HomeMy WebLinkAbout2020CV116 - Stacy Lynne V. City Of Fort Collins, City Manager, City Attorney Carrie Daggett, Rachel Askeland And Karen Burke - 012 - Defedants' Pre-Hearing BriefDISTRICT COURT, LARIMER COUNTY, COLORADO
Larimer County Justice Center
201 Laporte Avenue, Suite 100
Fort Collins, CO 80521-2761
(970) 498-6100
Plaintiff: STACY LYNNE
v.
Defendants:
CITY OF FORT COLLINS: City Manager City
Attorney Carrie Daggett, Rachel Askeland (Acting
Records Custodian), Karen Burke (Records Custodian)
COURT USE ONLY
Andrew W. Callahan, #52421
WICK & TRAUTWEIN, LLC
P.O. Box 2166
Fort Collins, CO 80522
Phone: (970) 482-4011
Email: acallahan@wicklaw.com
John R. Duval, #10185
Christopher Van Hall #50660
FORT COLLINS CITY ATTORNEY’S OFFICE
P.O. Box 580
Fort Collins, CO 80522
Phone: (970) 416-2488/(970) 416-2082
Email: jduval@fcgov.com; cvanhall@fcgov.com
Case Number: 2020 CV 116
Courtroom: 3C
DEFENDANTS’ PRE-HEARING BRIEF
COME NOW Defendants, the City of Fort Collins (the “City”), Carrie Daggett, Rachel
Askeland and Karen Burke, by and through counsel, and respectfully submit the following Pre-
Hearing Brief for the hearing set for June 8, 2020, at 9:00 a.m.:
This matter comes before the Court on Plaintiff Stacey Lynne’s Complaint and Application
for Order to Show Cause against the named Defendants, including the City. The issue to be
decided by this Court is whether the City properly withheld under the Colorado Open Records Act
(“CORA”) narrative performance evaluations prepared by City employee Noah Beals about
DATE FILED: June 1, 2020 4:29 PM
FILING ID: 9A561ECC3C9A8
CASE NUMBER: 2020CV116
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himself and narrative performance evaluations prepared by his direct supervisor regarding Mr.
Beals’ job performance. These narrative performance evaluations are known within the City
organization as Quarterly Performance Assessments (“QPAs”).
This lawsuit appears to be related to Plaintiff’s two separate complaints alleging a claim
for defamation against Noah Beals. Both lawsuits have now been dismissed with prejudice in
favor of Defendants. See, Stacey Lynne v. Noah Beals, Larimer County District, 2018 CV 220 and
Stacey Lynne v. Noah Beals, Larimer County District Court, 2020 CV 115.
Plaintiff’s CORA request is included as Defendants’ Exhibit 1 and requests “the
personnel/employment file of Noah Beals for the dates August 1, 2018 through December 4,
2019.” In response to this request, the City produced thirty-one pages of documents including
Noah Beals’ employment application, employment agreements, performance ratings, and
compensation, including expense allowances and benefits. Those documents are included as
Defendant’s Exhibit 3. In a supplemental production, the City provided a document indicating
changes to Noah Beals’ paygrade. This document is Defendant’s Exhibit 5. The only documents
withheld by the City are Mr. Beals’ QPAs for the requested time period which the City believes
are not subject to public disclosure under CORA. These documents have been provided to the
Court for an in camera review as previously ordered by the Court.
The QPAs are a confidential employee evaluation narrative which allows for the free and
open exchange of unfiltered opinions, ideas, and suggestions to flow between City employees and
their direct supervisors and upper level management. The QPAs are exempt from public disclosure
under a CORA request for three reasons. First, these QPAs are personnel files as that term is
defined in C.R.S. §24-72-202(4.5). Second, the QPAs were properly withheld by the City under
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the common-law deliberative process privilege exception to disclosure, which has been codified
in C.R.S. Section 24-72-204(3)(a)(XIII). Third, Mr. Beals’ QPAs were lawfully withheld by the
City under C.R.S. §24-72-204(6)(a) because disclosure of these documents would do substantial
injury to the public interest. For each and all three reasons, the City properly withheld production
of the QPAs under CORA, and Plaintiff’s Application for Order to Show Cause should be denied.
I. Defendants’ Anticipated Evidence
The City intends to call two witnesses in support of its case. First, Karen Burke is the
Director of Human Resources for the City of Fort Collins. She is the custodian of personnel
records, including the records at issue in this case. She will testify as to the City’s receipt of the
CORA request, the City’s response and all documentation produced, and the reasons for
withholding the QPAs. Ms. Burke will testify as to the nature of the QPAs and why the City uses
QPAs in their ongoing employee assessments. She will explain how QPAs are filled out by both
employees and managers, and describe the communications that the City provides to their
employees which would generate a reasonable expectation of privacy in the comments made in
the QPAs. Second, the City intends to call Noah Beals to testify as to his understanding of the
purpose of the QPAs and his expectation that they are confidential.
II. Plaintiff’s Anticipated Evidence and Potential Evidentiary Issues.
Plaintiff did not file a witness list but in response to an email inquiry stated that she
intended to call city employees Carrie Daggett, Rachel Askeland, and Karen Burke. The City will
voluntarily produce these individuals at the hearing. Plaintiff also did not file an exhibit list. In
response to an email from Defendants’ counsel requesting a list of exhibits, Plaintiff stated “If I
wanted exhibits in the CORA case, I would have done so in accordance with Judge Jouard’s
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directions as provided during the telephone conference . . . but I appreciate your concern.” The
City interprets this response to mean that Plaintiff does not intend to utilize any exhibits, and the
City reserves the right to object to any exhibits Plaintiff seeks to introduce.
There are two evidentiary issues that may come up at the hearing which the City believes
it would be appropriate to address here. First, Carrie Daggett is the City Attorney, and confidential
communications between her (and others in the City Attorney’s office) and employees of the City
are covered by the attorney-client privilege. By voluntarily producing Ms. Daggett for the hearing,
the City is not waiving any attorney-client privilege. To the extent Plaintiff intends to elicit
testimony regarding communications between Ms. Daggett or her office and City employees, or
legal advice provided to City employees, the City will object on the basis of attorney-client
privilege.
Second, Plaintiff has filed two separate lawsuits against Noah Beals alleging defamation
against the Plaintiff. Both of these lawsuits have now been dismissed with prejudice. The City
anticipates that Plaintiff may attempt to use this hearing as an opportunity to cross-examine one or
more of the witnesses about the facts alleged in Plaintiff’s former lawsuits, and whether there are
any references to her allegations in Mr. Beals’ QPAs. Any such testimony would be irrelevant to
the issues presented in this case, and an improper attempt to obtain information to support claims
that have been dismissed by the Court. Accordingly, the City intends to object to any testimony
or questions regarding Plaintiff’s defamation allegations against Noah Beals.
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III. Legal Argument
A. Introduction
The City is aware that this Court is familiar with the issues surrounding public employee
personnel files, having adjudicated the lawsuit brought by Plaintiff against the Larimer County
Sheriff’s Office. See Lynne v. Larimer County Sheriff’s Office, Larimer County District Court,
2018 CV 198. However, there are several important facts which distinguish this case from the
disclosures ordered by this Court in the prior lawsuit. First, Mr. Beals is a current employee of the
City of Fort Collins, and thus has an increased expectation of privacy in the contents of his
personnel file, including confidential narrative assessments made by him and about him.
Second, Plaintiff is seeking the most recent possible information contained in Mr. Beals’
personnel file, including QPAs from 2018 and 2019. This is different from the personnel files
withheld in the Larimer County case, which ranged from twenty to twelve years old at the time of
the CORA request.
Third, the QPAs include not only narrative evaluations of Mr. Beals, but also narrative
assessments made by Mr. Beals about himself and his job performance. Because the goal of the
QPA process is to encourage employee candor in self-evaluation, Mr. Beals and others have an
increased expectation of privacy that the confidential statements they make to their direct
supervisors will remain confidential. If these QPAs become subject to public disclosure, it will
destroy the purpose of the confidential self-assessments.
Finally, unlike in the previous case decided by this Court, there is no allegation here that
Mr. Beals has committed a criminal act. This lawsuit appears to arise out of a personal grievance
the Plaintiff has against Mr. Beals. This has been resolved in Mr. Beals’ favor twice already, and
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Plaintiff is simply attempting another bite at the apple. Accordingly, there is no compelling public
interest in disclosure of the contents of Mr. Beals’ personnel file.
B. The QPAs are part of Mr. Beals’ personnel file as that term is defined in C.R.S.
§24-72-202(4.5) and not subject to public inspection under C.R.S. §24-72-
204(3)(a)(II)(A).
The City is aware of the Court’s prior ruling that narrative performance evaluations are not
part of a public employee’s personnel files, as that term is defined in C.R.S. §24-72-202(4.5). The
Court appears to have been guided by the holding in Daniels v. City of Commerce City, 988 P.2d
648 (Colo.App. 1999). To the extent that Daniels purports to hold that only a public employee’s
address, phone number and confidential financial information are covered by the personnel file
exemption from disclosure, the City respectively submits that Daniels was wrongfully decided.
The plain language of section (4.5) clearly shows that the only exceptions to the personnel
file are those items specifically enumerated in the second sentence. The statute states in full:
(4.5) “Personnel files” means and includes home addresses, telephone numbers,
financial information, a disclosure of an intimate relationship filed in accordance
with the policies of the general assembly, other information maintained because of
the employer-employee relationship, and other documents specifically exempt from
disclosure under this part 2 or any other provision of law. “Personnel files” does
not include applications of past or current employees, employment agreements, any
amount paid or benefit provided incident to termination of employment,
performance ratings, final sabbatical reports required under section 23-5-123, or
any compensation, including expense allowances and benefits, paid to employees
by the state, its agencies, institutions, or political subdivisions.
C.R.S. §24-72-202(4.5) (emphasis added).
The first sentence of Section (4.5) includes a list of specific information that is part of the
personnel file, followed by the phrase “other information maintained because of the employer-
employee relationship.” There is no dispute that the QPAs are maintained solely because of the
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employer-employee relationship. Further, Ms. Burke will testify that the QPAs are maintained as
part of the personnel file. This is distinguishable from Daniels, in which the defendant admitted
the requested records were not maintained in any specific personnel file. Daniels, 988 P.2d at 651.
QPAs are clearly “other information” contained in the personnel files of the City’s employees.
The second sentence of Section (4.5) outlines the specific information which the Colorado
General Assembly has determined should not be included in the personnel file. These exceptions
all relate to the contractual terms of a public employee’s employment, their compensation and
expense reimbursement. The only other exception is for performance ratings. The City
voluntarily produced all of this information. Narrative self-evaluations are not “performance
ratings” and clearly do not fall within this narrow exception. If the General Assembly intended
for narrative evaluations to not be considered part of a protected personnel file, it would not have
used the narrower term “performance ratings” as the exception but would have used the broader
term “performance evaluations.”
For these reasons, Mr. Beals’ QPAs were properly withheld as part of his personnel file as
required by C.R.S. §24-72-204(3)(a)(II)(A).
C. The QPAs were properly withheld under the common-law deliberative process
privilege exception to disclosure.
1
The deliberative process exception is a common law exception which provides that certain
information will not be subject to disclosure under CORA. “The privilege rests on the ground that
public disclosure of certain communications would deter the open exchange of opinions and
recommendations between government officials, and it is intended to protect the government's
1 This common-law privilege has been codified in C.R.S. §24-72-204(3)(a)(XIII).
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decision-making process, its consultative functions, and the quality of its decisions.” City of
Colorado Springs v. White, 967 P.2d 1042, 1047 (Colo. 1998).
“The deliberative process privilege is a qualified privilege.” Id. “The primary purpose of
the privilege is to protect the frank exchange of ideas and opinions critical to the government's
decision-making process where disclosure would discourage such discussion in the future:
[The privilege] serves to assure that subordinates within an agency will feel free to
provide the decisionmaker with their uninhibited opinions and recommendations
without fear of later being subject to public ridicule or criticism; to protect against
premature disclosure of proposed policies before they have been finally formulated
or adopted; and to protect against confusing the issues and misleading the public
by dissemination of documents suggesting reasons and rationales for a course of
action which were not in fact the ultimate reasons for the agency's action.”
Id., quoting Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
“Thus, a key question in a deliberative process privilege case is whether disclosure of the
material would expose an agency's decision-making process in such a way as to discourage
discussion within the agency and thereby undermine the agency's ability to perform its functions.”
Id. “In light of the purposes of the privilege, it protects only material that is both pre-decisional
(i.e., generated before the adoption of an agency policy or decision) and deliberative (i.e., reflective
of the give-and-take of the consultative process).” Id.
Here, the QPAs meet all of the criteria for the deliberative process exception to disclosure.
The narrative evaluations required by the QPAs are an invitation for the City employees to provide
frank feedback on themselves and how they have met their “job responsibilities, goals and
objectives” through both “Results” and “Behaviors” and for their supervisors to provide frank
feedback on the same issues. (Defendant’s Exhibit 7, Employee Portal). This honest feedback is
necessary to guide the City’s policies and procedures, both for their employees and for ongoing
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services provided to it citizens. This is also a process City supervisors rely on to decide their
employees’ future compensation. The value of this employee and supervisor input would be
destroyed if the narrative sections were to be subject to public disclosure. For this reason, the City
properly withheld the narrative assessments under the common-law deliberative process
exemption to disclosure.
D. The QPAs were properly withheld pursuant to C.R.S. §24-72-204(6)(a)
because disclosure of the City’s confidential performance evaluations would
do substantial injury to the public interest.
As this Court has previously found, narrative performance evaluations may, under certain
circumstances, be withheld from production under C.R.S. §24-72-204(6)(a) when disclosure
would do substantial harm to the public interest. Here, the public interest is in the protection of a
legitimate privacy interest public employees have in their confidential personnel records. In
applying the public interest exemption, the court must weigh (1) whether there is a legitimate
expectation of non-disclosure, (2) whether there is a compelling public interest in access, and (3)
if there will be disclosure, how to ensure that it will be done in the least intrusive manner. Todd
v. Hause, 371 P.3d 705, 712 (Colo. App. 2015); Denver Post Corp. v. University of Colorado, 739
P.2d 874 (Colo. App.1987).
Here, all three factors weigh in favor of limiting disclosure of the narrative QPAs. First,
Mr. Beals, and all public employees, have a legitimate interest in maintaining the confidentiality
of their self-assessment narratives and the narrative assessments of their supervisors. In fact,
candor in this situation justifies a reasonable expectation of confidentiality. Without City
employees and their supervisors being willing to be candid in sharing their written thoughts in the
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QPA process about the employee’s performance, there is little or no benefit in using the process.
Second, there is no compelling public interest in disclosure of this information. As has been stated
above, Plaintiff is searching for information to support a personal grievance against Mr. Beals. He
has not been accused of any illegal acts or wrongful conduct which might create a compelling
public interest. Also, Mr. Beals job with the City is not a higher-level management position or a
policy-making position, so there is less of a public interest in his QPAs being subject to public
inspection. Third, there is no way to limit the intrusiveness of this disclosure. Because this
information is narrative, it is either disclosed or it is not. There is no middle ground, and based on
the individual nature of Plaintiff’s request, there is no way to shield the identity of Mr. Beals. All
of the policy considerations set forth by Todd and Denver Post Corp. strongly support protecting
this information from being disclosed under C.R.S. § 24-72-204(6)(a).
IV. Conclusion
After hearing the evidence and reviewing in camera the materials that have been withheld,
Defendants respectfully request that this Court deny Plaintiff’s Application for Order to Show
Cause, and enter judgment in favor of Defendants holding that the contested documents were
properly withheld.
Respectfully submitted this 1
st
day of June, 2020.
WICK & TRAUTWEIN, LLC
By: s/Andrew W. Callahan
Andrew W. Callahan, #52421
Attorneys for Defendants
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and
John R. Duval, #10185
Christopher Van Hall #50660
FORT COLLINS CITY ATTORNEY’S OFFICE
P.O. Box 580
Fort Collins, CO 80522
CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing
DEFENDANTS’ PRE-HEARING BRIEF was filed via the Colorado Courts E-Filing System
and served this 1
st
day of June, 2020, on the following:
Stacy Lynne
305 West Magnolia Street #282
Fort Collins, CO 80521
Served via email to stacy_lynne@comcast.net & U.S. Mail.
s/ Jody L. Minch
[The original certificate of electronic filing signed by Jody L. Minch is on file at Wick &
Trautwein, LLC)