A bill for an ordinance reorganizing and amending Chapter 20, Article XI of the Denver Revised Municipal Code regarding Auditor subpoena power in connection with performance of internal audits and investigations and enforcement of prevailing and minimum wage. Amends Article XI, Chapter 20 of the Denver Revised Municipal Code regarding Auditor subpoena power in connection with performance of internal audits, and subpoena power related to investigations and enforcement of prevailing and minimum wage. The Committee approved filing this item at its meeting on 4-20-21.
Ten Eyes. Council Resolution 20 1-20465 has been adopted. The next item up is Council Bill 78. Councilmember Black, will you please put Council Bill 78 on the floor for final consideration? Yes, Madam President. I move that council bill 20 1-0078 be placed upon final consideration and do pass. Thank you. It's been moved and seconded. Councilmember Flynn. Your motion to amend. And thank you, Madam President. I move that council build 20 1-007 be amended in the following particulars. I will. When I come to the part that is added, I will make note of that on page one. Line 21 insert the following section one that section 20 dash to 76 of the defunct Denver Revised Municipal Code shall be amended by adding the language underlined to read as follows. And I'll point out the underlined section by section 20 dash to 76 internal audits. Paragraph A The auditor shall be provided access in a timely manner to officers, employees, records and property of entities that may be necessary, as may be necessary to conduct an audit or perform audit duties as provided in Section 20, Dash two seven. Five of the DRC contractors with the city that have a contractual obligation to provide information shall provide access in a timely manner to the contractors, officers, employees, records and property of entities as may be necessary to conduct an audit or perform audit duties. Here is a section that is added the sentence that is added to the end of that paragraph the custodian of confidential and or proprietary records or parts of records sought under this 20 dash 276 may provide the auditor timely and reasonable access to inspect such records on site in lieu of providing copies for offsite use. Remember internal bill sections as section two through Section eight accordingly. Okay. All right. Thank you. Council Member Flynn and thank you for the second by Councilmember Hines questions or comments by members of Council on this amendment. Council Member Flynn. Thank you, Madam President. This bill has been in committee I think three times now, and it's been very contentious and a matter of a matter of dispute and conflict among the parties that we're being audited and the auditor and it's hard for us to sit here and know exactly what what all the facts have been. And and maybe with this amendment, that's not entirely necessary for us to sort out. It's just not comfortable to legislate in the dark. And so what this amendment does, it carves out a very narrow point. That proprietary and confidential information that is that is subject to an audit is entirely open to the auditor when there's a performance audit or a financial audit or an internal audit, entirely open to the auditor, but not the entity being audited does not have to make a physical or a digital copy and release it out the door. It would be inspected, subject to inspection onsite as audits have traditionally been done for decades. The the events this week with the East Coast having 45% of its. Energy resources through the Colonial Pipeline being shut down by by hackers demonstrates nationally the need for vigilance on cybersecurity. And in fact, the auditor's office here in Denver earlier this year released an audit that was critical of the city's own audit employee training practices. And so what this does is it allows the entity being audited to protect the proprietary and confidential information from being released offsite to a third party. But it also gives the auditor the access that is required under the charter and under the code. With that narrow point, that's all the amendment does. That does not touch the auditor's other responsibilities for which he's seeking subpoena power and for rent, which I'm in full agreement, and that is enforcement of prevailing wage for our workers under city contract and for enforcement of minimum wage, which we have just acted on in the last several years. So it does not touch that at all. It's only this narrow this narrow point to provide security to confidential information. Thank you, Madam President. Thank you. Councilmember Flynn, Councilmember Canete. Thank you. Council President I recognize that these conversations are iterative, and our goal of trying to discuss everything at committee is not always realistic or possible. But this is an example where this is a very big change. I would disagree with the characterization of it as narrow. It doesn't just involve a situation where there is a dispute between the parties. It restricts the auditor from taking anything considered confidential or proprietary off site, ever much broader than where there's a dispute or where there's a subpoena involved. And I will just say that, you know, for decades upon decades, the auditor has had access to confidential and proprietary information. And so to suddenly change the entire access practice based on a concern about subpoena power, where there's a narrow dispute to me without will give examples of the questions I would have needed to investigate to get comfortable with this. And I'm not going to ask anyone to answer these questions tonight because I'm just going to vote no on the amendment. But examples of what we didn't explore is what are the general accounting principles in regard to analyzing information offsite? What are the cost implications of sending a multidisciplinary team on site versus being able to examine materials? What are the practices over decades that have been successful in terms of offsite materials and have not caused disputes and would now be terminated or prohibited under this amendment? So I feel concerned that businesses have basically taken a conversation about subpoenas and used it to try to blunt the auditing tool. And frankly, these are the contracts where the auditing tool is most important to us because we as council members don't get to see those kinds of books. We can see most of the city's books directly, but we don't get to see the books of contractors that do involve proprietary information. And it is only the auditor who's kind of the eyes of the people on that. We can't serve that role. So to blunt that tool without analysis of what states and cities that have similar powers are doing with regard to this, to me really potentially undermines our ability to protect the taxpayers interests and make sure that those audits are done well. And so without that type of deep analysis and discussion, I just am not comfortable with this change tonight. And I would urge folks to vote no or to limit any amendments simply to situations where there's a dispute resulting in a subpoena, if that's an issue, versus blunting this power for all audits from this point forward. Thank you, Madam President. Thank you, Councilmember H. Councilmember Clark. Thank you, Madam President. You know, I had a lot of the very same concerns that Councilman Flynn raised when he was talking about this as this came through and kind of this back and forth between what, you know, what the issue was and, hey, this was we gave this access. We we didn't get this access and being put in the middle of that in the in the midst of this discussion about subpoena power and I think some very important stuff that's in this proposal. I appreciate that this amendment keeps the preservation of the powers on the wage issues. I think that it's a very fair amendment that makes me feel much more comfortable with the overall bill. I think that, you know, I think the councilman for keeping this narrow in its scope and really tackling, I think, the issue that was the most contentious and the one where we were getting differing information from from different folks . So I just want to say thank you to Councilman Flynn for taking the lead on this and finding a pathway to what I feel is a very fair amendment that preserves the overall intent of this, but also, you know, provides a little bit more clarity specifically in that vein, where they feel like there was just a lot of confusion and a lot of back and forth and and still preserves the the the integrity of the audit while providing a little bit of, you know, protection, especially. You know, I think, as Councilman Flynn talked about, with cybersecurity being increasingly, you know, an issue of concern, I was recently working with some folks from the city of Baltimore where their entire city system was hacked and they were all having to sort of Gmail accounts. And so. I think. That it's not an unreasonable request for some of these more sensitive proprietary information to be audited with full access, but in a way that works for these entities. And I think the Best Amendment captures that in the narrowest way possible that preserves the powers. But addresses that. Concern and that issue. And so I am very supportive of this amendment and will be voting yes. And I just want to say again, thank you to Councilman Flynn for taking the lead on navigating and finding a way, I think, to take the edge off of those concerns while preserving the overall intent. So thank you. Thank you, Madam President. Thank you. Councilmember Clark. Councilmember Black. Thank you, Madam President. And I agree with everything that Councilman Clarke just said. I chaired the three Finance and Governance Committee meetings where we discussed this bill. And really, I really pushed us to move it out of committee because we were. We weren't going to resolve. All of the angst that we had over it. And I think the bill deserved. To come to full. Council for discussion. But it really, I think, was at risk of failing. And so I think, Councilman Flynn, for coming up with this as a compromise so that the auditor will get his subpoena power. But this is. Just one. Guardrail. We all received a ton of feedback from a lot of different groups who felt like there needed to be some kind of guardrail. And I think that. This this addresses that. In a minor way, but still grants. The authority to the auditor. So I will be supporting it. So thank. You. Thank you. Councilmember Black. And in the cue we have Councilmember Hines and then Councilmember Flynn. We'll get you back in. Thank you. Council President. Question for I guess, our attorneys. Councilmember Can each is amendment to the amendment? Is that possible for us to do? Or is it really. I don't I don't know. I don't know if we can do amendments to amendments. I'm kind of filling time while Miss Crawford is promoted. We'll get it right there. Good evening, Council members. Kirsten Crawford Legislative Council. If there is proposed language. It it could happen logistically. Yes, we might need to take a break and makhija. Our council secretary might have some concerns or. Solutions, but I do think. It's possible. Yes. And this is a bill we can use our council member discretion to push a week. Right? This is right. Okay. Just make it sure. So may I ask Councilmember, will you repeat your proposal? It's something like if a subpoenas actually issued, then then onsite can be requested. Madam President. Go ahead. Thank you. Council President. Thank you, Councilman Hinds, for your question. This is my. This is not the amendment as drafted is not a guardrail on the subpoena power. I just want to be really clear. Councilman Flynn, I shared my feedback with him. It is a limit for all audits forever. For all time can only be conducted on site period. That's what this is I want. This is not a guardrail on the subpoena. It prohibits the auditor ever taking anything considered confidential or proprietary off site ever again. That's why I consider this is a humongous change in practice. My suggestion to Councilman Flynn, which he did respectfully he considered and did not take, was that the language could be limited to say, you know, the process in the bill right now is about a subpoena where item has been requested and the party does not provide it . Then there is a notice and then if there's failure to comply, the subpoena shall issue. You could write in the guardrail at that point where and the court shall decide whether or not. So if the Court is deciding whether or not you get the information, the court can also decide whether or not a guardrail is needed for the review of the materials. That was my suggestion. It is a guardrail on the subpoena where there is a dispute. That is a guardrail on the subpoena. That is not how it was drafted. So, you know, and I will just say, this is first reading tonight, correct? Yes. I believe no is the second. Okay. Sorry. Thank you. Losing track. Well, all right. So so anyway. Yes, thank you. I hope that answers your question. Thank you. Councilmember Teenage boy. So I'll defer. I think Councilmember Flynn maybe has some comments, maybe he can address. Councilmember, can you just concern and I would like to understand that the difference here, so I'll just leave it at that for now. Thank you. Council President. All right. Thank you, Councilmember Hines. Councilmember Flynn, do you would you like to clarify? Because I know that there were some statements made and then Councilmember Herndon will get you right in. But I don't want to get too far out without some clarification from Councilmember Flynn. Sure. Thank you, Madam President. I thank you. Councilwoman Nature, respectfully, I disagree with with your characterization of the amendment does not mean that never again with the auditor be able to take information off site, even if the third party deems it confidential or proprietary. It just says the third party may, in lieu of ask that it be done on site. They can still provide copies if they choose if there is an agreement of some sort. Subpoena power, as the auditor said in committee, would probably be used extremely sparingly in the first place. If there is a dispute over whether the the auditor wants that information and doesn't believe it's confidential or proprietary, then they can always go to court under this new subpoena power that we're establishing. That's always been true. So the auditor will have the ability to get information off site if there is an agreement or if he takes the subpoena to court and the judge says, no, this is not I don't deem this confidential. You can have this you can have it offsite. So that's why I'm saying that it is very narrow. So I do disagree with your characterization. I understand your I understand your argument for. But I just disagree. Thank you. All right. Thank you. Councilmember Flynn, Councilmember Herndon. Amen. President. This bill bothers me for four reasons I'm not going to get into now. I think that my colleagues did a really good job of having these conversations at committee, but I appreciate an attempt to try to remedy some of the concerns that multiple members of council have, though not the perfect amendment. I hear what Councilman King need to say. I don't I don't believe that will occur. And this is something that I would like to I will be voting yes, but my colleagues will as well. And then we can see whether the bill as as amended hopefully get the vote, because I still have issues with it, but I appreciate attempts to try to make it better. Thank you, Madam President. All right. Thank you, Councilmember Herndon. Councilmember Hines, are you. Good. Do you want us to take a recess to look at an amendment? Or may we vote on the amendment on the floor? So thank you. Council President So we have a disagreement between two different council members trying to figure out how do we how do we get a tiebreaker. Or get. Called a. Vote? Well, I mean, I want to understand that there's a disagreement with the interpretation of the amendment. So, yes, of course, we could vote on it. I guess. Ms.. Crawford. If you are willing to to to weigh in and if we have to take a recess for you to feel comfortable weighing in, I'm okay with that. But I think that the the interpretation are you. So I guess, Mr. Bradford, are you aware that the difference in interpretation by council members can each influence? And if so, do you have a sense for how you interpret the amendment? Kirsten Crawford Legislative Counsel Again. So I think that. They're interpreting the language. In the bill the same. In other words. That we're changing the scope in a different provision, not the subpoena provision, but the internal audit provision. So I don't hear anything. About a different interpretation. There. I did hear only sorry, but I did hear some legal concerns raised. And I just want to say, if we want to hear from Mitch there. He has probably dug in a little bit deeper than me and the auditor standard auditing provisions. But as far as this process, I think you are see some acacia about voting down the amendment that's currently on the floor and. Then discussing something else. Okay. Thank you, Ms.. Crawford. Um. Thank you, council president. Okay. Thank you. Councilmember Hines. Councilmember Herndon. Thank you, ma'am. I was just chiming in, too, to beg us not to do a recess. I mean, we have differences on language and amendments every Monday. So let's I appreciate. I think council members can each and planned have been succinct and I think we should vote. I just wanted to hopefully we're going to take a break from present. Great. Thank you, Councilmember Herndon. And this is something that I've definitely dug in to as well, because I do share Councilmember Herndon's concerns as to this bill as well. But I'll go ahead and pause there and hear from my colleague, council member each, and then hopefully we can do a roll call on this amendment and see where we go next. Councilmember Cami. Thank you. Council President I just for the record, wanted to note that the Council received a communication from the auditor indicating potential legal challenges with this amendment in terms of the charter language and the interpretation of powers related to audit standards. And so, you know, I understand that the votes may be there to pass this, but I just want to note that council has been advised that the city council has been advised that that we could face a legal challenge, that this potentially conflicts with the charter provisions. And so I just wanted that to be noted for the public who may not be aware that that concern was raised before we vote. Thank you. All right. Thank you, Councilmember Kimmich. And this has been a long time coming with three times that committee and our conversation here tonight. And so, Madam Secretary, roll call, please. On the amendment. Flynn. I. Herndon. I. Hines. I. Cashman. I. Can each. No. Sandoval. All right. Sawyer. I. Torres. I. Black. I see tobacco. No. Clark. I. Madam President. I. Madam Secretary, close the voting and announce the results. Two names. Ten Eyes. Ten Eyes. The amendment to Council Bill 20 1-007 has passed. Councilmember Black, we need a motion to now pass as amended, please. I move that council bill 20 1-0078 be placed upon final consideration and do pass as amended. Thank you. We have the motion and we have a second by Councilmember Hines. Council Bill 20 1-007a is on the floor for final passage. Questions by members of Council on Council four Bill 78. All right, scene. Oh, here we go. Councilmember Herndon. They remember I don't know how much conversation was had on this last week as I was out, I was just going to say I will be a no on the bill as amended. I think the when you're trying to list reasons for a change and those reasons continue to be questioned by organizations that you audited, just gave me so much pause that I did not think that this bill was fully baked. And I by no means I appreciate all my colleagues, multiple committee meetings doing their very best. I'm still not comfortable voting yes to allow this, and I'll be a no today. Thank you. Councilmember Herndon, Councilmember CdeBaca. It's. Possible. Of the zero four office speak to how the amendment changes. Their bill and. If it to them. Sure. We've got Kirsten Crawford on the line here and your audio broke up a little bit. Councilmember CdeBaca So hopefully Kirsten got your full question. It's actually for the Auditors city attorney. If they could speak to whether or not they support the bill with this amendment. Okay. We'll go ahead and get them promoted up into the queue. All right, Mitch. Go ahead. There was a question posed to you. You're on mute. Yes. Hello, council members. I believe the effect of the amendment has been accurately discussed in your conversations and the auditor has expressed his position on that and will support the position and have not looked into that yet as to the challenge that's been described. But we will look into that for the order as requested. Is the auditor able to speak to whether or not he. Would rather see. This bill die or. Passed with the amendment? Another position to speak for the auditor on that question. Is the auditor available to promote? I'm looking right now. I'm not. Seen him in the queue unless. Auditor O'Brien If you're there, if you would, please raise your hand so we can promote you into the panelists. I am not seeing the auditor in the attendees council woman. He's not on the call. He's not living. Is it possible to take a recess. So somebody could get him on. The call? I think it's pretty important. I believe that if this is his bill and he felt strongly about it, that he would be here tonight. And so I would prefer that we go ahead and vote. If he's not here, I don't believe it's to any of our benefit to wait for him to tell us that he doesn't like this bill as it is . I agree with you that if he was here. That that would you would expect. Him to be here. But we all know how technology works. And I just want to make sure that he's not having technical difficulties because it doesn't seem like he would miss this meeting. I. We can go ahead. Let me see if he. He's not here, so it's his bill. I am very surprised that he wouldn't be here and. As we've been talking about this, if he was monitoring it, I believe that he would come into the queue and basically he's going to tell us that he doesn't like it. And so are you making a motion to take a recess or are. I see. Councilmember or Buckhead Councilmember? No, go ahead. I believe that we should vote on this. This has been belabored beyond. I have never seen anything belabored more than this. And so I would ask that we don't take up anybody else's time on this. We're doing our council work. I don't think it's appropriate that we wait to have the auditor join us. And so I would like us to go ahead and vote on this. Madam Secretary, roll call on Council Bill 20 1-0078, please. Black. I see tobacco. As. Clark. I. Flynn. Hi. Herndon? No. Hines. I. Cashman. I can each. I. Sandoval No. Sawyer. I. Torres. I. CdeBaca. I. Madam President. Madam Secretary, close the voting and announce the results. Three days. Nine eyes. Nine Eyes Counsel Build 20 1-0078 has passed as amended. That concludes the items to be called out this evening. All bills for introduction are ordered published. Council members remember this is a consent or block vote and you will need to vote I. Otherwise, this is your last chance to call out an item for a separate vote. Councilmember Black, will you please put the resolutions for adoption and the bills for final consideration for final passage on the floor? Yes, Madam President, I move that resolutions be adopted and bills on final consideration be placed upon final consideration, and do pass in a block for the following items. 21 04720478047904620463046704880493049403710372037303740375037603770378038003810382003830384038504280429043004310432043304340435048104820177045504606046804690470049104250442. And last but not least, 0427. Thank you. It's been moved and seconded. Madam Secretary, roll call. Black. I see tobacco. I quite. Like. Flint. I. Herndon. I. Hines. I. Cashman. I can eat. Right. Sandoval. I. Sawyer. I. Torres. Madam President. I. Madam Secretary, closed the voting and announced results. 12 eyes. 12 eyes. The resolutions have been adopted and the bills have been placed upon final consideration and do pass. Our pre recess announcement tonight there will be a required public hearing on Council Bill 21, dash 0308 changing the zoning classification for 2000 West Virginia Avenue in Ashmore Park. A combined required public hearing on Council Bill 21, Dash 20333 Changing the zoning classification for 3001 South Federal Boulevard in Harvey Park, South and Council Bill 21, Dash 0352 approving a proposed Loreto Heights rezoning and impede development agreement between the City and County of Denver and ACM.