Basalt council claims its closed meetings were legitimate |

Basalt council claims its closed meetings were legitimate

Basalt Councilman Bernie Grauer, shown at a meeting last week, said he felt the executive sessions held on former Town Manager Mike Scanlon's contract were legitimately closed to the public.
Anna Stonehouse/The Aspen Times |

The fight is on regarding the Basalt Town Council’s executive sessions.

The council voted 6-0 Tuesday night to decline releasing audiotapes of four executive sessions as requested in a Colorado open records request by Ted Guy.

Executive sessions are closed to the public. Guy, through Denver attorney Steve Zansberg, contended that the audiotapes should be released to the public because the meetings were not adequately noticed. Therefore, the executive sessions have to be treated as open meetings according to the records request submitted by Zansberg on Aug. 25.

Basalt town government has until Sept. 12 to release the tapes or decline the request.

Attorney cites court rulings

The council met in an executive session for about 45 minutes Tuesday to discuss the open records request and discuss negotiations with former Town Manager Mike Scanlon, who abruptly resigned Aug. 19.

After the executive session with Town Attorney Tom Smith and special council Steven Dawes, the board went into a public session to make a formal decision on the records request.

Dawes said the meetings in question were noticed and were held for “matters that included attorney-client privilege, included matters subject to negotiations and included personnel matters.” The council was being asked to turn over matters subject to attorney-client privilege, Dawes claimed.

Zansberg claimed Wednesday that the town doesn’t have the legal grounds for rejecting the request. Even if the topics were eligible for executive session, the town didn’t properly notice the sessions April 26, May 24, Aug. 9 and Aug. 11, he said. The Colorado Open Meetings Law requires governments to disclose as much about the topic as possible without compromising the discussions. That didn’t occur with these meetings, Zansberg said.

He cited three Colorado Court of Appeals cases that supported his opinion. One case — involving the Steamboat Pilot and Today newspaper versus the Steamboat Springs School District RE-2 — is a spitting image of this case, Zansberg said.

Dawes declined to comment Tuesday night when asked i he disagreed with Zansberg’s position.

Council expresses opinion

Mayor Jacque Whitsitt said the council “had a very long discussion about this issue in executive session.” Councilman Bernie Grauer made a motion to decline the release of the audiotapes. Councilwoman Jennifer Riffle seconded.

“One of the reasons we don’t want to disclose this executive-session information is some of it deals with the Mike Scanlon personnel issue,” said Councilman Auden Schendler, “and we want to respect his privacy.” He also indicated Scanlon’s contract called for information to be confidential.

Grauer said there are times when the council has to hold executive sessions, including discussions that are needed to protect the town and privacy of individuals.

Whitsitt said the council wanted to preserve its right to hold executive sessions “to protect our rights to negotiate and to get legal advice from our council.”

Councilman Gary Tennenbaum noted that he proposed a couple of weeks ago that the town government should set a well-defined policy of when it requires executive sessions. He still believes the policy would be helpful, he said, but he felt the meetings Guy wanted opened to the public were legitimately closed sessions.

“This is the perfect example. It’s a personnel issue. It’s a serious issue. It’s something we need to be really careful with,” Tennenbaum said. “There’s people’s lives, there’s contracts, there’s everything involved in this.”

Riffle said when she looked at issues as a citizen, she felt government should share everything in the interest of transparency. Now, as an elected official, she said, she realizes that is not the case. The closed sessions are needed on human-resources issues and to protect the town, Riffle said.

Councilman Mark Kittle was unable to attend the meeting.

Weighing court action

The decision came after a lengthy regular meeting and then the 45-minute executive decision, so Guy wasn’t around to hear the answer. He couldn’t be reached Wednesday morning for reaction. His Open Records Act request said “several” members of Concerned Citizens of Basalt also wanted the records opened, but they weren’t identified, and none has come forward.

Guy’s attorney, Zansberg, said Wednesday that he was “pleased” that the council held a public session after the executive session to make a decision. That shows that “the Town Council has finally learned that it must make such in a public meeting, not behind closed doors, as it did when it authorized the filing of a prior lawsuit against a (Colorado Open Records Act) requester, in clear violation of the Open Meetings Law.”

Zansberg’s open-records request said litigation would be considered if the audiotapes weren’t opened to the public. He said Wednesday that his clients are awaiting the town’s response to the open-records request before deciding whether to take the matter to court. The open-records request also sought texts and emails from some council members.

At least three of the executive sessions involved discussions about Scanlon, who terminated his employment contract because he claimed some council members reviewed his performance in public. Scanlon demanded one year of severance pay. He was receiving $161,360 per year plus a $2,000-per-month housing allowance.

The council hasn’t voted on a settlement package yet.

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