The opening salvo in the appeal process of a long-running legal battle waged by a group of citizens against Basalt Mayor Jacque Whitsitt, the Basalt Town Council and Town Clerk Pam Shilling was fired Tuesday evening.
The original suit was filed in Eagle County District Court on Oct. 5, 2016, by retired architect Theodore “Ted” Guy over what he contended were at least four violations of Colorado’s Open Meetings Law.
Guy, who has lived in Basalt since 1978, filed the suit on behalf of an ad hoc group of anonymous citizens he refuses to identify by name.
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.
In January, Guy and his group filed a notice to appeal Granger’s decision. On Tuesday, 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.
According to Zansberg, “Before the Court of Appeals, there are three briefs filed: the appellant’s ‘opening brief,’ the appellee’s ‘answer brief’ and the appellant’s ‘reply brief.’ After all three briefs are submitted, the Court will set the matter for oral argument. Then, weeks or months after the oral argument, the panel of three judges issues its ruling.”
Shortly after Granger’s ruling was handed down last December, Guy said of his group’s decision to file the original suit, “It came down to the fact that [the Basalt Town Council was] having an executive session every meeting. They weren’t telling us what they were talking about. 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.”
Zansberg added in a Dec. 3, 2018, email that the case was originally filed because of “the City Council’s pattern of conducting secret meetings, via email and text, in which they discussed matters then-pending before the Council. This practice, along with the Council’s routine practice of conducting ‘executive session,’ closed-door meetings without properly informing the public what they were discussing outside public scrutiny, were the two COML [Colorado Open Meetings Law] violations challenged in Ted’s lawsuit.”
Specifically, according to Zansberg, the original suit stated, “Plaintiff seeks an order of the Court finding that the Town Council for Basalt, Colorado, has violated the Open Meetings Law, on several specific occasions, by discussing public business among three or more members of the Town Council without public notice and the opportunity for him, and the public, to observe such meetings.”
Additionally, the wording of the original suit stated, “Notwithstanding the provision in the COML that expressly forbids three or more elected officials from discussing public business via e-mail without fully complying with the COML (including public notice and opportunity to observe those discussions in real time), three or more members of the Town Council have, on information and belief, repeatedly engaged in discussions about matters before the Town Council, and how such matters would be discussed at public meetings, via e-mail.”
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 executive session at its Dec. 11 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.”
Of his group’s decision to appeal Granger’s ruling, Guy said, “The judge missed quite a few things. Even the summary judgment that we won, he failed to acknowledge that [Basalt Town Council member Jennifer Riffle] sending the identical email to all seven elected officials individually violated the Open Meetings Act. It clearly does. If there’s a discussion between three or more elected officials, it’s an open meeting. It needs to be published and the public needs to be able to attend. Now, it’s one thing to say ‘here’s my email reply all’ and send it to all seven. She didn’t do that. She sent it to Jacque, she sent it to [council member Katie Schwoerer], she sent it to on and on.”
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.
According to Zansberg, “Appeals to the Court of Appeals — as opposed to ones to the Colorado Supreme Court — are ‘as of right’ — meaning litigants appealing from a trial court’s ruling have an automatic right to be heard by the Court of Appeals. Thus, one need only file a ‘Notice of Appeal’ to trigger that right of review. Appeals to the Colorado Supreme Court, from rulings of the Court of Appeal, are not ‘as of right,’ but entirely within the justices’ discretion whether to issue a writ of certiorari granting review.”
The opening brief itself consists of 46 pages of dense legalese. At its core are found most of the same arguments made by Zansberg in the original case filed in 2016.
Specific components of the opening brief filed Tuesday include introductory wording that states:
• “For months, Basalt resident Theodore Guy observed Basalt Town Council meetings at which executive sessions were improperly convened without any public announcement of any ‘particular matter to be discussed’ behind closed doors. Prior to filing this suit, Mr. Guy sent multiple letters, directly and through retained counsel, urging his elected public servants to comply with the state’s sunshine laws, to no avail.”
• “The District Court erred when it determined that the Basalt Town Council fully complied with the Colorado Open Meetings Law’s requirement that prior to convening an executive session, a local public body must announce at a public meeting the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized.”
• “The District Court erred when it denied Plaintiff’s request to order release of the audio recording of the April 26, 2016, closed-door session in which ‘personnel matters’ relating to a town employee were discussed.”
An ongoing concern
Basalt Town Attorney Jeffrey Conklin said via email on Wednesday, “Steve Dawes has been acting as special counsel for the Town on this lawsuit. Mr. Guy’s attorneys filed their Notice of Appeal in January. After several extensions, I am aware that Ted Guy’s attorneys filed their Opening Brief yesterday evening. I have not had an opportunity to review this brief nor connect with Steve Dawes today to discuss.”
Whitsitt responded to a request for comment to the filing of the opening brief by writing in an email, “Unknown to me.”
Shilling did not respond to a request for comment.
The opening brief also asked the Appeals Court to award reasonable legal fees to Guy and his group, with the exact amount to be determined by a district court other than Eagle County, the one for which Granger works.
Guy has said that his group has thus far accrued legal costs in excess of $100,000. His group has hired a new attorney, Katayoun A. Donnelly, who, according to Guy, is working on a contingency basis — though the group had to come up with a $10,000 retainer.
As of Jan. 3, Basalt had spent $34,531.31 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 outside council being hired.
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.
“By a strange set of circumstances, it is reported that there was another executive session on Tuesday night, where council discussed the alleged TABOR violations and what to do,” he said. “I just do not understand why those conversations are not in public. It is our money and our town. We trusted them to obey the law, and they may have failed in that, but these discussions and most everything else should be discussed in public, not behind closed doors.
“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,” Guy continued. “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 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.”