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The High Cost of Free Speech

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Jack McCroskey is a man of many opinions -- some pungent, some pure acid. Take, for example, these barbed appraisals from his recently self-published book, Light Rail and Heavy Politics, a score-settling history of the Regional Transportation District's fumbling efforts to bring 35 miles of not-so-rapid transit to Denver:

RTD general manager Cal Marsella "hid a limited imagination and mediocre skills under a bushel of political spin and personal hype."

RTD boardmembers Robert Tonsing and Mary Blue "have never subscribed to the open-government doctrine that sovereign citizens are entitled to look at all the facts, not just the pretty ones."

Denver Post editorial writer Bob Ewegen "deserves notoriety," McCroskey writes, "for his journalistic bullying and bilious broadsides, and for fatuously appointing himself master of the economico-politico universe."

A former member of RTD's elected board of directors who bills himself as the "father" of Denver's light-rail system, McCroskey has taken more than a few lumps for his outspokenness. At one point, his fellow boardmembers formally censured him for his uncivil tongue. Then they tried to censor him, and things got really ugly.

In 1999 McCroskey and fellow boardmember Gloria Holliday filed a lawsuit against RTD, claiming that executive assistant Brenda Bergman and Tonsing, who was then board chairman, had violated their rights to free speech by refusing to distribute letters and memos they'd written. Most of the suppressed documents were written by McCroskey, although Holliday co-authored some of them. Tonsing's position was that RTD was under no obligation to make staff resources available to communicate views that he considered to be contrary to board policy ("Love, Jack," December 2, 1999).

The suit was dismissed by a Denver judge but reinstated by the Colorado Court of Appeals, which rebuked RTD for seeking to stifle dissent among its own board of directors. A trial was scheduled to start in Denver District Court last week, but after four years of wrangling, RTD finally negotiated a cash settlement with McCroskey, Holliday and their attorney at the eleventh hour.

According to documents obtained by Westword, the transit agency agreed to settle with its former directors for $75,000. But that figure doesn't include the $68,000 RTD quietly shelled out last fall to cover the legal fees charged by Ben Klein, another former boardmember, who represented McCroskey and Holliday before the appeals court; the $24,000 the agency spent on depositions, transcripts, arbitration services and outside legal help; or the amount of staff time devoted by in-house legal counsel to defending the suit, which RTD hasn't bothered to calculate. All told, the board's shut-up-and-join-the-team attitude cost taxpayers in excess of $175,000.

"It's a new record for RTD," says McCroskey. "This is the first time I know of that a government agency has paid off members of its governing board for violating their free speech rights. This has never happened before, and it should never happen again."

RTD had sought to keep the terms of the settlement secret. When first contacted about the deal, RTD spokesman Scott Reed said he couldn't discuss the settlement or even disclose the amount, because the parties agreed to keep the matter confidential. But Colorado's open records law makes no exception for under-the-table compensation packages offered to elected officials whose First Amendment rights have been trampled by other elected officials; in response to a formal open records request, RTD relented and made the documents available for inspection.

McCroskey says that RTD's lawyers insisted on confidentiality as a condition for the settlement. But several lawyers contacted about the case, including the plaintiff's attorney who helped negotiate the settlement, say the confidentiality provision in almost any settlement involving public funds is trumped by laws requiring disclosure.

"I would think the plain terms of the Open Records Act would make any government contract like that an open record," says Shawn Mitchell, McCroskey's attorney. "The court is unlikely to want to jump in and help keep it secret."

Mitchell, who's also a state legislator, says that RTD's attorneys offered no reasons for their insistence that the settlement be kept secret. The appeals court ruling made it clear to both sides that the trial would be held simply to determine the amount of damages, he says; the agency had already admitted in court filings to violating the plaintiffs' First Amendment rights and had changed its policy so that boardmembers can get official letters distributed without prior review by the chairperson.

That RTD tried to keep the amount private outrages attorney Klein, whose own prior payout wasn't subject to any confidentiality requirement. Regardless of the amount, "RTD owes a duty to the public to release it," he says. "It's business as usual over there. They're planning to ask for a huge increase in taxes, but they don't want to tell the public how they're spending their money."

Tonsing says the current board of directors had no qualms about the secret settlement. "I don't see any reason it shouldn't be confidential," he says. "I don't know what the open records law would have to say about it. But once lawyers take on a case, they give the orders. I'm not going to complicate matters by playing lawyer, also."

Quantifying "pain and suffering" damages in a free-speech case is no easy matter. If the case had gone to trial, "we were going to tell the story of two plaintiffs who'd invested a lot of blood, sweat and tears to be in the position they were," Mitchell says. "Then to have to hand your speech over to your secretary, have her review it and tell you whether she'll type it for you or not -- it was clear that if they didn't like what you had to say, they would find a reason for censoring it."

"They stole my ability to practice my profession," McCroskey says. "It went beyond embarrassment to be elected to the board but not be able to do the job."

McCroskey, who was RTD's chairman during the construction of the early phases of light rail downtown, left the board three years ago. These days his primary job is hawking his book; last week he was working the crowd at Denver Mayor John Hickenlooper's inauguration. The final section of Light Rail and Heavy Politics devotes considerable attention to the free-speech battles of a certain RTD boardmember, but the lawsuit's resolution was reached too late to be included.

It's an omission McCroskey plans to rectify. "I've got to rewrite the last chapter," he says.

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