Basalt loses public records case against The Aspen Times
The town of Basalt was ordered by a judge Monday to release numerous documents related to the departure of former Police Chief Roderick O’Connor and pay the legal fees The Aspen Times racked up to open the public records.
The decision will cost the town between $40,000-$50,000 in legal fees, according to an attorney for The Aspen Times.
Eagle County District Judge Mark Thompson issued his decision along with a critical view of Basalt’s lack of transparency in its handling of the O’Connor incident.
“It is also compelling that O’Connor resigned and Basalt entered into the settlement agreement following an executive session and in the barest of light,” Thompson wrote. “The settlement agreement also calls for the expenditure of public funds and there is a public interest in monitoring the amounts paid in settlement of claims or potential claims. Here, there is a valid and legitimate public interest in understanding what occurred and its impact on Basalt’s finances.”
Basalt attorney Tom Smith argued in a court hearing in February that all documents related to O’Connor’s departure fell under a “personnel matter” and were therefore private. The town government also contended that it couldn’t release a report about O’Connor’s professional conduct because officers and other employees of the police department were told their opinions would be confidential. The town said releasing the report would have a chilling effect in the future if employees have an issue with a manager.
Thompson didn’t buy the argument and said it didn’t justify withholding public documents.
“The court is not satisfied that the material is so candid or personal that it will stifle honest discussion,” Thompson wrote. “Moreover, for reasons set forth (earlier in his decision), the court finds the public’s interest in disclosures substantially outweighs Basalt’s interest in not disclosing documents.
“Additionally, the public’s interest is heightened by the circumstance that in a single meeting Basalt conducted an executive session, accepting the resignation of O’Connor and approved the settlement agreement,” the decision continued. “When coupled with the passage of time and the court’s view that few public officials are not likely to be deterred from a robust discussion about a pending disciplinary matter concerning a high-level employee and Basalt’s mandatory disciplinary process, the balance is overwhelmingly in favor of public disclosure.”
Basalt already released a key piece of information regarding the departure of O’Connor in October, which was officially called a resignation. The town hired an outside organization called Mountain States Employers’ Council to investigate complaints made about O’Connor from within the department. Mountain States interviewed Police Department employees and prepared a report. The town initially withheld the document as part of O’Connor’s personnel file. The Aspen Times filed a lawsuit to get the report and related materials.
The town volunteered to turn over the report after officials learned during the February hearing that O’Connor had shared it with the city of Aspen when he interviewed for a police-officer position there. By sharing the report, O’Connor nullified a confidentiality agreement with the town, Smith said. But he argued during the hearing that the town was still within its bounds to withhold the information had O’Connor not shared it.
The judge disagreed. He said a settlement agreement with an employee isn’t protected as part of a personnel file. He also said an agreement between a government and an employee doesn’t justify turning public documents into private ones.
Basalt’s decision to withhold the report was a costly one. Thomas Kelley, one of the attorneys for The Aspen Times, estimated legal fees would be $45,000. He has to submit an itemized bill to the court within 21 days, confer with Basalt about the amount and request a hearing if Basalt contests the amount.
Basalt Town Manager Mike Scanlon said the town has general liability insurance coverage, but he was uncertain if it would cover the attorney’s fees in the O’Connor case.
“My guess is it will come from the town’s general fund,” he said.
Scanlon inherited the O’Connor situation when he became the town manager in early November. He said Colorado has a “liberal” open-records law and that he personally favors greater transparency. His claim has been matched by his actions the past seven months. He has tended to release materials to the public that municipal governments and counties tend to resist or refuse to share. Scanlon said he thinks transparency makes better government.
“It forces public officials to deal with everything in the public eye,” he said. “There are just very few things that we should meet in executive session about.”
Thompson’s decision in The Aspen Times v. Town of Basalt likely will affect how governments handle settlement agreements with officials, Scanlon said. With this decision, governments will be forced to be more open. He joked that other managers will declare that he’s lost his mind for admitting that.
Scanlon said he doesn’t buy the town’s own argument — which was formed before he took the helm — that opening settlement agreements to scrutiny will force employees with a grievance to clam up in the future. Complaints shouldn’t be anonymous, he said.
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