Records request aims to pry open Basalt council’s executive sessions |

Records request aims to pry open Basalt council’s executive sessions


Most members of a group pressing for transparency in Basalt government aren’t willing to be identified.

A Colorado Open Records Request was filed with the town of Basalt on Thursday by Ted Guy “and several other Concerned Citizens of Basalt,” according to a letter filed by the organization’s attorney, Steve Zansberg of Denver. No members of the group are identified other than Guy in the records request. Zansberg said Wednesday he is “not at liberty to disclose” the identities of other members. Guy also declined to name his peers, at their request.

When asked if he saw irony in the fact that a group pressing for transparency wanted to remain anonymous, Guy responded, “Yes, I do, but there’s a very real risk of retaliation.”

He noted that Basalt resident Mary Kenyon was previously named in a lawsuit by the town after she filed a Colorado Open Records Act request. Guy said he was willing to be identified because he has been sued before and he feels strongly about the issues the CORA request raises. Other people are as committed and have pledged funds to the effort he said.

“I would say they don’t want to be identified for fear of retaliation from Jacque (Whitsitt, the mayor) and Tom (Smith, the town attorney),” Guy said.

The Aspen Times also contacted several prominent members of the group OneBasalt, which played an active role in the April election campaign. None acknowledged belonging to Concerned Citizens of Basalt.

A critic of Basalt town government has demanded through an open records request that audio tapes of four executive sessions held by the Town Council earlier this year be handed over for public review.

Ted Guy, through his attorney, contends in his Colorado Open Records Act request that the executive sessions — which are closed to the public — were improperly noticed. The notices failed to specify the reason for the private meetings, according to Denver attorney Steve Zansberg.

Town Attorney Tom Smith said Wednesday he had “no comment at this point” when asked if he agreed with Zansberg’s assertion and if the town would make the audio recordings available to the public.

Zansberg filed the open records request Aug. 25. It seeks the audio recordings to executive sessions from April 26, May 24, Aug. 9 and Aug. 11.

He wrote that the agendas for those meetings identified only the statutory provision and general topics of the closed-door meetings. He contends that the topics were later voted on at a public meeting with no further details provided to the public.

“Thus, none of the closed-door meetings was preceded by the statutorily required public identification of the particular matter to be discussed in as much detail as possible without undermining the purpose for which the executive session is authorized,” Zansberg wrote.

In an interview, he expanded on the point. It’s not enough for Basalt Town Council to go into an executive session that’s merely noticed as a “personnel matter,” he said. If they are talking about the contract of an employee, such as former Town Manager Mike Scanlon, that must be disclosed — as long as it doesn’t undermine the reason for holding the closed session, he said.

The executive sessions held Aug. 9 and Aug. 11 were held after the council and Scanlon got in a dispute over a financial matter. Scanlon later resigned Aug. 19. A settlement is being negotiated.

Zansberg alleged in Guy’s open records request that the April 26 executive session by the Basalt Town Council was “unquestionably unlawful” because the council authorized Smith to file a lawsuit against town resident Mary Kenyon. Colorado case law shows that when a council provides direction to a town attorney to file a lawsuit, it constitutes “adoption of a position,” which is prohibited in a closed session, Zansberg wrote.

His position is that “recordings of improperly convened closed-door meetings are not recording of ‘executive sessions,’ but are instead public records.”

The Concerned Citizens of Basalt would consider litigation if the audio tape to the April 26 meeting isn’t made public, the letter said.

Zansberg is an expert on Colorado open records issues. He often advises the Colorado Press Association and member newspapers, including The Aspen Times.

Guy also is seeking all writings, in electronic or digital form, exchanged among Mayor Jacque Whitsitt and council members Jennifer Riffle and Katie Schwoerer, or Scanlon from July 1 through Aug. 25, and all text messages sent or received by Whitsitt from any party in which business was discussed from Aug. 1 through Aug. 25.

Open Records Act requests are supposed to be answered within three working days when possible. There is a provision for an extension under extenuating circumstances. The town responded to Zansberg on Tuesday by saying that Town Clerk Pam Schilling wasn’t able to collect the documents within the three days, so they are exercising their right to an extension.

The Aspen Times couldn’t determine if audio recordings exist for the four executive sessions that Zansberg alleges are public sessions. A town government doesn’t have to record meetings when the council is getting legal advice from its attorney, but no decisions are being made, Zansberg said.

“All other executive sessions must be recorded and the recordings maintained for 90 days,” he said.

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