{"id":2458420,"date":"2020-05-13T21:40:00","date_gmt":"2020-05-14T03:40:00","guid":{"rendered":"https:\/\/www.aspentimes.com\/?p=325655"},"modified":"2020-05-13T21:40:00","modified_gmt":"2020-05-14T03:40:00","slug":"appellate-court-judges-put-basalt-in-hot-seat-over-prior-executive-sessions","status":"publish","type":"post","link":"https:\/\/alwaysmountaintime.com\/kspn\/local-news\/appellate-court-judges-put-basalt-in-hot-seat-over-prior-executive-sessions\/","title":{"rendered":"Appellate court judges put Basalt in hot seat over prior executive sessions"},"content":{"rendered":"<figure class=\"wp-block-image p402_hide\">\n<div class=\"caption-container\">\n<p><img loading=\"lazy\" decoding=\"async\" width=\"1024\" height=\"768\" src=\"https:\/\/cdn.aspentimes.com\/wp-content\/uploads\/sites\/5\/2020\/03\/basaltappeal-atd-040120-1024x768.jpg\" class=\"attachment-large size-large wp-post-image\" alt srcset=\"https:\/\/cdn.aspentimes.com\/wp-content\/uploads\/sites\/5\/2020\/03\/basaltappeal-atd-040120-1024x768.jpg 1024w, https:\/\/cdn.aspentimes.com\/wp-content\/uploads\/sites\/5\/2020\/03\/basaltappeal-atd-040120-300x225.jpg 300w, https:\/\/cdn.aspentimes.com\/wp-content\/uploads\/sites\/5\/2020\/03\/basaltappeal-atd-040120-768x576.jpg 768w, https:\/\/cdn.aspentimes.com\/wp-content\/uploads\/sites\/5\/2020\/03\/basaltappeal-atd-040120-1536x1152.jpg 1536w, https:\/\/cdn.aspentimes.com\/wp-content\/uploads\/sites\/5\/2020\/03\/basaltappeal-atd-040120-2048x1536.jpg 2048w\" sizes=\"auto, (max-width: 1024px) 100vw, 1024px\"><\/p><figcaption><strong>Basalt town government<\/strong><br \/><em>Aspen Times file<\/em><\/figcaption><\/div>\n<\/figure>\n<p class=\"STND-STND BodyText\">Three judges with the Colorado Court of Appeals grilled an attorney for Basalt on Tuesday about the town government\u2019s procedures when holding executive sessions through 2016.<\/p>\n<p class=\"STND-STND BodyText\">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.<\/p>\n<p class=\"STND-STND BodyText\">Basalt resident Ted Guy <a id=\"N0x2b28910N0x29a78e0:N0x2b28910N0x2b5c058\" href=\"https:\/\/www.aspentimes.com\/news\/basalt-resident-files-lawsuit-over-councils-closed-sessions-email-discussions\/\">filed a lawsuit<\/a> 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\u2019t do enough to identify the topics.<\/p>\n<p class=\"STND-STND BodyText\">Eagle County District Judge Russell Granger issued a <a id=\"N0x2b28910N0x29a7940:N0x2b28910N0x2b5c178\" href=\"https:\/\/www.aspentimes.com\/news\/judge-rules-primarily-in-favor-of-basalt-in-lawsuit-with-resident-over-open-meetings-law\/\">split decision<\/a> 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.<\/p>\n<div class=\"row\">\n<div class=\"col\" readability=\"6\">\n<div class=\"row at-donation at-donation-mobile p-0\" readability=\"7\">\n<div class=\"col-xl-4 p-2\">\n<div data-bg=\"url(https:\/\/cdn.aspentimes.com\/wp-content\/uploads\/sites\/5\/2020\/03\/AT-logo-white.png)\" class=\"p-0 mt-2 mb-2 h-75 text-center rocket-lazyload\">\n<p><img decoding=\"async\" src=\"https:\/\/cdn.aspentimes.com\/wp-content\/uploads\/sites\/5\/2020\/03\/AT-logo-white.png\" class=\"logo m-0 p-0 invisible\"><\/p>\n<\/div>\n<\/div>\n<p><h3 class=\"d-inline mr-3\">Support Local Journalism<\/h3>\n<p><button class=\"btn d-inline\" type=\"button\" onclick=\"handleDonationButtonClickMidArticle()\">Donate<\/button><\/p>\n<\/div>\n<p><\/div>\n<\/div>\n<p class=\"STND-STND BodyText\">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.<\/p>\n<p class=\"STND-STND BodyText\">Guy\u2019s attorney, Katayoun Donnelly, argued that the Colorado Open Meetings Law required the town to identify the topic of the session as more than \u201cpersonnel.\u201d<\/p>\n<p class=\"STND-STND BodyText\">\u201cIt was possible to provide specific language. They did not,\u201d Donnelly said.<\/p>\n<p class=\"STND-STND BodyText\">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.<\/p>\n<p class=\"STND-STND BodyText\">\u201cThe town\u2019s not going to want to risk a retaliatory claim,\u201d he said.<\/p>\n<p class=\"STND-STND BodyText\">Judge Elizabeth Harris questioned Tuesday how Scanlon\u2019s contract could dictate the town\u2019s compliance with open meeting laws.<\/p>\n<p class=\"STND-STND BodyText\">\u201cThat seems like a lot of power that the town has given Mr. Scanlon,\u201d she said.<\/p>\n<p class=\"STND-STND BodyText\">Judge Sueanna Johnson asked why the town couldn\u2019t say the meeting was to assess Scanlon\u2019s performance. That wouldn\u2019t 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.<\/p>\n<p class=\"STND-STND BodyText\">The public might want to know that the town manager\u2019s performance is being discussed, Johnson said.<\/p>\n<p class=\"STND-STND BodyText\">\u201cThe focus on Mr. Scanlon solely is what\u2019s concerning and what I\u2019m trying to square with,\u201d Johnson said.<\/p>\n<p class=\"STND-STND BodyText\">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\u2019s position in the issue being discussed. In other words, if the town is negotiating to buy property, it doesn\u2019t have to identify the specific site but it would have to identify the executive session as necessary for a property purchase.<\/p>\n<p class=\"STND-STND BodyText\">Dailey asked how identifying an executive session only as \u201cpersonnel\u201d complied with being as specific as possible.<\/p>\n<p class=\"STND-STND BodyText\">Dawes countered that it\u2019s 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.<\/p>\n<p class=\"STND-STND BodyText\">The town\u2019s 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.<\/p>\n<p class=\"STND-STND BodyText\">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.<\/p>\n<p class=\"STND-STND BodyText\">Whitsitt, who left office in April because of term limits, credited Guy\u2019s lawsuit for making Basalt and other local governments amend their notice procedure for executive sessions. They are now more detailed, she said.<\/p>\n<p class=\"STND-STND BodyText\">Scanlon <a id=\"N0x2b28910N0x29a7a60:N0x2b28910N0x2b5cb98\" href=\"https:\/\/www.aspentimes.com\/news\/local\/settlement-with-former-manager-scanlon-affected-basalts-books-in-2017\/\">terminated his contract<\/a> 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\u2019s 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 <a id=\"N0x2b28910N0x29a7ac0:N0x2b28910N0x2b5cc28\" href=\"https:\/\/www.republic-online.com\/breaking_news\/osawatomie-hires-new-city-manager\/article_a7bc6850-7b26-11ea-8201-5bc4d3b4c751.html\" target=\"_blank\" rel=\"noopener noreferrer\">took a job<\/a> as city manager of Osawatomie, Kansas.<\/p>\n<p class=\"STND-STND BodyText\">In Tuesday\u2019s hearing, Johnson asked Donnelly what remedy she feels would be needed if the panel ruled in Guy\u2019s favor. Donnelly said the transcript of any executive session that was illegally held should be opened to the public.<\/p>\n<p class=\"STND-STND BodyText\">That would provide insight into how the council members were approaching their dispute with Scanlon. The outcome isn\u2019t likely to change how Basalt conducts its business since it already provides more information than in 2016 about executive session topics.<\/p>\n<p class=\"STND-STND BodyText\">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\u2019s fees in the case.<\/p>\n<p class=\"STND-STND BodyText\">There is no timetable or deadline for when the Court of Appeals will rule on the case.<\/p>\n<p class=\"STND-STND BodyText\">\u201cWe\u2019ll get an opinion out as soon as we can decide it,\u201d Dailey told the attorneys at the conclusion of Tuesday\u2019s hearing.<\/p>\n<p class=\"STND-STND BodyText Tagline\"><a href=\"mailto:scondon@aspentimes.com\">scondon@aspentimes.com<\/a><\/p>\n<p> <a href=\"https:\/\/www.aspentimes.com\/news\/local\/appellate-court-judges-put-basalt-in-hot-seat-over-prior-executive-sessions\/\" target=\"_blank\" rel=\"noopener noreferrer\">via:: The Aspen Times<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Basalt town governmentAspen Times file Three judges with the Colorado Court of Appeals grilled an attorney for Basalt on Tuesday about the town government\u2019s 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 [&hellip;]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[49],"tags":[],"class_list":["post-2458420","post","type-post","status-publish","format-standard","category-local-news"],"acf":[],"publishpress_future_action":{"enabled":false,"date":"2026-08-17 16:33:30","action":"change-status","newStatus":"draft","terms":[],"taxonomy":"category","extraData":[]},"publishpress_future_workflow_manual_trigger":{"enabledWorkflows":[]},"distributor_meta":false,"distributor_terms":false,"distributor_media":false,"distributor_original_site_name":"KSPN The Valley&#039;s Quality Rock","distributor_original_site_url":"https:\/\/alwaysmountaintime.com\/kspn","push-errors":false,"_links":{"self":[{"href":"https:\/\/alwaysmountaintime.com\/kspn\/wp-json\/wp\/v2\/posts\/2458420","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/alwaysmountaintime.com\/kspn\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/alwaysmountaintime.com\/kspn\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/alwaysmountaintime.com\/kspn\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/alwaysmountaintime.com\/kspn\/wp-json\/wp\/v2\/comments?post=2458420"}],"version-history":[{"count":0,"href":"https:\/\/alwaysmountaintime.com\/kspn\/wp-json\/wp\/v2\/posts\/2458420\/revisions"}],"wp:attachment":[{"href":"https:\/\/alwaysmountaintime.com\/kspn\/wp-json\/wp\/v2\/media?parent=2458420"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/alwaysmountaintime.com\/kspn\/wp-json\/wp\/v2\/categories?post=2458420"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/alwaysmountaintime.com\/kspn\/wp-json\/wp\/v2\/tags?post=2458420"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}