Denver Government

Denver City Council Repeals Auditor Subpoena Powers

Denver Auditor Timothy O'Brien.
Denver Auditor Timothy O'Brien. Courtesy of the Denver Auditor's Office
Following an almost year-long political dispute, Denver City Council has voted to repeal the Denver auditor's subpoena powers.

"I am not willing to waste taxpayer money on fruitless and frivolous litigation," said Councilman Kevin Flynn during a March 14 Denver City Council meeting before the group voted 11-1 to revoke the subpoena powers. Councilwoman Candi CdeBaca was the lone "no" vote.

Councilmembers had moved to strip the auditor's subpoena powers, which were established in an ordinance approved in May 2021, after Auditor Tim O'Brien filed a lawsuit against Denver City Council on March 1. In his suit, he argued that an amendment added to the original measure last spring chips away at the power of the auditor's office in a way that violates the city charter.

"It's really unfortunate that we have to throw the baby out with the bathwater. But repealing this ordinance that was passed last year — because of the lawsuit that was filed — is a necessary move to moot the lawsuit and start again," Flynn added.
click to enlarge Denver City Councilman Kevin Flynn proposed the original amendment. - DENVERGOV.ORG
Denver City Councilman Kevin Flynn proposed the original amendment.
The May 2021 measure had granted the auditor the authority 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 right to issue subpoenas when enforcing the City of Denver's minimum-wage laws. But before council passed the original ordinance, Flynn suggested 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." By adding the amendment, the ordinance — which had been controversial among business community members — was able to pass council, according to Flynn.

But because that amendment limited his office's actions, O'Brien ultimately filed suit. "The lawsuit is still pending waiting on the next actions from city council," according to Tayler Overschmidt, director of communications for the auditor. "They will need to file an answer describing why the lawsuit may no longer be relevant, but it also depends on the language they decide to use in possible future legislation."

"I think we should be waiting for the litigation to go through or until we have an alternative that is better drafted and ready to approve simultaneously or prior to the repeal," CdeBaca said in explaining her no vote.

Flynn and other councilmembers have promised to move quickly to re-establish the auditor's subpoena powers for minimum-wage enforcement, however.

"With subpoena power restored for wage investigations, we would be able to seek faster processes when needed to make workers whole after they were not paid according to the law," says O'Brien.

And council leadership has promised to re-engage with Auditor O'Brien in order to come up with an ordinance that works for both sides.

"Government accountability and transparency are not catchphrases — they are the goals and duties of dedicated and selfless leaders," says O'Brien. "No matter what burden is placed on this office or what tools are denied it, we will never stop tirelessly working to safeguard the city’s residents and resources."

This story has been updated to include the quote from the auditor's office on the status of the lawsuit.
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Conor McCormick-Cavanagh is a staff writer at Westword, where he covers a range of beats, including local politics, immigration and homelessness. He previously worked as a journalist in Tunisia and loves to talk New York sports.