DA: No criminal charges against Basalt mayor, clerk in text case
Criminal charges are not warranted against Basalt Mayor Jacque Whitsitt and Town Clerk Pam Schilling for an exchange of roughly 120 text messages before, during and after the April 5 municipal election, 5th Judicial District Attorney Bruce Brown said Friday.
Brown said the investigation is closed.
Whitsitt, who won re-election in April, said she felt Brown’s office undertook a thorough investigation in a timely manner and she was pleased with the outcome. “I’m very happy we can focus on the future of Basalt,” she said.
Schilling declined comment.
Basalt resident Mary Kenyon filed a complaint with Brown’s office May 27 over Schilling and Whitsitt not retaining the texts. She also wanted the investigation to look at whether the texts were intentionally deleted. Failure to retain open records is a misdemeanor punishable by jail, a fine or both.
Kenyon said state open records law requires elected officials and government employees to retain texts. But Brown said that issue is “unclear.”
“There’s an ambiguity in the code, and any time you are trying to interpret requirements from statutes that are ambiguous, from the prosecutor’s perspective, we are going to give every possible person accused the benefit of that doubt,” Brown said.
Couldn’t prove violation
Brown had said earlier in the investigation that the issue would have to be black and white for him to pursue charges.
“Fundamentally, we didn’t feel we could prove any violation of law,” Brown said. “You don’t take what could be mistakes or technical violations of statutes, which may even be vague, and turn them into any type of criminal charges.”
Thomas Kelley, a Denver attorney who specializes in media issues and advises members of the Colorado Press Association, told The Aspen Times that case law in Colorado has established that texts of elected officials and government employees are treated the same as emails. They should be retained, Kelley said.
Brown said he focused on the wording of state statutes on retention of public records. He said there is no mention of texts. An “administrative change” needs to be made on preservation of records, he said.
Town Attorney Tom Smith also contended that state law wasn’t clear on whether text messages had to be retained.
Substance of texts unavailable
Kenyon contended that Schilling didn’t handle aspects of the April 5 election properly. In the process of trying to build a case, she filed the open records request for all the text messages between Whitsitt and Schilling between March 15 and April 12.
The town filed a lawsuit seeking direction by an Eagle County district judge on how to proceed. Meanwhile, Verizon Wireless informed the town that it couldn’t recover the substance of the texts between Whitsitt and Schilling because they were too old. It could only recover a log that showed the number and times of the texts.
Basalt filed a motion to dismiss the lawsuit against Kenyon after Verizon’s discloser. Smith contended the issue was “moot.”
Kenyon requested a hearing to dig into some issues, including Basalt’s reasons for filing the lawsuit. The request for the hearing and the suit itself were dismissed Tuesday.
Whitsitt said it is a “legal question” on whether texts must be retained, and that she would follow the direction of the town attorney. The town government hasn’t directed the elected officials to start retaining texts, according to Whitsitt and Town Manager Mike Scanlon.
The Basalt Police Department was already retaining texts involving official business, Scanlon said. Other departments are now saving business texts. A policy will go to the council late this summer on elected officials’ treatment of texts.
Brown interviewed Whitsitt, Schilling
Whitsitt said she does very little business via texts. The time around the election was an exception, she said, because she sent multiple texts to Schilling on mechanics of the election, such as rules pertaining to poll watchers.
She said she wishes the substance of the texts could have been retrieved.
“I think if the substance of the texts was available, it would have been great,” she said.
Brown took a direct role in his office’s investigation of the case. He interviewed Whitsitt, Schilling and Scanlon along with his investigator.
When asked is he felt there was anything wrong about the conversation between Whitsitt and Schilling, even if he couldn’t prove it, Brown said, “It would not be appropriate for me to speculate.”
The DA’s decision appears to be the last battle in a contentious election for mayor.
“I think for the community, the April election has been over for a while,” Whitsitt said.
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