A gaping budget shortfall isn’t the only hurdle Gov. Bev Perdue will face in the first months of her administration. She also must decide how to respond to a lawsuit accusing former Gov. Mike Easley of permitting his staff to unlawfully erase e-mail correspondence between state employees.
By law, Perdue is now the defendant in the lawsuit, which was filed in April by 10 news organizations, including Carolina Journal. The complaint alleges that Easley’s office and other Cabinet agencies evaded the state’s public records law by encouraging staff to delete e-mails before the messages could be archived.
As a remedy, the plaintiffs asked for a court order “permanently restraining and enjoining” the governor and his staff from pursuing illegal policies. They also requested that the court order the governor’s office “to take all measures available to them to retrieve any public records that they deleted, disposed of, lost, or failed to preserve in violation of the Public Records Law.”
No ruling has been made in the case, but Easley conceded to some of the news outlets’ demands in an 11th-hour executive order signed Jan. 9, his last day in office. Plaintiffs in the case still say some of the guidelines are too vague, and they plan to consult with Perdue before deciding whether to drop the lawsuit.
“I think the language in his order is too broad and ambiguous to give clear guidance to state employees on what the rules are,” said Hugh Stevens, a lawyer representing the news organizations. “We found it rather bizarre that after doing nothing about this while it was under his watch, [Easley] signed this thing while he was walking out the door.”
The order acknowledges that e-mails between executive branch employees are public records, as required by state law. It bans employees from deleting e-mails for a 24-hour period, which allows the e-mails to be saved during daily backups, and requires that e-mails be archived for at least 10 years.
The language is similar to a proposed order drafted by the plaintiffs in November and submitted to Easley. Grayson Kelley, chief deputy attorney general, argued in a memo to Stevens that the order “reflects a fair resolution of the issues and concerns raised by your clients in the lawsuit,” but Stevens said some areas still need clarification.
“It left open what happens and what the rules are with respect to a state employee who gets an e-mail and then decides to delete it,” he said. “Can they delete anything, and if so, on what basis?”
CJ editor Richard Wagner questioned the timing of Easley’s order, saying it effectively “dumped the whole mess in the new governor’s lap.”
“Now, Beverly Perdue must determine how her administration will deal with the issues,” Wagner said. “Carolina Journal and other media organizations that filed the lawsuit hope she will deliver on her promise to put transparency high on her list of priorities.”
John Drescher, executive editor of The News & Observer of Raleigh, one of the plaintiffs in the suit, said the executive order was “a big step in the right direction.” The N&O has recently tussled with Easley over a series of articles it ran on the state’s funding, delivery, and oversight of mental health services.
“I was glad to see the order, but there are still some details to work out, and of course there are also 10 parties in this lawsuit,” he said. “We need to get together as a group and with our lawyers.”
Perdue is still reviewing the order and evaluating whether changes need to be made, according press spokeswoman Chrissy Pearson. “I think that Gov. Easley did a good thing for the people when he issued that executive order,” Perdue said, according to a Jan. 13 Associated Press article.
Alleged Easley malfeasance
The lawsuit is partly based on an affidavit filed by Debbie Crane, former spokeswoman for the N.C. Department of Health and Human Services. Crane, who was fired by Easley in March, alleged that Easley’s staff instructed press officers from executive branch Cabinet agencies to delete e-mails to the governor’s office before the files could be saved.
“We were told that the preferred means of communication with the Governor’s Office was telephone, particularly if the subject of the communications were likely to be controversial,” Crane wrote.
“We were also instructed that if we did send e-mail messages to the Governor’s Office they were to be deleted from our computer’s “Sent Mail” box immediately after they were sent,” she wrote.
Crane alleged that Easley’s office gave “specific direction about some subjects,” including a policy of not returning phone calls from representatives of the John Locke Foundation, the nonprofit that publishes CJ.
The lawsuit was also based on a statement Easley made that he “chunked” a handwritten note from former DHHS secretary Carmen Hooker Odom that explained why she refused interview requests from the N&O. The note was a public record under state law.
“When I read something, unless it’s charts or something or budgetary stuff, when I read it I get rid of it. I throw it away,” Easley said in March, according to the N&O.
Unresolved issues
Although Easley’s executive order closely mirrors the media outlets’ suggested version, a number of differences remain. Stevens called most of the disparities “fairly rhetorical.”
The draft, for example, prohibits state employees from using state e-mail accounts “for political purposes or to conduct or correspond about a commercial business.” Easley’s order left out the ban on commercial business e-mails.
In addition, the draft permits state employees, after a 24-hour period, to delete e-mails that “clearly are unrelated to state business,” but the final order omitted that language.
“I have concerns about not so much what is said as what is unsaid,” said Stevens. “It left open what happens with respect to a state employee who gets an e-mail and then decides to delete it. Can they delete anything, and if so, on what basis?”
The order only applies to executive branch cabinet agencies and not to Council of State offices, such as the N.C. Department of Labor. That’s another concern, Stevens said.
“One of the things we would like to talk about is if we can agree on a policy that’s satisfactory for [Perdue’s] agencies, will she try to get the Council of State to adopt the same policies for all executive branch agencies?” Stevens said.
Perdue pledges transparency
Perdue made transparency a cornerstone of her gubernatorial campaign, and she has emphasized it during her first weeks in office.
“Government must be more accountable to the people,” she said Jan. 10 in her inauguration speech. “The state’s business must be conducted in the sunshine, to inspire confidence, not cynicism.”
On her first business day in office, Perdue signed two change orders addressing accountability in state government. The first directed the Office of State Budget and Management to create a Web site “that shows state management and spending on grants and contracts,” according to a press release from the governor’s office.
The second, an executive order, established “a citizen oversight panel to ensure government programs are using tax dollars in the most effective and efficient way possible.”
David N. Bass is an associate editor of Carolina Journal.