In what can only be described as a bizarre and controversial decision, City Attorney Pat Richardson stopped the investigation into the complaint filed by Councilmember Kelly Maloney against Mayor Skip Priest.
The investigator, hired by Richardson, expressed a concern about the investigation being used for political purposes, and since it involved public employees and public money, felt that it might be assisting a campaign.
The investigator makes that point in two ways. First, that Maloney told the mayor’s opponent about the complaint, and secondly, that the complaint was in the newspaper.
In the structural alignment of the city council, Maloney was telling Deputy Mayor Jim Ferrell, the leader of the council. While Ferrell may also be the mayor’s election opponent, that is who she is supposed to tell, and the city attorney should have told the investigator that.
The mayor’s opponent declined comment on the issue. Maloney also declined comment until the mayor’s communications staff put out a press release quoting the mayor. Only then did Maloney give a quote. The complaint and completed report are within the public domain and were properly released after The Mirror requested copies. If any citizen knew they existed, all they had to do was ask for them. And with all the procedural steps and several interviews that are part of a investigation, there was never any likelihood that this investigation would remain secret. And it shouldn’t — not if City Hall truly supports transparency.
Under the investigator’s apparent reasoning, no elected official or appointed staff could investigate, or be investigated, or be prosecuted for misconduct, because the investigation might surface in a campaign. These are simple questions and should have been easily dismissed by the attorney’s office. For example, the city attorney didn’t question that the mayor used staff-produced police statistics in his re-election announcement. It’s the same principle.
Then the mayor’s communications manager, Chris Carrel, issued another press release that said: “Due to the concern expressed by the investigator about a possible violation of state statute, the city attorney consulted with the Public Disclosure Commission (PDC) which confirmed that concluding the investigation probably prevented a violation of state law”.
That’s not quite what they said. The commission’s written record of the conversation with Richardson says: “I explained the definition of normal and regular conduct and said that so long as the city staff’s actions meet the definition, they don’t have to worry whether the other actors (candidates, media) might make political use of the city’s work product — e.g., public records or an investigative report.”
In layman’s terms, as long as everyone is doing their official job, there is no legal violation. Again, this raises the question as to why the city’s legal staff even raised the question. There had not been a violation up to that point. The city attorney then apparently made the judgment that continuing the investigation might jeopardize the process. If the city hadn’t committed a violation at that point and they would be doing more of the same thing to try and find a conclusion, then it seems unlikely that a violation would result.
However, the city points to a sentence from the PDC that says “extending the scope could violate state law.” The operative word is “could.” Of course it could, but the city controls the scope. They should be capable of avoiding directions that break the law. And the PDC advice was not direction or approval to stop the investigation. The city attorney made that decision.
And the city didn’t tell us, or apparently the PDC, what extension they might have been considering. The city effectively stopped an important investigation because they couldn’t scope an investigation of “the mayor’s behavior in the work place” without breaking the law. Richardson’s decision to end the investigation appears questionable, and her interpretation of the PDC language invites debate.
Next week: faulty direction misses key complaint areas.