Subpoena deadline expired; Buttigieg refuses to turn over tapes
SOUTH BEND, Ind. – Another legal deadline has come and gone in the telephone recording scandal surrounding the police department and the City of South Bend.
Thursday a subpoena served to Mayor Pete Buttigieg expired; automatically denying access to recorded telephone conversations that are said to contain unethical, racial and possibly criminal content according to Karen DePaepe, former Director of Communications at the police department.
In August, Buttigieg; his interim City Attorney, Aladean DeRose; and his Chief of Staff, Mike Schmuhl; met with the Common Council and their hired attorney E. Spencer Walton, Jr.
According to those in attendance, the administration agreed to accelerate the process and resolve the issue quickly.
When Walton served Buttigieg with a subpoena the next day, it gave a seven day window to respond; but Buttigieg had other plans.
Nearly two weeks after the subpoena was served, and five months of having them in their possession, the City filed a request for declaratory judgment with the federal courts; seeking to determine if the recordings were legally recorded.
Thursday, Walton spoke with Edward Sullivan of Fagre Baker Daniels, yet another attorney working for the City; recently added with the initiation of the federal case.
Sullivan informed Walton the City would be denying the subpoena and not turning over the recordings.
Friday, the council attorney and the city clerk will file a motion in St. Joseph County Circuit Court.
The legal battle will determine if the Administration has to turn over the tapes because state law grants investigative powers to the Common Council.
It may also rule on the legality of the recordings themselves, as there are state laws dealing with recorded conversations as well as federal laws.
U.S. Attorney David Capp has already decided the recordings did not warrant federal prosecution, after discussing the matter with experts in the Department of Justice.
He then returned the recordings to the City.
Buttigieg has since had the tapes shipped off to Washington D.C. in hopes of having the Civil Rights Division of the Department of Justice look into the content and inform him if there were violations.
Two months later the DoJ shipped the tapes back to the Mayor explaining that kind of investigation is not what they do, and even if it was the Interim City Attorney failed to provide them with enough reason to investigate in the first place.
Now Buttigieg claims he has the tapes under lock and key in a safe deposit box; while original recordings are thought to still be on the server that holds all the recordings made at the police department for three years.
Digital backups of the recordings are also in a newly purchased fire proof safe at the police department; prior to that they were in a locked desk drawer.
The filing of the motion in Circuit Court will start a legal ball rolling.
Walton expects a hearing will be set within 10 days and at that hearing, both sides will hash out how long they will need to put together a response as to why they do, or do not, feel it is legal to turn over the recordings to the council.
Walton suspects the City could ask for an additional 30 days to accomplish this and, despite knowing this was the next step, will use all of them before filing their response.
In the meantime, that initial hearing would be held around the time the federal judge is allowed to begin trying to sort through the legality of the tapes at the federal level.
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EN-US;mso-bidi-language:AR-SA">According to Walton, the legal strategy will be to pursue both cases simultaneously. “We didn’t choose to have the US District Court involved but they are, so our strategy here is to go with both cases and see whichever ruling comes first,” said Walton.