Court battle will determine if Basalt Town Council is properly holding closed meetings
December 8, 2016
The judge in a court battle over the propriety of Basalt Town Council's executive sessions and retention of public records opened the hearing Thursday with terse questioning over the need for the litigation.
Eagle County District Judge Russell Granger asked the four attorneys — two for the town government and two for citizen Ted Guy, who filed the lawsuit — if they tried "talking" out the issues and finding a resolution rather than spending "thousands and thousands of dollars" in the fight.
Granger also questioned what the remedy would be if Guy prevailed and proved that the Town Council held improper executive sessions, which are closed to the public, and didn't retain all the records as required.
"What is it you're really seeking?" Granger asked Guy's attorneys, Steve Zansberg and Michael Beylkin.
“When attorneys litigate for sake of attorneys’ fees, that’s not going to go over well.”
— Judge Russell Granger
He said he hopes the dispute doesn't just boil down to which side will have to pay the other's legal fees.
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"When attorneys litigate for sake of attorneys' fees, that's not going to go over well," the judge said.
Lawyers stake their claims
Zansberg said a ruling that the town is conducting public business improperly and forcing corrections is the desired remedy.
"Our position is there were four meetings that were closed improperly," Zansberg said. In addition, he claimed, there are public records that were illegally kept from Guy either by being withheld or deleted.
"The court's declaring of that is the remedy," Zansberg said.
Steve Dawes, the lead attorney for the Town Council in the case, countered that the town turned over all public records sought by Guy, except when they don't exist.
"I'm not sure what they think we have that we didn't produce," he said.
He also contended the four executive sessions in question were properly noticed because they involved sensitive personnel matters involving former Town Manager Mike Scanlon.
Scanlon's employment contract said the council couldn't review his performance in public. The town formally noticed the meetings as "personnel issues" without specifying they were on Scanlon.
Zansberg and Beylkin duked out the issues with Dawes during a 6½-hour hearing. It featured intense grilling by Guy's attorney of Town Attorney Tom Smith over the executive session policy and Mayor Jacque Whitsitt over her retention of emails and texts where town business was discussed.
Executive session disclosure
Zansberg repeatedly pressed the point that the Colorado Open Meetings Law requires that a government provide as much information as possible about an item to be discussed in executive session without undermining the talks.
For example, if it is known that a local government is actively trying to buy a specific piece of ground, it should identify the property when it goes into executive session. If the government is attempting to beat a private developer to the punch with a property purchase, the property doesn't have to be named.
Zansberg grilled Smith on whether he ever asked Scanlon at the time the executive sessions were held if he objected to having the agenda identify him as the subject of the personnel meeting. Smith said Scanlon clearly didn't want the meetings held in public. The town proceeded with caution and didn't identify Scanlon as the town employee being discussed.
Zansberg claimed the meetings were improperly noticed and any audio recordings and council members' notes should be open to public scrutiny. The hearings in question were on April 26, May 24, Aug. 9 and Aug. 11. At least three of the meetings featured discussions about Scanlon, who quit his position and is now preparing to fight the town over a severance package (see related story on A6).
Dawes contended the meetings were lawfully held and audio recordings weren't made at two meetings and a portion of one. When the purpose of an executive session is for the council members to get legal advice from their attorney, it is considered attorney-client privilege and doesn't have to be recorded, Smith said while under oath.
Granger repeatedly questioned Zansberg about Scanlon's rights to have personnel matters handled in private. He questioned if Scanlon's rights to privacy were waived if the executive sessions weren't properly noticed.
"Are you saying your client's rights supersede those of Mr. Scanlon?" Granger asked.
Zansberg said the improperly noticed meetings were, in fact, public meetings, so the public had a right to the discussions, even if Scanlon would prefer them private.
Whitsitt quizzed on texts
Roughly two-thirds of the hearing focused on the executive sessions and most of the remainder on Whitsitt's retention of emails and texts. Zansberg and Beylkin tried to establish that Whitsitt continued to delete texts about town government business after she was made aware that she must retain them as public records.
The poster child of texts was one Whitsitt sent to Scanlon in July, when he was still town manager. She raised an issue with the Pan and Fork property in Basalt, which was on the follow evening's agenda, and noted she had discussed the issue with other members of the council.
Zansberg said that text proved that Whitsitt and others conduct public business in private and that she deletes texts that should be retained.
Whitsitt contended that the requirement on texts wasn't made clear until last month, when Smith brought additional information about retention of public records to the board. She said saving texts wasn't "clear-cut" prior to November.
"I never did intentionally delete anything that I thought was important to town business," she said.
Zansberg countered that the July text, where the mayor was lining up votes, was clearly important town business. Cross-examination by Beylkin was intended to show Whitsitt was careless with records retention and that she had received guidance on preserving texts and emails on her personal accounts well before November.
Granger didn't make a ruling Thursday. He directed the attorneys to submit proposed final orders by Dec. 19. He said he would make a ruling as quickly as possible but set no deadline.
Guy said after the hearing that his goal is to force the council to follow the Colorado Open Meetings Law and Colorado Open Records Act. The purpose of the suit isn't to find fuel for a recall effort against council members, he said, although a favorable ruling could be used if any such effort is launched.