Visiting District Judge Stephen Howard intends to issue a written order by March 30 that determines whether Boulder County violated Colorado’s Open Meetings Law when selecting a contractor to lead its Marshall Fire debris removal program.
Howard on Friday met with Chad Williams of Davis Graham and Stubbs LLP and Boulder County Deputy Attorney David Hughes in a hearing regarding the initial motion in a lawsuit filed by newly incorporated nonprofit Demanding Integrity in Government Spending that could have resulting in a judge requiring a rebidding process.
However, given that the plaintiff on Tuesday rescinded its request for rebidding, the judge on Friday denied the original motion for a preliminary injunction without prohibiting the plaintiff from seeking another in the future.
In the hearing, which lasted a little more than an hour, Howard also emphasized that the legal proceedings would not impact the cleanup efforts from the Dec. 30 fire, now the most destructive in state history.
“The cleanup in Boulder County will go forward entirely independent from this lawsuit,” he said on Friday.
Because of this, he maintained that he would not entertain arguments from either side about delays. Boulder County and many people who lost their homes in the Marshall Fire have argued that any delay in debris removal would be a huge blow for a community already suffering.
The plaintiff, on the other hand, has said there has never been any intention to delay the process.
With the judge’s determination, the Boulder County Commissioners intend to sign the debris removal contract in a meeting on Tuesday.
In general, the lawsuit now looks to answer one main question: Did the county violate open meetings laws?
The Board of County Commissioners held a number of executive sessions throughout January and February to discuss topics related to the Marshall Fire, including one specifically about the request for proposals for contractors to coordinate the debris removal program.
An evaluation committee meant to discuss the request for proposals and guide the bidding process for contractors also met a number of times to discuss the contractors who submitted bids.
According to the county, the evaluation team included administrative staff from Boulder County, Superior and Louisville. The county received 11 proposals for its private property debris removal program and ultimately selected DRC Emergency Services on Feb. 10.
The plaintiff has pushed back on the county’s argument that the work was administrative, instead calling it substantive, considering the committee reviewed “best and final offer” responses from the bidders, met to evaluate such proposals and analyzed and agreed upon a single score and rate sheet.
Still, Boulder County maintains that it did not violate the open meetings law since it argues the evaluation team wouldn’t be subject to it either way.
On Friday, it went a step further, saying it could become chaotic if every meeting of government employees, regardless of the type of committee meeting or the decision being made, had to be noticed and open to the public.
“That is not efficient or sensible government,” Hughes said.
“The evaluation team had no power to pass a resolution or ordinance or otherwise make a decision that would bind the county,” he later added. “No matter what the team recommended, it remained up to the board to make the governmental decision by voting on the bid award.”
Plaintiff Michael Brown, the former director of the Federal Emergency Management Agency, reneged on his original motion that could have forced a rebidding process, after his legal team suggested the county has been “continuing to wrongfully blame my client for cleanup project delay.”
Brown’s team now is asking to speak with the evaluation team that met with contractors and provided a recommendation to the Boulder County Commissioners.
Williams touched on this during Friday’s hearing.
The meetings were not recorded, due to Boulder County’s argument that the work of the evaluation team was not subject to the state open meetings law.
However, if the court decides that this isn’t the case, Williams said “it can’t be that there is no remedy for that.” He requested that the court “permit some discovery to attempt to recreate that record.”
The parties will reconvene at 11 a.m. March 30 for a virtual hearing.
