Pitkin County hopes Colorado Supreme Court will hear whistleblower case | AspenTimes.com

Pitkin County hopes Colorado Supreme Court will hear whistleblower case

Rick Carroll
The Aspen Times

An attorney said Tuesday that Pitkin County plans to challenge a Colorado Court of Appeals decision allowing the identity of whisteblowers in land-use complaints to be disclosed.

County policy protects the names of people who report violations of the land-use code. But that policy was put into jeopardy by an appellate court’s ruling in June, reversing a March 2014 decision by Pitkin County Judge Gail Nichols, who ordered that Red Mountain homeowner Elesabeth R. Shook couldn’t inspect government records revealing the name of someone who complained about an illegal construction project on Shook’s property.

Assistant County Attorney Laura Makar said county commissioners, in a recent private discussion, gave the OK for the county to ask the Colorado Supreme Court to review the Court of Appeals’ ruling.

Makar said the county has until the end of the month to file what’s known as a writ of certiorari with the Supreme Court.

“The county still has very serious concerns about the release of names of citizens who provide information about county code violations,” Makar said. “These people are potentially going to experience reprisal, and that concerns us greatly.”

Makar said Shook, after filing a Colorado Open Records request with the county, was provided paperwork about the complaint. But three documents — two of which revealed the complainant’s name, the other had attorney-client privilege — were withheld.

Those documents remain under seal until the matter is resolved by the Supreme Court, which can either decide to review the ruling or not entertain it, which would mean the appellate court’s ruling would stand. Attorney Chris Bryan of the Aspen law firm Garfield & Hecht PC, said the county “certainly has the right” to fight the ruling, but he questioned the financial wisdom of such a decision.

“I think the county’s petition will be unsuccessful, and unfortunately it will cost the Pitkin County taxpayers more money,” he said. “If Ms. Shook prevails, she’s entitled to all of her attorney’s fees. If the goal is to save taxpayer money, this isn’t the way to do it.”

The dispute stems from an August 2012 complaint from a person to the county’s Community Development Department about a construction project on Shook’s Willoughby Way property. That spurred a county investigation showing Shook had not secured a construction permit for a new structure being built. Shook later obtained a permit and was in the county’s good graces, but she sued the Pitkin Board of County Commissioners and its attorney, John Ely, in March 2013, asking for the name of the complainant.

After Nichols ruled that the whistleblower’s name be kept confidential, Bryan took the case to the appellate court, which disagrees with Nichols’ contention that Shook intended to retaliate against the complainant.

Bryan said that Shook, as a property owner, is entitled to inspect any government records pertaining to her property.

“Her only motive is that she wants the right to inspect records that relate to her property,” he said. “When the government says you can’t see documents that pertain to your property, I think the response many people have is, ‘Now I really want to see them.’”


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