Appeals court finds Basalt’s 2016 executive sessions violated open meetings law

An appeals court found that Basalt officials violated the Colorado Open Meetings Law in 2016.
Aspen Times file

The Basalt Town Council violated the Colorado Open Meetings Law multiple times in 2016 by not properly disclosing topics being discussed in deliberations closed to the public, the Colorado Court of Appeals said in a ruling released Thursday.

The three-judge panel overturned Eagle County District Judge Russell Granger’s 2017 ruling that Basalt complied with the law because the executive sessions involved attorney-client privilege and personnel matters involving former Town Manager Mike Scanlon.

The town’s actions could potentially cost taxpayers hundreds of thousands of dollars in court costs and legal fees.

The dispute wasn’t over whether the executive sessions were permissible. It was over whether the notifications were thorough enough to satisfy the law.

“As we read the court’s order, it upheld the Town Council’s bare-bones notice for legal notice and personnel matters because, in its view, the very nature of the topics precluded the disclosure of any more information,” the appellate judges’ ruling said. “In our view, the district court misapplied the statute.”

Basalt resident Ted Guy filed a lawsuit against the town government over the executive sessions in October 2016. He appealed Granger’s ruling and prevailed.

“The ultimate goal was to get the information they were hiding in executive session,” Guy said. “They were governing behind closed doors.”

He said the ruling creates a precedent that residents throughout Colorado can use to demand transparent governing.

Attorney Katayoun Donnelly of Denver represented Guy.

“We are extremely pleased that the Court has fully vindicated Mr. Guy’s efforts to hold the Town Council accountable and has made it clear that they routinely, as a matter of practice, violated our state’s Open Meetings Law,” Donnelly said in an email. She concurred that the ruling will affect local governments throughout the state.

Guy noted in an interview that a lot of conditions have changed in Basalt since 2016.

“The problem is, it’s water under the bridge,” he said.

At the time he filed his lawsuit, Jacque Whitsitt was mayor and the council included Bernie Grauer, Jennifer Riffle, Katie Schwoerer, Auden Schendler and Mark Kittle. Whitsitt left the board this year due to term limits. The five council members either didn’t run or weren’t re-elected in the 2018 and 2020 elections.

In addition, Tom Smith, the town’s attorney in 2016, resigned in 2018. Current town manager Ryan Mahoney took the position in June 2017.

The town government didn’t have an immediate response to the ruling. Mahoney said the town has made it a “consistent practice” since he’s been there to disclose as much information as possible on the nature of executive sessions. The town also organizes primer sessions for newly elected council members on their roles and responsibilities, he said.

An outside attorney represented Basalt in the litigation. The town argued that the executive sessions were attorney-client privilege or personnel matters that were not subject to greater degrees of disclosure.

Local governments are directed to use a notice that provides a blank space where they are supposed to write in the reason for an executive session. The town, when Smith was attorney, left the space blank for the four executive sessions in question. The Aspen Times was unable to reach Smith for comment Thursday.

At least one of the disputed executive sessions was over a meeting the council held to discuss the performance of former manager Scanlon. It was billed simply as a personnel matter. The town contended that was appropriate because Scanlon had a contract that strictly forbade the town to disclose even a notice of a discussion of his performance. He threatened to sue the town if it disclosed he was under review. The appellate court judges said no contract terms override the Open Meetings Law.

“The Town’s desire to limit its exposure to a possible legal action by Scanlon did not, in our view, justify negating the public’s right to know the subject of what its officials would be discussing in secret,” the Court of Appeals ruling said.

As a “remedy” to the unlawfully noticed executive sessions, Guy gets all minutes and recordings that are available of the four executive sessions, the court ruled. In addition, he was awarded legal fees and costs for the appellate court proceedings. The court also ruled that Granger must determine payment of legal fees for the district court proceedings. Donnelly placed the fees and costs for the proceedings in both courts at $200,000.

The town spent additional funds hiring Denver attorney Stephen Dawes to defend it.

Guy said he hopes that the two sides can negotiate a settlement because going back and litigating over the district court’s costs and fees will add tens of thousands of dollars to the public’s bill.

Guy said he is curious if the recordings of the executive sessions will shed any light on the council’s deliberations in private session during spring 2016. He noted sessions were held on the Pan and Fork site land-use dispute and the potential firing of Scanlon.

“They were governing behind closed doors,” he said. “That’s not the way it should have worked.

“I’d like to see why they fought so hard to keep it from the public,” Guy added.


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