City: We're all about transparency

Posted by Pam Zubeck on Wed, Jun 5, 2013 at 1:50 PM

As we report in today's issue, the city continues to pay certain employees money to leave and to keep their mouths shut. The total paid so far, from July 2011 on, approaches $1 million, not including additional benefits such as health coverage and accumulated sick time.

severance agreements, Mayor Steve Bach
  • Steven Depolo

As this practice has unfolded under the direction of Mayor Steve Bach, the city has claimed several times the severance agreements weren't subject to disclosure under the Colorado Open Records Act.

The Independent, as reported today, didn't buy it and threatened to sue. City officials then handed over the agreements.

We invited the city to explain its change of heart, and, as usual, that explanation didn't come until after our deadline. Here's its statement:

In the past, the City of Colorado Springs has denied public access to employment severance agreements. This practice predated the strong mayor form of government, the current mayor and the current city attorney. There is legal authority supporting that position.

When the City recently received a letter from the Independent’s legal counsel questioning the practice and seeking to require inspection of the agreements, the City Attorney carefully researched all aspects of the issue taking into consideration the privacy interests of the employees, the contents of the requested agreements, the public’s interest in the records and the rules and prior cases addressing similar issues.

Severance agreements are records that are maintained because of the employer-employee relationship. Colorado law gives records maintained because of this relationship careful treatment under the law.
State law is clear that cities shall not release personnel files. Under the law, employment related records that are not considered personnel files (and are therefore clearly subject to release) include “applications of past or current employees, employment agreements, any amount paid or benefit provided incident to termination of employment, performance ratings, final sabbatical reports, or any compensation including expense allowances and benefits paid to employees by a political subdivision.” C.R.S. § 24-72-202(4.5)

Severance agreements are not included in this list. Therefore, the City’s prior practice was not without merit. However, when a court is confronted with a close call in an open records case and it weighs the competing interests, the law favors release of the record. This appears to be especially true when public funds are expended.

After careful consideration of the issue, recognizing that a legitimate argument can be raised in favor of continuing to withhold the records, the City Attorney determined that the balance of legitimate interests now likely tips in favor of disclosure in these cases. This decision is also in keeping with the position of Mayor Bach that wherever possible the City should promote transparency in its operations, and public access to knowledge and information regarding the operations of the City.

With regard to confidentiality clauses and non disparagement provisions, the American Bar Association recognizes these as common terms in any employment severance agreement regardless of whether the affected employee is in the private or public sector.

Severance agreements are intended to amicably transition employees from City employment. These clauses allow both parties to move forward in a positive way and are mutually agreed upon by both parties. These agreements are standard practice in the business community and the nonprofit employment community, and are in wide use across the country.

It's interesting to note that even as city officials argued the agreements should be shielded from the public, there's evidence they knew their position was precarious. Consider this language in an agreement that was presented to an employee in early April.

Employee shall not make negative comments relating to the City, its employees or representatives, its services, or the circumstances surrounding Employee's departure from the City's employment. The City shall not make negative comments relating to Employee's employment. All parties acknowledge the City is subject to the Colorado Open Records Act (emphasis ours).

As for the city's claim that Bach's position is to "promote transparency," we would point to Bach's and the city's refusal to shed any light whatsoever on the so-called downtown baseball stadium survey; Bach's refusal to give the Indy interviews on various topics (including the most devastating fire in Colorado history), and Bach's policy to charge citizens who wish to access public records. The policy is structured so that it can be cost-prohibitive to seek information that rightfully belongs to the public.

One example: Earlier this year, we beat the deadline for when the records charges kicked in when we sought retention agreements the city has with outside legal counsel, along with other records, for our story about City Attorney Chris Melcher.

The city told us had the fees been in place, we would have been charged $919.

Transparency, indeed.

Comments (5)

Showing 1-5 of 5

City officials are transparently obtuse!

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Posted by Ben Dover on 06/05/2013 at 3:03 PM

At a time when local government nor the 'Big Business Community' ie RBA has failed to entice large national 'primary job' employers to the region - or significantly increase jobs, it is of great interest to read Pam's excellent articles on what may be part of the reason why. A significantly increases role and a larger seat at the table for the 'Small Business Community' appears a growing need. Small business drives the economy ! Join our growing list of individuals and small businesses in our surveys related to local issues. The 'Annual Trust and Confidence in Local Government Survey' will be out in August. The current survey: MARIJUANA: Should council allow, ban, postpone or refer to the voters?

What do you think?…

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Posted by Staci6 on 06/05/2013 at 3:45 PM

That our city council is consumed with pot and the homeless is very unattractive from an outside perspective...making our town look like we can't handle basics and certainly can't be moving ourselves toward being a viable place to invest in as a business.

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Posted by TejonTech on 06/05/2013 at 3:49 PM

Guess what Techie, our town CAN'T handle the basics, that's why so few firms consider this city as a place to do business, and is one reason some left. Whether that's good or bad depends on one's point of view.

You can bet that Mayor Botch and his developer pals have a lustful heart for the growth that comes from big-name corporate investment, but for that growth to show its face here there has to be better infrastructure (which costs MONEY) and a climate that's good for something besides money-grubbing bible-waving organizations. TABOR is our death dirge.

We also need a congress person who's not the laughing stock of the government, and trust me, it takes massive stupidity to be the laughing stock of our elected national joke.

Back to transparency, big investors see NO transparency in how Mayor Botch has fired all the key city personnel and hid behind typical mealy mouth gobbledegook about contract privacy, yadda yadda. Throw in Rep Lamebrain in congress, crazy man Tom Tancredo as a possible Governor or Senator, plus Sean the haircut Paige pimping a Koch Bros agenda via AFP, and the national business community just looks at this city and laughs its ass off.

Transparency? Yes, big money sees right through our BS conservative lies and facades.

report 6 likes, 1 dislike   
Posted by OldCrank on 06/06/2013 at 12:03 PM

Other than your slam against Christian ministries, a little of which might make you a nicer person, or at least calm your anxious heart about your eternal destiny, I would agree with you.

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Posted by TejonTech on 06/06/2013 at 1:44 PM
Showing 1-5 of 5

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