Basalt, Times spar over report
February 13, 2013
EAGLE, Colo. – Former Basalt Police Chief Roderick O’Connor testified in a court hearing Tuesday that he wasn’t thinking of resigning until he saw an investigation report prepared for the town government.
Even after seeing the report on his professional conduct by Mountain States Employers’ Council, O’Connor said he had to give great thought to what was best for him and the community.
“I wrestled with it for a long time,” O’Connor testified in a hearing before Eagle County District Judge Mark Thompson. He resigned as police chief Nov. 23. The town won’t release the investigation report, contending that it is part of a personnel file and closed to public scrutiny.
The Aspen Times filed a lawsuit Dec. 8 to try to force the town to release the document, as well as the town’s settlement agreement with O’Connor. The newspaper contends that the investigation report and settlement should be open under the rules of the Colorado Open Records Act, or CORA. Town Attorney Tom Smith has argued that some CORA exceptions allow records to be kept closed when they involve personnel issues.
Colorado Mountain News Media, which does business as The Aspen Times, and the newspaper’s managing editor, Rick Carroll, filed the lawsuit against Basalt Town Manager Mike Scanlon, as custodian of the records. The burden is on the town to prove why the report and settlement agreement don’t have to be released. A “show cause” hearing started Tuesday and will continue Wednesday.
O’Connor was placed on paid administrative leave Oct. 15 after complaints “from within the Police Department,” former Town Manager Bill Kane testified in the hearing. Kane said that he consulted with Mountain States Employers’ Council on how to respond to the complaints and ultimately decided the nature of the complaint was serious enough that a third party had to be hired to investigate. Kane chose Mountain States for the investigation. The Denver-based company consults for town governments and private businesses on human-resources issues.
Much of Tuesday’s hearing featured legal maneuvering by Smith to show why the investigation report and terms of O’Connor’s settlement package should remain closed as well as counterpunches from the newspaper’s attorneys, Thomas Kelley and Michael Beylkin, on why it isn’t protected.
Smith tried to show that the report didn’t play a major role in the town’s parting of ways with O’Connor. Under his questioning, Scanlon said Mountain States’ report was just part of his broader investigation into O’Connor’s professional conduct. Police officers and other employees of the department were interviewed by Mountain States. Scanlon said the employees weren’t sworn in, so he was concerned about using that information if a formal disciplinary hearing was held on O’Connor.
Scanlon said he wanted to talk to two of the officers himself. He talked to Sgts. Penny Paxton and Stu Curry and found something “contrary” to what was in the report. He didn’t elaborate. Scanlon also said he felt that the report by Mountain States was ambiguous “in some respects” and parts of it were “subjective.”
He said he didn’t consider the report a formal performance audit and that it wasn’t part of a formal, periodic review of O’Connor or the Police Department.
The report wasn’t shared with the Town Council by design, according to Scanlon. The town code says the council will sit as a quasi-judicial board in case disciplinary action is taken by the town manager against the police chief, finance officer or clerk. Those municipal officers can request the council to review the manager’s decision in case they are disciplined or fired.
Mayor Jacque Whitsitt testified that neither the contents of the investigation nor the substance of the complaint against O’Connor were shared with the council. She testified that the suspension of O’Connor sparked “several weeks of public concern.”
O’Connor was a popular police chief, and residents voiced their support for him at council meetings and through letters to the editors of the Aspen newspapers. She said she voted to accept O’Connor’s resignation because she wanted to avoid confrontation and “further irritation” for the community. Reaching the settlement was “for the good of our community and the citizenry,” Whitsitt said.
O’Connor was given a settlement package of $83,944, which included 10 months of salary, cash for accrued vacation time and health insurance for him and his wife for one year. The town also committed to provide O’Connor with a letter of recommendation should he want one.
In addition, O’Connor and the town released a joint statement at the time of his resignation that said no disciplinary action was taken as a result of the Mountain States investigation and that O’Connor was guilty of no wrongdoing. The administrative leave was lifted immediately before O’Connor resigned.
Kelley pressed Whitsitt on how she and the council knew there was no wrongdoing on the part of O’Connor if they never reviewed the investigation report.
“We were told by our staff that there was no wrongdoing,” Whitsitt replied.
Councilwoman Anne Freedman testified that the report was kept confidential among town staff members. The council only knew there were “problems in the Police Department. We needed to deal with it,” she said.
She said she voted to accept the resignation because O’Connor had agreed to it.
Kelley and Beylkin probed during questioning to establish that the investigation report played a role in O’Connor’s resignation. While testifying, Scanlon said he provided the report to O’Connor because the ex-police chief had the right to answer allegations made against him if Scanlon’s investigation had gone any further. O’Connor resigned after Scanlon provided that report, the town manager acknowledged.
O’Connor said he received the report at the start of what became negotiations over a severance package. The report doesn’t accuse him of wrongdoing or impropriety, he said. He wasn’t asked what was in the report that convinced him to resign.
The hearing will wrap up Wednesday with closing arguments from the attorneys. They will provide the judge with information they claim supports their legal position.
“At the end of the day, closing arguments is where this case gets resolved,” Thompson said.