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Following the filing of a lawsuit by Denver Auditor Tim O’Brien, Denver City Council could revoke the subpoena powers granted his office in May 2021.
“Most members of this body want the auditor to have subpoena power and would vote that way,” Councilman Kevin Flynn said during a Denver City Council meeting on March 7. But in the face of a lawsuit filed on March 1, Flynn and others on council have opted to repeal last year’s measure in order to craft a new subpoena power ordinance and “prevent the waste and abuse of taxpayer money.”
Council voted 10-1 in favor of Flynn’s proposal during the March 7 meeting; Councilwoman Candi CdeBaca was the only member to vote against it. There will be a final vote on March 14.
In his lawsuit filed against Denver City Council, O’Brien argues that an amendment added to the original measure last May 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. “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 measure 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 it, 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.”
“We put a few guardrails in for the interest of security of confidential and proprietary data,” Flynn explained at the March 7 meeting. “I proposed this amendment in order to save the bill. Without my amendment, his bill would’ve died on the floor.”
O’Brien is asking a Denver District Court judge to declare the amendment invalid; he wants the rest of the ordinance to remain intact. But if council votes on March 14 to repeal the ordinance instead, his lawsuit could become moot.
“I’m not happy about it. but this is the best choice in order to save taxpayer dollars,” Councilwoman Amanda Sawyer said at the March 7 meeting.
“Auditor O’Brien respects city council’s process and right to make or repeal laws. He’s disappointed in the misrepresentation of facts from some members of council and believes council leadership did not act in good faith. The repeal of the ordinance would be a disservice to the people we work so hard to serve. Auditor O’Brien is glad to hear so many councilmembers support the subpoena power and hopes they will reconsider repealing it before the final vote next week,” says Tayler Overschmidt, a spokesperson for O’Brien, in response to council’s March 7 move.
This is the second war of words between Denver City Council and O’Brien 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.”
Adds Flynn, “Council leadership didn’t prevent them from talking with the auditor without a witness; it was the staff themselves who requested of leadership that they not be interviewed by the auditor without a witness in the room. Their reasons for that may become more clear in time, but our front-line staff was not comfortable being alone in the room with the auditor’s team. For the auditor to blame our leadership for this situation is a complete mischaracterization.”
Playing peacemaker during the March 7 meeting, Councilman Paul Kashmann referred to the latest dispute as a “spat between friends.”
Auditor O’Brien has “done a spectacular job in his time of service to the city,” Kashmann added. “The level of discourse has gotten heated and, to me, a bit extreme on both sides.”
