Judge rules primarily in favor of Basalt in lawsuit with resident over open meetings law
January 11, 2017
A judge ruled Tuesday that the town of Basalt isn’t conducting business improperly in secret sessions nor did Mayor Jacque Whitsitt violate the Colorado Open Records Act by erasing a text message the judge deemed “transitory.”
Eagle County District Judge Russell Granger ruled that the Town Council wasn’t unlawfully setting policy or improperly expanding discussions, but he sided with plaintiff Ted Guy in what Granger labeled a “hyper-technical ruling.”
Guy, who claimed to be representing unnamed “concerned citizens of Basalt,” filed a lawsuit that challenged the propriety of four executive sessions held between April and August. The lawsuit contended they were illegal executive sessions because they weren’t properly noticed. The lawsuit filed on Guy’s behalf by attorney Steven Zansberg of Denver said the town is required to give as much detail as possible about the subjects without comprising the need to hold an executive session.
The sessions should be considered public meetings since they were improperly noticed and the town should be required to hand over any recordings of the proceedings, Guy contended. Questions also were raised during a Dec. 8 hearing if the Town Council used the sessions to set policy or make decisions on issues that weren’t noticed.
‘No evidence’ of secret meetings
Granger reviewed the notices and listened to recordings of the meetings when possible. He found that the council properly held executive sessions when there was attorney-client privilege and when personnel matters were discussed involving former Town Manager Mike Scanlon.
He ruled in Guy’s favor on executive sessions held by the council on property issues and negotiations. Granger ruled that the town could have identified the property as the Pan and Fork site without harming its negotiating position.
“There is no evidence that the town was attempting to conduct secret meetings but just the contrary — the town was seeking to comply with [the Colorado Open Meetings Law] but failed in the technical aspects of the law,” Granger’s ruling said.
“The court finds that the substance of the town’s actions was proper,” Granger wrote. “It is only after a full-day hearing and hours of attorney argument second guessing the town’s motions is this court able and required to find a technical violation of [the Colorado Open Meetings Law].”
Granger ordered the town to turn over recordings of executive sessions involving the Pan and Fork property to Guy, but he questioned the purpose of the lawsuit. He noted that town taxpayers will be paying attorneys with funds that could be used for other purposes.
“The court notes the philosophical public value this case creates, but the court also notes that in reality, this case will most likely cause more harm to the public than good,” Granger wrote.
Mayor cleared on text
The lawsuit also contended that the town didn’t do enough to honor a Colorado Open Records Act request by Guy that sought all electronic communications exchanged between Whitsitt and council members Jennifer Riffle, Katie Schwoerer and former Town Manager Scanlon.
The lawsuit targeted Whitsitt for not turning over texts that she exchanged with Scanlon, and that Scanlon provided as part of the open-records request.
Granger ruled that the town made “reasonable, good-faith efforts to search, locate and produce records responsive” to Guy’s request.
While the lawsuit didn’t raise any claims that Whitsitt violated the records retention laws, Granger wrote that he reviewed the substance of the texts produced by Scanlon from Whitsitt and reviewed her testimony. He found that the texts are of “transitory value.” That’s a legal definition that means those particular texts don’t have to be saved as public records.
“The evidence does not support the assertion that Mayor Whitsitt’s deletion of any text messages violated the town’s records retention policy,” Granger wrote.
Guy ‘disappointed’ in ruling
Guy issued a statement that he and the concerned citizens that he represents “are profoundly disappointed in Judge Granger’s ruling today, which essentially casts aside as minor or inconsequential the Town Council’s repeated failure to abide by our state’s Sunshine Law.”
He disputed the finding that Whitsitt’s text was transitory. He claimed it showed policy was being discussed with other council members out of public view.
Nevertheless, Guy claimed partial victory.
“The citizens of Basalt have the right to have a council and a mayor who follow the laws of the state of Colorado,” Guy said in an email. “Read the ruling; the judge ruled they did not follow the law.”
Whitsitt had a different outlook when asked what the ruling said about the way the town government conducts its business.
“I have always been proud of the way staff and council have conducted themselves,” Whitsitt said in an email. “It’s not surprising that the legal system has affirmed our credibility and leadership.”
Political foes of Whitsitt, including Guy and Basalt resident Mary Kenyon, have targeted her via a complaint to the district attorney about alleged criminal conduct in the April election and this latest civil lawsuit.
The DA determined that no criminal charges were warranted, and Granger ruled in Whitsitt’s favor in the civil suit. When asked if she felt the criminal complaint and civil suit were politically motivated, Whitsitt said she had “no idea.”
“I’m looking forward to town resources being reallocated to community good,” she said.
Attorney’s fees to be determined
The financial fallout of the litigation isn’t determined yet. Granger said he would award attorney’s fees to Guy strictly for time spent on the issue that the Pan and Fork executive sessions should have been more fully disclosed. He directed the two sides to confer and come up with a “reasonable” amount of fees on the issue.
Taxpayer funds also were spent by the town for hiring an outside counsel, Steve Dawes, for its defense in the case. His bill isn’t known yet.
Guy said he would confer with Zansberg on options going forward with the case.
One issue still must be resolved in a separate part of the lawsuit. A judge must determine if the town violated the open-meetings law through emails sent by Riffle to other members of the council.