City Brawl: Denver Auditor Sues City Council Over Subpoena Power Measure

Welcome to city brawl!

Denver Auditor Tim O'Brien just filed suit against Denver City Council, charging that a measure approved by council in May 2021 chips away at the power of the auditor's office in a way that violates the city charter.

“The council’s amendment was a mistake, and now we are asking the Denver District Court to clarify the legality of the amendment,” O'Brien says in a statement about the lawsuit filed March 1. “This was our only choice, because the City Council refused to agree to the necessary changes, and we cannot operate in a way that does not comply with Denver’s Charter."

That proposal granted the auditor the power to subpoena third-party entities that contract with the City of Denver and refuse to provide documents and information in a timely manner. It also gave the auditor the power to issue subpoenas when enforcing the City of Denver's minimum-wage laws.

But before council passed the measure, Councilman Kevin Flynn put forth an amendment that allows entities that contract with the city to choose to provide "confidential and/or proprietary records" instead of "providing copies for off-site use."

"[The amendment] carves out a very narrow point that proprietary and confidential information that is subject to an audit is entirely open to the auditor when there’s a performance audit or an internal audit, entirely open to the auditor, but the entity being audited does not have to make a physical or a digital copy and release it out the door," Flynn said during discussion of the amendment on May 10, 2021, adding that he had concerns about the hacking of confidential information taken off site. As initially written, the proposal also got significant pushback from members of the business community.

Councilmembers Candi CdeBaca and Robin Kniech both opposed Flynn's amendment. "This is a very big change. I would disagree with the characterization of it as narrow," said Kniech, who noted that O'Brien had sent a letter to councilmembers, notifying them of the potential for a legal challenge to the amendment.

Even so, the amendment passed 10-2, and the overall proposal was approved 9-3.

CdeBaca still disapproves of the proposal. “As I stated in committee several times and on the night of the vote, I believe the City Auditor should have subpoena power if he is to provide truly unbiased, transparent audits. Of all entities, his role makes the most sense to have subpoena power in order to ensure that his work goes unaffected by the obstructions that often come as a result of politics and/or personalities. His request is not uncommon, and in my opinion, is for the greater good of the city, especially given some of the audits he has conducted that have revealed egregious gaps in our city business and systems," she says.

This is the second dispute between Denver City Council and the Denver Auditor to go public in recent months. In December, O'Brien publicly blasted council leadership for requiring that council staff be present during audit interviews with other council employees. At the time, Council President Stacie Gilmore said that O'Brien was "bullying council leadership."

Now he's suing them.

In response, Denver City Council leadership has decided to introduce a proposal to repeal the entire ordinance that granted the auditor subpoena powers and then revisit the issue.

“The disappointment of this path is quite real,” Councilwoman Jamie Torres, the council president pro-tem, says in a statement. “The majority of Council wanted the Auditor to have subpoena power and felt strongly that the amendment that was added by Council was in the best interests of all parties, as is the right of the legislative branch. Unfortunately, the night Council voted on this legislation, the Auditor did not attend. This is an opportunity to re-engage and try again.”

Gilmore asserts that O'Brien "expected us to rubber-stamp legislation."

But O'Brien fires back at those charges. "The council members did not invite Auditor O’Brien to attend their Zoom meeting and the Auditor was not alerted that there would be any questions, so he watched the meeting on Denver8 TV. When a council member asked for a recess to allow Auditor O’Brien to join the virtual meeting, the council president refused," his office says in a statement.

O'Brien is asking the judge to declare the amendment invalid; he wants the rest of the ordinance to remain intact. “Our audit process is confidential and professional," he says. "The council overstepped its bounds by placing misguided restrictions on our audit work, and now it is doing more damage by erasing the limited progress we made."

Here is O'Brien's full complaint: