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Citizen group decides to appeal Basalt open records case
Town has already incurred significant legal fees

An ad hoc citizens group that filed suit against the Basalt town government more than two years ago has opted to appeal a district court judge’s split-decision ruling on the case.

According to group spokesperson, longtime Basalt resident Theodore “Ted” Guy, the case was originally filed against the town government of Basalt in October 2016 for what he contended were numerous violations of Colorado’s Open Meetings Law (COML).

On Dec. 2, 2018, Eagle County District Judge Russell Granger issued a summary judgment in which two of Guy’s assertions were upheld, while the other two were dismissed.

The case has already incurred significant legal fees.

According to Guy, his group, the members of which he prefers not to name, has racked up a legal bill approaching $100,000.

Much of that bill, according to Guy, has yet to be paid to Denver lawyer Steven D. Zansberg, who has represented the ad hoc group since the case was originally filed.

The ad hoc group will use a different attorney throughout the appeal process. That attorney, according to Guy, has agreed to work on a contingency basis, though the group has had to raise $10,000 to pay for upfront fees involved in the case. Guy said Monday that he has received commitments from the group to cover that cost.

According to Town Clerk Pam Schilling, who was named in Guy’s original suit, Basalt has incurred legal fees of $34,531.31 directly related to the case. Because then-Town Attorney Tom Smith was named in Guy’s suit, the town has had to engage outside legal help to defend itself.

Others named in the suit include Basalt Mayor Jacque Whitsitt, the entire Basalt Town Council and ex-Town Attorney Tom Smith.

Since the suit was originally filed, there has been significant turnover on the Basalt Town Council. Mark Kittle opted to not seek reelection in last May’s election, and Bernie Grauer was not reelected. Bill Infante and Ryan Slack are now on the council.

In an extensive interview conducted shortly after Granger’s ruling, Guy said of his group’s decision to file the suit in 2016, “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. 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 were a lot of inappropriate discussions going on behind the scenes.”

Shortly after Granger’s ruling, Guy sent a letter to the Basalt town government in which his group offered to settle the case in exchange for the town 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.”

The town, Guy said Monday, had not responded to that letter.

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 judgment with the council and received direction that we will wait to see if plaintiff files an appeal on the district court orders.”

Guy and his group must file their appeal within 40 days of Granger’s Dec. 2 ruling. It is unclear whether that time frame is based upon business days or calendar days. If it is the latter, the deadline for actually filing the appeal would be Jan. 10.

Shortly after Granger’s ruling, Guy said of the impetus for the filing of the original suit, “There were a lot of different things going on. Marijuana was one of the big ones. That’s some of the evidence that was used in the lawsuit, where Jenn Riffle was sending out emails. It came out that [Mike] Scanlon [Editor’s note: town manager at the time the suit was filed] had warned [town council members] that you can’t ‘reply all’ to an email because that becomes an illegal meeting and it requires public notice and the public has to be able to see it. A lot of this went back to the mayoral election and [one of our members] had made some open records requests and the town was refusing to provide the records or was charging an arm and a leg for them.

“The judge missed quite a few things,” Guy continued. “Even the summary judgment that we won, he failed to acknowledge that Jenn [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.”

On Dec. 3, Zansberg wrote in an email of Granger’s ruling 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 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, Colo., 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 email 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 email.” 

Both Whitsitt and Riffle directed questions on Guy’s decision to appeal to Mahoney, who had not yet been hired by Basalt when Guy’s suit was originally filed.

“To our knowledge, Mr. Guy has not yet filed a notice of intent to appeal with the court,” Mahoney said via email. “In the event he does, we will review the merits of the appeal with our legal counsel. We think any appeal would be unfortunate, and not a good use of judicial resources.

“As a general matter, the town has reviewed communication practices by council members and actively arranged for ongoing education on these issues,” Mahoney continued. “We will continue to do so by reviewing with our town attorney the town’s policies and procedures regarding communications to ensure compliance with the state’s sunshine laws.”