The latest round of legal pyrotechnics in the case of Ted Guy versus the town of Basalt — which has been dragging on for three years — is in the hands of the Colorado Court of Appeals.
On Aug. 20, Basalt filed its answer brief in the case.
Last week, Guy, through his attorneys, responded to Basalt’s answer brief.
It all began in October 2016, when Guy, a long-time Basalt resident, and a group of ad hoc citizens he refuses to name, filed suit in Eagle County District Court against Basalt Mayor Jacque Whitsitt, then-Basalt Town Attorney Thomas Smith, Basalt Town Clerk Pam Shilling and the entire Basalt Town Council. In that suit, Guy alleged that the Basalt Town Council did not properly conduct four executive sessions in accordance with the Colorado Open Meetings Law (COML).
Guy further contended in his suit that substantial business was conducted during those executive sessions and that the town refused to divulge the contents of those meetings, in violation of the Colorado Open Records Act (CORA).
Those executive sessions, according to the town’s Aug. 20 answer brief, took place on April 26, May 24, Aug. 9 and Aug. 11, 2016.
Guy contended that those executive sessions amounted to an extra-legal pattern of behavior on the part of the Basalt town government.
“It came down to the fact that [the Basalt Town Council was] having an executive session every meeting,” Guy said last December. “They weren’t telling us what they were talking about. I finally, with a group of concerned citizens, we used my name to do an open records request. We asked for emails, we asked for texts and that’s when we felt we found there was a lot of inappropriate discussions going on behind the scenes.
On Dec. 2, 2018 — more than two years after the suit was filed — Eagle County District Judge Russell Granger issued a summary judgment that amounted to a split decision: Two of Guy’s assertions were upheld while the other two were dismissed. Granger levied little more than a tepid finger-wagging at the town.
In January, Guy and his group filed a notice to appeal Granger’s decision.
On July 9, Guy’s group, via Denver attorneys Katayoun A. Donnelly, Thomas B. Kelley and Steven Zansberg, sent an opening brief to the Colorado State Court of Appeals, marking the first step in a potentially prolonged appeals process.
Since Guy, through his attorneys, has asked to make oral arguments before the Court of Appeals, there’s no telling how much longer this case could go on.
Thus far, the case has cost Guy and his anonymous committee more than $100,000 in legal fees, according to Guy. Before preparing the answer to Guy’s appeal, Basalt had spent $40,000 directly related to the case. Much of that cost is a result of ex-Basalt Town Attorney Thomas Smith being named in Guy’s original case, which necessitated hiring outside counsel — Aspen attorney Steven Dawes.
The town has decided to stick with Dawes, even though Smith is no longer employed by the town, because of his familiarity with the case.
According to Basalt’s 46-page answer brief, prepared by Dawes, all four executive sessions at the heart of the case were conducted in compliance with the COML.
“The executive sessions were convened for different purposes: conference with the Town Attorney for the purpose of receiving legal advice on specific legal questions, personnel matters, and property acquisition and negotiation issues,” Dawes’ answer brief states.
Guy’s 23-page answer brief, prepared by Denver attorney Katayoun A. Donnelly, begs to differ.
“Contrary to what these public officials contend — and the District Court endorsed — substantive provisions of the Colorado Open Meetings Law were violated by the Town, and those violations were anything but de minimus,” Guy’s answer brief asserts. “By consistently refusing to provide any description in their pre-meeting announcements, the Town denied the public’s statutory right to know what ‘particular matter’ their public servants were discussing behind closed doors.”
Furthermore, the answer brief prepared by Guy’s attorneys asserts that there is no way for anyone to determine whether what was discussed during those four executive sessions was protected by precepts outlined in the COML.
“The District Court specifically found that only one of the four purported executive session discussions at which attorney-client communications occurred was recorded on audiotape — April 26, 2016. No recording was made of the other three such discussions,” Guy’s answer brief states.
The town’s answer brief counters that by saying that there was a partial recording of the Aug. 9, 2016, meeting. But, according to the town’s answer brief, because those recordings, as well as minutes of the executive sessions in question, were part of what they deemed legally conducted executive sessions, they were under no obligation to release them to Guy, despite his request under CORA.
“The Town took the position that the recordings are confidential, privileged, not a public record and not subject to disclosure under CORA and COML,” Dawes’ answer brief states.
This situation is all the more juicy because three of the executive sessions listed in Guy’s suit regarded the employment situation of Mike Scanlon, who was Basalt’s town manager at the time. Two weeks ago, in a situation not directly related to the Guy suit, Scanlon notified the Basalt town government of his intention to sue Mayor Whitsitt, her husband TimWhitsitt, who is a local attorney, and the Basalt Town Council for defamation of character.
According to Dawes’ answer brief, the reason the contents of those three executive sessions listed in Guy’s suit were not released to the public was because of the Scanlon connection.
“His employment agreement … includes a provision stating that Mr. Scanlon may declare the agreement terminated and be entitled to full severance pay in the event the Town is in breach of the agreement or if his performance or continued employment is discussed in a public meeting,” the brief states. “Mr. Scanlon intervened in this lawsuit. He submitted an affidavit stating that the executive sessions on April 26, Aug. 9 and Aug. 11, 2016, included personnel discussions about him.
“As the District Court noted, Mr. Scanlon asserted a privacy interest in the confidential and private information discussed in those executive sessions, and he did not waive that privacy interest,” Dawes’ answer brief continues. “He did not consent to or authorize a release of any records, data or recordings that include discussion or reference to any matters relating to his employment or his performance, including but not limited to employment information, educational information, performance evaluations and reasons for his separation from employment with the Town. An email from his attorney to counsel for the own states that Mr. Scanlon does not consent to the release of any of his personnel records including the executive session recordings requested by the plaintiff.”
Scanlon ended up parting ways with the town of Basalt in August 2016. He eventually received a $250,000 severance payment.
In December 2018, Guy sent a letter to the Basalt town government in which his group offered to settle the case in exchange for the town council agreeing to adopt what he called “very clear ordinances and resolutions on the town’s behalf to reaffirm their commitment to the open records and open meetings laws.”
The town, Guy said, never responded to that letter. However, the letter was discussed by the town council in — ironically enough — executive session at its Dec. 11, 2018, meeting.
After that meeting, Basalt Town Manager Ryan Mahoney said, “We reviewed the order for motions for summary judgement with the Council and received direction that we will wait to see if plaintiff files an appeal on the District Court orders.”
Guy said his offer to drop the suit still stands.
But, there is a big “but.” According to Basalt Town Manager Ryan Mahoney, that offers comes with a fairly large price tag.
“Regarding the request to settle with a simple resolution saying that we would not violate open meetings law, that is only part of the story,” Mahoney said shortly after Guy’s appeal was filed in July. “The other part is a request to pay all the legal fees for Mr. Guy. This request included legal fees for claims that they did not prevail on. We did not agree to those terms, but did clearly communicate that back to Mr. Guy’s attorney.
“I’m not sure why his version of the events seems different than what really occurred,” he continued. “Disappointing, to say the least.”
Mahoney stressed last December that, since he became town manager, he has made sure that council members fully understand the state’s Open Meetings Law.
Since Guy’s suit was originally filed, there has been significant turnover on the Basalt Town Council. Mark Kittle — a vocal opponent of executive sessions — opted not to seek reelection in the May 2017 election, and Bernie Grauer was not reelected in April 2018. Bill Infante and Ryan Slack are now on the council.
Mahoney did not take up his town manager duties until June 2017. By the time the appeals process is complete, Whitsitt may not be Basalt’s mayor, as her term-limited tenure ends in May 2020.
Guy is of the opinion that the importance of his case is greater than the sum of its specific parts. It is, he said, an ongoing concern.
“Given the facts in the appeal, [Judge Granger] tried to rewrite the law on the Colorado Open Records Act and the Colorado Open Meetings Law,” he said. “His actions need to be overturned and reversed to maintain the protections of CORA and COML. We believe the CORA and COML requirements are essential to good governance in Colorado.”
Guy once again stressed that he and his group would consider proper relief to be confirmation on the part of Basalt Town Council that “governments must follow CORA and COML, reimbursement of the fees spent to prove the town’s failure to comply with the law and reversal of Judge Granger’s mistakes and attempted weakening of the CORA and COML laws.”
Current Basalt Town Attorney Jeff Conklin would only say of the current status of the appeals process, “Ted Guy’s attorneys filed a reply brief this week, so the briefing in the Court of Appeals is concluded. Ted Guy’s attorneys have also requested an oral argument. We will await notice from the court on the scheduling of oral argument. An opinion will be issued after oral argument.”
Zansberg, who has been involved in the case since it was first filed three years ago, said, “Mr. Guy has succeeded in showing that the Basalt Town Council routinely violated the state’s Open Meetings Law. It speaks volumes about the town council’s attitude toward government transparency that it now asks the Court of Appeals to condone those violations, labeling them ‘hyper-technical’ and ‘de minimus.’”