Taxpayers’ Costs Mount in Fight Over State E-mails
St. Louis Post-Dispatch – Copyright 2008 St. Louis Post-Dispatch
By Jo Mannies
The continuing battle over how Gov. Matt Blunt’s office has handled government e-mails is going to be costly for Missouri taxpayers.
This week, the governor hired three members of a St. Louis law firm – at $210 to $370 per hour – to defend him against a lawsuit filed by a fired state lawyer, Scott Eckersley.
Public money also is paying for private lawyers hired by four current or former aides to Blunt who are defendants in the lawsuit, state records show.
Eckersley contends in his lawsuit, filed in January, that he was fired as Blunt’s deputy counsel after raising concerns that the governor’s staff was intentionally destroying e-mails that should be preserved as public records. Blunt has maintained that Eckersley was fired for unrelated reasons.
Asked why Blunt needs to hire private lawyers, a spokeswoman for the governor said: “This office has said it’s not going to provide daily running commentary on the events and strategies of this frivolous lawsuit.”
The public cost likely will go far beyond attorneys’ fees.
Attorney General Jay Nixon, a Democrat often at odds with the Republican governor, authorized an investigation into the e-mail allegations. When the investigative team asked the governor’s office to produce close to a year’s worth of e-mails on various topics, the team was told that it would have to pay more than $500,000 to obtain the documents.
The money is necessary to pay for staff time to review and produce the administration’s e-mails, one of Blunt’s attorneys said.
That left investigators furious.
“We don’t believe that we are required to pay the same government for public records or documents that should be part of the public domain to begin with,” said Chet Pleban, a St. Louis lawyer representing the investigative team.
Taxpayers also will foot the bill for private attorneys and others hired by Blunt and Nixon in connection with that probe.
Pleban is being paid $140 an hour. The two other members of the investigative team, retired Highway Patrol Superintendent Mel Fisher and retired Lt. Rick Wilhoit, are being paid $75 and $50 an hour, respectively.
Blunt’s office declined to say how much is being paid for his special counsel, John Holstein of Springfield, Mo.
Holstein, a former judge on the Missouri Supreme Court, would say only that he is being paid by the state.
HEFTY PRICE TAG
Last September, Blunt’s aides set off a furor when they acknowledged they were routinely destroying e-mails and did not consider them to be public records.
But state law says government e-mails can be public records and that some must be preserved for as long as three years. Blunt has since acknowledged that some e-mails are public records.
After Eckersley’s allegations surfaced, Nixon appointed the independent investigative team last November.
In a letter obtained this week by the Post-Dispatch, Holstein told the investigative team that it must pay $540,940 to obtain e-mail records from the governor’s office.
Holstein wrote that the team’s 45 open-records requests for specified e-mail communications in Blunt’s office will require 14,620 hours of staff time.
Those hours, calculated by the state Office of Administration, are necessary to retrieve and review backup e-mail disks from 43 office e-mail accounts going back to last Aug. 17, the lawyer said.
The number of hours breaks down to just over seven years of one employee’s time, working eight-hour days, five days a week.
Pleban said the charges were unreasonable. “We are part of a governmental body investigating issues of public importance,” he said.
Another point of concern for the team: It asked for e-mail records going back to Jan. 1, 2007, but Holstein’s letter indicates that many of those e-mails no longer exist.
Holstein said in an interview that e-mails still on computers as of Aug. 17, 2007, could be retrieved on backup tapes. E-mails no longer on state computers on that day are not available, he said.
Holstein demanded a deposit of $135,235 before the governor’s staff and the Office of Administration would begin work to comply with the team’s request.
Holstein said in an interview that the price reflected “tremendous time and costs” required to fulfill the request.
Earlier this year, the governor’s office told the Post-Dispatch and The Associated Press that open-records requests the two organizations had made would require payments of more than $23,000 apiece.
Such high price tags concern Charles Davis, executive director of the National Freedom of Information Coalition, a nonprofit group based in Columbia that advocates for open public records.
“It boggles the imagination that it would require 15,000 hours worth of staff time,” Davis said. “What they’re saying is, ‘It’s going to take years to retrieve these e-mails.’ If indeed that is the case, then the problem is much larger than retrieving e-mails.”
Davis contended that such hefty bills to news outlets and other government entities reflect “the exact same obstacles” that often face average people who drop their government open-records requests when they’re told of the high cost.
“It’s a national problem,” Davis said. “There’s no such thing as a ‘free lunch,’ but retrieving government records shouldn’t cost $500,000.”
Pleban said Blunt’s payment demand means that the investigative team won’t be able to complete its work and file a report by the March 17 deadline set by Nixon.
Blunt spokeswoman Nanci Gonder said the governor’s office continues to question the authority that Nixon had to initiate such a probe. The governor and the state Republican Party have repeatedly challenged the team’s independence because Nixon is the likely Democratic nominee for governor.
Nixon repeatedly has said he has no contact with the team.
FIVE LAW FIRMS TAPPED
In the Eckersley case, the governor and his four former or current aides each hired a different law firm.
Documents provided Thursday under an open-records request show that Blunt’s legal team is with the Bryan Cave law firm. The paperwork was signed by firm partner Jerry Hunter, a prominent St. Louis lawyer active in Republican circles and a past campaign contributor to the governor.
The contract, signed Wednesday by Blunt’s chief of staff, states that Hunter’s rate is $370 an hour. The same rate is charged for fellow lawyer Robert Hoffman. Another member of the team, Travis Kearbey, is to be paid $210 an hour.
Pay rates were unavailable Thursday for the firms hired for the four other defendants: former Blunt chief of staff Ed Martin, former general counsel Henry Herschel, current communications director Rich Chrismer and current deputy commissioner Richard AuBuchon in Blunt’s Office of Administration.
But documents confirm that the state is paying the legal bills for all four.
St. Louis lawyers with the firm of Spencer Fane Britt and Browne are representing Martin, while the Clayton firm of Dowd Bennett is defending Herschel.
The law firms for Chrismer and AuBuchon are based in Kansas City. Chrismer’s is Seyferth Knitting & Blumenthal, while AuBuchon’s firm is Ogletree, Deakins, Nash, Smoak & Stewart.
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LAWYERS ON THE CASE
Gov. Matt Blunt’s private lawyers: Bryan Cave law firm, St. Louis; John C. Holstein, Springfield, Mo.
Representing former Blunt chief of staff Ed Martin: Spencer Fane Britt and Browne law firm, St. Louis
Representing former chief counsel Henry Herschel: Dowd Bennett law firm, Clayton
Representing communications director Rich Chrismer: Seyferth Knitting & Blumenthal law firm, Kansas City
Representing Office of Administration deputy commissioner Richard AuBuchon: Ogletree, Deakins, Nash, Smoak & Stewart law firm, Kansas City
Lawyer for special investigative team created by Attorney General Jay Nixon: Chet Pleban, St. Louis