Digging deeper
The Atlanta Journal-Constitution began following the infighting, funding lapses and legal challenges plaguing the state’s ethics commission before the departure of chief Stacey Kalberman in June 2011 by reviewing documents and conducting interviews with staff and former employees of the agency.
Attorney General Sam Olens on Tuesday rejected the notion that his office hid a memo that showed Gov. Nathan Deal’s top aides pressured the head of the state ethics commission to settle cases against the governor’s campaign.
Both Deal and his Democratic challenger questioned why the memo only surfaced when revealed by The Atlanta Journal-Constitution on Monday. They weren’t alone. Lawyers for former commission employees who sued the state expressed anger that it had not been disclosed.
The memo was kept under wraps for nearly two years, despite Open Records requests from the AJC and demands for documents from attorneys in ethics commission lawsuits that could — or should — have brought it to light.
The AJC reported Monday that commission director Holly LaBerge drafted a memo in July 2012 documenting calls and messages from Deal chief of staff Chris Riley and chief counsel Ryan Teague. The pair had contacted her several times about the Deal complaints just days before the commission was to act on them. LaBerge says in the memo that Teague threatened the agency if she didn’t move to settle the cases without a public hearing.
LaBerge attorney Lee Parks said his client turned over the memo along with other documents Olens’ office requested as part of the discovery process in a lawsuit filed by LaBerge’s predecessor at the commission. The Attorney General’s office represented LaBerge and the commission in that case.
Olens, in a statement released late Tuesday, said the lawyers for former commission director Stacey Kalberman and her top deputy, Sherilyn Streicker, did not tailor their request for documents in a way that would have required his office to give them the memo.
“I recognize that this may seem like a technical response,” Olens said in the statement.
Veteran civil attorney Lester Tate said the memo should have been turned over to the plaintiffs’ lawyers.
“It’s my belief that at whatever time period this memo comes to light it would have been part of the file and the file was specifically asked for in discovery,” Tate, a former Georgia Bar Association president and chairman of the Bar’s panel that investigates complaints against lawyers, said. “I have a hard time seeing why the memo wasn’t turned over.”
Cheryl Legare, one of the lawyers who represented Streicker, also said the memo should have been disclosed.
“We believe the document withheld was responsive to this request,” Legare told the AJC. “We are also concerned under the circumstances that other relevant responsive documents were withheld.”
Streiker’s lawyers made their request for documents in the pretrial exchange of information, known as discovery. They asked for “all documents” that included complaints filed against Deal and “all files concerning the investigation of such complaints and all documents obtained as part of such investigations.”
But Olens said the memo did not concern “the investigation of a complaint, and it was not a document obtained as part of an investigation.”
Olens also said that Kalberman attorney Kim Worth’s request for documents for various “correspondence,” and LaBerge’s memo does not meet that definition.
Worth said she is “shocked and disappointed” by Olens’ decision.
“Ms. Kalberman requested the ‘entire Deal investigation file,’ which should have included” the memo.
“At this time, Ms. Kalberman is exploring her legal remedies,” Worth said.
Olens said he was frustrated that he is limited in what he can say about the situation because LaBerge remains his office’s client. He has asked LaBerge to waive attorney-client privilege, but she and Parks have refused.
He did, however, say he was concerned that LaBerge apparently did not turn over copies of emails she sent herself that included copies of text messages and emails she received from Riley and Teague.
“My office is taking immediate steps to learn why we never received the emails,” Olens said in a statement.
Meanwhile Tuesday, Deal and state Sen. Jason Carter, both of whom are lawyers, seemed to agree that the memo should have been seen before now.
“Why didn’t it come out until now?” Deal told the AJC. “Why were we all in the dark? I think it further proves they are an independent agency and my office had no personal knowledge.”
Carter, D-Atlanta, said Olens’ explanation that the memo wasn’t “responsive” to the plaintiffs’ request “doesn’t make sense to me.”
Deal and Carter differ, of course, about what the whole saga means.
Deal said Teague and Riley did nothing wrong in contacting LaBerge.
They “were simply urging the staff to proceed in a timely fashion rather than postpone it again,” Deal told the AJC. He said the fact that LaBerge complained about Teague and Riley shows the commission did not give Deal any preferential treatment.
Carter drew a different conclusion.
“It is clear now that there is a pattern of intimidation and interference on the part of the governor’s office into the investigation of his 2010 campaign,” Carter said. “It’s clear there was a coverup.”
Carter also questioned why Teague and and Riley, who are paid by taxpayers, were involved in negotiating settlements in cases related to Deal’s political campaign.
“You have the governors taxpayer-paid staff intervening on behalf of the campaign, and that’s inappropriate,” he said.
Deal spokesman Brian Robinson said the Deal’s office wanted the cases dealt with.
The case had dragged on for two-plus years, and we wanted to move foward,” Robinson said.
But the larger focus on Tuesday was on Olens and his staff.
“I don’t understand it,” Parks told the AJC. “If the theme of the case is that the governor’s office is putting pressure on Ms. LaBerge to get a sweetheart deal, it’s probably relevant.”
Parks said he believes the memo would have helped the defense and that Olens’ office chose to protect the governor instead of using it to their advantage. The cost was $3 million in taxpayer money paid to Kalberman, Streicker and two other former commission employees who had either filed their own lawsuit or threatened to do so.
LaBerge’s goal is to remain executive director and protect herself amid an agency audit and negative publicity that has portrayed her as beholden to Deal, who appointed her to the position, Parks said.
“We made sure (the memo) saw the light of day because the public needs to know that it wasn’t Holly LaBerge who was doing this,” Parks said. “It was the commission.”
But the memo could have been made public much earlier. LaBerge said she drafted the memo on July 17, 2012. Nine days later, the AJC sent LaBerge a request under the state Open Records Act for “access to and copies of all records, including interviews, audits, e-mails, faxes and any and all documents including case files” related to two of the cases against Deal.
LaBerge responded that the newspaper could review the documents once the case files were reviewed and redacted as required by law. But, when the files were inspected, her memo was not included.
The agency released thousands of pages of documents, but reporters from the AJC noticed some documents were missing, and after contacting Olens’ office, the commission agreed to release thousands of additional pages, including emails showing former staff members communicating with the FBI on the Deal case.
Still, the memo was not included.
“There is no legitimate reason to withhold the memo,” AJC attorney Tom Clyde said. “The commission should have produced it under the Open Records Act.”
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