Avon Town Attorney: Nothing inappropriate about Smith Hymes’ request
October 30, 2018
AVON — Calling it a virtually identical factual case to Colorado Ethics Watch v. The City and County of Broomfield, Avon Town Attorney Eric Heil said Mayor Pro Tem Sarah Smith Hymes was well within her rights in asking town staff to help her find public documents for use in her current re-election campaign.
In an email, Heil said in his legal opinion, sitting council members seeking re-election do not have to identify as candidates in asking town staff for information they intend to use in a re-election campaign.
"I have never advised Avon Council members or other elected officials that they are required, or recommended, to identify as a candidate versus an elected official when requesting information," Heil wrote. "The Avon Home Rule Charter gives council members/elected officials the right to request information. Colorado case law recognizes that requesting and receiving public information does not constitute 'providing staff support for an election campaign.'"
The ruling in the 2009 Colorado Court of Appeals case Colorado Ethics Watch v. The City and County of Broomfield said city staff can provide answers to a questionnaire to a mayoral candidate when city staff was aware that it was for an upcoming candidate's forum, which was referenced by Heil in an email to the Vail Daily.
The findings in that case pointed out that the city's responses to the questionnaire would have been provided to anyone who asked for them and that the mayoral candidate to whom the answers were provided did not win re-election.
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Heil also cited Colorado Revised Statue 1-45-117(1)(a)(II), which allows local government employees to respond to questions concerning candidate elections and ballot issue elections, provided that the local government employee has not solicited the question.
In contrast, Heil wrote, the Colorado Supreme Court found that it was a violation when the state treasurer's staff was used during work hours to prepare and disseminate press releases expressing the state treasure's opposition to a ballot issue in Coffman v. Colo. Common Cause.
Heil wrote that in Avon, requests for information by elected officials should be of the nature that requires little time to respond unless the elected official has been designated by council to work on a particular matter or unless council has approved the information request or research.
Heil wrote that Smith Hymes initially requested some existing financial information from a town employee on Tuesday, Sept. 25.
"She received a copy of an existing Moody's Financial Report and a copy of Page 79 of the Town of Avon 2017 Comprehensive Annual Financial Report on Monday, Oct. 1, 2018," Heil wrote. "The information was forwarded to all council members on Tuesday, Oct. 2, 2018, in accordance with the town's general practice to share requested information with all council members."
Smith Hymes said the delay between Sept. 25 and Oct. 1 was due to Interim Town Manager Scott Wright being out of the office, which is what prompted her to send an email to Deputy Town Manager Preston Neill on Sept. 28, as reported in the Vail Daily. After requesting the report from Wright on Sept. 25, she contacted Neill a few days later. Neill wasn't able to retrieve the report, saying he also checked in with another employee who also did not have access to the report.
"It took six days for me to get that information; that is not special treatment," Smith Hymes said.
Smith Hymes was disappointed by the allegations that she sought special treatment or that her conduct was inappropriate.
"I'm being criticized for trying to get more information that some people might say everybody should be asking for that information, every councilor and every candidate should be trying to educate themselves and get information," she said.
Smith Hymes said in pointing out that she questioned asking for voter approval on the large amount of debt required to construct the new Avon Police station, it should also be noted that she ultimately voted in favor of the ballot question.
"Good government is about deliberating as a body and considering all perspectives about solutions before deciding on a course of action," she said. "The representatives you elect shouldn't be discouraged from open and honest discourse on determining the best course for the town of Avon out of fear of comments being taken out of context to advance a political agenda."
Smith Hymes said she was seeking information "both for my own education and the education of the Avon voters" and said she sought out the Moody's report to further that education.
"I wanted some facts to look at — are we in fact, spending too much money? Are we taking on too much debt?" Smith Hymes said. "I wanted an independent benchmark so that I could look at it myself, and answer all of those people in Avon that think we're on this spending spree. That is the definition of transparency, trying to get an objective evaluation of our financial position."