Tapes to be subpoenaed; Buttigieg claims he is thrilled; Council releases questionnaire
SOUTH BEND, Ind. – Cassette tapes made of recorded telephone calls that are said to contain unethical, racial and possibly criminal content, at the South Bend Police Department will be subpoenaed. The decision came by way of a nearly-unanimous vote by the South Bend Common Council; Gavin Ferlic was the lone dissenting vote.
Mayor Buttigieg, claimed to be thrilled about the outcome of the vote.
“I’ve said all along that I am not comfortable doing something when reasonable people disagree about whether it’s a felony; but one way to get a clear green light for that would be if there was a court order backing the subpoena,” said Buttigieg.
Buttigieg seems to have grown into this more cautious approach to not wanting to make a bad decision.
Four months ago, he demoted the Chief of Police and fired a city employee with 25 years of service to the city and not one disciplinary action in her record, all because an attorney may have believed they committed a crime.
It turns out that same attorney eventually decided they did not commit a crime, and explained the investigation into their actions did not warrant charges, but by then Buttigieg had already pulled the trigger.
Now Buttigieg would like us all to think this is what he has wanted all along, and to a degree perhaps it is.
Buttigieg has said on the record that he wants to know what is on the tapes, and that he would even release them if he could legally do so.
Many have tried to show him how the recordings were done legally, and how he could release the tapes without fear of drawing civil action against the city (something the wiretap act does not allow to begin with).
But Buttigieg has refused to accept anyone else’s advice.
For someone who wants to know what is on the tapes so badly, why didn’t he go to the courts right away to determine if he could release them?
It has been more than four months since this all began, and six since he found out about the investigation itself.
Why did we have to wait for the Common Council to force a subpoena to get this issue in front of a judge?
Still, Buttigieg claims this is what is needed, even if he played no role in making it happen, other than as an obstacle.
When asked if he would decline the subpoena immediately, Buttigieg was as evasive as ever.
“I need to check in with legal counsel to make sure that everything is being done correctly,” said Buttigieg.
In a strange twist, Buttigieg insinuated that the public’s interest in him releasing the tapes is somehow detrimental to the City.
“Every day people are obsessing about this does not create one job, does not fix one abandoned house, and it doesn’t save one life. I think everybody in the community, whether they agree with the way I have handled things or not, believes that the community needs to move forward; and so to the extent that this makes that possible, could wind-up being a good thing,” said Buttigieg.
But the question remains, if releasing the tapes did clear the air and magically jobs were created, abandoned homes were fixed, and lives are saved; why has Buttigieg not gone down this road on his own already? Why did he need to be forced down it?
The vote that is forcing Buttigieg into action came just moments after two documents were made public by the Common Council.
Those documents included a timeline of events and council actions leading up to the vote, and a list of 12 items the officers of the Common Council had requested Mayor Buttigieg provide; of which 3 were provided.
The items were requested were labeled “essential” for the common council’s legal counsel to review, and consisted mostly of documents.
The interim City Attorney, Aladean DeRose, replied to all of the council officer’s requests in writing on behalf of Mayor Buttigieg.
The first thing requested was any documents sent to United States Attorney David Capp; as well as any documents received from him other than the letter on May 31, 2012 which he sent to Tom Dixon.
DeRose provided a copy of the letter Capp sent to them, and claims no documents regarding former Chief of Police Darryl Boykins or former Director of Communications Karen DePaepe have been sent to him in return.
She does not indicate if, or provide any documents of, correspondence unrelated to Boykins or DePaepe occurred in respect to the legality of practices at the police department.
The second item the council wanted was any documents sent to or received by Mary Hatton, the woman who handles press inquiries at the U.S. Attorney’s Office for our area, and the person that the council was directed to for information in a letter dated April 12.
DeRose indicated that no documents were sent to Hatton, and that her name was provided to the Mayor’s Chief of Staff, Mike Schmuhl, as a person within the U.S. Attorney’s Office who could respond to the press.
Hatton, while physically capable of responding to press inquiries, cannot confirm, deny or comment on any ongoing investigation the U.S. Attorney’s Office is or has conducted; unless there are public documents generated by the creation of a case file. So far, no case file has been created.
Next on their list of things was any written relevant communications prepared by the City, other than a news release dated March 29 and two others dated March 30.
According to DeRose, no other relevant communications were prepared by the City other than those identified.
Apparently, all of the press releases regarding inquires into the recordings and the way the mayor has handled the removal of Boykins and DePaepe, or any of the seven civil suits the city is facing, that have been sent to our newsroom, and the several other media outlets in the market over the last four months, are irrelevant.
The fourth item asked for was the factual and/or legal summary Buttigieg relied upon when making his decisions, which may have been in addition to the facts set forth in the letter sent by Capp on May 31 indicating Boykins and DePaepe did nothing that warranted federal charges.
DeRose replied that Buttigieg did not rely on any factual or legal summary in making his decisions about Boykins or DePaepe. Instead he relied on oral reports from herself; Rich Hill, an outside legal counsel selected by Buttigieg personally; and Mike Schmuhl.
Next on the list of information the common council was seeking was a copy of all correspondence and instructions which the City sent to the Department of Justice (DOJ), and/or the Civil Rights Division of it, regarding the tapes and any other items which were sent. They also wanted to know who sent them, as well as the date and if they have received any correspondence back.
According to DeRose, all 13 cassette tapes (the five original tapes, 5 copies of the originals, and three copies of copies) and two letters were sent to Thomas E. Perez, Assistant Attorney General. They were dated June 4, 2012 and July 19, 2012. The City has not received any response to their letters.
The council also wanted any documents and/or legal authority which Buttigieg used to verify that the two city employees would not be prosecuted by the DOJ if he made “policy changes.”
No documents or legal authority were used, according to DeRose, and that he relied simply on the word of those who attended the March 23 meeting with Capp.
Mayor Buttigieg has gone out of his way to frame his decision as what kept Boykins and DePaepe out of jail.
According the letter he sent Boykins and DePaepe, Capp was clear; the result of the investigation did not warrant charges.
Note, he did not say that he used prosecutorial discretion, and chose not to charge them with a crime.
This distinction is vital as that is exactly what the Mayor’s Office and DeRose have repeatedly claimed he has done; even though such a statement does not appear in any documentation received by the City or the individuals involved.
The seventh item the council wanted was a copy of new written policies for recording of data and the date they took effect.
According to DeRose, there are no written policies, even today.
Instead, the City issued a directive to the Department of Information Technology to cease recording of all phone lines with the exception of 911 emergency calls and dispatches.
The IT department complied on March 30 at 12:46 p.m. and according to DeRose 911 and dispatches are the only recording systems active in City government.
This effectively shut down the recording system that was installed with the Voice Over IP (VOIP) address system was installed at the city and that had been running for three months.
Oddly enough, despite what DeRose claims today, a line at the fire department was still being recorded in April – May, and may still be recorded today. The line was set up to be recorded in order to capture the decisions firefighters made when offered overtime shifts, according to Fire Chief Stephen Cox.
We confirmed the phone line was still being recorded with Cox at a Mayor’s Night Out event, after March 30.
The eighth item council was looking for was any written reports from the FBI, US Attorney’s Office or other governmental entities which states that the policies and/or recordings were illegal. They asked that any civil/criminal sanctions be highlighted.
DeRose responded by telling them, no such written reports, if they exist, have been provided to the City.
The City has never been shown proof that Boykins or DePaepe broke any laws.
DeRose claims that City Officials, we can only assume she means herself and Schmuhl, were informed by Capp of impropriety regarding the recording of phone lines at the department, during the March 23 meeting.
Note Capp used the word impropriety, meaning improper; erroneous; or inappropriate; not illegal.
Onto the ninth item the council wanted, which was the date when the City was officially notified of the results of the federal investigation and how such notification took place, and if it was by any written means they wanted a copy of it.
DeRose explained that the city was notified on March 23, by Capp and other of his staff. During the meeting Capp informed DeRose, Schmuhl, and Hill, that the investigation was over and that his office believed that improper practices were occurring at the police department.
It was his opinion, that the practices were improper.
Capp also informed them, according to DeRose, he was not going to do anything for 60 days.
This gave the City 60 days to rectify the practices Capp believed to be improper.
After 60 days, Capp informed them, he would determine if the problem was fixed.
60 days later, Capp wrote to Boykins and DePaepe informing them they had done nothing that warranted charges.
Mayor Buttigieg has maintained this is because he removed them from their positions, but as you may have noticed, Capp never mentions anything about making personnel changes, but is very clear when it comes to making changes to practices.
The tenth item on the council’s list of 12 is a listing of all of the people Buttigieg has directly talked to regarding the investigation prior to making his decisions regarding Boykins and DePaepe.
DeRose claims the only people Buttigieg has ever talked to about the investigation prior to deciding what to do about Boykins and DePaepe, are his Chief of Staff and his attorney’s.
She makes light of the fact that the mayor did not keep a diary of who he talked to, then cites attorney-client privilege when refusing to tell the council where and when Buttigieg had conversations with his attorney’s.
The eleventh inquiry may have resulted in the most interesting response.
The council wanted confirmation of who notified then Chief Boykins of Buttigieg’s decision and how it was done; including the date and time that notification took place.
DeRose wrote, “Chief Boykins resigned from his position on Tuesday, March 27, 2012. Mayor Buttigieg called Chief Boykins on Thursday, March 29, 2012 to indicate that he had decided to accept Chief Boykins’ resignation as Chief of Police.”
It clearly doesn’t answer the council’s question; who notified Boykins of Buttigieg’s decision to remove him from his position.
DeRose would have us believe that out of the blue Boykins up and resigned.
We know this not to be the case, based on interviews conducted with Boykins himself.
Several sources have indicated that it was one of Buttigieg’s staff, likely Schmuhl himself, that gave Boykins an ultimatum, that may or may not have included the threat that if Boykins didn’t do what they wanted, he would go to jail.
A similar incident occurred when Karen DePaepe was fired, according to the former Director of Communications for the Police Department.
During her termination meeting, Schmuhl allegedly told her that if she talked about the investigation she would be arrested, according to DePaepe.
The final piece of information the council wanted to know was if there were any other officers in the Police Department notified of the results of the investigation, and what plans were immediately implemented.
DeRose explained that within two weeks of the meeting she and the others attended on March 23, Boykins and DePaepe were notified of their demotion and termination respectively.
It should be noted that it was 12 business days, or 18 actual days from the meeting on March 23 and DePaepe’s firing on April 10.
DeRose neglected to answer the other part of the question; if any other officers in the department were notified of the results of the investigation.