The Denver City Council Finance and Governance Committee unanimously approved a proposal that would grant the city auditor subpoena power during its meeting Tuesday afternoon.
The proposal will now be sent to the full council for a final vote before implementation.
If passed, the auditor would be able to use the subpoena power – the ability to demand a person or entity provide documents, information or testimony – when conducting internal audits, investigations and enforcement of prevailing and minimum wage.
The proposal is being led by Denver Auditor Timothy O’Brien. O’Brien said he is currently the only elected official in the city without subpoena power.
“I think the ordinance is written in a way that provides plenty of checks and balances on the auditor,” O’Brien said. “I think it provides anyone who might be subpoenaed ample opportunity to object and ask for clarification.”
O’Brien said the subpoena power would allow him to efficiently and effectively do his job as, in recent years, some third-party entities who contract with the city have refused to provide documents and information for him to perform audits.
In addition, after the passage of Denver’s minimum wage law in 2019, the type and amount of necessary information the auditor requires has increased.
After working on the proposal draft in recent weeks and speaking with the entities that allegedly didn’t provide the auditor with necessary records, council members seemed hesitant but ultimately voted in support.
“I wasn’t excited about this ordinance in the beginning because I felt like … there are some tools that are being underutilized,” said Councilwoman Robin Kniech, referencing existing penalties for noncompliance.
“But I have come down in support of this ordinance. We should not be continuing to have political debates about whether someone did or didn’t provide everything. Having a neutral third party decide is the only way that should be resolved.”
Council members discussed the necessity of proposal, including comments that law already requires information be given to the auditor and gaps in different parts of the system.
“It seems like a lot of this talk, especially the subpoena power around audits, could be taken care of on the front end through the way that we’re drafting our contracts,” said Council President Stacie Gilmore. “Perhaps the subpoena doesn’t need to be the ultimate tool.”
City Attorney Frank Romines said adjusting contracts would be a partial solution, but it wouldn’t take care of the problem in its entirety.
Romines also clarified that the ordinance does not expand access to information, but instead provides the auditor access to the information already allowed under law when it is not readily provided.
“It is not an expansion of rights,” Romines said. “It’s giving the auditor a tool to get the information he needs to do his job.”
When asked if he has seen the auditor be denied information that he should have legal access to in the last few years, Romines said “yes.”
“I am willing to move this out of committee today, but I continue to have concerns,” said Councilman Jolon Clark.
Clark said it was unclear whether previous noncompliance issues were the result of entities not providing necessary information or not providing the information in a specific manner, questioning how the subpoena power would play into that discrepancy.
“I will continue to dig into that,” Clark said.
Under the proposal, the auditor could issue subpoenas if a written request for records or testimony has not been complied with after 15 days or more. The person or entity being subpoenaed would have another 15 days to comply.
It would be unlawful to not obey a subpoena issued by the auditor. Failure to obey a subpoena would constitute a non-criminal violation and a fine of up to $1,000 for each day the records or testimony is not produced.
The auditor would also be required to issue a report to the city council each year, describing the use of subpoenas issued by the auditor.