Photo: The Archuleta Board of County Commissioners and County Attorney Tod Weaver discuss a potential property purchase with EXIT Realty owner Shelley Low and developer Doug Dragoo, in May 2024.
County Attorney Todd Weaver and Clerk and Recorder Kristy Archuleta suffered a serious legal blow this past month when they lost a case before the Colorado Supreme Court. Their argument attempted to re-write both the Colorado Open Records Act law as well as court rules and procedures by placing an additional burden on the public and individuals when requesting documents from government entities under Open Records law.
This burden is not written into the law, in the state of Colorado.
However, Mr. Weaver argued the County should have the power to refuse Open Records requests if the person requesting the documents is in litigation with a government entity. Ms. Archuleta, meanwhile, had been using this self-appointed power to deny requests as the issue made its way through the court system. While this exception clause may have been written into a few other states’ laws, the Colorado Supreme Court noted, it is absent in both our state laws as well as in court rules, and, therefore, they have no authority to rewrite the law for our county officials, who also cannot rewrite our laws to their benefit.
Judge Lino S. Lipinsky de Orlov observed that if County Clerk Kristy Archuleta was concerned about potential unfairness to the County, “her remedy is a petition to the General Assembly to amend CORA.” Mr. Weaver conceded in a post-ruling interview that the only recourse for them to continue to deny Open Records requests in this manner is to introduce legislation to the General Assembly to add the litigation exception to the law as other states have done.
Unfortunately, this is not the first time Attorney Weaver has been incorrect on the law to the point of appearing to be making it up. Under Weaver’s legal guidance since 2019, 3 out of 4 of the Commissioners who have been seated — with Weaver as counsel — have had non-frivolous complaints against them filed with Colorado’s Independent Ethics Commission (IEC), costing Archuleta County thousands to defend their actions while public trust in our officials has plummeted.
The first two complaints were filed by Matt Roane on November 1, 2022 against former Commissioner Alvin Schaaf and current Commissioner Warren Brown for accepting reimbursements for commuting from home to the office as a travel expense related to county business.
At a May 7, 2024 BOCC meeting reported on by the Pagosa Sun, Brown explicitly states the legal advice to move forward with the reimbursements went before Weaver and he was told it was legal. In the same meeting, Maez stated he believed the county had spent upwards of $35,000 on defense of Schaaf and Brown for these actions, although recently published letters from local citizens state expenditures had reached closer to $60,000 near the November election. When asked whether he gave legal advice to the two Commissioners about the reimbursements at an August 24 public meeting, Weaver responded that he didn’t have to answer due to “client attorney privilege.”
The newest complaint was filed in June against current Commissioner Chair Veronica Medina. The IEC unanimously found the complaint non-frivolous on November 19. The complaint alleges the same unlawful actions that were listed in a petition to recall Medina, also filed by the same person in June.
The complaints state that Commissioner Medina did not disclose to the State a potential conflict of interest in regards to a purchase contract with her employer, Exit Realty, to purchase land for over $2 million, did not disclose this relationship and agency (the ability to go into contracts on behalf of the brokerage) to the public nor recuse herself from voting, and attempted to influence the votes of her fellow Commissioners by not recusing herself on the matter on multiple occasions, even citing her own lack of patience when she tried to make a motion as the Chair of the BOCC to move forward with the purchase of the property in question.
It should be noted Ms. Medina did not vote on the property issue at a December 17, 2024 BOCC meeting as reported by the Pagosa SUN, in which she stated, “If the BOCC rejects the items and ArenaLabs is still in consideration, then it would ‘start fresh’ as a new letter could be drafted.”
The letter of intent and purchase agreement with ArenaLabs — the property owner represented by Exit Realty — was voted down by commissioners Maez and Brown during the meeting, and they voted to start negotiations on a different property. Before Maez and Brown voted, Commissioner Medina addressed the public, stating, “I’m not recusing myself, I’m not stating there’s a conflict, I just have chosen not to vote on the item.”
At the time of the meeting, the public was largely unaware that the IEC had decided to move forward on investigating Medina’s actions related to this purchase agreement by unanimously voting the complaint is non-frivolous.
What does it mean for the IEC to rule a complaint is “non-frivolous”?
According to the IEC website,“Frivolous” is specifically used in Article XXIX, section 5(3)(b). “A frivolous complaint means a complaint filed without a rational argument for the IEC’s involvement based on the facts or law.” For example, the IEC has no jurisdiction over whether government officials have violated Open Meetings Laws, those complaints must work through the judicial system, and, therefore, would be deemed frivolous complaints. This does not mean the complaints are without merit, but that there is no reason for the IEC to be involved.
In the cases of Schaaf, Brown, and Medina, the State has found that they do have authority under the Constitution to oversee the actions in question and to provide punishment as warranted by using a preponderance of evidence that is presented to them both by the person filing as well as the government official responding.
As stated in an interview with the Pagosa SUN, Medina has retained counsel for her IEC complaint. Over the summer, however, County Attorney Weaver was (unlawfully?) representing Ms. Medina during a recall effort as the Official County Attorney. A County Attorney is not allowed to represent a private party or case while acting as the County Attorney, and a recall effort is not official county business — it’s against a specific candidate — so many people have questioned whether this violated BAR Rules as well.
Regardless of who was representing her during the summer, moving forward Ms. Medina and her counsel will have to face the IEC about the complaints that she has called in online interactions and interviews a “half-baked story” that “felt more vindictive than based on any factual information.”