Ouray County will pay $7,500 to settle a case involving a public records request from the Plaindealer, after filing suit against the newspaper’s co-publisher.
The county filed suit against Erin McIntyre after she requested disciplinary records involving the county’s emergency manager and health department director and offered a settlement agreement to pay her attorney’s fees and avoid going to court later this month.
District Court Judge D. Cory Jackson signed the dismissal order Tuesday.
In January, County Administrator Connie Hunt and County Attorney Carol Viner denied an open records request from McIntyre seeking Public Health Director Tanner Kingery’s and Emergency Manager Glenn Boyd’s disciplinary records. The county claimed they were private personnel records, and later provided redacted versions of work performance evaluations, but refused to release the disciplinary records.
After the Plaindealer retained Denver attorney Steve Zansberg and provided the county with a draft complaint challenging the denial, the county petitioned the court for a decision on whether they must be released, naming McIntyre as the defendant, and asked the court to determine if the employees’ privacy out-weighed the public interest of disclosure. Zansberg argued the records were public, and the personnel exemption under state law is construed narrowly and only includes personal, identifying information as courts have previously ruled.
The county’s suit was filed under a provision of the Colorado Open Records Act allowing a government records custodian to avoid paying court costs and attorney’s fees if they are unable to determine on their own whether the records should be released.
CLICK HERE TO READ THE COUNTY’S COMPLAINT
Kingery and Boyd decided in February to release the records to the Plaindealer themselves, which showed Hunt disciplined them for working too many hours during the pandemic. At the end of December, they were instructed to “adhere to a 40-hour work week from this point forward for risk management purposes and for County liability purposes,” according to a performance improvement plan.
After the employees provided the documents to the paper, Viner told Zansberg the case was now moot, and that she would move to dismiss it.
But Zansberg argued that because Hunt, the county’s records custodian, did not release the records herself, the case was not moot, and also argued that the county should pay the paper’s attorney fees for responding to the county’s suit. Zansberg has also argued that the employees were not consulted about whether they objected to the release of the records before the county filed the lawsuit, which the county disputed. That was a key issue in a previous court ruling in Paonia in a similar fight for employee personnel records, in which the judge said the town hadn’t consulted with the employee before pursuing legal action and didn’t do its due diligence before the for a decision.
In court filings and emails, the county claimed that the attorney fees were the result of McIntyre’s “own negligence,” and disputed Zansberg’s hourly rate and time spent on the case. Viner called both unreasonable and initially presented a settlement offer with less than half of the total attorney’s fees, which McIntyre rejected.
CLICK HERE TO READ THE CORRESPONDENCE REJECTING THE INITIAL SETTLEMENT OFFER
Last week, the county offered a new settlement agreement to pay the full cost of the attorney’s fees but did not admit it violated the open records law in denying access to the records. McIntyre accepted the settlement. Viner filed a motion to dismiss the case, and the judge granted it.
The Board of County Commissioners met three times in executive sessions to discuss the case prior to the increased settlement offer.
Viner did not respond to a request for comment Wednesday. Zansberg, who previously urged the county to turn over the records to avoid paying court costs, said he hoped a lesson was learned and the county becomes more familiar with open records laws.
“It is a shame that the County Administrator and County Attorney subjected Ouray County’s treasury to a completely unnecessary loss of thousands of dollars, during a pandemic, by failing to know or reasonably investigate what the Open Records Act provides, and/or simply asking the two county employees involved if they objected to the release of those records. Hopefully, this is a lesson that county officials need only learn once,” he said.
CLICK HERE TO READ A COLUMN FROM MCINTYRE ABOUT THE RECORDS REQUEST
Want to support transparency and more local, home-grown journalism like this? Click here to make a tax-deductible donation to the Plaindealer through Report for America, a nonprofit program placing journalists like Liz Teitz in underserved areas.
