Summit County DA delves into Basalt text case
June 12, 2016
The Summit County district attorney said Friday that his office started the preliminary investigation this week into a resident's allegation that the Basalt mayor and town clerk violated the Colorado Open Records Act by not saving text messages during the April 5 election campaign.
Fifth Judicial District Attorney Bruce Brown said the investigation is in the phase of interviewing people knowledgeable of the circumstances.
"We've conducted one interview so far," he said.
He wouldn't disclose who was interviewed, but he said it wasn't Mayor Jacque Whitsitt or Town Clerk Pam Schilling. He said it is likely they will be contacted, but his office is still compiling a list of people to interview.
Once the information is collected, DA Bruce Brown said his office will assess the case with a narrow focus
— was a criminal act committed and can it be proven beyond a reasonable doubt in court.
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Brown stressed that, as with any investigation, a person is presumed innocent until proven guilty. Any time his office launches an investigation, there is a "threshold inquiry" to determine "if we open a formal investigation," he said.
In the Basalt texting case, it hasn't been determined yet if the allegations have merit, he said. It will likely be weeks before that determination is made.
He said his office has limited resources, and those must be dedicated to more pressing matters such as domestic violence, homicide and bank robbery prosecutions. Violation of the Colorado Open Records Act is a misdemeanor.
Once the information is collected, his office will assess the case with a narrow focus — determining if a criminal act was committed and if it can be proven beyond a reasonable doubt in court, Brown said.
The district attorney's investigation was triggered by a complaint from Basalt resident Mary Kenyon. She had questions about the administration of the election by Schilling and actions during the campaign by Whitsitt.
Kenyon filed a Colorado Open Records Act request with the town for text messages between Whitsitt and Schilling from March 15 to April 12. Both Schilling and Whitsitt deleted their texts before Kenyon made her request, according to Town Attorney Tom Smith. He disputes that Colorado law requires business texts to be saved, though attorneys that assist newspapers via the Colorado Press Association believe case law proves otherwise.
Verizon Wireless provided a log of the dates and times of the messages but wasn't able to retrieve the content of the messages. The wireless provider told Smith in an email that it saves the content of text messages for three to five days.
Kenyon said the log showed there were at least 120 text exchanges between Whitsitt and Schilling. Smith and Whitsitt said last week most of the messages were about election and campaign procedures, such as poll-watching regulations.
Smith noted candidates aren't prohibited from communicating with the town clerk during an election.
Kenyon contends the town had an obligation to retain public records by saving the texts. She alleged Schilling and Whitsitt violated the Colorado Open Records Act by not saving those records and by possibly knowingly destroying them.
She forwarded her complaint to Brown's office May 27.