Retention of texts between mayor, clerk at center of Basalt battle

Scott Condon
The Aspen Times
Jacque Whitsitt

The town of Basalt is creating a policy on retention of texts regarding official business by elected officials and staff as a tempest swirls in some corners over exchanges between the mayor and town clerk during the April 5 election campaign.

Town Manager Mike Scanlon said Friday the town government will work on procedures for saving work-related texts “because it’s apparent we need one.” He said he will advise staff and elected members of the council to do business via email as often as possible. Emails are easier to archive, he said. He is working on ways that staff and elected officials can archive texts.

The direction came after the town couldn’t honor Basalt resident Mary Kenyon’s request for public information in texts. Kenyon filed a Colorado Open Records Act request seeking texts between Mayor Jacque Whitsitt and Town Clerk Pam Schilling between March 15 and April 12 — before, during and after the election. Both Schilling and Whitsitt deleted their texts prior to Kenyon’s request, according to Town Attorney Tom Smith.

Verizon Wireless told Smith the content of text messages is saved for three to five days after transmission, so it was unable to provide the content. Verizon provided a “time stamp” — essentially a log of the texts between Whitsitt and Schilling — during the time in question.

Kenyon said it showed there were 120 exchanges, including seven on election day. No law prohibits candidates from contacting the election clerk.

Retention of records at issue

Kenyon contends the town had an obligation to retain public records by saving the texts. She contends Schilling and Whitsitt violated the Colorado Open Records Act by not saving those records. She also noted it is a more serious violation of the act by knowingly destroying records.

Smith disputed that Schilling and Whitsitt were required to retain the texts.

“(The Open Records Act) does not contain any requirements for the retention of public records,” Smith told The Aspen Times on Friday in an email.

The town government adopted the Colorado Municipal Records Retention Schedule in 2014, he said, and it doesn’t include a requirement on retention of text messages. Emails must be retained “until no longer needed,” he said.

Kenyon asked Fifth Judicial District Attorney Bruce Brown on May 27 to look into the text retention issue.

“We’ve opened an investigation,” Brown said Friday. The District Attorney’s Office is the official agency for a person to lodge complaints about alleged local election violations, he said. Police departments or sheriff’s offices won’t undertake such investigations, he said.

Brown said an investigation means his office will look at whether the complaint has merit and then act accordingly. That could take weeks or even months, he said.

Texts about “mechanics” of election

Kenyon complained to the District Attorney’s Office on April 18 about alleged violations in the conduct of Basalt’s April 5 election. Brown concluded most of the allegations were civil rather than criminal in nature and he declined an investigation on any issue, pending new information from Kenyon.

Kenyon filed her open records request to try to gather more information to present to Brown. She said her complaint is about procedure. She stressed she isn’t making any allegations about improper conduct between Whitsitt and Schilling in the texts.

“I’m not going there about what the content was,” she said.

Whitsitt declined to comment on the texts and asked that questions be emailed. In response to an email from The Aspen Times about the content of the texts between Whitsitt and Schilling, Smith said he was informed they were about the mechanics of the town’s mail-ballot election — the first in the town’s history. Whitsitt later added she texted Schilling questions about procedures on poll watching.

“No violations of election law”

After Kenyon filed her open records request, the town filed a request for declaratory judgment in Eagle County District Court. The lawsuit against Kenyon sought a judge’s direction on whether it was required to turn over the texts. Now that Verizon cannot produce the content, the town filed a motion June 1 to dismiss the request. The point is moot, the motion said.

Kenyon said she doesn’t object to the lawsuit being dismissed, but she wants compensation for expenses she incurred as the defendant. She had to pay $158 to file a response plus take the time to research issues, prepare a response on her behalf and drive to Eagle to file the response.

It appears unlikely the judge will rule on whether the town was required to retain and turn over the content of the texts.

Denver attorney Thomas Kelley, who works with Colorado media on public records issues, previously told The Aspen Times he believes case law shows that text messages are public records that must be handled the same way as emails. They must be retained, he said in a May 2 interview.

The open records battle is the last vestige of a hard-fought campaign for mayor. Whitsitt topped Rick Stevens 561 to 538. The close vote has left some onlookers bitter.

Kenyon, who supported Stevens, said she believes there were procedural flaws in the election. She has suggested to the town that it should form a committee to look into procedures before the next election.

Smith said everything associated with the election is open to public scrutiny — including the voter registration list, the ballots and the ballot counting procedure.

“There is not a single shred of evidence of any violation of election laws,” Smith said.


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