Court orders BoCC to pay attorney fees in open records case

13

By John Finefrock
Staff Writer

Sixth Judicial District Judge Jeffrey R. Wilson has awarded attorney Matthew H. Roane more than $10,000 in attorney fees for his work in obtaining disclosure of an executive session recording from the Archuleta County Board of County Commissioners (BoCC).

According to Steve Zansberg, president of the Board of Directors for the Colorado Freedom of Information Coalition (CFOIC), he is not aware of another case where an attorney representing themselves on a Colorado Open Records Act (CORA) case was awarded attorney fees.

Background

On May 6, 2019, the Archuleta County Board of County Commissioners (BoCC) held a special meeting in which the executive session was the only item on the agenda. 

County Attorney Todd Weaver, County Finance Director Larry Walton and County Administrator Scott Wall were also in attendance during the executive session.

The purpose of the executive session, according to the agenda was, “… the Board receiving legal advice on the 1033 investigation.”

About a week prior to the executive session, the Colorado Bureau of Investigation had concluded its inquiry into 1033 Program assets given to the Archuleta County Sheriff’s Office that were allegedly missing.

 Sixth Judicial District Attorney Christian Champagne ultimately determined there was no criminal wrongdoing on the part of the sheriff’s office.

The 1033 Program is a federal program to transfer, without charge, excess military supplies and equipment to local law enforcement agencies and first responders.

On May 8, 2019, the BoCC issued a press release which outlined five directives that each began with “The BoCC will …” 

Commissioner Ron Maez explained in multiple interviews that, despite the language of the press release, no decisions were made during the executive session.

Government bodies making decisions in executive session is prohibited by Colorado state law.

Open records request

On May 9, 2019, Roane filed a CORA request for a copy of the May 6, 2019, executive session recording.

On May 13, 2019, Roane received a letter from Archuleta County Clerk and Recorder Kristy Archuleta stating she was denying Roane’s request, which ultimately went to a judge for consideration of whether the executive session should be made public or not.

On Oct. 14, 2019, Wilson issued a court order about the request for the executive session.

Wilson wrote, “the Court finds that sufficient grounds exist to support a reasonable belief that the BoCC engaged in discussions at the executive session that are not protected by CRS 24-72-204 …” and ordered Archuleta to issue a copy of the recording, under seal, within 14 days for the court to review.

On Nov. 3, 2019, after the court reviewed the recording, Wilson issued an order that determined that portions of the tape were not protected from public release. 

The order, authored by Wilson, notes, “the Court makes a preliminary finding the press release lists policy decisions made by the Archuleta County BoCC in private that should have been made at a public meeting pursuant to the Open Meetings Law, CRS 24-6-401, et sec.”

On Nov. 19, 2019, Weaver released the portions of the executive session recording deemed public to The SUN.

“While the County adamantly disagrees with the Court’s ruling, as evidence by the fact that none of the direction given to staff by the Board has ever been brought before the Board for a decision, the portions of the recording released to Mr. Roane and the items discussed are ‘old news’ and the County has more pressing matters to focus on …,” Weaver wrote in the email that accompanied the recording.

Roane provided a statement to The SUN on Nov. 20, 2019, about the content in the released recording.

“The Commissioners announced the executive session for the sole purpose of receiving legal advice on specific legal questions. The recording, however, memorializes a rambling policy discussion among six county officials across several topics. To me, the announcement was a smokescreen. I hoped the recording would reduce my concerns that the BoCC exploits open-meeting laws. Unfortunately, the recording has only fueled those concerns,” he wrote. 

Attorney fees

After the recording was released, Roane filed a motion to receive attorney fees for his legal work in the case.

The BoCC, represented by Weaver, argued that because the court only allowed about 35 percent of the recording to be released, Roane should only be entitled to about 35 percent of the attorney fees he requested.

On April 16, Wilson released a court order that read that the BoCC must pay Roane $9,685.50 for his work on the case.

The order also states that the BoCC must pay Roane an additional $1,480 “by virtue of his work in replying to the BoCC’s response for the motion for attorney’s fees.”

The order states that Roane would have had to do the same amount of work to have 35 percent of the recording released as all of it, and did not reduce the award amount as the BoCC had requested.

“The County believes the amount of attorney’s fees awarded by the Court was unwarranted and excessive,” Weaver wrote in an email to The SUN Wednesday. “Further, the County is disappointed that the a private attorney whose practice is not located in Archuleta County, who does not live in Archuleta County and does not pay taxes in Archuleta County was able to profit and line his pockets with hard-working Archuleta County citizens’ tax dollars.”

“The reason that I think [this case is] important — and that’s the point that I hoped to establish in addition to getting access to the executive session recording in this case — the state depends on citizens to essentially act as the police with these open meetings laws and to hold the government’s feet to the fire and ensure they comply with the [legal] requirements,” Roane said in a phone call Tuesday, adding, “What I hope is it will encourage other attorneys to do the same thing — to play watchdog.”

In a phone call Wednesday, Jeff Roberts, executive director of CFOIC, explained that it is unusual for an attorney representing himself in a CORA case to receive attorney fees.

Zansberg noted that he does not know of any other CORA case where an attorney representing themselves had attorney fees awarded.

He wrote in an email to The SUN that it is not unusual, however, outside of CORA cases, for attorneys to be awarded fees for their time when they represent themselves.

“When the government makes decisions that affects the public business and affects their roles as the public servant, they have to do it in the sunshine, in the light of day and they can’t go behind closed doors and make important decisions and have important discussions outside of the eye of the public,” Roane said. “We’re entitled to, not only as citizens, not only to see the final result of the process, but we’re entitled to be able to participate in it at almost every step along the way. So, in simple terms, we don’t just get the sausage, we get to watch how it’s made as well, and if the government doesn’t do that you have the right to challenge them and ask a judge to step in and say, ‘Did they or did they not comply with these laws? And if they didn’t, they’ve gotta go back and fix it the best they can,’ which is what happened in this case.”