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Paonia considers legal options after CORA ruling

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A little more than two weeks after District Court Judge Steven Schultz ruled that the Town of Paonia mishandled an open records request made by a former trustee, the town board met in executive session on Nov. 27 to discuss the outcome. The stated purpose of the closed meeting was to receive legal advice from town attorney Bo Nerlin specific to the case, which the town filed in 2017 against former trustee Bill Brunner on behalf of the Custodian of Record.

On Nov. 9, following three hearings, Schultz ruled that Brunner was improperly denied access to records he requested under the Colorado Open Records Act related to a complaint filed against former town manager Jane Berry by former Public Works employee Eric Pace. Schultz found that the town's failure to demonstrate good faith or exercise reasonable diligence and make reasonable inquiries before filing the lawsuit entitles Brunner to reimbursement of legal costs and attorney fees. Brunner estimates he is owed $15,000.

In a Nov. 11 phone interview, Mayor Charles Stewart said the town does not agree with Judge Schultz's finding, and that it is up to the board to decide whether or not to appeal the ruling.

At the first board meeting after the ruling, on Nov. 13, Brunner spoke during the "Visitors and Guests" agenda item, during which visitors have five minutes to comment on any issue not included on the meeting agenda. Reading from a prepared statement, Brunner chastised the town for its handling of Pace's complaint.

Pace was demanding "a couple hundred dollars in overtime," said Brunner. Instead of paying it, the town commissioned a private investigator to look into his complaint.

Because the investigator interviewed Berry, but never spoke with Pace, Schultz called the report "a very unbalanced document ... The report accepted all of Ms. Berry's explanations ... in the employee's initial complaint, and made no independent effort to investigate any of the underlying allegations."

"I don't understand how the mayor can demand an employee submit to a mysterious backroom investigation that the mayor designs on his own," said Brunner. "I think it is quite likely to say that Mr. Pace can take that last finding of fact to the bank."

Eric Goold, who served as trustee until April 2016 also spoke. Goold said the town could have avoided litigation by contacting Pace. Calling it a cost to taxpayers and a "case that should never have been brought," Goold urged the town to pay Brunner's fees, "because you owe him. And you owe the town [residents] an explanation."

Stewart responded, calling the issue "much more complicated" than what Brunner and Goold presented. He said the case deals with the larger issue of privacy rights of employees, and in this case, both Berry and Pace.

After meeting about 40 minutes in executive session, the board reconvened the Nov. 27 regular meeting. Stewart stated that Nicholas Poppe, an attorney with the firm of Nathan Dumm and Mayer P.C., also participated in the closed meeting. Poppe also represented the town throughout the court hearings.

A motion by mayor pro tem Chelsea Bookout, seconded by trustee Samira Hart, to continue discussion with the town attorney at an executive session at the next regularly scheduled board meeting on Dec. 11, passed unanimously. No further discussion was held, and the public was not invited to ask questions.

Brunner has 30 days to submit his costs and fees to the court. Once submitted, the town has 21 days to file objections.

In a Nov. 26 email to the board and the media, Brunner urges trustees to consider "two hurdles" the town must overcome to win an appeal. The first is the merits of releasing the documents under CORA, and the second is demonstrating the town acted in good faith in withholding the documents.

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North Fork
Brunner, CORA, Paonia
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