Records request is about clearing up a blurry picture

  • ERIN McINTYRE
    ERIN McINTYRE
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In this business we ask a lot of questions.

It’s kind of our job.

Sometimes we ask questions that don’t lead to clear answers, and that means we keep digging. At first we might have a blurry idea of what might be happening, but as we learn more and verify what is true, that picture comes into focus.

I still have a somewhat blurry picture of what happened leading up to a bizarre meeting at the beginning of January, in which County Administrator Connie Hunt started a joint policy meeting with elected officials from the town, county and city by telling them she was curtailing the hours of the two people who have led the local response to COVID-19.

When pressed for more details, Hunt shut down the conversation by calling the situation “a county personnel issue.”

It’s odd to have a public official place an item on a meeting agenda, opening the door to talk about it, and then slamming the door shut on the subject as if to say there's nothing to see here.

For more than 10 months, Health Department Director Tanner Kingery and Emergency Manager Glenn Boyd have worked tirelessly to negotiate uncertainty, navigate an ever-changing situation and respond to the pandemic.

When their supervisor, Hunt, told the group of officials from the city and town she was limiting their work and didn’t provide much in the way of details, it raised a red flag. Not so much about their conduct, but hers.

Kingery and Boyd had been asking for more help, pleading for more assistance for months, to no avail. In more than one public meeting, former County Commission Chairman Don Batchelder expressed concerns about county employees - including Boyd and Kingery working themselves to death or into an early retirement.

So it seemed strange to have Hunt bring up this personnel issue regarding these two employees who had, as Ridgway Mayor John Clark said in an earlier public meeting, been “working their frickin’ tails off.”

We weren’t the only ones asking questions.

When Ouray City Councilor Ethan Funk asked what would be removed from Boyd and Kingery’s workloads, Hunt replied nothing would be removed from their plates. She wasn’t curtailing their workload. Others asked how the important public health work they had been doing would get done.

Boyd and Kingery had regularly been working massive amounts of overtime since the pandemic began - as we confirmed by obtaining copies of their time sheets. They were involved in a personnel issue? Some kind of discipline, perhaps?

Why were these dedicated public employees who had been working so hard being sanctioned?

It didn’t make sense. And so we wanted to know more.

We used open-records laws to request any performance reviews or disciplinary reports involving Boyd and Kingery.

And that brings us to where we are now — involved in a lawsuit in which a judge will decide whether the public deserves to know what really happened.

The county first refused to release the records, and then asked a judge to determine whether the records cannot be released.

Upon learning of our draft complaint, which we shared with the county and planned on filing in court, the county decided to jump the gun and filed a “reverse” Colorado Open Records Act lawsuit against me, the requester of the documents.

There’s a provision in state law which allows government records custodians to initiate legal action against those who ask for records if they are unable, in good faith, to tell whether those records shouldn’t be released. Under CORA’s safe harbor clause, a requester cannot recover court costs and attorney fees even if a judge ultimately finds the records should have been released, but only if the judge finds the custodian truly couldn’t determine whether disclosure was prohibited.

However, if the government entity doesn’t do a thorough job of preparing for this “safe harbor” request to the judge, jumping the gun can backfire.

There is a significant body of case law supporting our argument.

A case involving the town of Paonia four years ago is one example. In Paonia v. Brunner, the town refused to release records about a public works employee, claiming they were part of his personnel file. The records included complaints the employee had filed about his supervisor retaliating against him. He had accused her of defamation, harassment and using threatening and intimidating tactics. The supervisor did not want those records released, though they weren’t her records - they were the employee’s. A former town trustee, Bill Brunner, filed the request and the town filed suit against him in an attempt to thwart his request.

The Town of Paonia didn’t bother to ask the public works employee if he minded having the records released – something Judge Steven Schultz ruled was “fatal” to its attempt to tell the court it could not, in good faith, determine whether they should be released. He said the town failed to “demonstrate it exercised reasonable diligence before resorting to litigation.”

The town was ordered to pay for attorney’s fees and court costs. You can read the ruling for yourself here, as well as our counterclaim and the complaint filed by the county in this case.

Let me be clear – this isn’t about Boyd and Kingery’s work performance. We all know how hard they’ve been working without sufficient support.

I don’t suspect Boyd or Kingery did something nefarious. We’ve been at all the public meetings, seen the circles under their eyes, and heard them ask for help. They’re not incompetent. We’ve all seen they work hard and care about the community.

This is about how the county has treated these employees. And that’s why we’re fighting to get those records released.

It just doesn’t add up. But we hope it will soon. In any case, we’d like to see what those records say.

Erin McIntyre is the co-publisher of the Ouray County Plaindealer. Email her at erin@ouraynews.com.