Colorado’s second-highest court directed a Grand County judge last week to conduct further analysis of the defamation claim by two former Grand Lake officials against the ex-town manager.

The immediate issue before the Court of Appeals was relatively narrow: Did defendant John Crone act “willfully and wantonly” when he sent a 2021 email to the mayor and board of trustees accusing Cynthia and Hayden Southway of breaking the law?

A three-judge appellate panel agreed with the Southways that willful and wanton conduct does not require the infliction of physical injuries. But it stopped short of ruling that the Southways’ lawsuit could proceed because it was unclear why the trial judge concluded Crone “didn’t think” about the consequences of sending the email.

The underlying controversy entailed a protracted set of run-ins between Cynthia “Cindy” Southway, a former town trustee; her husband, Hayden Hoppe Southway, a former planning commission member; and Crone, the town manager who has since moved on to be the town manager of Keystone.

Cynthia Southway took issue with Crone’s use of a town vehicle, treatment of employees and an alleged conflict of interest. Crone, in turn, was bothered by the Southways’ lease of a property to graze their horses that was allegedly designated as agricultural improperly. He believed the town was losing tax money as a result of the mis-designation.

In September 2021, Crone sent an email to the mayor and the board of trustees about Cynthia Southway, who was a board member at the time.

“In January of this year, I discovered that Trustee Southway had been conspiring with the owners of the 15-acre parcel where the Southways keep their horses to have the property assessed as agricultural,” Crone wrote, alleging the town code did not allow for agricultural use.

“Over the years, the Southways scheme has cost the Town, the school district, the rec. district, the fire department, and other public entities tens of thousands of dollars in lost revenue (if not hundreds of thousands),” he continued. “As a result of the Southways’ resistance to take responsibility for their illegal actions, I feel compelled to officially bring these ethical violations to the Board’s attention for action.”

Ski-Hi news reported days later that the town attorney and county assessor expressed doubts about Crone’s conclusions.

The Southways sued Crone for defamation. In response, Crone argued the Colorado Governmental Immunity Act barred the lawsuit, as he was a public employee acting within his official duties when he sent the email.

However, the governmental immunity law contains an exception for conduct that is willful and wanton. District Court Judge Mary C. Hoak noted there was no single definition of willful and wanton, but she deemed it to mean a “conscious disregard for the danger or consequences of one’s actions.” Hoak set the case for a hearing to decide if Crone’s conduct, as alleged, fit that understanding.

After hearing testimony, Hoak noted in January that the parties were “clearly having some amount of conflict” in their respective town roles. Nonetheless, she believed Crone’s email was an extreme reaction to the actual circumstances.

“All that had to be there was, ‘This is what happened. Here’s what I’ve learned. Here’s what happened. Here’s what I’m giving to you. Go.’ Instead, this email is scathing,” Hoak said. “This is not mass murder. This is not ‘there are bodies hidden.’ This is not someone who’s been seriously hurt. It’s a zoning violation.”

She elaborated that Crone’s language was “reckless,” before concluding the Southways’ lawsuit could proceed.

“Yeah, that’s why it’s willful and wanton conduct. Because Mr. Crone didn’t think. Should have just sat this down, worked this out,” Hoak said.

Turning to the Court of Appeals, Crone maintained the label of “willful and wanton” should be reserved for behavior “involving probable risk of physical injury.” Even if the phrase encompassed non-physical behavior, Crone’s prolonged investigation of the disputed agricultural land supported the email, his lawyer added.

In a Dec. 19 opinion, the Court of Appeals panel ruled that a public employee’s defamatory conduct, leading to a person’s reputational damage, can be willful and wanton.

Under the governmental immunity law, the legislature “plainly intended for plaintiffs suffering nonphysical injuries to be able to seek redress,” wrote Judge Katharine E. Lum.

However, she identified a problem with Hoak’s ruling that rendered the panel unable to uphold the order outright. Because willful and wanton conduct requires someone to “consciously disregard” a danger, Hoak seemingly undermined her finding by saying Crone “didn’t think” about his actions.

“Due to these conflicting findings, we can’t discern whether the court correctly applied the willful and wanton standard in concluding that Crone’s actions rose to that level,” Lum wrote.

The panel ordered Hoak to reexamine the issue.

The case is Southway et al. v. Crone.