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.
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.