Aspen city attorney says opinion to commission is confidential
November 17, 2011
ASPEN – Aspen City Attorney John Worcester on Wednesday declined to release contents of his opinion surrounding the role and independence of the city’s Election Commission, saying that to do so would violate attorney-client privilege.
Worcester rendered the opinion to members of the City Council and Election Commission on Tuesday. It deals with questions posed in a public meeting last week by election commissioner Ward Hauenstein, such as whether the government entity has the right to seek independent counsel and also if the commission is an official custodian of election records, such as ballots cast in past elections.
“The whole thing is confidential,” Worcester said. “I can’t waive that confidence. The City Council or Election Commission could if they wanted to. It’s not my privilege to waive, it’s theirs.”
He said that an individual council member or commissioner cannot release the answers. The council or commission would have to meet as a whole, with a majority vote necessary to make the information public.
Worcester said 99 percent of the advice he gave “has already been talked about in public; there’s nothing new.” But he said his memo is confidential because it provides legal advice to the council and commission.
He said at some later date, he might be willing to provide some answers to concerns raised by Hauenstein, but that the answers to The Aspen Times might not be the same as the ones he gave council members and commissioners this week.
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Asked if the commission can hire an outside attorney to assist with its legal questions, Worcester said that it can ask the council for the money to hire independent counsel. That’s just what Hauenstein did at Monday’s council meeting. Most councilmen said they would wait for Worcester’s opinion before making a decision.
“This makes me feel like a doctor whose patient asks for a second opinion,” Worcester said. “If they want to get a second opinion, they can, and council can pay for it. There’s nothing illegal about that. But whether they should do it is a whole different matter.”
He said the city attorney’s office provides legal advice not only to the city government administration and the council, but to boards and commissions. For a board or commission to be allowed to hire an outside attorney would set a bad precedent, Worcester said.
The commission faces three separate Colorado Open Records Act requests to inspect paper ballots from the city’s May municipal election for mayor and two council seats. The city maintains that City Clerk Kathryn Koch is the custodian of the records and that the ballots are not a public record. Koch also is a member of the election commission, but provided the lone minority vote in a recent 2-1 commission decision stating the desire for independent counsel.
The commission appears to be caught in the middle of a political fracas. On one side of the battle stands Mayor Mick Ireland, the city administration and the attorney’s office. The other side includes political activists, including Ireland’s 2009 mayoral opponent Marilyn Marks and Red Ant political website blogger Elizabeth Milias. Along with a third individual requesting the information, Harvie Branscomb of El Jebel, they say they are fighting for “ballot transparency” – the right to examine ballots to determine whether an election was conducted fairly. They say that the quest to view election ballots is irrespective of Marks’ loss to Ireland in the mayoral runoff about 31 months ago.
Partly because of Marks’ tenacity, the transparency controversy has evolved into a statewide issue. Marks said she was in Denver earlier this week and met with state legislators, the media and lobbyists about ballot transparency matters.
She added that she believes the May 2011 city election was conducted fairly and that she is basically seeking to view the ballots out of “principle.” She also has filed a CORA request with the Pitkin County Clerk and Recorder’s Office, asking to view mail-in ballots from the county election earlier this month.
She filed suit against the city in October 2009 after Koch denied her request to view ballot images from the previous spring municipal election. That lawsuit was shot down by 9th Judicial District Judge James Boyd. In September, a state appellate court overturned the local ruling and said Marks could view any ballot images from that election that don’t identify the voter. The city filed its appeal of that decision to the state Supreme Court last week.
Marks suggested Wednesday the city has been playing fast and loose in its decisions to hold executive sessions for the purposes of discussing legal strategies surrounding her lawsuit as well as Hauenstein’s questions.
She contends that an early October executive session, in which the council decided the city attorney should appeal her appellate-level victory to the state Supreme Court, was improper because the council failed to return in an open meeting to take an official vote on how to proceed with the case. State law says that elected officials cannot make decisions in a closed session, Marks said.
She also questions the council’s direction to the city attorney’s office in light of the fact that local elected officials haven’t sought the opinions of Aspen voters on the issue. She wants the matter to be debated in a public forum.
“I think what we’ve got here are small-town practices that nobody’s ever thought about very much about before,” Marks said. “As matters have gotten more expensive, more complex, we are going to see more and more situations where people say, ‘Whoa! Conflict of interest.’ The city attorneys can’t be on both sides of the equation.”
Hauenstein said he could not divulge the contents of Worcester’s memo because it was marked confidential. He said he is no longer as concerned about whether he will face jail time or heavy fines for not acting on the CORA requests to view the spring election ballots.
He said he has paid $2,000 of his own money to retain a Denver law firm so that he can get outside legal advice on behalf of the commission and that he will continue to seek reimbursement from the city.