Resident sued by Basalt presses in civil lawsuit for answers

Scott Condon
The Aspen Times

A Basalt woman who was sued by the town of Basalt after she filed a Colorado Open Records Act request this spring is urging a judge to dig for the “real and truthful reason” the town filed the lawsuit.

The resident, Mary Kenyon, asked the judge to listen to a tape of an April 26 closed session of the Town Council and Town Attorney Tom Smith where the prospect of litigation was discussed. She claimed in the motion filed in Eagle County District Court that the judge will discover the real reason for the lawsuit was to “make an example of the defendant” and to prevent having to pay attorney’s fees if Kenyon prevailed in the dispute.

The town of Basalt filed the lawsuit April 29 to seek a declaratory judgment on whether Town Clerk Pam Schilling was required to turn over text messages from Mayor Jacque Whitsitt that were exchanged prior to, during and after the April 5 town election. Kenyon filed an Open Records Act request seeking the texts from both Schilling and Whitsitt.

The town eventually responded that both Schilling and Whitsitt erased the texts and that all that could be retrieved was a log showing the number and times of the texts. The log shows Schilling and Whitsitt exchanged 120 texts between March 15 and April 12. Whitsitt said previously through Smith that the texts were about “mechanics of the election” such as rules pertaining to poll-watchers.

Kenyon contends there were flaws in the way the election was run. She requested the texts as part of a fact-finding mission.

District attorney’s investigation

When the town government revealed that the texts were erased, Kenyon asked Eagle County District Attorney Bruce Brown to investigate if Schilling and Whitsitt violated laws requiring the retention of public records and if they knowingly destroyed the records.

Brown previously said his office is the proper agency to handle an alleged criminal matter in an election. Police departments and sheriff’s offices won’t investigate such matters, he said.

While Brown has been guarded on what he will say about the investigation, a source familiar with the inquiry said a district attorney’s investigator is scheduled to meet Friday with Whitsitt, Schilling and Town Manager Mike Scanlon in separate interviews.

The lawsuit by the town against Kenyon is separate from the district attorney’s investigation. After it was learned that the content of the texts couldn’t be retrieved, the town filed a motion to voluntarily dismiss its civil suit. The town’s motion said the question of whether the texts had to be turned over was now moot.

Kenyon seeks answers

Kenyon wants some issues resolved before the lawsuit is dismissed. She asked Judge Fred Gannett to listen to the tape of the Basalt Town Council’s April 26 closed meeting, formally called an executive session, and hear why the council and Smith decided to go ahead with the lawsuit.

She also wants the judge to determine that the town didn’t comply with her April 26 open-records request.

“More particularly, the text records and emails of Jacque Whitsitt have not been produced nor has any statement, as required by CORA, been made stating the grounds for plaintiff not producing the records of Jacque Whitsitt,” Kenyon’s motion says.

Kenyon, who is representing herself in the case, also is requesting a hearing to resolve the issue of costs and fees. She wants the town to pay her costs, time for preparation and fees incurred in defending against the town’s “retaliatory and fabricated lawsuit regardless of whether the case is dismissed or decided on the merits.”

No hearing has been scheduled yet, but the judge is scheduled to review the case Wednesday.