Update on March 29, 2022 at 1.40 p.m. A judge dismissed the lawsuit filed by Michael Brown’s company, Demanding Integrity in Public Spending, against Boulder County regarding the Marshall Fire recovery debris removal program.
Update on March 16, 2022 at 4.10 p.m.: Michael Brown’s company, Demanding Integrity in Public Spending, filed a court brief stating that it “will no longer seek an order from this Court directing Defendants to rebid its contract in a Colorado law compliant bidding process.” According to Boulder County, the “change of position will likely allow the County to move forward with signing the private debris removal contract” as early as March 22.
Boulder County officials will head to court on March 18 to defend their decision to hire a private contractor to clean up toxic ash and debris from properties destroyed by the Marshall Fire.
The legal snag in the post-fire response comes after Michael Brown, the former FEMA director for George W. Bush, who resigned amid intense criticism over his handling of Hurricane Katrina, alleged in a complaint that the county violated open meeting laws when it decided to award a bid to DRC Emergency Services, LLC. DRC, based in Galveston, Texas, specializes in disaster recovery.
FEMA is expected to reimburse the county for most of the approximate $55 million cleanup, according to county estimates. But Brown argues that the alleged missteps might lead FEMA to decide that the county didn’t follow proper bidding procedures and require that it pay the money back. That could potentially leave county taxpayers on the hook for cleanup costs, he alleges.
The outcome of the case could affect the timeline for cleanup, which the county hoped to complete by July. More than a thousand homes were destroyed by the fire, and some residents need what’s left of charred homes, cars and other belongings removed before they can begin rebuilding.
In February, the county approved a bid award to DRC Emergency Services to begin contract negotiations. DRC was previously hired to remove debris after Hurricane Irma in Florida and a tornado in Jacksonville, Alabama, among other disasters, according to its website. The company planned to begin the cleanup work as soon as March 1. County officials blame the blown start date on the lawsuit.
“Our awarded contractor is ready to go and is lining up subcontractors to perform cleanup work. It’s frustrating that anyone would want to delay our community’s ability to recover from this devastating wildfire,” Boulder County Commissioner Matt Jones said in a news release.
The skirmish with the county puts the former FEMA director, who has sought to distance himself from blame for past controversies, back in the news. He was the FEMA administrator during Hurricane Katrina, which made landfall in New Orleans on Aug. 29, 2005. The disaster was followed by man-made tragedy, of which he was the face. Three days after the storm reached land, Brown famously told CNN the federal government was unaware people were stranded at the New Orleans convention center without food or water. He resigned less than two weeks later.
Exactly why the former FEMA administrator is suing the county over transparency concerns remains unclear. The lawsuit was filed by Demanding Integrity in Government Spending, a nonprofit corporation Brown incorporated with the State of Colorado on Jan. 27, 2022. The company’s listed address is in Centennial.
Brown and his attorneys did not respond to requests for comment from the Boulder Reporting Lab. Earlier this month, he told listeners of his podcast, The Situation with Michael Brown, that he does not plan to speak to journalists.
“I’ve already been asked twice this morning if I would go on different programs. And no, I’m not. I’m not because I’m going to control the narrative,” he told listeners this month.
In that same podcast, he said he has no financial stake in any of the 11 companies that submitted bids to the county’s Jan. 18 Request for Proposals.
“My only interest is because this is my backyard. I had to evacuate twice from my home where I used to live in Boulder County because of wildfires. This is close and personal to me,” Brown said. (Brown does not appear to be registered to vote in Boulder County.)
He also said debris removal programs are susceptible to fraud. He knows, he said, because he has investigated such fraud from his post at FEMA.
“I’m not accusing anyone here of fraud,” he told listeners. But, he added, “We had to go back to that state or that county, and say, ‘You know that million dollars that we paid you to remove debris from the streets and the roads? Well, the contractor cheated and you didn’t properly monitor it, so we have to take that money back and the taxpayers of the county and the state are on the hook for those costs.’”
Open Meeting Law allegations
According to Brown’s complaint, which was filed in the Boulder County District Court on Feb. 15, he is asking the court to issue an injunction to effectively block the contract from taking effect. He is seeking a judgment from the court that the county cannot issue a contract award without “an open and transparent bidding process that is viewable by the citizens of the State of Colorado, local and national media, and the public at large.”
On March 9, the county requested the court deny Brown’s request, arguing that it did not violate open meeting laws. The county said its evaluation committee assigned to oversee the bidding process was made up of “administrative staff” and is therefore exempt from the requirements of the Colorado Open Meeting Law. The committee included non-elected employees with Boulder County, the City of Louisville and the Town of Superior.
The county said the contractor was awarded the bid following a “competitive procurement process.” The county’s response also said the county consulted with FEMA officials about the debris removal program and reimbursement.
In response to a request for comment about the bidding process, FEMA told the Boulder Reporting Lab it is not part of the bidding process and to contact county officials instead.
Brown denies news reports and claims from county officials that his lawsuit will delay the cleanup.
“We don’t want you to be victimized twice,” he said on his podcast in March. “We want to make sure that you get the cleanup done so there’s not a fight between the federal government and state and county government about whether it is correct or not.”
Until then, the fight will be with Brown. And the county said the cleanup will not start until the legal dispute is resolved. In the county’s response to the lawsuit, it listed the names of residents who have testified in public meetings that they are concerned delays will drive up the cost of rebuilding their homes.
“Brown’s purely abstract interest in strict compliance with the [Colorado Open Meeting Law] pales in comparison to the interests of the Marshall Fire survivors in timely removing debris, rebuilding their homes and returning to their normal lives,” the county’s attorneys said.