Whistleblower fight costs county $100k
Pitkin County fought the release of the name of a man who complained about his neighbor’s unpermitted construction for more than three years, and lost.
And on Tuesday it was time to pay the piper.
County commissioners approved a payment of $100,534 to cover the legal expenses racked up by Elesabeth Shook, a Red Mountain homeowner who filed suit in 2013 alleging that the county’s denial of her request to release the name of the whistleblower violated Colorado open records law.
The money will come out of the county attorney’s budget and is not covered by the county’s insurance policy, said Laura Makar, assistant county attorney.
“That might make your budget a little tighter this year,” Commissioner Rachel Richards said.
Commissioner George Newman wanted to know if Shook was ever fined for starting construction without a building permit, the basis for the initial complaint in 2012. Makar said Shook was never fined, though she did have to pay for a building permit.
“That’s unfortunate,” Newman said.
Commissioner Patti Clapper wanted to know if Shook had to pay double for the building permit. Lance Clarke, assistant county community development director, said such a provision exists for people who begin construction without a permit, though he didn’t know Tuesday if Shook paid the double fee.
The case began in August 2012, when a resident of Willoughby Way filed a complaint with the county’s Community Development Department about Shook’s home down the street that said, “excavation going on all summer; now cranes and heavy equipment,” according to the complaint form released by the county earlier this month.
The county investigated the complaint, found that Shook had not obtained a construction permit for a new structure being built and red-tagged her home with a stop-work order. Shook later obtained a proper building permit.
Shook filed an open records request seeking the complaint and who filed it and was provided some information about it. However, the county held back three pieces of information — two that provided the name of the person who filed the complaint and one that dealt with attorney-client privilege.
The county said that information wasn’t subject to release because it contained an investigative file that was part of a criminal investigation, could lead to acrimony between neighbors, might discourage others into not reporting future violations because their names might be released and, thus, was contrary to the public interest.
Shook then sued the board of commissioners and County Attorney John Ely, alleging that the county’s withholding of the information violated the Colorado Open Records Act.
Then-District Court Judge Gail Nichols agreed with the county that the withheld information went against public interest and was part of a criminal investigation. Nichols also ruled the evidence showed that Shook “intended to retaliate against the complainant,” which again highlighted a reason not to disclose the complainant’s name.
The Court of Appeals disagreed with Nichols in June, ruling that none of the evidence in the case indicated the county attorney investigated the violation “with an eye toward future criminal prosecution,” according to the appeals decision.
Finally, the Colorado Supreme Court decided in February not to hear the case, effectively upholding the Court of Appeals ruling.
Makar said the county attorney’s office wants to make sure construction is done according to land-use code, but doesn’t want to encourage neighbor versus neighbor disputes.
“That’s the whole reason for withholding (the documents),” she said.
But Chris Bryan, Shook’s attorney, said the county attorney’s office doesn’t get to make that decision under open records law. The office cannot selectively release documents in some cases and not others because of how it thinks the information might be used, he said. Government agencies cannot ask why someone wants a record, Bryan said.
“It’s that selectivity I find so troubling,” he said. “You can’t pick and choose who sees what. That’s creating conditions for abuse of power.”
In fact, the citizen complaint form the neighbor originally filled out on Aug. 14, 2012 — which was released by the county — features a boxed disclaimer at the top warning that the contents “may” be subject to public release.
“The Colorado Open Records Act states that public records such as this complaint form may be open to public inspection,” it states. “Therefore, you may not wish to provide any information you consider confidential.”
Makar said the county is working on a process that would allow officials to address anonymous complaints.
Bryan, however, pointed out that based on the disclaimer printed at the top of the citizen complaint form, a complainant could simply not provide a name, or any other information the person might not want released.
“He could have just left it blank,” Bryan said. “Now you have this gargantuan expenditure of taxpayer resources.”
Shook does not want to comment on the case, Bryan said.
A phone message left for the man who complained was not returned Tuesday.
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