D ISTRICT C OURT , W ELD C OUNTY , C OLORADO

901 9th Avenue, P.O. Box 2038, Greeley, CO 80632

(970) 475-2400 DATE FILED: March 2, 2017 3:49 PM
CASE NUMBER: 2017CV30143

Verified Petition In Re:

Request of The Greeley Tribune for Certain Records COURT USE ONLY
Pursuant to the Colorado Open Records Act, C.R.S. Case No.
24-72-201, et seq.
2017 CV 30143

Division 4

Order to Disclose Records

The petitioner, Patricia Russell, in her official capacity as Director and

Custodian of Records for the Weld County Department of Human Services,

requests the court to conduct an in-camera review to determine whether

records requested by The Greeley Tribune should be disclosed. The records

involve an investigation conducted at the direction of the Board of County

Commissioners for Weld County, related to complaints about one of its

members, Commissioner Sean Conway.

The complaints are that Commissioner Conway either yelled or swore at

four Weld County employees, who are all female. None of the complaints

include accusations that Conway acted inappropriately by engaging in either

verbal or physical conduct of a sexual nature. But, because all the complainants

are female, Russell is concerned that releasing the investigation report and its

attachments may violate 24-72-204(3)(a)(X)(A), C.R.S. 2016, which requires a

records custodian to deny access to [a]ny records of sexual harassment

complaints and investigations.

At the hearing held yesterday, both counsel for Russell and counsel for
Conway agreed that the complaints do not meet the definition of sexual
harassment, as that term is defined in Weld County Code 3-3-50(D). Sexual

harassment is not defined in 24-72-204, or in any other section of the

Colorado Open Records Act. The definition in the Weld County Code is

consistent with the generally-accepted definition. See Blacks Law Dictionary 1499

(9th ed. 2009) (defining sexual harassment as [a] type of employment

discrimination consisting in verbal and physical abuse of a sexual nature).

So the question here is whether the complaints qualify as sexual harassment

based on a hostile work-environment?

To prove a claim for sexual harassment based on a hostile work-

environment, a claimant must show that the conduct complained of was (1)

unwelcome and offensive, (2) that it was sexual in nature or directed at the

claimant because of her gender, and (3) that it was sufficiently severe or

pervasive to alter the conditions of employment and create an abusive working

environment. St. Croix v. Univ. of Colo. Health Sciences Ctr., 166 P.3d 230, 242

(Colo. App. 2007) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct.

367, 370 (1993)).

Thus, as pertinent here, for a hostile work environment to qualify as sexual

harassment, a claimant must show the harassment stemmed from gender

animus. Id. at 243. If the nature of an employees environment, however

unpleasant, is not due to her gender, she has not been the victim of sex

discrimination as a result of that environment. Stahl v. Sun Microsystems, Inc.,

19 F.3d 533, 538 (10th Cir. 1994) (quoted in St. Croix, 166 P.3d at 243). Conduct

directed at an employee that is overtly sexual is presumed to occur because of

the employees gender. St. Croix., 166 P.3d at 243. But absent sexual

propositions, specific innuendo, or sexually derogatory language, a claimant

Order to Disclose Records

Verified Petition In Re: Request of Greeley Tribune, 2017 CV 30143
Page 2 of 4
must prove that the hostile conduct was aimed at the claimant because of her

gender. Id.

After conducting an in-camera review of the records at issue here, I

conclude that the records would not support a finding that the complainants

were the object of Conways alleged abusive conduct because they are female.

While the investigator found that it was more likely than not that Conway had

either yelled or cursed at each of the four female complainants, the investigator

made no finding that Conways conduct was motivated by the complainants

gender. Instead, the investigator found that Conways behavior was motivated

by a significant rift among the County Commissioners leading to feelings of

distrust and hostility that permeate to the staff of Weld County. Some of the

complainants, and Conway himself, provided information to the investigator

that suggests Conway was motivated by his belief that the complainants were

acting against him, or colluding with other county commissioners to act against

him. None of the complainants suggested that Conway aimed his behavior at

them because of their gender.

I therefore conclude that release of the records is not prohibited by 24-72-

204(3)(a)(X)(A) because the records do not meet the definition of sexual

harassment complaints and investigations.

But the complainants still have the right to confidentiality, as they were told

that the information they provided would be treated as private. Applying the

test from Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980), I

conclude: (1) that the complainants have a legitimate expectation that their

identities will not be disclosed; (2) that, while a compelling state interest will be

served by disclosing the investigation report, no compelling state interest will

be served by disclosing the identities of the complainants; and (3) that

Order to Disclose Records

Verified Petition In Re: Request of Greeley Tribune, 2017 CV 30143
Page 3 of 4
disclosure of the report with the complainants names redacted is the least

intrusive manner to both respect the complainants right to privacy, while also

respecting the publics right to be informed about information contained in

government records, as provided by the Colorado Open Records Act.

I therefore O RDER that the investigation report (along with the attachments

included as part of the report) be disclosed after the complainants identifying

information has been redacted. The petitioner is further ordered to retrieve the

copy of the records that were provided for my in-camera review, within seven

days of today, and to maintain those records until the time period for any

appellate review has run.

So Ordered: BY THE COURT:

March 2, 2017

______________________
Todd Taylor
District Court Judge

Order to Disclose Records

Verified Petition In Re: Request of Greeley Tribune, 2017 CV 30143
Page 4 of 4