Basalt resident files lawsuit over council’s closed sessions, email discussions
LAWSUIT IN A NUTSHELL
The claim: Basalt resident Ted Guy claims four executive sessions held by the Town Council weren’t properly noticed. He wants any audio recordings from those meetings opened to the public.
The response: The town contended in a reply to an open records request that the meetings were properly held and noticed. Recordings were made of two meetings, but not required for the other two. The town declined to turn over the recordings.
The claim: Guy wants a declaratory judgment showing the town violated the Colorado Open Meetings Law and a show cause hearing to force the town to hand over records.
The response: The town’s formal response to the lawsuit is due 30 days from the filing date.
Basalt resident Ted Guy filed a lawsuit against the Basalt Town Council, mayor and clerk last week to seek a declaratory judgment that the town government is violating the Colorado Open Meetings Law.
Guy, through attorney Steve Zansberg of Denver, also wants a show-cause hearing held as soon as possible to force the town government to turn over records he contends should be public.
The lawsuit coincides with a recall effort Guy and his allies are contemplating against some members of the council.
Guy claimed four specific executive sessions, which are closed to the public, violated the open-meetings law because they didn’t disclose enough about the matter or matters to be discussed.
For example, the lawsuit says, instead of identifying an executive session for personnel matters, “it is possible for the Town Council to identify the job category of the town employee under discussion, if not that employee’s name, and the nature of the discussion without compromising the purpose of conducting the discussion behind closed doors.”
A key issue for a judge will be determining how much information can be disclosed without compromising the issue.
Guy filed a Colorado Open Records Act request Aug. 25 seeking the audio recordings of the closed meetings be made available for public scrutiny. The town replied to the request by saying it didn’t believe any of the executive sessions violated the open meetings law. The town, through its attorneys, said audio recordings were made at two of the meetings, but it felt they could be rightfully withheld. Recordings weren’t made of two of the meetings because they weren’t legally required, the town said.
The Town Council reviewed the request with its attorneys and made a public statement Sept. 6 that it felt the closed meetings on personnel matters and the notices were appropriate.
Emails and texts cited
The lawsuit also seeks a declaratory judgment that the town violated the open-meetings law because of the exchange of emails between members of the board.
The lawsuit claimed the open-meetings law has been violated “repeatedly” in the past six months. As proof, the lawsuit pointed to three emails initiated by Councilwoman Jennifer Riffle and a text by Mayor Jacque Whitsitt.
Riffle wrote emails to at least three other council members, and sometimes the entire board, on July 12 regarding marijuana regulation, July 25 on concerns about the Roaring Fork Conservancy’s application to use town land for a river center and Aug. 28 about ballot questions. In all three cases, the issues were heading to the council in coming days.
One of the violations has already been exposed. Riffle apologized Tuesday for the open-meetings law violation and said, as a new council member, she had been unaware of the prohibition on emailing her fellow board members. She said she’s stopped doing it.
An exhibit to the lawsuit shows that Councilman Mark Kittle responded to Riffle’s email to three other council members, also constituting an open-meetings violation.
The lawsuit also cited a July 20 text from Whitsitt to former Town Manager Mike Scanlon as an open-meetings law violation. In the text, Whitsitt informed Scanlon that the majority of the council appeared willing to consider a developer buying the entire Pan and Fork parcel, land at the center of controversy in Basalt politics. That idea eventually fell off the plate.
The lawsuit contends it is “apparent” from Whitsitt’s text to Scanlon that four members of the council had talked about a major policy direction outside of a public meeting.
Town Attorney Tom Smith couldn’t be reached for comment Friday.
In recent weeks, town council members have pledged to reduce the number of executive sessions and to strive to increase transparency of town government.
Additional records sought
Guy’s lawsuit contends that Whitsitt didn’t comply with his Aug. 25 open-records request. Whitsitt was asked to provide all texts on town business from Aug. 1 to “today’s date,” meaning Aug. 25.
Steve Dawes, a special counsel for the town, replied Sept. 30 that the town “has no text messages responsive to the request.”
Guy’s lawsuit contends Whitsitt has continued to use texts. It includes an exhibit of texts provided by Assistant Town Manager Judi Tippetts. In one text, on Aug. 23, Whitsitt wrote to Tippetts: “5 mins late.”
In another text Aug. 24, Whitsitt informs Tippetts of her meeting schedule and says she will be intermittently available.
“Good luck on your many piles today,” Whitsitt wrote to Tippetts.
It was unclear from the lawsuit if Tippetts was asked for the records through a Colorado Open Records Act request or if she volunteered them for Guy’s lawsuit.
The town has 30 days from the date of the filing to respond to the lawsuit.