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Basalt open meetings feud heads to Colorado Court of Appeals

Basalt town government
Aspen Times file

A long-simmering court battle between a Basalt resident and the town government over alleged violations of Colorado Open Meetings Law is headed to the state Court of Appeals.

The Court has scheduled oral arguments for May 12 in the case of Ted Guy versus Basalt Mayor Jacque Whitsitt, the Basalt Town Council and town clerk Pam Schilling. (Update: The Court of Appeals has vacated all oral arguments set for April as part of the effort to prevent the spread of coronavirus. Proceedings set for May could be affected if the statewide stay at home order is extended.)

Guy filed a lawsuit in October 2016 contending that four executive sessions held by the council in office at the time didn’t disclose enough about the matters being discussed.

The lawsuit also claimed the open meetings law had been violated by council member Jennifer Riffle in emails sent to other members to discuss town business and by Whitsitt for text regarding town business.

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Eagle County District Judge Russell Granger issued a split decision in the case in 2017. Granger found that the town properly held executive sessions — where the public is excluded — when there was attorney-client privilege and when personnel matters were discussed.

He ruled in Guy’s favor when executive sessions were held on property issues and negotiations.

“The court finds that the substance of the town’s action was proper,” Granger wrote. “It is only after a full-day hearing and hours of attorney argument second guessing the town’s motions is this court able and required to find a technical violation of (the Colorado Open Meetings Law).”

Also in his ruling, Granger said Whitsitt didn’t violate the town’s record retention policy by erasing texts to town officials. The evidence showed those texts were of “transitory value,” meaning they didn’t have to be saved as public record.

Guy said at the time of the ruling he was disappointed that the judge determined the council’s repeated failure to abide by the Sunshine Law was minor or inconsequential. He indicated he might pursue an appeal.

In a later ruling on another portion of the lawsuit, Granger determined Riffle’s email to three other council members in July 2016 violated the open meetings law. He also found that a series of emails in August 2016 among council members, the mayor and town staff were also a violation and should be open to public scrutiny because they addressed policy.

Prior to the initial lawsuit, Riffle apologized for the email and said she has stopped sending emails to conduct town business. As someone elected to public office for the first time in 2016, she said she hadn’t received proper training in public meetings law. Ryan Mahoney, who became town manager in June 2017, said previously that the town has improved its transparency and has trained newly elected officials on open meeting laws.

Guy filed his appeal of Granger’s ruling in July 2019. A panel of three judges will hear the oral arguments, limiting the attorneys for Guy and the town just 15 minutes apiece for a short presentation and questions from the panel.

In the appeal, Guy contends the town was required to be more specific about the need for holding executive decisions and that Granger erred by finding some of the executive sessions were adequately noticed. The appeal noted that the town government has changed its ways since the litigation and specifies the reasons for closed sessions more thoroughly — an indication that rules were followed previously.

One of the executive sessions in question was held to discuss the contract of former town manager Mike Scanlon, who parted ways after a dispute with the majority of the council. The town contends it couldn’t disclose it was holding an executive session on Scanlon without violating his contract. Guy contends the town could have disclosed it was discussing a personnel matter about Scanlon without committing a violation.

The town’s response said any technical deficiencies in disclosing topics for executive sessions were outweighed by attorney-client privilege, confidential negotiations and personnel matters on Scanlon. The town contends Granger ruled correctly.

The two sides also traded barbs in their briefs. The town noted that the judge said lawsuits over open meetings issues shouldn’t be used as an “income stream” for attorneys.

Guy’s attorney countered that a citizen should be commended rather than belittled for seeking transparency in government.

Denver attorney Katayoun Donnelly is representing Guy.

Steve Dawes is representing the town government.

Guy wants the appellate court to find that the town did violate the opening meetings requirements with inadequate notice for all four executive sessions in question and that Whitsitt’s texts were not inconsequential and should have been retained.

Guy also wants the appellate court to assign a different district judge to determine how the town and Guy should divide attorneys’ fees.

The town wants Granger’s ruling upheld and for no attorneys’ fees to be awarded.

It is unknown how long it will take before the three judges make a ruling.

Whitsitt will be out of office by the time the appellate court hearing is held. She is finishing her second four-year term. A new mayor will be elected on April 7, with a swearing in process later in the month.

Riffle is seeking re-election for a council seat after completing her a four-year term.

scondon@aspentimes.com


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