Recall repeat, part two: let’s talk transparency

Listen to this post

RBC | With all the usual activities planned for this summer, it appears that things may finally be returning to “normal” for many. However it’s far from “business as usual” in Rio Blanco County, as the effort to recall sitting county commissioner Gary Moyer continues.


In part one of this series last week, the HT detailed some of the events leading up to current signature circulation efforts, the disqualifying “technical errors” of the first recall process, and arguments both for and against signing the petition.

Commissioner Moyer submitted a letter to the editor last week, listing his rebuttals to the “grounds for recall” in the petition. Moyer asserted that all grounds were “false statements,” and in multiple instances accused proponents of being motivated by “left-wing political ideology.” In letters to the editor this week on page 5A and 6A, former RBC employees and current elected officials respond to statements made by Moyer last week, describing why they feel the recall is necessary despite technical hiccups and accusations of political bias.

In an effort to un-bury ourselves and our readers from the mountain of accusations levied by all sides, here we attempt to explore claims made in two of the four grounds listed in the recall. They are:

  • “Commissioner Gary Moyer misused his power by intimidating and participating with the other Commissioners in the termination of long-term, dedicated employees and department heads without prior notice, without having any plan in place for replacing them, leaving County departments with a leadership void and creating a fearful hostile work environment for all remaining employees.”
  • “Commissioner Gary Moyer has repeatedly demonstrated a lack of transparency in the manner in which he has conducted county business.”

TRANSPARENCY AND EXECUTIVE SESSIONS

Commissioner Moyer’s letter last week shared his version of the non-reappointment/termination of three county employees: former County Attorney Kent Borchard, who held the position for more than 10 years and was not reappointed in January 2019; former Building Inspector Jeff Kummer, who served in the position for 13 years who was fired in August 2019; and former Road and Bridge Director of 17 years Dave Morlan, who was not reappointed in January 2021.

The HT conducted interviews with Borchard, Kummer and Morlan this week. All three former RBC employees described losing their jobs in a similar manner, and noted that the “fearful hostile work environment” listed in the petition was a direct result of a lack of transparency between county employees and commissioners.

Following Moyer’s election, all three former employees described a notable increase in the number of executive sessions, special meetings where government officials are exempted from open meeting laws for a few very specific purposes, including discussion of personnel matters (unless the employee being discussed requests an open session), advice on legal questions, and negotiations relating to pending/ongoing lawsuits. Despite these noted “legitimate” reasons for private discussions, former county attorney Kent Borchard said their frequency had increased to a point he considered to be above normal, based on his prior experience with the commissioners.

“I’ll bet over the 10 years since I was county attorney, there weren’t more than a handful of executive sessions, and they have multiple per month now.”

County records indicate Borchard’s statement about executive sessions is true, based on five years of commissioner meeting minutes reviewed by the HT. In 2017, the BOCC did not hold any executive sessions. One executive session is listed in 2018 on November 29, 2018. From 2019 to the present, the number of sessions increased dramatically, with seven sessions in 2019. The following year, that number increased to 18 executive sessions. So far in 2021, RBC commissioners have held ten executive sessions, between one and two sessions per month. Regarding the increase in executive sessions, former RBC Attorney Kent Borchard said “I call that a lack of transparency, they don’t have that much business going on that they need to be in executive session about.”

NOTE: In the print version of the story we stated that RBC commissioners held five executive sessions in 2019 and 16 sessions in 2020. Upon further review of RBC commissioner minutes, those numbers were inaccurate. In 2019, RBC commissioners held seven executive sessions, in 2020 they held 18 sessions. This story has been updated to reflect these changes.


Though officials are required by law to note the reason(s) for entering executive sessions with as much specificity as possible, RBC officials have not always accurately listed those reasons or associated details. For instance, the BOCC held a special meeting Feb. 9 of this year with an executive session listed “for the purpose of receiving legal advice on specific legal questions and 24-6-402(4)(e) C.R.S. determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations: and instructing negotiators.” The actual purpose of the meeting, however, was to discuss personnel matters with Public Health Director Alice Harvey. Harvey was not offered a choice by the board to request the session be held in public until she asked if it was about personnel.

Dave Morlan told the HT that he was not given the opportunity to have his own executive sessions in public. It is also unclear whether the various executive sessions listed since the beginning of 2019 have included discussions noted on meeting agendas, or if those agendas are inaccurate like the one for the Feb. 9 session.

One additional note on executive sessions before we move on: the law is very clear that executive sessions are for discussions and deliberations only, not for making decisions. Decision-making, even informally, is not allowed in secret.

THE “RELEASE WAIVER”

When former RBC Road and Bridge Director Dave Morlan announced he would lead the recall effort in February, Commissioner Moyer responded with a statement calling for Morlan to sign a “waiver and release” that would allow the county to disclose the contents of a handful of executive sessions where commissioners discussed “personnel matters.”

Commissioner Moyer said such information would better inform the public about the board’s decision not to re-appoint Morlan.

Morlan has still not signed any such document. Asked why he wouldn’t, he told the HT that doing so would allow Moyer to selectively release information to frame the discussion for his own benefit, a point he reiterates in his letter to the editor this week.

It is still unclear exactly what the “waiver and release” is, what the language of said document might be, and what exactly it would allow the county to release, or retain, if signed by Morlan. The HT inquired multiple times with the county’s legal department and contract attorney Todd Starr about the waiver, including asking to receive a copy of an unsigned, blank/template version to review its contents. As of press time this week, we had not received any response. Regardless of the specifics of the waiver, we know the county would not be able to release full, unedited audio recordings of the executive sessions referenced by Moyer, because the majority of those recordings have now been deleted/destroyed. This fact was confirmed by RBC Legal Assistant Vicky Edwards last week, who said, “RBC follows Colorado State Statute and retains Executive Session recordings for the required 90 day period.”

Dave Morlan has questioned why those recordings were only retained for the minimum required timeframe, given the ongoing controversy and Moyer’s repeated calls for transparency from both sides. Morlan claims he tried to have the recordings released to the public, which is how he found out about their deletion.

MORLAN’S PERSONNEL FILE

In an effort to obtain further information about these matters, the HT filed a Colorado Open Records Act (CORA) request with the county attorney’s office, requesting a copy of Morlan’s personnel file, “particularly as it relates to the termination of his contract, complaints filed against him, investigations of conduct, suspensions, warnings, or censure.”

We received a total of nine pages of redacted documents containing statements made during an August 2020 Human Resources investigation. RBC HR Director Laura Smith conducted interviews with Dave Morlan, Rangely Road and Bridge District Supervisor Roy Gilbert and one other employee. The documents also appear to include an interview with one of the county commissioners, though names were redacted in the documents we received. Accounts of these interviews detail months of “tensions” between Morlan and Gilbert. There are no documents indicating what led to the investigation, whether it was a formal complaint or something else.

Gilbert’s statement to the HR director describes multiple instances when then-supervisor Morlan expressed frustration over actions taken by Gilbert and his employees. Gilbert’s statement specifically notes how in each instance Morlan used inappropriate and hostile language when taking disciplinary actions, with statements like “So are you borrowing equipment, now whose f—ing trailers are you using?” as one example.

Morlan’s statement in the same investigation details a series of disciplinary actions he took against Gilbert for what he described as “major infractions” including the use of personal equipment (trailers) for county projects, failure to coordinate proper traffic control during a project on CR 109, improper use of a county trackhoe in a way Morlan noted could damage the equipment, an instance where Gilbert and another employee were seen (and later admitted to) working on a personal vehicle in the county shop, among others. Morlan’s statement also claims that Gilbert admitted to being unaware of county policies listed in his supervisor’s handbook, and notes Gilbert was also prone to using unprofessional language during their interactions. Morlan said “at no point did I threaten Roy or his job,” and stated that he was trying to help Gilbert “be a better supervisor and use better judgement.”

A third statement from a Rangely Road and Bridge employee offers another perspective of the clashes between the department director and district supervisor. The employee said they felt both Morlan and Gilbert had been in the wrong, and described them as “two alpha males that both want to be the boss” and who “want employees under their thumb.”

Following the August 2020 HR investigation, the Board of County Commissioners issued two “Standard of Conduct” letters to Morlan on Sept. 22, 2020. The BOCC also issued a “Notice of Personnel Action” to Morlan on Nov. 24, 2020. The contents of these letters were not disclosed in the CORA response on the grounds of “protected employee information.”

The CORA response did not contain any information about the executive sessions noted by Moyer, nor did it contain any records of incidents referred to by Moyer in his letter to the editor last week, including claims that Morlan “stormed into the county attorney’s office and demonstrated extreme insubordination” or another incident where Morlan is alleged to have “flagrantly defied and ignored a specific directive publicly given to all county road and bridge employees.”

County records indicate executive sessions listed as “personnel matters” took place on Aug. 11 and 31, Sept. 1, and Sept. 22 of 2020. Later executive sessions about “personnel matters” a week prior to Morlan not being re-appointed happened on Jan. 13 and 15, 2021. No information about these sessions was provided. These records would have been deleted between Nov. 9, 2020 and April 15, 2021 due to the state statute allowing the county to destroy executive session recordings after 90 days (as we mentioned above, this deletion was confirmed by the county’s legal assistant Vicky Edwards.)

BORCHARD

Kent Borchard has also disputed claims made by Commissioner Moyer, specifically that Borchard “demonstrated unwillingness to take direction” from the BOCC. As reported in the HT, during Commissioner Moyer’s first official meeting after being sworn in, the board voted 2-1 to dismiss the re-appointment of Borchard as county attorney. Borchard later told the HT that he was “as shocked as everybody else in the room” including then commissioner Si Woodruff, who stated that even he was unaware of plans to dismiss Borchard’s appointment. Regarding the decision, Woodruff said “There was no thought put into it,” noting how it did not take into account the day-to-day activities of the county attorney, including ongoing court cases with the Department of Human Services. Asked what was going to happen to the cases and children involved in them, Moyer said the commissioners would find a contractual attorney and that, “Anybody is replaceable.”

Despite appointing former Archuleta County attorney Todd Starr the following week, he was not able to immediately take over the DHS cases, which is why the commissioners later signed an emergency agreement with Kent Borchard so ongoing DHS casework could continue.

Borchard said Moyer and Rector had “orchestrated” the decision not to re-appoint him by discussing his employment outside of a public meeting. That claim appears to be true according to statements made by both Rector and Moyer. In 2019 Rector said, “We knew he was planning to retire, and we decided it’s time for a change.” During the May 6, 2021 special hearing to protest the validity of the first recall petition, Moyer stated, “If you’re asking me, did I meet with existing commissioners, before I was ever a commissioner, to discuss job performance of then county attorney Kent Borchard? The answer is yes, with multiple commissioners.”

Moyer argued that open meeting laws (Sunshine Laws) did not apply to him at the time of these discussions, because he was not sworn in as a commissioner until six days before the vote. Borchard said he doesn’t understand how Moyer could accuse him of “being unwilling to support” the BOCC, since he hadn’t actually performed work as county attorney while Moyer was in office.

During the May 6 hearing, Moyer also indicated that he and other commissioners had discussions about Dave Morlan outside of public meetings or executive sessions. Moyer said “We have expressed our views a little bit to each other, but there were no decisions made.”

KUMMER

Former RBC Building Inspector Jeff Kummer, who has not spoken publicly about his termination up to this point, ended his silence this week in a letter to the editor, which you can read on page 5A. Kummer said even though his statements could jeopardize the outcome of an ongoing lawsuit against the county, he felt compelled to tell his story after reading Moyer’s statements.

Kummer believes he was fired by Moyer for “blowing the whistle” on a land use regulation that failed to comply with a state statute that requires review by the county planning commission and a public hearing. A week after that resolution was deemed null and void based on statute violations, RBC Commissioners ended Kummer’s employment.

An updated resolution was later amended and approved. Kummer said one notable change was to allow rural residential property owners to apply for an exemption to make upgrades and improvements, build “accessory buildings,” and “non-primary residence” structures without required permits and inspections. In his last few months as building inspector Kummer strongly opposed the push to change building codes, or to provide open-ended exemptions for certain projects. He claims his opposition to changes is why he was fired.

In an effort to understand the specifics of Kummer’s departure, the HT filed a CORA request related to the end of Kummer’s 13-year employment. In response we received emails between commissioners Gary Moyer and Jeff Rector and a contractor. The contractor told commissioners that despite being told he could opt-out of the building permit prior to starting work, then building inspector Kummer had issued a stop work order for lack of a permit.

In another email thread, Moyer converses with an RBC resident who encouraged total elimination of the building department, rather than just making changes. Among other comments Moyer states, “this is exactly the type of comment we need to see.”

According to then county attorney Todd Starr, other correspondence relating to Kummer’s termination were not included because they were “between one of the Commissioners and the County Attorney, and are therefore not subject to disclosure pursuant to attorney/client privilege.”

Kummer told the HT that he was never given a specific reason for his termination, saying that Moyer came into his office and said simply “we’re letting you go.”

COUNTY RESPONSE

The HT reached out to Moyer last week with questions and requests for clarification about some of the claims he made in his letter, but Moyer said he did not have time to adequately respond. Despite further communications assuring Moyer that his answers would continue to be relevant for future reporting including in this story, we have still not received a response.


By LUCAS TURNER | lucas@ht1885.com