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Denver District Attorney To Review Possible Open Records Violation

By Brian Maass

DENVER (CBS4)- The Denver District Attorney's Office announced Friday it would take an "initial look" at allegations that Denver's City Attorney may have improperly withheld or manipulated public records.

"The allegations outlined in published media reports are of concern," said Lynn Kimbrough, Communications Director for the District Attorney's Office. "The Denver D.A.'s office is going to take an initial look at these allegations."

Colorado's Open Records act states willfully and knowingly withholding public records is a misdemeanor.

The newly announced review stems from the long festering case of Denver senior city attorney Stuart Shapiro. In July 2014 he was placed on paid leave over suspicions he mishandled a high profile case. Then, in August 2015, Denver City Attorney Scott Martinez notified Shapiro by letter that he was being terminated.

MARTINEZ RESPONDS  (1)
CBS4 Investigator Brian Maass interviews City Attorney Scott Martinez (credit: CBS)

However within two weeks, Martinez's office sent a second letter to Shapiro rescinding the termination. Sources told CBS4 of that second letter, rescinding the termination, and the television station filed a legal, Colorado Open Records act request on August 28, requesting the second letter.

The legal request asked for "a copy of letter or memo or any documentation provided to Stuart Shapiro in August 2015 rescinding his termination."

Stuart Shapiro
Stuart Shapiro (credit: CBS)

The legal request also specified, "If your agency does not maintain these public records, please let me know who does and include the proper custodian's name and address."

After several days of deliberation, Nicole Holmlund, Director of Administration for the City Attorney, responded that "There was no 'letter or memo or documentation provided to Stuart Shapiro in August 2015 rescinding his termination' and thus there are no documents responsive to your request."

City Attorney Scott Martinez admits he was involved in crafting that response at "a very high level."

But this week, six months later, CBS4 obtained the very letter which the City Attorney's office claimed never existed. Dated August 24, 2015 and sent to Shapiro's home address in Denver, it states the termination notice he received August 11 "is hereby rescinded. Until further notice you will remain on paid administrative leave."

The letter was signed by Rob Nespor, Litigation Director and was copied to several departments and files.

Steve Zansberg, an attorney specializing in public records, said what the City Attorney claimed "is an outright lie. This is about as open and shut or black and white a case as I've seen. It's breaking the law known as the Colorado Open Records Act."

Late Friday afternoon, after initially refusing to discuss the issue, City Attorney Scott Martinez agreed to an on camera interview and maintained he and his office did nothing wrong.

"I stand by the result and believe we were truthful throughout," insisted Martinez.

He explained that he was well aware of the letter that had been sent to Shapiro rescinding the termination. But he claimed as part of ongoing negotiations with Shapiro and his attorney, the termination was rescinded and the letter was removed from Shapiro's personnel file during negotiations.

Nicole Holmlund
Nicole Holmlund (credit: CBS)

"When city staff went to his personnel file they went to look for any such letter, there was no such letter in his file. We no longer maintained it."

When asked by CBS4 Investigator Brian Maass if the letter had been destroyed or disappeared, Martinez steadfastly refused to answer that question.

"We do not maintain this document as its described in CORA (Colorado Open Records Act)," replied Martinez.

But the legal open records act filed in this case requires a government agency to identify who does maintain the records in question and provide their name and address. The Denver City Attorney's Office never did that, simply claiming the letter was never created or ever provided to Stuart Shapiro, when in fact it was.

MARTINEZ RESPONDS
City Attorney Scott Martinez (credit: CBS)

"Looking back I'm sure we could have done things a little better," said Martinez. But he still contends he and his staff did nothing legally wrong.

Martinez said he welcomed the District Attorney's review of his office's actions, "We responded in a way that was consistent with the law and was truthful."

Stuart Shapiro- who has now been assigned to work from his home- this week filed a whistleblower claim against the City Attorney's Office saying he was disciplined and ostracized for pointing out misconduct on the part of his supervisors. A hearing on that action has been set for May.

The Denver District Attorney's Office did not specify how long their review would take.

CBS4 Investigator Brian Maass has been with the station more than 30 years uncovering waste, fraud and corruption. Follow him on Twitter @Briancbs4.

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