On Oct. 5, 2016, Theodore “Ted” Guy, an architect who has since semi-retired, filed suit against the town government of Basalt for 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 identity 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, where two of Guy’s assertions were upheld, while the other two were dismissed.
No one knows for certain at this point where the case will go from here.
Guy and his group, which has already incurred significant unpaid legal fees as a result of the suit, have about five weeks to determine whether to appeal the two counts that did not go their way.
The Basalt Town Council, likewise, needs to determine whether it will appeal the two counts that favored Guy.
If it gets that far, the Basalt Town Council will also have do decide how to respond if Guy’s group opts to appeal Granger’s ruling. The council could try to settle, or it could fight the appeal.
The impact of the case as determined by Granger is murky at best. Evidence that the two violations have caused direct and material impact to any individual entities in Basalt was not included in Granger’s ruling.
At this point, the Basalt town government has not aggregated the money it has spent defending itself against Guy’s suit. The RFWJ has filed an open records request asking it to do so. Because then-Town Attorney Tom Smith was named in Guy’s suit, Basalt had to hire outside counsel.
A Dec. 3 email was sent from the RFWJ to Mayor Jacque Whitsitt and Town Council member Jenn Riffle — both of whom were specifically named in Guy’s suit — asking for comment.
Whitsitt did not respond.
Riffle referred inquiries to Town Manager Ryan Mahoney, who did not take up his current position till June 2017, more than a half-year after Guy filed the suit.
Given the ongoing nature of the litigation, Mahoney was only able to answer questions in the most general sense, saying the town council would review the situation with new Town Attorney Jeff Conklin in executive session prior to the regularly scheduled town council meeting on Tuesday, Dec. 11.
Mahoney was unavailable for comment regarding what transpired at that executive session before press time.
The situation is further complicated by the fact that, since Guy’s suit was filed in October 2016, there has been significant turnover on the town council. A municipal election transpired in spring of 2018, in which two new council members were elected and another, Mark Kittle — also named in Guy’s suit — opted not to seek reelection. As well, Whitsitt is term-limited.
Mahoney emphasized that, since he became town manager, he has made sure that council members fully understand the state’s Open Meetings Law.
While Whitsitt and Riffle did not comment on the suit, Guy agreed to be interviewed. What follows is a lightly edited transcript of that interview, which was recorded with his permission.
RFWJ: How did all this get started?
Guy: 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 was a lot of inappropriate discussions going on behind the scenes. We ended up filing suit and I don’t think anyone was as stunned as I was to get noticed [last] Sunday morning that [Eagle County District] Judge Granger was back on the job. And had issued a summary judgment in our favor for claim 5.
RFWJ: You said a couple of times “we” — this is just you and quote-unquote concern citizens. Who are the other members?
Guy: I’m not comfortable with disclosing any of the others.
RFWJ: So it wasn’t a formal organization, it was an informal ad hoc organization?
Guy: Right, and they needed a person whose name would go on the lawsuit. You could not file a lawsuit anonymously.
RFWJ: So you, as a concerned citizen, were pissed off that there was all this off-the-record communication via emails, texts and executive sessions. Was it just the generic fact that that was going on or was it the specific issues they were talking about that pissed you off?
Guy: It was more generic for me. I think for others it was more specific. 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 charging an arm and a leg for them.
RFWJ: You guys hired Denver lawyer Steven Zansberg. What was the agreement on who was going to foot the bill for that?
Guy: We were going to come up with a minimum down payment. We were given some estimates and we had verbal offers to contribute that never showed up. We paid some money but not nearly enough at this point.
RFWJ: I’ve been told it’s like $90,000 in legal fees.
Guy: I’ve heard that number. I’ve heard it rounded up to $100,000. For a while, I was the one, since I was the face of the lawsuit. I was getting copies of the bills. I would forward them to one or two people who had promised to pay in the hopes of getting some of the money. That’s been one of the real negatives about this whole thing.
RFWJ: The money is owed?
Guy: The money is owed.
RFWJ: One of the options for the town is to appeal this decision. If they do, how are you going to respond? Are you and your group going to put more money into this and go after this?
Guy: I understand that we have 40 days from last Sunday [Dec. 2] to make that determination. I think it needs to be appealed. I think [Judge] Granger made a lot of mistakes.
RFWJ: Wait … I was talking about your group’s reaction if the town appeals the decision. Even though you won the case, you still think it needs to be appealed?
Guy: The judge missed quite a few things. Even the summary judgement 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 Katie, she sent it to on and on.
RFWJ: I hadn’t thought about that. I was thinking of the town appealing this judgment.
Guy: It is my preference, assuming I can find someone to come up with the money to pay the new attorney who has already agreed to do this on a contingency basis. I think it needs to be done. In my mind, it’s very, very important that government be open and transparent. They’re spending our dollars, not their dollars. They need to be held accountable. When they’re out there mucking around in executive sessions or meeting secretly … I mean …
RFWJ: If you decided to appeal, you’ll be doing so with a different attorney. Is that because they have different areas of expertise? Could it be that Zansberg is still owed money on this?
Guy: Oh, he’s still owed money on this, but he’s moved to a different firm. It was he who gave us the name of the new attorney. This is second hand, but right now, we could go to Judge Granger and ask for money and not appeal it. Granger has made it very clear that he doesn’t feel that the Open Records and Open Meetings laws are appropriate and should be enforced. Other than the payment of legal fees, there are no penalties.
RFWJ: What sort of relief are you looking for then?
Guy: What I want to do is, and part of what I think we’re proposing as a settlement prior to an appeal, which is not my first choice, but I’m not going to stand in the way of doing that if the rest of the concerned citizens want to, would be adopting very clear ordinances and resolutions on the town’s behalf to reaffirm their commitment to the open records and open meetings.
RFWJ: That’s it? Do they know that?
Guy: I think there’s been a discussion similar to that but I don’t know. I have a draft of a letter, but it’s a draft, that’s going to be from us, the concerned citizens, to Steve Dawes [the attorney who represented the Town of Basalt in the legal proceedings], which [was to] be discussed Tuesday night. I haven’t sat here and obsessed about this for the last two-and-a-half years. In some respects, I was a fool for allowing them to use my name. I lost my ability to essentially practice my profession in the town of Basalt. Who’s going to hire the guy that just sued the town? But I thought of that prior.
RFWJ: If what you just suggested — the open meetings ordinances and resolutions — were codified and the town paid off the outstanding legal fees for your group, it would be resolved?
Guy: I think it would be resolved.
RFWJ: It would seem that the town has insurance for these kinds of things, and, in today’s litigious world, it seems that $100,000 is relatively paltry. It would seem that the town would agree to those terms just to see this go away.
Guy: Typically, a settlement isn’t 100 percent. It’s typically a compromise. I’m prepared, if they can’t compromise, to appeal. And that means there’s going to be more fees. I don’t know how much the town has spent on this, but it has to be quite a bit. It would end up being quite a bit more.