse's letter appeared to contradict a March 28 letter from Assistant City Attorney Suzanne Saunders in which Saunders told Crider the SEC probe "is also known as the `pay to play' investigation." And Friedlob told Westword last week that his firm is representing the city "in the pay to play investigation.