To Kill An E-mail: The Meltdown of Gov. Mike Easley
He almost made it. After more than seven years of successfully stonewalling the press and public at every turn, thereby leaving little opportunity for unscripted moments that might have resulted in embarrassment - or worse, criticism, North Carolina Governor Mike Easley was about to conclude his second and final term of office relatively unscathed.
But in March 2008, the governor finally blew it. What began with the firing of a state government public information officer became a story about a failed effort at reforming the state's mental health care system, then expanded into the exposure of the ongoing practice of illegally destroying public records. The appearance of a cover-up resulting from the debacle is leaving an indelible stain on the formerly squeaky-clean image that Gov. Easley sought to leave as his legacy.
The firing
On March 4, 2008, Debbie Crane, public affairs director for the NC Department of Health and Human Services (DHHS), was fired from her job.
Crane's firing happened just in time for her to serve as keynote speaker for the NC Open Government Coalition's observance of "Sunshine Day" on March 19, and she had a lot to say about open government in
The governor's office had a different take on the matter. They said Crane was fired because she tried to get Odom not to talk with the press about the 2001 reform legislation. The governor argued that his administration had always opposed the legislation, though he did not veto it.
At a press conference on March 6, Easley tried to sidestep the whole affair by offering a new plan to make the mental health system more accountable, but his critics charged that he was ducking the issue and refusing to take responsibility for the system's failures. To some, it appeared as if a cover-up might be brewing - and it involved more than just mental health reform.
On that same day, Gov. Easley's chief legal advisor wrote a letter to the attorney for the
The governor's office denied it was responsible for firing Crane, but when the current head of DHHS challenged this assertion, saying the order came from the governor, Easley's office finally admitted that they had initiated the firing.N&O Executive Editor John Drescher struck another blow against Easley's credibility by asserting on March 9 that the governor was being evasive about both the mental health reform efforts and the e-mail debacle.
E-mail policy defined
Things were about to get worse for the state's chief executive. Crane's allegations were shored up when Easley finally admitted that he routinely trashes documents sent to his office. Referring to a note he received from former Secretary Odom about her relations with the media, he said, "I chunked it" - and on March 11, Easley and his lawyer defended the action, stating that the Odom note was "personal" and not a "public record" subject to public records laws.
Other lawyers thought that the note was indisputably a public record; after all, it clearly concerned public business. While avoiding the use of the phrase "cover-up," by mid-March, press agencies from across the state were demanding that it was time for Easley to tell "the whole truth" about the Debbie Crane firing.
Easley's strategy was to divert attention from all this e-mail business by insisting again that he and his administration had always opposed the flawed mental health reform legislation. But the N&O was in possession of an e-mail dated in late February, in which Hooker Odom contradicted the governor.
Meanwhile, Easley legal counsel Andy Vanore was busy doing damage control over the governor's comment about "chunking" the note from Hooker Odom. He indicated that state employees had always been free to delete e-mail messages if they judged them to have "no administrative value."
Various news reports noted that "delete" keys were earnestly being tapped throughout state government buildings in
On March 18, indicating that the action was being taken as a response to unforeseen changes in technology, Gov. Easley announced that he was establishing a review of the manner by which state employees handle e-mail and text messages under the leadership of one of his top aides, Franklin Freeman. Later, Freeman proudly announced he didn't use e-mail, but he didn't see that fact as relevant to his new responsibility.
Meanwhile, the NC Open Government Coalition, the NC Press Association and state Attorney General Roy Cooper announced they were putting together a 12-page booklet explaining the state's open meetings and public records laws. "I'm going to give the first copy to Governor Easley, so he'll know what the law is," explained Beth Grace, executive director of the Press Association (oddly, at the mention of Easley's name, the lights in the workshop meeting room went out and the open government gathering was plunged into darkness).
In late March, the N&O published a series of articles concerning the ongoing problem of lack of public access to public records during Easley's tenure, focusing on public employee records.Citing cases of misconduct by state employees and pointing out how difficult it is for the public to obtain this information, the articles added fuel to an already smoldering fire. Clearly, something needed to be done to prevent state officials from deliberately withholding public information from the press and the public.
On March 27, the Freeman-led committee held its first meeting, with discussion centering on what e-mails should be deleted and who should delete them. Committee members learned that millions of e-mails and text messages had been summarily discarded, and Ned Cline, a member of the committee, expressed trepidation by some of the members. "I am concerned it takes a judgment to delete some of these things or the cost of the storage will be astronomical," he said. "The problem, for me, is who makes this judgment call? It's on an individual-by-individual basis, and some employees might do it right, and some might do it wrong based on things they don't want people to see."
On March 29, N&O reporter Pat Stith reported that Easley's counsel, Vanore, had produced notes from two public information officers showing that they and others had been told at a meeting on May 29, 2007 to delete e-mails sent to the governor's office. According to the report, Vanore stated that the notes did not really mean what they said, but later, he asserted that he didn't know what the notes meant. Vanore finally concluded that the only way to know what the notes meant was to ask the people who wrote them - but since the authors had been instructed not to talk with anyone about the notes because of potential litigation, those explanations weren't forthcoming.
The notes to which Vanore referred were considered to be the proverbial "smoking gun" - and his comments elicited calls for an investigation by the State Bureau of Investigation.
All this confusion didn't seem to faze the governor. For a leader so noted for controlling the flow of information to the press, Easley appeared to be hell-bent on making the disintegrating situation even worse. On April Fool's Day, he followed the lead of Vanore, reiterating that the meaning of the "smoking gun" notes was unclear. "When you get cryptic notes, sometimes you don't get all the information, and that's why it's important to get in there and talk to these people," the governor told reporters. But once again, he refused to let the employees speak for themselves, citing the possibility of a lawsuit.
Members of the news media showed up at the meeting of the Freeman committee on April 3 to denounce the "personal judgment" policy, stating that they consider every e-mail communication to be a public record. "Any policy that allows the destruction of e-mails is in blatant violation of the state's open records law," said Rick Thames, president-elect of the NC Press Association.
But David Lawrence, a professor of public law at UNC-Chapel Hill and a member of the committee, disagreed. "I believe that the guidelines conform with and do not violate the public records statutes," he wrote to Freeman in a letter that did nothing to quell the uproar of dissent.
Anybody but Easley
Easley finally took the bull by the horns on April 9. At a meeting with representatives of the NC news media, he promised that his administration would be more cooperative going forward. But he stopped short of taking personal responsibility for the e-mail debacle, instead blaming his press secretary, Renee Hoffman, for misleading departmental public information officials regarding e-mail policies. "It never should have happened," the governor admitted. And in a meeting with newspaper editors the next day, Gov. Easley again denied he was responsible for firing Debbie Crane. He said DHHS fired her at the urging of Franklin Freeman.
Media files lawsuit
On April 14, a coalition of ten of
Charging that the allegations were too broad and that the media could not prove it had ever been denied access, on May 13, the governor's office asked the judge to dismiss the lawsuit.
Committee makes recommendations
After six meetings, the E-Mail Records Review Panel appointed by Gov. Easley offered its [draft] final report on May 19, 2008. Proposing that electronic messages be treated the same as paper communications, the committee offered several recommendations, including:
- Moving the executive branch toward a single e-mail system,
- Implementing an archiving system for e-mail and text messaging,
- Mandated training for state employees who handle public records,
- Random audits of agencies on an annual basis to determine compliance,
- Expanding retention of back-up records, and
- Requiring employees who use personal computers or other technology to convert records of state business onto a state-assigned e-mail account or paper archive.
But many say that the recommendations don't go far enough. State employees will still have leeway to delete e-mails that they believe don't have "enduring administrative value. "That's a gaping hole indeed. And Beth Grace of the NC Press Association warned that while the panel gave some wise counsel, the directives lack teeth, failing to take pro-active measures to bar future abuses.
At this point, it's impossible to determine which, if any, of the recommendations will be adopted.But according to the Asheville Citizen-Times, "Openness should be a top priority for anyone wanting to be in charge of the public's business in this state. We hope the voters are paying attention. After all, we're talking about the records of their business."
One would think that the whole ordeal would cause Easley to rethink the way his office handles requests for open records documents, but as of July of 2008, nothing seemed to have changed. According to an August 3 editorial by News & Observer Executive Editor John Drescher, the governor's office was still stonewalling reporters.
Hopefully, the new management that will take over the Executive Mansion in less than six months will be more forthcoming. Hope rings eternal.
Updated August 3, 2008
