Aspen Times file
Three judges with the Colorado Court of Appeals grilled an attorney for Basalt on Tuesday about the town government’s procedures when holding executive sessions through 2016.
The judges pressed attorney Stephen Dawes on why the town could not identify that an executive session was held to discuss the performance of former Town Manager Mike Scanlon. Executive sessions are held behind closed doors, out of sight and earshot of the public.
Basalt resident Ted Guy filed a lawsuit in October 2016 against then-Mayor Jacque Whitsitt, the council in office at the time and Town Clerk Pan Schilling over the executive sessions. Guy contends that four executive sessions that year were illegal because the town didn’t do enough to identify the topics.
Eagle County District Judge Russell Granger issued a split decision in 2017. He ruled that the town rightfully conducted executive sessions on personnel matters and where attorney-client privilege was an issue. He said more information could have been provided when executive sessions were held on property issues and negotiations.
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Guy appealed the decision to the Colorado Court of Appeals. Three appellate judges held oral arguments Tuesday afternoon. The discussion in the 30-minute hearing focused on one executive session held to discuss Scanlon, who was engaged in a bitter divorce with the town government when the executive session in question was held.
Guy’s attorney, Katayoun Donnelly, argued that the Colorado Open Meetings Law required the town to identify the topic of the session as more than “personnel.”
“It was possible to provide specific language. They did not,” Donnelly said.
Dawes responded that Scanlon contended at the time that his employment contract prohibited the town from any discussion of his performance in public. Scanlon warned that he would file a lawsuit against the town if it even identified him as the subject of a performance review, Dawes said.
“The town’s not going to want to risk a retaliatory claim,” he said.
Judge Elizabeth Harris questioned Tuesday how Scanlon’s contract could dictate the town’s compliance with open meeting laws.
“That seems like a lot of power that the town has given Mr. Scanlon,” she said.
Judge Sueanna Johnson asked why the town couldn’t say the meeting was to assess Scanlon’s performance. That wouldn’t suggest to the public that there was anything negative, she said. It could well be that the council assessment would turn out Scanlon was doing a favorable job.
The public might want to know that the town manager’s performance is being discussed, Johnson said.
“The focus on Mr. Scanlon solely is what’s concerning and what I’m trying to square with,” Johnson said.
Judge John Daniel Dailey noted that the law requires a government to be as specific about the need for an executive session as possible, without jeopardizing the town’s position in the issue being discussed. In other words, if the town is negotiating to buy property, it doesn’t have to identify the specific site but it would have to identify the executive session as necessary for a property purchase.
Dailey asked how identifying an executive session only as “personnel” complied with being as specific as possible.
Dawes countered that it’s easy to look back in hindsight and say more information could have been provided. At the time, the Town Council took the action advised by the staff as appropriate.
The town’s attorney at the time of the 2016 executive sessions was Tom Smith, a longtime attorney for local governments. Before representing Basalt via a contract, he was staff attorney for Pitkin County government. He continues to represent the Aspen-Pitkin County Housing Authority. Smith held the position for decades that governments had substantial leeway in holding executive discussions and limiting what information was provided.
Basalt amended their executive session procedures after Guy filed his lawsuit. The town identifies topics of the private sessions in greater detail. Smith retired as the town attorney in 2018.
Whitsitt, who left office in April because of term limits, credited Guy’s lawsuit for making Basalt and other local governments amend their notice procedure for executive sessions. They are now more detailed, she said.
Scanlon terminated his contract in August 2016. He filed a notice of claim against the town in December that year and claimed he was owed at least $500,000 for lost wages and benefits and attorney’s fees. He settled with the town for $250,000. Scanlon recently quit his post as chief acquisition and development officer for Habitat for Humanity Roaring Fork and took a job as city manager of Osawatomie, Kansas.
In Tuesday’s hearing, Johnson asked Donnelly what remedy she feels would be needed if the panel ruled in Guy’s favor. Donnelly said the transcript of any executive session that was illegally held should be opened to the public.
That would provide insight into how the council members were approaching their dispute with Scanlon. The outcome isn’t likely to change how Basalt conducts its business since it already provides more information than in 2016 about executive session topics.
The outcome could also have financial repercussions. Dawes contended in court filings that Guy was pursuing an appeal in an effort to win an award for attorney’s fees in the case.
There is no timetable or deadline for when the Court of Appeals will rule on the case.
“We’ll get an opinion out as soon as we can decide it,” Dailey told the attorneys at the conclusion of Tuesday’s hearing.