Judge to rule on disclosure of Weld County political candidate’s job performance files as candidate sues opponent
January 13, 2018
A Weld County judge will decide whether records relating to the job performance of a candidate for office will be made public.
The Greeley Tribune is seeking information related to Elisa Kunkel's performance in the wake of her lawsuit against her former boss and now political rival, Weld County Clerk and Recorder Carly Koppes.
The Tribune's Colorado Open Records Act request came in the aftermath of Kunkel's campaign announcement of her bid for Weld County Clerk and Recorder. On Friday Weld County attorneys petitioned Weld District Court to determine whether the files were public.
In her lawsuit, Kunkel makes several allegations related to how she was treated when she was an employee at the Weld Clerk and Recorder's Office.
“My file is my private business. My attorney released the pertinent information.
— Elisa Kunkel, Weld County Clerk and Recorder candidate
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The Tribune requested information from Kunkel's personnel file, including evaluations and disciplinary action, in an effort to verify claims in the lawsuit and vet statements Kunkel has made as part of her campaign for Weld County Clerk and Recorder. Kunkel on Friday released two items from her personnel file, but said she wouldn't release the entire file.
Weld County officials say they're not sure what information in Kunkel's personnel file is releasable, and they have petitioned Weld District Court to have a judge review the file to determine what is releasable.
Koppes chose not to comment on Kunkel's lawsuit, and she also chose not to weigh in on The Tribune's request for records, saying she would default to county attorneys or the courts. Weld County is representing Koppes in the lawsuit, while Kunkel, still a Weld County employee but in a different department, has outside representation.
Under the Colorado Open Records Act, there is an exemption that allows government entities to withhold information from personnel files. But Colorado courts have historically construed the exemption quite narrowly.
Courts have said the exemption applies to personal demographic information, including an employee's home address, telephone number, financial information and "other information maintained because of the employer-employee relationship," Colorado Freedom of Information Coalition Executive Director Jeff Roberts has said.
The Colorado Court of Appeals in January 2016 followed the same trend in a case involving the request of sick leave records for teachers in Jefferson County. The local teachers union said sick leave records were part of the "employer-employee relationship," but the court disagreed, saying "a teacher's absence is directly related to the teacher's job as a public employee," according to reporting from the Colorado Freedom of Information Coalition.
Although Weld County officials agree some information in Kunkel's personnel file is releasable, they say they aren't sure about other information, saying it's unclear whether past court cases would apply.
Through her lawyer on Friday, Kunkel released to The Tribune records related to two disciplinary actions against her from January 2016.
One involved Kunkel confronting a coworker about watering plants during business hours, and a subsequent argument between Kunkel and a coworker about the initial confrontation.
The other was related to Kunkel talking about the previous disciplinary action, as well as talking to a co-worker's family about work outside of work. The second disciplinary action led to Kunkel being demoted, a move Kunkel successfully appealed to the Board of Weld County Commissioners.
"Off-hours behavior of employees, including exercising their right to free speech, is protected under federal and state law," the commissioners' report read, in part. "It is not to be considered as basis for disciplinary action."
The discipline, as well as Kunkel's successful appeal, have each been reported previously by The Tribune after Kunkel publicly requested the Weld County Council conduct a performance audit of the Weld Clerk and Recorder's Office.
Kunkel said then, and now, that no other disciplinary records exist in her personnel file. She clarified Friday that there are no other records under Koppes' tenure, which started in January 2015.
Kunkel said she won't release her entire file, and doesn't think The Tribune should have it.
"If I release my file, everybody would have to release theirs," Kunkel said. "My file is my private business. My attorney released the pertinent information."
It's unclear whether Kunkel or her attorney will file briefs with Weld District Court in relation to the case involving the release of information in her personnel file.
Kunkel claims in her lawsuit that Koppes unfairly demoted her, retaliated against her and infringed upon Kunkel's right to free speech.
The lawsuit was served on Koppes the same day Kunkel announced her candidacy for the Weld Clerk and Recorder position, which is up for election in November. Koppes and Kunkel are running as Republicans.
— Tyler Silvy covers government and politics for The Greeley Tribune. Reach him at email@example.com. Connect with him at Facebook.com/TylerSilvy or @TylerSilvy on Twitter.