Aspen election commissioner wants outside opinion
November 10, 2011
ASPEN – A member of the Aspen Election Commission said he is seeking a “second opinion” from an outside attorney on whether the commission should approve two public-records requests to inspect paper ballots cast in May’s municipal election.
During Wednesday’s commission meeting, member Ward Hauenstein asked City Attorney John Worcester for his legal opinions on the matter, but noted that he also has sought independent counsel. Hauenstein said he likely will ask the Aspen City Council to pay for the outside legal fees at an upcoming meeting.
In his capacity as city attorney, Worcester also provides legal advice to city boards and commissions, such as the Election Commission. But he also is representing the city in its battle against political activist Marilyn Marks’ lawsuit, which stems from the city clerk’s denial of her request to examine ballot images from the 2009 mayor’s race.
Marks, who ran second in that race to Mayor Mick Ireland, recently won a state appellate court victory in the case. A three-judge panel ruled that the ballot images from the election were a public record. The city, represented by Worcester, is planning to file a motion to appeal with the state Supreme Court this week.
Hauenstein told Worcester and election commissioners Bob Leatherman and Kathryn Koch that he is seeking as much legal advice as possible because he doesn’t want to face the prospect of heavy fines or jail time for denying a legitimate Colorado Open Records Act request. Koch is Aspen’s city clerk, and as the keeper of municipal records, she denied Marks’ request to inspect the ballot images two years ago.
Elizabeth Milias, who, like Marks, is an outspoken critic of Ireland, and Harvie Branscomb, an Eagle County Democratic Party official, recently made the requests to examine actual ballots cast in the May 2011 mayoral and council elections. Marks also filed a CORA request with the city Election Commission to look at ballots from that election, but withdrew it.
Last month, Marks sought to make a point that election ballots are a public record by examining a few ballots that were cast in Pitkin County’s November 2010 election. Her request was approved by Janice Vos Caudill, county clerk and recorder. Marks attended Wednesday’s Election Commission meeting, taking notes and asking questions.
Worcester expressed reluctance about providing legal advice to Hauenstein since he had already hired an outside attorney.
“You said that you want independent counsel, but if I give you an opinion are you going to rely upon that opinion or are you just going to use it to refute the opinion that I give you?” Worcester said. “I don’t quite understand why you want me to give you an opinion if you’ve already decided to hire independent counsel.”
Hauenstein said he has valued Worcester’s legal opinions for the 18 months he’s served on the commission. He said he is seeking an extra opinion in order to bring clarity to the question of whether the appellate court decision on Marks’ lawsuit only applies to ballot images, or if it includes paper ballots as well. He also said he had a few other questions surrounding the role of the commission and its rights.
Worcester said there could only be three reasons for Hauenstein to seek outside legal advice: “You either think I have a conflict of interest, or you just want a second opinion, or you just want an independent counsel because you consider [the commission] to be an independent party and it should have the right to an independent attorney,” he said.
“I believe that this body should have independence from political coercion,” Hauenstein responded. “I think it should be independent from City Council, from outside influences, to be free to conduct an election without having fear of retribution from the City Council for asking for independent counsel.”
Hauenstein asserted that the previous commission was dismissed by the council after seeking independent legal advice. “I think that puts pressure on the Election Commission to toe the line and take what the city says as the law,” he said.
Soon after the exchange, Worcester agreed that he would “try” to get answers to Hauenstein’s various questions concerning the public-records requests and whether the commission can hire an outside attorney by Nov. 16.
Also during the meeting, Leatherman read a statement saying that he saw “little value” in continuing the debate over the question of allowing the public to view ballots or ballot images. He said he is not opposed to public review of ballots as long as the voters officially approve of the practice, perhaps through a referendum.
“I want to move on,” Leatherman said.
An hour into the meeting, which started at 5 p.m., the commissioners, Worcester and assistant city attorney James R. True went into executive session. Councilman Torre also sat in on the closed-door discussion.
The commission plans to meet Nov. 29 and might possibly address the ballot-inspection requests then.
Reached by phone Tuesday night, True said it’s the city’s position that the city clerk, not the Election Commission, is the custodian of election records, including ballots and ballot images.
“Our position is that releasing the ballots [or the images] is contrary to the law,” he said. “And under the present state of law, the ballots must stay in the box.”