ALAMOSA — In a Dec. 14 conversation with Alamosa city attorney Erich Schwiesow regarding the Nov. 22 breach of an executive session by an unknown, unauthorized person, Schwiesow expressed doubt that the individual would be identified due to the number of people who had access to Zoom, which was used to tape the meeting.
Schwiesow was then asked if the action constituted a crime.
“I don’t know,” Schwiesow said. “It does me no good [to find the answer to that question] if we can’t find out who did it.”
Following that conversation, the Valley Courier researched the answer and learned that a Colorado Revised Statute does exist that identifies that behavior as a crime titled “Official Misconduct." The crime specifically applies to people who are public employees.
The 2023 Colorado Revised Statutes Section 18-8-404 states, “A public servant commits first degree official misconduct if, with intent to obtain a benefit for the public servant or another or maliciously to cause harm to another, he or she knowingly (a) Commits an act relating to his office but constituting an unauthorized exercise of his official function; or (b) Refrains from performing a duty imposed upon him by law; or (c) Violates any statute or lawfully adopted rule or regulation relating to his office.”
C.R.S. 18-8-404 states first degree official misconduct is a class 1 misdemeanor with a penalty that includes up to 364 days in jail and/or a fine of up to $1,000.
In a follow-up email to the city attorney on Dec. 19, the Valley Courier cited the statute and penalty and asked if knowing such an action constitutes a crime motivates the city to increase its efforts to figure out who accessed the tape.
Schwiesow answered via email, copying Alamosa City Manager Heather Sanchez and Interim Police Chief for the Alamosa Police Department (APD) Captain Joey Spangler in his responses.
Schwiesow wrote, “No. The City is already strongly motivated to determine who downloaded the recording. If it was a City employee, who should know better, then whether or not it is a crime, it is certainly relevant to that employee's personnel file. If it was not an employee, whether it was a crime becomes relevant, and would be referred to our police department.”
The Valley Courier followed up by asking if the breach was done by someone who works for the city and, as the language in the statute indicates, it constitutes a misdemeanor 1 crime, would the city be obligated to also refer that to APD?
“No one is obligated to report a crime (other than certain people obligated to report suspected child abuse, and there may be other exceptions inapplicable to this situation),” Schwiesow wrote. “I am not going to speculate on what the City might do in hypothetical situations. Happy to report on what it does in an actual situation.”
The executive sessions were being held to research claims raised by former Police Chief Ken Anderson who cited City Manager Sanchez in his reason for resigning from his position.
Anderson stated that Sanchez did not solicit his input on decisions that impacted his department, either ignored or dismissed concerns about the impact on APD of policies in practice and did not allow him the independence to manage his own department.
In response, Sanchez stated that Anderson’s claims were “untruthful.”
Following Anderson’s resignation, Sanchez devised a plan for city council members to meet in a series of executive sessions with department heads and those who report directly to the city manager over a number of weeks. In those sessions, employees supposedly had the freedom to answer without fear of their comments being shared with anyone else, including the city manager who was the focus of the sessions and is empowered to hire and fire all employees working for the city.
That confidentiality was violated when an unnamed, unauthorized person accessed the session on Nov. 22.
In a conversation with the Valley Courier, Schwiesow was asked who was investigating the breach and how it was being investigated but did not provide details.
