Consequences for officials deleting emails up in air

Lansing — Allegations involving deleted emails by Southeast Michigan officials could test prosecutors’ willingness to enforce a Michigan government records law that carries a misdemeanor charge, legal experts said.

In one incident, which is under investigation by the Michigan State Police, Oakland County Commissioner Shelley Taub sent text messages to her colleagues advising them to “delete, delete, delete” emails in anticipation of a request for documents about naming a new county executive.

In another, Detroit Mayor Mike Duggan’s chief of staff, Alexis Wiley, allegedly directed city employees to delete emails as controversy entangled the city's efforts on behalf of a nonprofit organization.

While legal experts weren’t willing to talk about the specific incidents, they said state law usually prohibits public employees from improperly destroying records. But enforcing the law against government officials rests heavily on other government officials — local prosecutors or the Attorney General's office.

“… Prosecutors are not required to prosecute every violation of the law that occurs — nor could they,” said Derk Wilcox, senior attorney at the free-market-oriented Mackinac Center Legal Foundation. “And so they have obvious discretion as to which cases they prosecute and which ones they do not.”

Multiple attorneys interviewed for this story said they were unaware of charges being brought in recent years against any official in Michigan over deleted emails. Most disputes over public records don't go further than a government agency denying a person's request for documents, said Ralph C. Simpson, a Detroit attorney with a focus on open government law.

Of the Detroit situation, Simpson added, "I am very concerned about the idea that giving away, deleting, the public’s information can be done so casually."

The liberal group Progress Michigan has previously called on Taub, a Republican, to resign.

Sam Inglot, the organization's deputy director, said he was troubled by the initial findings in Detroit. The city's Office of Inspector General concluded three mayoral aides, including Wiley, abused their authority by directing lower-level staff to delete emails involving the Make Your Date nonprofit championed by Duggan.

Government officials simply shouldn't be deleting their emails to hide them from the public, Inglot said.

"The basic functions of government are done through email," Inglot said, adding that the public's ability to access those emails is "essentially us looking under the hood of government."

State authorities are investigating both incidents.

What law says

Michigan law stipulates that records created by government agencies are “public property belonging to the people of this state.”

Robin Luce Herrmann, an attorney with the firm Butzel Long and general counsel for the Michigan Press Association, noted a 1987 state Court of Appeals case that reinforced the idea.

In that case, the court said the public’s ability to access public records “inherently” includes government’s ability to retain public records.

Luce Herrmann declined to talk specifically about the situations in Oakland County or Detroit. But people who destroy public records outside of set retention schedules usually could be found guilty of a misdemeanor, Luce Herrmann said. Penalties can be up to two years behind bars or a fine of not more than $1,000, according to state law.

Other legal penalties could be levied, Luce Herrmann said, depending on what records were destroyed and on whether local governments have their own rules.

Michigan's own manual on records management by local government says state law "declares the improper disposal of local government records to be a crime."

In the aftermath of the inspector general's report, Detroit City Council President Brenda Jones is calling for an ordinance to prevent the deletion of city governmental emails and a five-year retention policy. 

Duggan and Corporation Counsel Lawrence Garcia have repeatedly said Inspector General Ellen Ha's review found no city rules or policies were broken by the mayoral aides who directed that the emails be deleted. 

But City Council member James Tate said the three aides should face proper punishment over email deletions he called "problematic" and that violated "the public's trust." Tate wants the council's legal team to outline the inspector general's findings and "demand appropriate discipline to the employees." 

Duggan has reiterated that he supports City Council’s plan to craft a law for the handling of city emails.

“I think a clear policy would be a good thing," the mayor said following a press conference last week involving a future University of Michigan campus in Detroit. "Any ordinance council wants to pass that will apply equally to the mayor and city council, I will support.”

When questioned about whether document training is enough of a penalty for his chief of staff and two other aides, Duggan said there’s been no finding as of now that Wiley — a former Fox 2 News reporter — broke any rules or policies. 

“If that changes, I’ll deal with that,” he said, adding that that the deleted emails were “completely innocuous.” 

Most officials would be reluctant to go as far as to delete emails, said Simpson, the attorney from Detroit.

The most common tool used to block a request for government records is to simply deny the records exist, he said. The burden is then on the person requesting the records to prove the government wrong, which is a "heavy burden," Simpson said.

How controversies emerged

Taub’s text messages came to light in August as Oakland County commissioners were preparing to pick a replacement for deceased Oakland County Executive L. Brooks Patterson. Taub previously called her text messages advising colleagues to delete emails the “dumbest thing I’ve ever done.”

Taub said her intent was to avoid the disclosure of “nastiness” written about Patterson or others.

It’s unclear whether any emails were deleted. Taub didn't respond to a request for comment.

The Oakland County Sheriff’s Office referred the matter to the Michigan State Police. The office made the referral because of potential conflicts given that the commissioners, including Taub, vote on the sheriff office’s budget, Oakland County Undersheriff Mike McCabe said.

The Oakland County situation is still under investigation, said Michael Shaw, a spokesman for the Michigan State Police.

Attorney General Dana Nessel’s Public Integrity Unit and the Michigan State Police have already opened an investigation into the Detroit controversy. 

The Detroit Inspector General's Office found that Wiley, Duggan’s chief of staff, had abused her power by directing other city employees to delete emails related to the nonprofit Make Your Date, a program to stem premature births.

While there was no pending Freedom of Information Act request to make the particular emails public, “any reasonable person could assume that the request was coming,” Ha wrote in the report.

Agencies and their employees must stop the destruction of records if they receive a Freedom of Information Act request for the records but also if they "believe that an investigation, audit or litigation is likely to happen," according to the state's records management handbook for local government. 

"Failure to cease the destruction of relevant records could result in penalties," the manual says. 

Duggan said city officials were trying to protect junior staffers from being caught up in the controversy over whether the mayor gave the nonprofit preferential treatment.

The inspector general's report said the office didn’t seek to determine whether any state laws were broken by city officials who deleted emails because of the state-level investigation.

cmauger@detroitnews.com

(517) 371-3662

Twitter: @CraigDMauger

Detroit News Staff Writer Mike Martindale contributed.