After Denver Auditor Tim O’Brien filed a lawsuit claiming City Council passed an illegal amendment on an ordinance restricting the auditor’s ability to issue subpoenas, council has filed to repeal the bill and start the process over.

In May 2021, Denver City Council passed an ordinance giving the auditor power to issue subpoenas to access records from external agencies if documents for an audit are not voluntarily produced. After it received pushback from the business community, the council added a last-minute amendment creating the option for people or entities to provide the auditor time to look at proprietary and confidential information on-site and in-person, rather than giving him physical or digital copies.

“This hinders our standard audit process and conflicts with requirements against undue influence described in the Generally Accepted Government Auditing Standards published by the U.S. Comptroller General,” a news release from the auditor’s office said.

“Our audit process is confidential and professional,” O’Brien said in the release. “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.”

The release said O’Brien and his staff have met several times over the past year to work out a solution, including a letter dated as recently as February.

“I tried cooperation and compromise with the council,” O’Brien said. “And I believe there are many council members who support me. However, council leadership has been unreasonable and has repeatedly misrepresented this problem.”

A news release from the City Council countered the auditor’s statements and said the council would move forward on repealing the ordinance to avoid “an expensive court battle financed by taxpayers.” This will in turn negate the auditor’s lawsuit.

“Council is disappointed that the Auditor’s Office did not take the opportunity to engage in meaningful discussion during the development of the legislation and the ensuing public debate,” the release said. “Instead, he has filed a lawsuit to challenge a law he could have helped craft.”

Council member Kevin Flynn, who proposed the amendment, said it was never intended to withhold information from the auditor, rather to protect confidential and proprietary data. Flynn also said the bill wouldn’t have had the seven votes to pass council without this amendment.

Colorado traffic deaths involving impaired drivers up 44% since 2019

“I can’t emphasize enough that there were serious, legitimate concerns about data security for proprietary and confidential information,” Flynn said. “There was no engagement or discussion about how to address those concerns.”

“All the subjects of the audit who came to us with concerns, none of them proposed withholding any information. What they were concerned about was duplicating it on a flash drive and handing it to him and watching their proprietary information go out the door,” he said.

Flynn said he hopes the process can start over with genuine engagement and involvement from all parties, and that the council has always wanted the auditor to have subpoena power. A direct file to repeal the ordinance is on the council’s agenda for its next Monday night meeting.

Flynn added that the city attorney rendered her opinion that the amendment is proper and legal after O’Brien asked for her opinion shortly after the bill’s passing.

“I regret that this is the direction the auditor wanted to go,” Flynn said. “He should not be trying to get the court to do legislation for him. We are the legislative body, so the only way we can save taxpayers money is by repealing this. Instead of fighting it in court, it should be in the council chambers.”

Council members Robin Kniech and Candi CdeBaca voted against the amendment when it was proposed in May.

Kniech previously said the amendment was too big of a change since it doesn’t just involve situations where a subpoena has been issued, but allows any person or entity to refuse to allow confidential information off site. She predicted the amendment could have legal challenges due to potential conflict with the city charter language describing auditor power.

CdeBaca said in a statement that of all city entities, the auditor’s office makes the most sense to have subpoena power to ensure his work is unaffected by politics and/or personalities.

“I always support anyone’s efforts in utilizing the third branch of government (Judicial) when justice and resolution are obstructed by the Executive or Legislative branches of government,” CdeBaca said.

Legal disputes mean a delay in Marshall fire cleanup as officials play blame game

Some council members requested to know O’Brien’s thoughts on the amendment at the meeting in May, but he was not present. Council President Stacie Gilmore declined to take a recess to get him on the call, saying “if he felt strongly about it, he would be here tonight.”

“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 a release from council. “I would encourage him to re-engage with Council and respect our role as the legislative branch and act accordingly.”

This isn’t the council’s first conflict with the auditor’s office. A planned audit on City Council last year was delayed due to a disagreement over whether council could have an observer present during the auditor’s interviews of staff members.