Language over litigation?

For the second time this month, the Saratoga Town Council held a special meeting on June 17 as business previously thought addressed in the first special meeting required further attention. 

As was reported previously (see “Special meeting to special meeting” on page 7 of the June 17 Saratoga Sun), the council had approved an amended representation letter for James Childress of Childress Accounting and Consulting on a 3-1 vote. On June 15, an email sent to council members and the media announced another special meeting to discuss further revisions.

While the meeting had been called to discuss the representation letter, the agenda for the meeting included two additional items; approve a payment of $8,400.82 for Childress and consider the purchase of a taser/body camera agreement. Under Wyoming State Statute 16-4-404(b), no other business shall be considered at a special meeting other than what was included in the meeting announcement, which must be no less than eight hours before the meeting.

That statute was referenced by Councilmember Jon Nelson before the approval of the agenda. Following advice from legal counsel Tom Thompson, the two additional items were removed from the agenda and left the review and approval of the amended representation letter.

As discussion over the representation letter began, Thompson reiterated the first amended letter that was sent to Childress after the June 11 meeting. That letter listed five points in terms of what the Town of Saratoga had provided Childress and Accounting, including:

• Access to all information, of which they are aware, that is relevant to the preparation and fair presentation of the financial statements, such as records, documentations, and other matters.

• Additional information that you have requested from us for the purpose of your engagement of accounting services.

• Unrestricted access to persons within the Town of Saratoga from whom you determined it necessary to obtain any financial information of the Town of Saratoga.

• Minutes of the meetings of the Town of Saratoga or summaries of actions of recent meetings for which minutes have not yet been prepared.

• Any audit report prepared for the Town of Saratoga.

“There was then a request by James Childress to revise this letter and that it was his opinion that it did not suffice for the purpose for which he was engaged,” said Thompson. 

Thompson informed the council that Childress requested to add third-party beneficiary language to the representation letter. Later, under discussion with Nelson, Thompson stated when Childress had expressed some concerns, he had proposed the third-party beneficiary language to the accountant as standard language in contracts.

That language, which was added to the final letter, reads, “Although the Town considers the entirety of your report a public document, subject to public dissemination and full disclosure, neither Childress Accounting and Consulting, nor the Town of Saratoga intend to create in any other individual or entity the status of third-party beneficiary and this report shall not be construed so as to create such status.”

Though Thompson insisted that third-party language was “fairly standard,” media law attorney Bruce Moats informed the Saratoga Sun that he has not seen such language in combination with a document being public.

“If it’s standard language, why wasn’t it in his initial engagement letter nor was it in the version that you proposed last week?” asked Nelson.

“It wasn’t included because nobody requested that it be included. We have not entered into what I would consider a standard contract with James for the scope of the services. We received an engagement letter and now he’s asking for a representation letter,” said Thompson. “So, my proposed language is included with the intent of trying to get the town a report without further delay and I’m not of the opinion that the additional language is damaging or detrimental to the Town’s interests.”

As discussion continued, Nelson repeatedly asked both Thompson and the rest of the council why Childress appeared concerned about legal implications following the issuance of his report.

“I think that this council ought to strongly consider the fact that if our accountant, who has prepared these numbers, has concerns about any legal implications for what is being presented, that we ought to take that to heart,” Nelson said. “For us to accept that waiver of liability or whatever you want to call it without having seen the report, it makes me really nervous.”

Councilmember Bob Keel, who joined via phone, replied to Nelson that he believed Childress had requested the language because “the joint powers board has threatened to sue over information that we may use from this.”

“With your threats of suing with the joint powers board, I think that’s exactly why he’s doing this,” said Keel.

The Saratoga-Carbon County Impact Joints Powers Board (SCCIJPB), however, has not held any discussion during meetings about litigation against the Town of Saratoga. While the SCCIJPB did engage with an attorney at their June meeting (see “Water, sewer board engages with attorney” on page 12 of the June 17 Saratoga Sun), it was to review and recommend changes to the joint powers board agreement between the Town of Saratoga and the Board of Carbon County Commissioners.

SCCIJPB Chairman Richard Raymer, who was in attendance at the June 17 special meeting, asked where Keel had received his information before clarifying the intent of engaging with an attorney.

“Under no circumstance, and I want this to be on the record, has there been any discussion in a joint powers board meeting on lawsuits,” said Raymer.

Following a vote of 3-1, with Nelson dissenting, to approve the amended letter, Raymer asked why the public had not been allowed to review the letter. Mayor John Zeiger stated that it was a draft and was not a public document until it had been approved. According to Moats, however, there is no exception for drafts and the proposed version of the letter should have been provided to the public for review.

The governing body voted 3-1, with Nelson dissenting, to adjourn.

The Saratoga Town Council will have met at 6 p.m. on June 23 at Saratoga Town Hall.