After criticism over a non-investigation of the mayor, Denver council considers new legal powers

“I can’t imagine Congress having to go to the president every time they need to hire an attorney.”

Screen Shot 2018-05-16 at 5.24.17 PM

When the Denver City Council announced that it would not investigate Mayor Michael Hancock’s lascivious text messages with an employee, the condemnations poured in.

Kyle Clark, the local news anchor and prolific quipper, had a sizzler ready.

The man got 300 retweets for a point about the structure of municipal government. That’s the kind of thing city nerds fantasize about.

Anyway, in case it was too subtle: Clark was implying that the city’s elected officials were getting questionable legal advice because they rely on the City Attorney’s Office and its leader, Kristin Bronson, who was appointed by the mayor.

The tweet was missing some subtlety, as tweets do. The city council was specifically getting legal advice from Kirsten Crawford, an attorney for the city. Her boss is Bronson, but she is bound by the rules of lawyering to serve the council faithfully.

The council has not changed its mind on the investigation. (More on that here.)

But the criticism is still echoing through the City and County Building.

At a meeting on Wednesday, council members showed growing support for the idea that they should have more freedom to hire their own lawyers. “We didn’t have the option of being fully independent from the city attorney to hire legal advice in that area,” said Councilman Paul Kashmann.

“I can’t imagine Congress having to go to the president every time they need to hire an attorney,” he added later.

Originally, Kashmann thought that the elected officials should have their own independent, full-time legal staff. Now, he’s scaling it back: He wants the council to have the freedom to hire their own attorneys for advice on specific issues.

It’s a conversation that gets at some fundamental issues for the council, which holds relatively little power over the operation of the city government.

Some council members said the current system isn’t working.

Right now, if they want specialized legal advice, they have to ask the city attorney’s office to find them someone, and it’s still not guaranteed to happen.

For example, council members recently asked to hire outside help to figure out the complexities of the public-private plan to rebuild the Great Hall at the airport. That didn’t happen.

“We were told that we could not hire the folks we originally talked to,” said Councilwoman At-large Debbie Ortega. “… Their recommendation was that they would assign somebody from the city attorney’s office.”

And, rather than an expert in public-private projects, they got someone who was familiar with contracts generally, she said.  The attorney had no experience in the area, according to Councilman Rafael Espinoza.

Councilman Chris Herndon was skeptical of the need for a change.

He asked whether the city would be exposing proprietary information to outsiders, and he pointed out that the council has the right to ask anyway.

But Councilwoman At-large Robin Kniech, an attorney herself, said there were two problems there. “One is we don’t have control over the choice. The second is we don’t have the power to contract” with outside parties, she said. “So, we are dependent on them saying ‘yes’.”

And there is no threat of revealing information, she said, because attorneys have to keep their clients’ information confidential.

Crawford, the council’s attorney, also made a case against the change. Why wouldn’t other parts of city government, such as the auditor’s office, need their own attorneys?

Kniech countered that the council plays a unique role. “We are adversarial in the democratic design of the legislative process,” she said. “We are literally passing laws that the other branch of government may or may not agree with, every day.”

Like Kashmann, she doesn’t want the city to have its own full-time counsel. She’s an “unexpected convert” to the idea that the council’s regular attorneys should work in the city attorney’s office. It keeps their attorneys more connected and informed, and she trusts that they serve the council well, she said.

But she wants the ability to hire on legal advice as needed, so she doesn’t have to “beg and borrow free legal” help to flesh out ideas and policies, she said.

Councilman Paul López said that he had faith in the city attorney’s office, but thought that the current arrangement is damaging perceptions of the council’s independence.

“We’re starting to see these extraordinary cases, extraordinary contracts, where we absolutely need some legal independence to be able to do that,” he said.

Councilwoman Stacie Gilmore said she understood the need for outside experts, but worried that a change could result in each council member hiring their own attorney, creating chaos.

Council President Albus Brooks said that the current structure “works really well,” though he was glad to hear suggestions of change. He too was nervous about giving individual members too much power to hire attorneys.

Kashmann suggested that there could be requirements — maybe the whole council or a committee would have to agree on the need for an attorney.

As the conversation wrapped up, Herndon asked whether a change was really necessary. “Has this body (of the whole council) ever gone to the administration? Has this body gone and had them come back and said no?” he asked.

“Not in this lifetime,” Brooks responded. Crawford, the attorney, said that was a “critical point,” because such a request likely “would be entertained.”

At this, Kashmann erupted. “It would be entertained,” he said. “I don’t want to be entertained.”

What’s next?

This was one of the first times the council had discussed the idea at length, so any change is likely a long way away.

It likely would require a change to the Denver City Charter, the document that lays out the fundamentals of city government — and which created the “strong mayor” system.

That can only be done with a vote of the people, so someone would have to gather signatures and put a question on the ballot, or a council member could refer it onto the ballot.

Kashmann is not planning to do that this year, he said.

Updated to include more information about ballot items.

Andrew Kenney

Author: Andrew Kenney

Andrew Kenney writes about public spaces, Denver phenomena and whatever else. He previously worked for six years as a reporter at The News & Observer in Raleigh, N.C. His most prized possession is his collection of bizarre voicemail. Leave him one at 303-502-2803, or email akenney@denverite.com.