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Town manager: Offer to settle suit against Basalt included call for attorney fee reimbursement
Group says it has spent more than $100,000 so far
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Editor’s note: Portions of this story appeared in the July 12, 2019, issue of our sister publication, the Aspen Daily News, under the headline, “Opening brief filed in appeal against Basalt: Suit centers on open meetings, public notification.”

On the surface, it seems like it would be such a simple thing. But, like many legal cases, the devil is in the details.

At issue is a suit filed against Basalt Mayor Jacque Whitsitt, the Basalt Town Council in its entirety, Basalt Town Clerk Pam Shilling and then-Basalt Town Attorney Thomas Smith 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 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. The two assertions that were upheld did not include any sort of relief.

In January, Guy and his group filed a notice to appeal Granger’s decision.

Two weeks ago, 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.

That marked the first step in a potentially prolonged appeals process.

In December 2018 — 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 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.”

(That’s the part that seems simple enough.)

The town, Guy said, never responded to that letter, which Basalt Town Manager Ryan Mahoney disputes.

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The letter was discussed by the town council — ironically enough — in executive session at its Dec. 11 meeting.

After that meeting, 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.”

Given that Smith was named in the original suit, the Basalt town government retained outside council — Steven Dawes — to represent their interests in the suit. 

As of last week, new Basalt Town Attorney Jeff Conklin said he was aware of the fact that Guy’s attorneys had filed their opening brief, but had not yet had the chance to confer with Dawes on the matter.

Mahoney said last week that Guy’s offer to drop the suit may seem like an easy out for the town. But there is more to the deal than meets the eye, he said.

“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. “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.”

Guy said legal fees incurred by his group have exceeded $100,000 — before the appeals process kicked in.

The 46-page opening brief filed two weeks ago clearly asked the Colorado Court of Appeals to award legal fees to Guy’s group should their appeal be granted. The opening brief did not stipulated the amount of those legal fees. It asked that the amount be determined by a different district court than the one for which Granger works.

According to Mahoney, Basalt has thus far spent $36,404.81 defending itself against Guy’s suit. That amount will assuredly increase as the appeals process proceeds. The town, Mahoney said, intends to continue working with Dawes.

“Mr. Dawes has been part of this case from the beginning and it makes sense to keep him on for continuity,” Mahoney said. “This is issue has remained relatively quiet on our end as Mr. Guy’s attorneys figure out their path forward. In the meantime we will review their recently filed court brief and respond accordingly.”

The case has numerous ancillary twists.

First, Mahoney stressed last December that, since he became town manager in June 2017, he has made sure that council members fully understand the state’s Open Meetings Law.

Next, since Guy first filed his case, there has been significant turnover in the Basalt town government. Two people — Mark Kittle and Bernie Grauer — who were on the town council when the suit was filed are no longer on the council. Smith is no longer the town attorney. And Mahoney was not the town manager at the time the suit was originally filed.

Given that more than two years passed between the time Guy’s original suit was filed and when Granger issued his ruling, it is fair to suppose that the appeal may not be completed by April 2020, when Basalt’s next municipal election is held. At that time, Whitsitt’s tenure as mayor will end, as she is term limited.

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.”