GREELEY — A Weld District Court Judge ruled Thursday he will release a Weld County employee’s file, possibly as soon as next week.
However, before Complete Colorado or The Greeley Tribune, which were both parties to the case, will be able to view the file, they agreed to give the employee and her attorney a week to review what is released to determine if they want to appeal the decision.
In return, 19th Judicial District Judge Marcelo Kopcow said he would give as much specificity as possible as to what was redacted so that the two media entities could also appeal if they felt it was necessary.
At issue is the 16-year employment file of current Weld County Clerk and Recorder candidate Elisa Kunkel.
Kunkel is a former employee in the clerk’s office. She has been vocal in Weld government politics for more than a year when she first asked the Weld County Council to order a performance audit on the Weld Clerk and Recorder’s office and her former employer, current clerk Carly Koppes.
She is also suing the county, claiming Koppes infringed on her 1st Amendment rights and other issues that eventually led to her being embarrassed and diagnosed with anxiety and depression disorders that caused her to miss work.
Both Complete Colorado and the Tribune requested Kunkel’s disciplinary actions, compensation, evaluations, promotions/demotions and their associated pay changes and anything outside the information needed to maintain an employee/employer relationship earlier this month after Kunkel announced her campaign for Clerk and Recorder.
The request was made as an effort to confirm Kunkel’s claims that she had an exemplary record before Koppes was elected and became her supervisor.
Weld County Attorney Bruce Barker chose to ask a judge to determine whether the file was open rather than fill the requests.
At the beginning of the hearing, Kunkel’s attorney, Denver Metro-based lawyer Robert Liechty, offered to turn over her file during the time she worked for Koppes as a compromise. Both Complete Colorado and the Tribune declined the offer.
Kopcow cited previous decisions in Colorado Courts that ruled on the side of the media. One of those cases, heard in Arapahoe District Court, denied a request for an injunction barring the Cherry Creek School District from releasing the disciplinary records of its bus drivers.
Kopkow asked Assistant Weld County Attorney Frank Haug if he believed private-sector employees have more of an expectation of privacy than public. Haug said they do.
“Do you inform your employees when you hire them that they should have less expectations of privacy,” Kopcow then asked Haug.
Haug confirmed the county does.
Kopcow said the elephant in the room was the fact Kunkel is running for a public office that she is basing her qualifications on her performance record. Kopcow said that fact makes her file a matter of public interest.
Haug argued that it is clear performance records and compensation information are open, while such things as social security numbers, bank accounts, addresses, etc. are not. But the gray area lies where the law also exempts “other information maintained because of the employer/employee relationship,” he said.
Haug said that wording is hard to interpret, and the county isn’t sure where to draw the line, adding the county’s position is that employees and their supervisors should be allowed to have candid conversations about performance concerns and how to correct them without fear of that information being disclosed.
“If interpreted broadly, it means everything,” Haug said. “But CORA doesn’t say to exempt employee data. It says employee files, and employee files are not just numbers.”
Kopcow, however, said he believes the legislature enacted CORA to make sure that government remained transparent in how it operates, and an employee’s performance record was a part of that transparency.
Haug said the county was willing to redact the file, but wanted guidance from the court on how to interpret the law, but Kopcow said the decision was his.
Kopcow said he would determine what should be released and would handle the redactions himself, adding he had already reviewed the file in its entirety twice and promised to have the redactions completed and released to Kunkel and her attorney by early next week.