City asks to put council lawsuit on hold while federal court decides

SOUTH BEND, Ind. – Interim-City Attorney Aladean DeRose filed a motion in St. Joseph County Circuit Court Thursday that could put a halt, at least for now, to the Common Council’s legal battle to obtain recorded conversations made at the police department.

The motion to stay proceedings asks the court to hold off on dealing with the lawsuit brought on by the failure of Mayor Buttigieg to turn over the recordings in question, after a subpoena for them expired.

In August, Buttigieg verbally agreed to settle the matter of turning over the tapes in local Circuit Court according to Common Council members.

Part of that agreement was to expedite the process by rejecting the Council’s subpoena within seven days of receiving it.

Buttigieg would later renege on this alleged agreement and 10 days after receiving the subpoena tell the media that he was going to exercise his right to respond to it within 30 days, as given to him by state statute.

Just days before the subpoena’s expiration, the Mayor’s Administration announced they had filed a complaint for Declaratory Judgement with the federal courts; seeking a ruling on the legality of the recordings as well as sharing them with the council.

Monday, the local circuit court is scheduled to meet with attorney’s for the City and Council to discuss the dispute related to Buttigieg refusing to turn over the recordings.

State statute grants the Council the ability to conduct their own investigations; they are using that ability to look into the Mayor’s actions behind making personnel changes at the Police Department, including the demotion of the City’s first black Chief of Police and the termination of a 25-year veteran City Employee working as the Director of Communication for the department at the time.

Since the Mayor began these personnel changes, he has maintained that his legal advisors have told him it was illegal for him release the tapes or even listen to them.

Not until Thursday have we been given the specific rational behind that advice.

In her motion to stay proceedings, DeRose lays out several facts and concerns she has.

She addresses the items at the center of this controversy, the tapes themselves, explaining how all 13 cassettes (a set of 5 originals, a set of 5 copies of the originals, and a set of 3 partial copies) were subpoenaed by federal investigators, taken into evidence and then returned to the City after U.S. Attorney David Capp found the actions of Boykins and DePaepe did not warrant prosecution.

DeRose states that Capp “exercised discretion not to prosecute,” even though that has never been officially stated or proven and is the current position held by the Mayor and City Administration.

DeRose also points out that these tapes have been in the hands of the Department of Justice twice (once as evidence in an FBI investigation, and once delivered to the Civil Rights Division by mail), only to be returned twice.

Some believe the tapes were returned because they were legally created, pointing out you would not give a bag of cocaine back to someone just because you decided not to charge them with a crime.

DeRose admits the only information known to the City Administration is a letter from U.S. Attorney David Capp in which he encourages the City, “to implement a review system designed to ensure that both the Department’s telephone recording policy and the actual practice or recording remain in compliance with federal and other applicable laws,”.

City Administration is taking credit for solving a policy problem that was never official declared a problem; rather U.S. Attorney Capp thought there might have been a violation and instituted an investigation; but since no one was charged, and since he has never indicated what the problems were (if any), it is anyone’s guess if the changes the City Administration made to the policies are any more legal than the old policies were to begin with.

Yet, the policy changes have been a feather in the Mayor’s cap, as he has touted them and his decisions to demote Boykins and fire DePaepe as the chief reason they were not prosecuted, despite any official statement from Capp to back up that claim.

Meanwhile, DeRose argues in her motion to stay that there is precedent for putting the Council’s legal battle on hold while the legality of the tapes are determined by the federal courts, and this time provides case law to back up her argument; something she was unable or unprepared to do a month ago when the Council’s hired attorney, E. Spencer Walton, Jr., held a closed door meeting with the Mayor and his legal team to explain why he felt the tapes were releasable.

DeRose argues that the court can grant the stay as a matter of equity, and it may be granted if it can be shown there is another action pending that will be diligently prosecuted by the movant; as in Horman v. Hartmetz, a case from 1892.

She also argues that the court may grant a stay based on the interests of judicial economy, as the Indiana Court of Appeals did in 2000 with Child Advocates, Inc. v. Clark.

DeRose then goes on to lay out her understanding of the Wiretap Statute, and the exceptions to it that may apply to the situation involving Boykins and DePaepe; mentioning case law we have told you about several times now, Amati v. City of Woodstock (7th Cir. 1999). She contrasts that case with another from 2000, Abbott v. Village of Winthrop Harbor.

In both cases leadership at the police department end up recording phone lines and officers didn’t know they were being recorded or were under the impression they were not.

In both cases leadership at the police department made comments relating to what was overheard on those recordings which led to the claims of wiretapping and lawsuits.

In Amati it was ruled legal for several reasons, but DeRose chooses to focus on a few aspects of the ruling that gives us a glimpse into where the City Administration is coming from.

DeRose writes, “the Amati court pointed out that the “ordinary course” exception would not protect calls that were recorded as a “device for intimidation, suppression of criticism, blackmail, embarrassment, or other improper purposes.”

Recently, a group of law enforcement officers have filed a federal civil suit against the City, Boykins, DePaepe and her attorney, and in it accuse Boykins of planning to use the recordings against officers who were “disloyal.”

In previous press conferences, Mayor Buttigieg has never once indicated that he has been impartial in his opinion of what happened, and has repeatedly been vocal about relying on impressions relayed to him from his subordinates on what may have happened according to accusations made by this same group of individuals.

Instead of requiring proof, and relying on the justice system to take its course, Buttigieg acted as if the allegations were true and has not once indicated he believes otherwise; all the while hiding behind comments like, “I’m not a legal expert…” and “if you come that close to being charged with a crime…” which is ironic because you either are charged or you are not charged, there is no grey area as much as the Mayor would like to create one.

Ultimately, whether the tapes were legally made or not, DeRose has other issues when it comes to turning them over to the Council.

She argues that, “even if the tapes at issue were properly recorded, an issue arises as to whether City officials can release the tapes to the Common Council, and by implication, to the media, to citizens, and anyone else.

What she is saying is if they turn the tapes over to the Common Council they become a public record and we all can get at them.

He concern is in violating the disclosure portion of the wiretap law; she believes the recordings are disclosable between and among police officers for “proper performance of the official duties of the officer making or receiving the disclosure.” She cites the quote portion as coming from the wiretap act.

She also believes recorded conversations can be shared, “while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision hereof.” Again, she cites the wiretap act for the quoted portion.

It is this second option for disclosure the Common Council could apply by having the individuals involved provide testimony, since they are a valid “political subdivision.”

DeRose provides a criminal case (even though this case is a civil case in nature) as an example of when one court granted the media access to wiretapped conversations, and another revoked it.

In her conclusion, DeRose wrote the City Administration is in no way advocating for or against tape disclosure, and insisted they are instead advocating, “prudence, caution, and deference to another judicial tribunal where these entirely federal issues can be assessed and determined under established federal jurisprudence.”

The final portion of her statement was a clear shot at the circuit court judge, reminding him of his place.

In the near future we will find out if the judge grants the City’s motion to stay, or if he moves forward with dealing with the Mayor’s failure to follow state law.