Suit claims Elbert County, commissioners spied on employee’s computer, made false claims

ELBERT COUNTY, Colo. – Elbert County and its county commissioners face a federal lawsuit alleging they spied on the county’s director of community development and planning’s every move over a several months last year.

Kyle Fenner filed the suit against the county and its board of commissioners in early March in U.S. District Court of Colorado. In it, she claims that the county commissioners made themselves her supervisor after they spent several months monitoring everything she did on her work computer.

The suit alleges that the board of county commissioners voted to become Fenner’s supervisor in December 2015, but that the county had actually been monitoring her computer since September 2015, allegedly “collecting over 50,000 screen shots” from her work computer.

It’s unclear in the suit exactly why the county started monitoring her computer in the first place, but in April 2016, Elbert County Attorney Wade Gateley hired Mountain States Employers Council, Inc. (MSEC) to conduct a “workplace investigation” on Fenner’s internet usage during work hours on her county computer, whether she used the computer for personal or commercial gain, or if she “made ‘demeaning’, ‘defaming’ and ‘disparaging’ comments about county employees or elected officials from February 1, through April 11, 2016,” according to the suit.

“The IT investigation was basically a surveillance tool that they had started running on my machine, and for about 70 calendar days, they snapped a picture of my desktop under every two seconds,” Fenner told Denver7.

It says that the investigation into her computer usage was discussed at a public work session on April 11 last year, at which Gateley said that Fenner was “under investigation” for “possible criminal activity.”

A week later, Fenner’s name was also publicly discussed as being involved in a “criminal investigation,” according to the suit. And on May 10, County Commissioner Robert Rowland emailed a listserv saying that Fenner was the subject of an investigation and asked the recipients to attend a public meeting about the investigation.

According to the lawsuit, Rowland then in June told public citizens to use open records law to look up her case with the district attorney’s office, whom he had sent the collection of records from Fenner’s computer.

“I felt so violated knowing that Commissioner Rowland was going to have a digital copy of 50,000 screenshots of me that I created,” Fenner said.

But the special counsel investigation into Fenner’s computer usage had wrapped up on May 12, according to the suit, and found that she had indeed made a “demeaning, disparaging, or insulting” comment via a private email service on her work computer.

But the special counsel also stated that though she should be reprimanded for the comment and reminded of county computer rules, that the comments Fenner made weren’t made “pursuant to [Fenner’s] official duties; did not affect in a substantial way [Fenner’s] ability to efficiently provide services as an employee; and could arguably address a matter of public concern.”

According to the suit, the special counsel also exonerated Fenner of any other alleged violations, and recommended that the board and county correct the record to show Fenner was never close to facing criminal charges.

Fenner is seeking compensatory, statutory and punitive damages for humiliation, anger, anxiety, emotion distress, frustration and embarrassment, according to the suit.

Rowland is no longer a county commissioner. He declined to seek re-election last November. Denver7 stopped by his house Wednesday for comment, but was told to get off his property.

Current commissioner Danny Wilcox told Denver7 the situation surrounding the suit was “frustrating” but said he could not comment further on specifics of the case.

Denver7 requested details on expenditures related to the investigation into Fenner’s computer usage on April 6. An Elbert County records custodian told Denver7 Wednesday the documents were in the mail.