The former Basalt police chief's decision to share a secret report about his professional conduct with a prospective employer has forced the town government to reconsider if it wants to continue fighting a court battle to keep the document from the public.
Roderick O'Connor's decision to share the report with the Aspen Police Department, where he is trying to get a job, blindsided Basalt town attorney Tom Smith.
"This is all so new to us and all so surprising," Smith said.
The Aspen Times filed a lawsuit Dec. 8 against Basalt to try to force the town to turn over an investigation report on O'Connor's professional conduct and a settlement agreement resulting from his resignation Nov. 23. At the second day of a hearing Wednesday, Smith told Eagle County District Judge Mark Thompson that a delay was necessary because "new information" came to light.
"We learned late [Tuesday] that a third party has seen the report, namely the police department of the city of Aspen," Smith said. That new information could "alter" the town's position, he said, and he needed to consult with the council.
Thompson granted the continuance despite an objection by Aspen Times' attorney Tom Kelley. Thompson ordered the town to file a status update within one week, notifying the court whether it will proceed with the case.
After the hearing, Kelley said the development is significant because the town is trying to withhold a report prepared by Mountain States Employers' Council on the grounds that it is confidential. When information is disclosed to outside parties, it is difficult to contend it is privileged and can be withheld from the public, he said.
"The town of Basalt no longer has any legs to stand on," Kelley said. "[The case] is virtually in the can."
Smith said he is studying if O'Connor's sharing of the report violates confidentiality agreements between O'Connor and the town. "That's a question we're trying to answer," he said.
Smith and Town Manager Mike Scanlon met with the Town Council in an executive session Wednesday afternoon so they could tell the board about the latest developments in the court case. The council didn't take any formal action when it emerged from the closed session after about one hour. Smith and Scanlon wouldn't comment on the board's reaction.
Smith would only say the town will likely file its status report with the court prior to the Wednesday, Feb. 20 deadline.
Scanlon said he and Smith became aware that the report was shared while talking to O'Connor at the Eagle County Courthouse during a lunch recess on Tuesday. Both Scanlon and O'Connor were witnesses in the hearing held in Eagle. During the lunch break, Smith congratulated O'Connor for getting hired by the Aspen Police Department. O'Connor responded that it was a conditional hiring based on his passing a physical and other tests, according to Scanlon.
In the course of that discussion, Scanlon and Smith learned that the Mountain States report had been shared with the Aspen Police Department, Scanlon said.
Smith didn't call O'Connor as a witness Tuesday, as he had planned. No explanation was given regarding the change of plan.
Smith said he verified later Tuesday with O'Connor's attorney, Lawson Wills, that the Mountain States Employers' Council report had been shared with the Aspen Police Department. That new information had to be disclosed in the court hearing, according to Smith.
"We felt an obligation to be fair and honest with the court," he said.
Wills declined comment. He didn't attend the hearing.
At the start of the second day of the hearing on Wednesday, Smith asked to confer with the judge in his chambers, outside of a public session. Smith, Kelley and a second attorney for The Aspen Times, Mike Beylkin, met in private for roughly 20 minutes.
When they emerged and started the formal hearing, Smith said the information about the report was learned after three witnesses for the town had testified. Former manager Bill Kane, Scanlon and Mayor Jacque Whitsitt all testified that, as far as they knew, the Mountain States report on O'Connor had been circulated to a limited number of people in town government and with O'Connor himself but not with any third party.
Smith stressed that there should not be an implication of perjury by any of the town's witnesses because the information came to light after their testimony and they were previously unaware the contested report was shared with the Aspen Police Department.
Aspen Police Chief Richard Pryor confirmed O'Connor has been given a conditional job offer as a police officer. The department wanted to review the Mountain States investigation report as part of a routine background check on an applicant, he said. The department tries to get all available information on any applicant.
"It's an obligation for us to do that," Pryor said.
Scanlon and Smith said Aspen Police Department made several requests to get the Mountain States report from the town of Basalt in late December and early January. "We denied every request," Scanlon said.
James R. True, attorney for the city of Aspen, said he asked Wills to provide the Mountain States report on O'Connor's professional conduct roughly one month ago. The city's concern was to do a thorough review of a prospective job applicant. True said he was aware of the litigation by the Times against the town over the report.
"The city was not evaluating the impact of its request on that lawsuit or that agreement," True said. "It was just not our issue. We just felt we needed to review the report."
In its lawsuit, The Aspen Times contends the investigation report and settlement should be open under the rules of the Colorado Open Records Act (CORA). Smith has argued that CORA exceptions allow records to be kept closed when they involve personnel issues.
Colorado Mountain News Media, which does business as The Aspen Times, and the newspaper's managing editor, Rick Carroll, filed the lawsuit against Scanlon, as custodian of the records. The burden is on the town to prove why the report and settlement agreement don't have to be released.
O'Connor was placed on paid administrative leave Oct. 15, 2012, after complaints were made "from within the police department, according to testimony in the hearing from former town manager Kane. He said he consulted with Mountain States Employers' Council on how to respond to the complaint and ultimately decided the nature of the complaint was serious enough that a third party had to be hired to investigate. Mountain States was hired for the investigation. The Denver-based company consults for town governments and private businesses on human resources issues.
Scanlon inherited the personnel issue when he took over as town manager Oct. 31. He shared the Mountain States report with O'Connor, and the chief testified that he decided to resign after reading the information. He didn't say specifically what prompted him to resign.
O'Connor was given a settlement package of $83,944 which included 10 months of salary, cash for accrued vacation time and health insurance for he and his wife for one year.
Scanlon said the cash portion of the settlement was divided into two payments. The first payment has been made; the second is due May 1, he said. The town council will discuss if O'Connor's sharing of the report will affect the terms of the severance package, according to Scanlon and Smith.