Denver City Council facing lawsuit from auditor Tim O’Brien, Stacie GIlmore expresses dissapointment

Denver City Auditor Tim O’Brien this week filed a lawsuit against Denver City Council, seeking to remove limits the council placed on his subpoena powers.

O’Brien, serving his second term as city auditor, publicly sparred with council leadership late last year over plans to audit the council’s operations. Bubbling beneath the surface was a separate dispute over a late change to the subpoena powers bill that the council passed in May.

Council leadership has reacted to the suit by saying they plan to repeal the ordinance that gave the auditor’s office subpoena powers in the first place. In a statement released Thursday, those leaders invited O’Brien to “engage with us to address the serious and legitimate concerns the council has in the matter.”

Subpeona powers mean the auditor has the legal authority to compel city officials, agencies and contractors to provide records, documents or testimony necessary to completing audits if they don’t comply willingly.

As outlined in the suit filed Tuesday, O’Brien wants an amendment to that bill struck down. The amendment granted city agencies and contractors that keep “confidential and/or proprietary records” the power to reject providing copies of those records directly to the auditor’s office for off-site review. Instead, those record-holders have the authority to provide access to those records “on-site.”

O’Brien’s suit contends that giving subjects that kind of leeway flies in the face of best practices for governments audits and violates provisions of the city charter.

In an interview with The Denver Post in December, O’Brien described the off-site amendment, brought forth by Councilman Kevin Flynn, as inappropriate and “the council getting into the auditor’s business.”

“I don’t know what on-site means,” O’Brien said in that interview. “With all the records being kept in the cloud, on-site could mean a lot of things to other people.”

In their statement Thursday, council leaders said they were disappointed that O’Brien had taken the matter to Denver District Court. O’Brien rejected offers to work with the council on legislative fixes to his problems with the bill, they said.

Council President Stacie Gilmore has already filed an ordinance that would repeal the clause giving records holders the ability to provide access on-site. It will be on Monday night’s agenda, according to the city’s legislative tracking website. In Thursday’s statement, council officials indicated they plan to go further, scrapping the entire bill to start fresh.

Gilmore and Council President Pro-Tem Jamie Torres both criticized O’Brien in the statement, saying he did not show up for the meeting the night the subpoena powers bill was approved. Gilmore said he also failed to talk to council members at the committee level.

“His disregard for process and then failing to attend the council meeting for the final vote shows he expected us to rubber-stamp legislation and then he further wants to waste taxpayers’ money by suing City Council for not amending the legislation,” Gilmore said in the Thursday news release. “I would encourage him to re-engage with Council and respect our role as the legislative branch and act accordingly.”

This is the second time in three months O’Brien has clashed with the council. His plans for 2021 included an audit of city council operations. But that audit still has not happened because council leaders insisted that staff would only be made available for interview if a senior staffer and attorney were also present, O’Brien said. Again, he argued the request ran counter to best audit practices and put the process on hold.

“The reason we don’t want somebody else present is you want the staff members you’re interviewing to feel free to talk candidly about their job and their operations,” O’Brien told The Denver Post at the time.

O’Brien sent a letter to the council in December announcing he was suspending the audit until the two sides could agree on ground rules.

In a statement released on Dec. 21, Gilmore and Torres expressed an interest in working with O’Brien to resolve the issues while also criticizing his approach.

“We have been and continue to fully participate in this audit, and I find it very disappointing that the auditor would resort to bullying Council leadership rather than talking out any concerns to an agreeable resolution,” Gilmore said in that statement.

The council audit is still on hold, officials with O’Brien’s office confirmed Thursday.

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