Newspaper ﬁles suit over Basalt police-chief investigation
Ryan Summerlin December 10, 2012
EAGLE, Colo. – The Aspen Times filed a lawsuit Saturday to try to force the town of Basalt to release an investigation report on the professional conduct of former Police Chief Roderick O’Connor.
Attorneys for Colorado Mountain News Media, which does business as The Aspen Times, and the newspaper’s managing editor, Rick Carroll, filed the lawsuit in Eagle County District Court against Basalt Town Manager Michael Scanlon.
The lawsuit seeks a hearing as soon as possible to determine if the investigation should be released under the Colorado Open Records Act. Carroll made a formal request for the report with town officials on Nov. 27. The request was denied by town attorney Tom Smith, who said it was protected as part of a personnel matter. Exceptions to the Colorado Open Records Act allow records to be kept closed from the public when they involve personnel issues, Smith said.
He also contended that the town was contractually bound in a settlement with O’Connor to keep the investigation confidential. O’Connor resigned Nov. 23.
The newspaper’s attorneys, Steve Zansberg and Tom Kelley, contested the town’s reasons for keeping the report sealed. The legal complaint they filed said an investigation into the conduct of a government official on the job doesn’t qualify as a personnel issue.
“Courts throughout the state have recognized that governmental investigations into official, on-the-job conduct of public officials, including police officers, do not contain ‘highly personal and sensitive private information’ that is the sine qua non for information to be properly within the category of ‘personnel files’ under the (Colorado Open Records Act),” the lawsuit said.
O’Connor was placed on paid administrative leave the week of Oct. 8 after the town received a complaint from within the department about him. The exact nature of the complaint has never been revealed. The town hired an impartial third party called Mountain States Employers’ Council to conduct an investigation into the complaint. In an affidavit given as part of the procedure leading to the Times’ filing of the lawsuit, Scanlon wrote that employees of the Police Department agreed to interviews with Mountain States as part of its investigation. The employees were told their comments would be kept private.
“It is my conclusion that the contents of the Report are so candid and personal that public disclosure would stifle honest and frank discussion of the internal operations of the Police Department,” Scanlon wrote in the affidavit. “Accordingly, public disclosure of the Report would cause substantial injury to the public interest.”
But the newspaper’s lawsuit counters that public interest is best served by opening the report so there is greater understanding of the reasons behind O’Connor’s resignation.
“Colorado’s appellate courts have repeatedly recognized the compelling public interest in gaining access to records of internal investigations of official government conduct, even when it is limited to affecting other government employees in the same office, and that such interest outweighs the speculative claim of a ‘chilling effect’ on the candor of witnesses in future such investigations,” the newspaper’s lawsuit said.
The lawsuit also cited specific District Court rulings in Colorado where investigations into the conduct of government employees were ordered to be made available to the public. The city of Boulder investigated how a chief administrative judge treated employees. The City Council used the resulting report to evaluate his performance and then used the report as the basis for accepting his resignation.
The lawsuit was e-filed by Zansberg on Saturday, so no town officials have been served with it yet. Smith previously said that no town official or employee would discuss the case because it is in litigation.
O’Connor’s suspension was lifted immediately before he resigned. A joint statement from him and the town government at the time of his resignation said the investigation didn’t lead to any disciplinary action and that his resignation was voluntary. He received a settlement package of $83,944. That included 10 months of salary for $68,677 and $7,817 for accrued vacation time. O’Connor also received health insurance for himself and his wife, Denise, for one year. That had a value of $7,500.
Scanlon officially takes the reins as Basalt town manager Monday. He is scheduled to brief the Town Council at its regular meeting Tuesday night about his search for a new police chief.
The Times’ lawsuit is accompanied by an “application for order to show cause” of why Scanlon should not permit inspection of the investigation report. The Times requested a hearing at the earliest practical time to determine if the report should be released. The newspaper also wants its legal fees paid by the town.