Basalt gives explanation for concealing report on police chief
December 14, 2012
BASALT – The town of Basalt is asking a judge to declare that an investigative report of its former police chief is not part of the public record or, even if it is, that it is privileged and exempt from release.
The town on Thursday answered a lawsuit filed by The Aspen Times asking an Eagle County district judge to rule that the report was public information. In its answer, the town claims that the newspaper’s legal arguments for access to the report are flawed.
In addition, the town filed a counterclaim that asks a judge to rule that the report doesn’t have to be released based on provisions of the Colorado Open Records Act. The counterclaim contends that the town also is justified in keeping the report confidential because of an agreement with its former police chief.
The town is asking a judge to make The Aspen Times pay its legal fees. Likewise, the newspaper included a request in its lawsuit to make the town pay its legal fees.
The legal battle is tied to the Nov. 23 resignation of Roderick O’Connor.
O’Connor was placed on paid administrative leave Oct. 15 “pending the outcome of a workplace investigation,” the town’s answer said. The exact nature of the complaint lodged against him from within the department has never been revealed. The town hired an impartial third party called Mountain States Employers Council to conduct an investigation into the complaint.
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Documents filed as part of the legal battle show that employees of the Police Department agreed to interviews on the condition that their comments be kept private as part of the investigation report. Mountain States Employers Council submitted its report to the town Oct. 26.
O’Connor’s suspension was lifted immediately before he resigned Nov. 23. No disciplinary action was taken based on the investigation, according to a joint statement at the time from O’Connor and the town government. The statement also said O’Connor resigned voluntarily.
The Aspen Times filed a lawsuit Dec. 8 arguing that the investigation report was a public document that should be released by Town Manager Mike Scanlon as custodian of the public record. The attorneys for the newspaper cited Colorado court cases where governments were ordered to provide documents to the public because they weren’t protected as personnel issues. The lawsuit contended that the investigation of O’Connor’s running of the department shouldn’t be protected.
In its answer, the town contends that since O’Connor resigned, neither the town manager nor the Town Council had to review the investigation report to determine if disciplinary action was necessary. Therefore, the town’s counterclaim said, the report is a “pre-decisional document protected by the governmental deliberative process privilege” in accordance with Colorado law.
“Disclosure of the (Mountain States Employers Council) report could suggest to the public reasons for a course of action by the Town Council which would be incorrect,” the town’s counterclaim said.
The town said the investigation report was properly placed in O’Connor’s private personnel file and is exempt from disclosure.
Material in the report regarding the interviews with Police Department employees “is so candid and personal that public disclosure is likely to stifle honest and frank discussion within Basalt town government,” the counterclaim said. Releasing it “would do injury to the public interest.”
If there is a ruling that the report must be provided to the newspaper, the town wants a judge to find the Town Council “will not be in breach” of its agreement with O’Connor.
No hearing date has been set yet in the case.