Town's investigation finds Brunner violated laws
By Tamie Meck
Published Thursday, July 20, 2017 9:10 am
It's a story that's all too common today: elected officials making the news over their use of email.
In an eight-page memo to the Town of Paonia, attorney Bo James Nerlin found that former town trustee Bill Brunner violated state statue, town code, and the town's "Standards of Conduct" and exceeded his authority in releasing a series of emails to the media, and in publicly lodging accusations against town staff, the mayor, and two trustees. Nerlin presented the memo to the board on July 11.
On June 13 trustees directed Nerlin to review all related records to determine if any violations had occurred. The following day, Brunner resigned. At the June 20 meeting, trustees directed Nerlin to proceed with the review and prepare a written statement of his findings for the board. Mayor Pro Tempore David Bradford defended the legal expense, saying that despite Brunner's resignation, it was important to "get the actual facts out" about the allegations.
In the memo Nerlin states that he found no violations by town staff, trustees, Bradford, or Mayor Charles Stewart. However, Nerlin found Brunner's disclosure of the emails and discussion of what occurred in an April 11 executive session without the board's consent were in violation of the state's Open Meetings Law (OML). His actions also violated the secrecy of the executive session as required by the town code and Robert's Rules of Order. In addition, Brunner's "allegations of threats and illegal conduct can certainly be viewed as defamatory," wrote Nerlin.
In addressing the legality of the executive session, called to address Brunner's CORA request with then town attorney David Marek, Nerlin found that the private meeting was "properly held," and that due to attorney-client privilege, no recording was required under state statute.
While it "was heated and confrontational at times," no violation of state statute occurred, wrote Nerlin. In addressing allegations by trustee Suzanne Watson following the executive session that a trustee, later identified as Bradford, violated the town's Standards of Conduct during the closed meeting, Nerlin found that no violation occurred.
At the June 20 board meeting Bradford defended his actions, and attempts to bring sanctions on him have failed, being "either been deemed untimely," or lacking a majority vote, wrote Nerlin.
Nerlin also states that Brunner violated the Colorado Open Records Act and OML by failing to follow proper channels in addressing the emails, and by lodging personal attacks against "... the Town and the Board of Trustees through his public statements."
Among his accusations Brunner alleged that a three emails exchanged between trustee Bill Bear, Stewart, Mayor Bradford and Marek violated the state's OML. The emails, dated Jan. 26 and 30, 2017, were released with Nerlin's memo. They originated when Bradford "simply posed a question to Mr. Marek," wrote Nerlin.
On Jan. 26, Bradford emailed Marek requesting clarification on the Hawks Haven Road agreement, which was copied, or CCd, to Bear and Stewart. The board was facing a deadline on the agreement and was under pressure to find a resolution.
On Jan. 30 Marek replied to Bradford, attaching a seven-point reply on the Hawks Haven negotiations marked "Privileged and Confidential Attorney/Client Communications." Bradford replied, again CC-ing Stewart and Bear.
Nerlin found that the three emails did not constitute an illegal meeting, as they contained no discussion of rules, regulations or ordinances, and did not disclose privileged information.
Bradford defended the action, saying that the CC error was a technical one caused by changes to the town's email program. "You hit reply, it just goes to 'reply all.'" he said. "That is why this whole situation happened."
Nerlin, who replaced Marek as town attorney in late April, said he used the minutes of the April 11 board meeting, emails reviewed in the April 11 executive session, a letter to the editor published in the Delta County Independent and statements aired on KVNF Public Radio on May 24 to determine if he violated any state statues, Colorado Open Meetings Law (OML), CORA, or town code or the board's Standards of Conduct. He also used Brunner's statements made in the June 13 meeting and a special meeting held June 20 to discuss possible sanctions against him.