Text Brouhaha in Colorado Election

If you happen to be a journalist or just a plain old citizen in Colorado, you have a legal right to ask for information under the Colorado Open Records Act (CORA).

Unless you happen to live here in Basalt--in this bucolic town where the waters of the Frying Pan and Roaring Fork Rivers happily commingle to produce year-round, world-class, gold-medal flyfishing.

Unless you happen to be Mary Kenyon, a marketing guru who lives in Basalt, does consulting work for the Town, has a law degree, and had the temerity to ask for all communications--before and after election day in April 2016--between Mayor Jacque Whitsitt and Town Clerk Pamela Schilling, when Whitsitt was a candidate for Mayor and Schilling's duties included being designated Election Clerk.

The week before the election, Schilling complained to other workers at Town Hall that "Jacque is driving me crazy with all her election texts."

Whitsitt defeated Rick Stevens by only 21 votes in a bitter election about the future of a town now sitting on a plum piece of downtown riverfront property ready for redevelopment. Any election shenanigans, no matter how small, may have been enough to swing the vote in Whitsitt's favor.

"If this election process continues to be flawed," Kenyon said. "Why would anyone vote? I started this journey to assess the mistakes being made."

Citing CORA, Kenyon asked for all the records, including emails and text messages, but there was a problem--a big one--because both the Mayor and the Town Clerk had deleted all the text messages between them, violating the CORA law by not producing the records--a misdemeanor--and compounding their potential problem by destroying the records.

Title 18-8-114 identifies these actions as an "Abuse of public records," a Criminal Code Violation because "the person knowingly destroys, mutilates, conceals, removes, or impairs the availability of any public record...."

The penalty for a Class 1 misdemeanor is a fine of $500 to $5,000, 6 to 18 months in jail--or both. The Class 1 misdemeanor is considered the most serious offense of its kind in Colorado.

Instead of simply producing the records, the Town of Basalt decided in Executive Session to sue Kenyon--and to simultaneously fire a warning shot against those who might deign to legally question the Mayor, the Clerk, or the results of the election. The irony is that when Whitsitt's husband made a similar request for records earlier in 2016, he received the information from the town, including text messages, without a hitch, and without the Town filing suit.

In Basalt, Colorado, it literally helps when you're in bed with the right people.

Verizon Wireless was able to produce the text records surrounding the April 2016 Basalt Town election, albeit without the text, which gets deleted by the telecommunications carrier after three to five days. Because Whitsitt and Schilling deleted the text of the texts, so to speak, the only thing left to retrieve from Verizon was the frequency of the texts between the Mayor and the Town Clerk, a development first reported upon by Elise Thatcher of Aspen Public Radio on May 26, 2016.

And here's the kicker. In the weeks from March 18 to April 12, 2016, there were 114 text messages sent between the Mayor and the Town Clerk, who happen to be close friends. Why would the Election Clerk and the Mayor, running for office, text each other 114 times--including 7 times on election day and 24 times the day after the election? Why would they delete those texts if they were not somehow incriminating?

According to Thatcher's report, in an email on April 21, Basalt Town Attorney Tom Smith "told Town Clerk Pam Schilling that text messages 'constitute correspondence in electronic form and are public records.'" Even so, Whitsitt and Schilling both deleted the texts, and the Town of Basalt sued Kenyon for asking.

"Town attorney Tom Smith maintains the deleted messages are not a cover-up for election tampering," Thatcher reports. "He also says Whitsitt and Schilling did not make a mistake by deleting the messages in the first place."

Here's a text that might summarize the whole mess: no matter how small the town, remember that in politics it's always the coverup.