Weld District Court judge will make decision on political candidate’s job performance records | MyWindsorNow.com

Weld District Court judge will make decision on political candidate’s job performance records

Tyler Silvy

Elisa Kunkel

Weld District Court Judge Marcelo Kopcow will review, redact and release information related to Weld County Clerk and Recorder candidate Elisa Kunkel's job performance during her tenure with the clerk and recorder's office, and he expects to complete that work today.

Neither The Tribune nor Denver-based media organization Complete Colorado, both of which filed Colorado Open Records Act requests for job performance-related information, will immediately receive the information, as attorneys for the county and for Kunkel will have one week to review the releasable information and, if necessary, appeal Kopcow's decision.

Kunkel was represented via phone by Robert Liechty, a Greenwood Village-based lawyer. Frank Haug represented Weld County. Tribune attorney Steve Zansberg filed a brief on The Tribune's behalf, but did not appear in court. Complete Colorado did not have an attorney present in court.

Haug did most of the talking, explaining the difficulty the county had in determining which information within Kunkel's personnel file was releasable.

"The question is what the contents of the personnel file are," Haug said.

Previous courts have narrowly defined those contents to include financial information, phone numbers, addresses and social security numbers.

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When it comes to job performance, including disciplinary action or even time taken off work, courts have maintained those records are public as they relate to the performance of a public employee.

The Tribune requested records related to demotions, pay increases, pay decreases, disciplinary records and performance evaluations for Kunkel. The Tribune requested the records to verify statements Kunkel has made as part of her campaign for Weld County Clerk and Recorder, as well as allegations Kunkel has made in a federal lawsuit against Weld County Clerk and Recorder Carly Koppes, Kunkel's former boss and now political opponent.

In her lawsuit, in which she claims First Amendment violations and retaliation on the part of Koppes, Kunkel said she was given a failing annual job evaluation by a supervisor who had previously given Kunkel only good annual evaluations.

In a news release announcing her candidacy for Weld County clerk and recorder, Kunkel said Koppes demoted her "after years of outstanding performance," also touting her work ethic, dedication and customer service.

Kunkel's attorney, Liechty, said Kunkel would agree to release personnel materials during Kunkel's time with Koppes but nothing before that. Such an arrangement would have provided job performance information for roughly two of Kunkel's 16 years with the Weld County Clerk and Recorder's Office. Neither The Tribune nor Complete Colorado accept the arrangement.

Haug, the county's attorney, provided some arguments related to a prior court case that centered on an employee's expectations of privacy compared to the public's right to know. Kopcow asked several questions, including whether public employees had the same expectation of privacy as employees for private companies (Haug said they didn't); and whether Weld County employees were told of the lessened privacy (Haug said they were).

Kopcow also asked about compelling public interest to release documents.

"The public interest here is she is running for public office," Kopcow said.

Haug said the county didn't take that into account. Instead, it was simply attempting to follow the law, which is why it petitioned the court to make the decision.

— Tyler Silvy covers government and politics for The Greeley Tribune. Reach him at tsilvy@greeleytribune.com. Connect with him at Facebook.com/TylerSilvy or @TylerSilvy on Twitter.

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Weld District Court Judge Marcelo Kopcow is expected to review personnel records related to Weld County Clerk and Recorder candidate Elisa Kunkel’s job performance today. The Greeley Tribune requested a variety of documents, and Weld County petitioned the court for a ruling on which information is releasable. Attorneys for Kunkel and Weld County will have one week to review the releasable information and appeal before the information becomes public.