Monday, March 16, 2009

E-maelstrom

Okay guys, that's the name of this scandal, at least as WCBF is concerned. I need something to tag these posts with and I just can't wait around anymore for the proper democratic process to provide a better idea. It's all happening too fast. So there you have it: E-maelstrom.

I think that's pretty good. It describes the email controversy AND the larger scandal-sucking vortex that the email controversy seems to be precipitating, which is what I'll be discussing at length in this post.

Fair?

Fair.

Many of us have been on the edge of their seats as confirmed and rumored reports of Federal raids and computer seizures have proliferated between City Hall whisperers and blogging interneters.

It's becoming increasingly difficult to differentiate known fact from unconfirmed report and reasonable speculation from straw grasp.

I won't promise to do that here but I will attempt to express a little bit of what I know, what I want to know, and what I expect to know.

If you've been reading the blogs this week, there's a certain difference between what has been discussed online and what has been good enough to print in the mainstream press. WWL, WDSU, the Times-Picayune, and the like aren't totally missing the boat. I think they're wise to be cautious. Certainly the Mayor's people are anxious to find bad reporting on which they can capitalize to obfuscate what's really going on.

But us web operators can help make up for whatever analytical boldness might be lacking in the mainstream press during these early public stages of what is clearly a very complicated scandal.

Mr. Clancy DuBos is straddling those two worlds quite nicely and has been a great read lately, particularly his coverage and analysis of Judge Ledet's court and the legal angle of the Council email leak element of this. In fact, his superb post today is the impetus behind my post now.

One thing we're all seeming to be in agreement about is that this is only partially about the 'unusual' leak of City Council's emails to Attorney Tracie Washington and the Louisiana Justice Institute.

Briefly for the uninitiated, Tracie Washington went around City Attorney Penya Moses-Fields and the normal protocol for a public records request by submitting a request for three years worth of Council's emails through Sanitation Director Veronica White. This occurred in early December, just hours after WWL's Lee Zurik submitted a request through the City Attorney for a year's worth of emails and calendar appointments from the Mayor. That request remains unfulfilled after the Mayor's office claimed that the emails had been lost or inadvertently deleted, though it is important to point out that city policy mandates that emails are backed up on a remote server every three months.

This was also amidst a political storm around Veronica White, who was clashing with Council over poorly kept records and her department's 2009 budget.

The Nagin administration and those associated with Washington's Louisiana Justice Institute have been couching the release of Council's emails as unorthodox and unusual but totally above board. Beyond that, they've described the controversy around the release of the emails as exposing the hypocrisy of Council's repeated calls for transparency from the Mayor's office.

In truth, there is no love lost between LJI and the Mayor's office. Washington has habitually expressed her distaste for Mr. Nagin and his destructive policies. But on this matter, the early noise in the press was pretty similar.

So why is it such a big deal that Council's emails were released anyway?

Well, if the records request had been fulfilled following proper procedures, nothing would have been wrong with it. We all have a right to see what our public officials have been doing with their time. However, because the disclosure of records was done without the knowledge of Council or Council's attorney, there could be any number of things released to the public that would have otherwise been redacted, and for good reason.

Email correspondence with federal law enforcement, email correspondence about federal investigations, email correspondence with whistle-blowers should be protected from public release because of the possibility of criminal obstruction of justice.

And as Clancy points out, there was likely correspondence between Council and Council attorney's about a lawsuit AGAINST the Mayor and City Attorney:

Why did Moses-Fields meet with Hatfield and Boyd to discuss how to protect privileged information? In fact, why did Moses-Fields get involved at this or any other point in a request for City Council records — particularly when she knew full well that the council has its own independent legal counsel? Moreover, she knew at the time that the reason the council hired its own lawyers is because it was considering litigation against Moses-Fields and her client, the mayor. Moses-Fields obviously knew or should have known that some of the council emails would contain attorney-client communications, which are privileged, and she also knew damn well that she had no right — and no authority — whatsoever to review or even to see those privileged communications, particularly when she is legally adverse to the parties and the attorneys who are engaged in those communications.


So there may be criminal activity involving the release of the emails at a number of contact points. Certainly a bigger issue would be that the Mayor's Office of Technology has direct 24/7 access to Council's email files. This seems like a huge breach of basic municipal separation of power and opens a lot of troubling doors. I can confirm from knowledgeable sources that many members of Council and Council staff have operated as though their emails were tapped and being read by the Mayor's people for some time. I can't accurately say if that means three months, six months, or twelve months but my best guess is that this has been going on for longer than the time line of the e-maelstrom scandal.

Yet, one wonders whether Councilors were as careful with their words one would think they'd be knowing that their correspondence was being read - given the excitement one can infer on LJI's end about the bounty of information that could be in those emails related to the demolition of public housing, the LSU/VA site selection process, or whatever other nefarious words or dirty deeds could have conceivably been discussed via email.

Nevertheless, it would appear to me that even in isolation of some of the other issues I'll get to in this post, the release of Council's emails by the Office of Technology and the Sanitation Director represents more than a procedural anomaly. Criminal behavior seems a very likely possibility.

Let's take a look at some of the players on the email leak side of things and see where that takes us in terms of the larger scandals to which we've been alluding...


1. City Attorney Penya Moses-Fields

Clancy's analysis seems pretty clear:

The law is crystal clear on this: attorneys who come into possession of adverse parties’ documents or communications that may be privileged have an ethical duty to notify the attorneys for those parties immediatelyand to avoid opening, reviewing or otherwise violating the privileges that attach to those documents or communications. So, why exactly did Moses-Fields admit to an intent to review (and perhaps actually review) emails that she absolutely knew contained privileged information and/or communications between an adverse party (the council) and that party’s attorneys? [snip]

Why did it take Moses-Fields, by her own admission, two weeks to notify the council’s attorneys that a public records request had been filed for documents that probably contained privileged communications between the council and its attorneys? What was she thinking? Or better yet, what was she reading?


Beyond that, Moses-Fields has already given a sworn deposition on the matter that is extremely vague but still exposes certain vulnerabilities depending on how facts play out. Either way, it is probably reasonable to speculate that Penya Moses-Fields could find herself in much hotter water than she's been in to date.


2. Louisiana Justice Institute Attorney Tracie Washington

City Council's own attorney Steven Lane has seemingly, on a few different occasions, largely exonerated Ms. Washington in terms of her role in acquiring the emails from Sanitation Director White. However, Washington has indicated in interviews that she's proliferated some of the emails to unknown people or groups that have asked for them. I'm not a lawyer but it would appear to me that she exposes herself to a certain degree depending on the parties to whom she passed on the emails and depending on whether she bares any legal responsibility for the content in the emails, whether she's read them or not.

The other issue for LJI involves optical perception. The narrative of events also lends to questions related to Washington's awareness of White's pull in the Mayor's Office of Technology. Washington's past willingness to get involved in Bill Jefferson's legal defense and other similar efforts has seemed to undermine her credibility on this issue as an impartial seeker of public records, even amongst some regular allies. On the other hand, Jay Arena has started a petition on her behalf that has seen low traffic but has yielded some high impact signatories, such as former Mayor Marc Morial and Color of Change's James Rucker.

(I don't think anybody is disputing Washington or anyone else's right to see Council's emails but the petition text seems to consider some of these legal issues to be totally without merit or implicitly directed at Washington herself, which makes no sense given that Council's attorney Steven Lane has repeatedly reiterated the legitimacy of Washington's request and has not alleged wrongdoing on her part that I'm aware of. In short, and as someone that has supported a lot of Washington's work around social justice issues and who has tried to understand the argument coming from the LJI side, I think that the communications strategy at work here is absolutely ludicrous given the legal nuance and the emerging federal criminal investigation. I also, however, would like the legitimate public information within Council emails pertaining to actual important stuff - like the LSU/VA site selection process - to be released as soon as possible.)


3. Sanitation Director Veronica White

White has drawn the brunt of the legal activity related to this case so far, as it has been confirmed that federal agents have seized her computers. White has retained the services of a high profile criminal defense attorney and the Nagin administration has not been as publicly protective of her as they usually are for employees that have come under fire in the past, including White herself on a number of previous occasions.

Given the tenuous political situation in which she found herself back in early December, many are suspicious that she maliciously circumvented municipal protocol and potentially broke the law in order to prematurely leak these emails as a result of her professional troubles with Council and personal troubles with Councilwoman Stacy Head in particular.

A couple of related unanswered questions:

(a) Did White communicate to Washington that she would be willing and able to expedite a public records request pertaining to Council's emails and how?

(b) Did White see any email content? [Especially important given that much of the most recent correspondence included was likely to pertain to her own performance as Sanitation Director]

(d) Who else was aware of the request and when? [Did White collude with other administration officials in the Mayor's Office of Technology or elsewhere in the administration to expedite the records request or view the data herself?]

Another issue for White, is an emerging investigation into a bodyguard assigned to her who has ended up aiding a recall movement against White's enemy Councilwoman Stacy Head. From my view, this is tangential. It's not totally irrelevant but doesn't necessarily appear to have much bearing on some of the other elements under consideration.


4. Chief Administrative Officer Dr. Brenda Hatfield


Dr. Hatfield essentially acts as the Mayor's Chief of Staff and is heavily involved in every function of the executive branch. She was present at many of the meetings about the Council email release and will likely have to corroborate the testimony already provided by Moses-Fields and otherwise disclose what she knew and when. The Mayor has delegated the responsibility of investigating the matter and recommending disciplinary action in this matter to Hatfield but it isn't entirely clear that Hatfield herself might be deserving of reprimand for, at the very least, being totally unaware of what was occurring between White and the Mayor's Office of Technology over a two month period.

She's certainly going to be asked what she knew and when she knew it. The known details of her involvement remain sketchy at best.


5. Interim Chief Technology Officer M. Harrison Boyd

In the deposition(pdf) given under oath by Penya Moses-Fields, it was on February 28th that someone from the Mayor's Office of Technology finally came forward to disclose that Council's emails had already been placed on CDs and released to Tracie Washington.

8. On February 28, 2009, the Director of the Mayor's Office of Technology informed the City Attorney's Office that at some point in time prior to February 28, 2009, he had provided Veronica White with one set of discs containing emails of the City Council.

It has been assumed that this is a reference to M. Harrison Boyd and this has been repeated in accounts in the mainstream press. I'd like to know if in fact anyone has explicitly confirmed that it was Boyd who produced the emails on discs to White.

The reason I'm skeptical is that it seems extremely counter-intuitive that Boyd, a recent hire from out of state, would knowingly take part in such blatantly legally ambiguous activity involving the emails of a separate branch of government.

Assuming that he was in fact responsible for obtaining Council's emails from the server, putting them on a disc, and handing that disc to White, well then he's going to be in some serious hot water. Some questions related to this scenario:

(a) Why weren't White's request for records on behalf of Washington greeted with skepticism?
(b) Were their orders to produce the emails from elsewhere in the administration?

However, I wonder whether the deposition refers to someone else entirely from the MOT, or if Boyd was holding himself accountable for the actions of another staffer within his department.

And that brings us to...


6. Former Chief Technology Officer and current Management Information Services Enterprise Director Anthony Jones

Now we're cutting closer to the heart of the matter.

It is believed, though it has not been confirmed by the mainstream press, that Jones' computers have also been seized by federal agents. Now, this could be because Jones was in fact responsible for the release of Council's emails, not Boyd as implied by the deposition of City Attorney Penya Moses-Fields. But it likely has a lot more to do with Jones' illegal activities during his time as CTO from 2007-2008. Both the Inspector General and a separate auditor contracted by the city have issued reports highly critical of Jones' conduct around the award of contracts related to the city's crime camera program.

From the Times-Picayune's David Hammer:

Last week, when the city's independent inspector general alleged years of questionable contracting and $4 million in overpayments for an often-inoperable network of crime cameras, Mayor Ray Nagin's administration released its own audit of the camera program. It focused almost entirely on the last two years of the project, when Jones was interim chief technology officer.

The most troubling findings by PFM Group of Philadelphia were that Jones filed false invoices to hide the camera project's costs, and accepted plane tickets to a conference in Colorado from a contractor that earned millions on the camera project in a no-bid arrangement. The report called those actions, which Jones denies, "potential misconduct and unlawful activity" and recommended that the city inform law enforcement.

Jones was demoted in August, mainly because he had falsely claimed to have a college degree. He also overstated the number of college credits he earned on at least one job application.


Jones is almost certainly going to be charged with several crimes, that is, unless he agrees to testify against others. What others?

That the Mayor's audit focused only on Jones' administration of the MOT and crime camera program is indeed quite telling.


7. Mark Kurt, Former Chief Technology Officer
8. Greg Meffert, Former Chief Technology Officer

Greg Meffert was a huge donor to both of Ray Nagin's mayoral campaigns and served as CTO and as something of a Deputy Mayor from 2002-2006. Kurt was a private sector associate of Meffert, was brought in by Meffert to serve in the MOT, and was subsequently named as Meffert's successor. The two gentleman, along with other private sector associates, are involved in a tangled web of insider contracting involving all aspects of the city's push to modernize technology and information systems under Ray Nagin. Blogger Ashe Dambala from American Zombie has cultivated a number of knowledgeable sources and has systematically broken down the graft starting in the summer of 2006 with the publication of a story detailing some of the contract trading and the existence of a corporate yacht owned by Meffert associates and enjoyed by the Mayor himself. He stayed on the issue through 2007 as the crime camera program was expanded and his breakdown of the IG's recent report helps illuminate the systemic corruption in the Mayor's Office of Technology.

Some areas in which contracts were handed out between associates of Meffert and Kurt involve the design and maintenance of several city websites - including the tax assessor's database and cityofno.com; the design, implementation, and maintenance of the city's short-lived wifi service; the design, implementation, and maintenance of the city's maligned 311 call system; installing and maintaining the crime camera system; maintaining city email servers across all departments including City Council; and much more.

The city contracts, which bilked the city out of tens millions of dollars or much more, provided affiliated individuals and corporations a spring board to national prominence and untold wealth.

Scariest is what we might find once investigations begin to reveal the lengths to which cronies went, not just to conceal their crimes, but first and especially to maintain the power necessary to continue to wring the city of every last penny though various no-bid and bid-rigged contracts. What we do find, we'll find first on American Zombie, so make sure to bookmark him.


9. The Honorable C. Ray Nagin, Mayor of New Orleans


Ray Nagin and Greg Meffert are neighbors on Park Island, an exclusive and obscure cul-de-sac off of City Park.


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Meffert and various associates from the city's fledgling IT community bankrolled Nagin's campaign in 2002 and his reelection in 2006 with tens of thousands of dollars in contributions.

The chief target of the federal investigation must ultimately Mr. Nagin. It has been reported on AZ but unconfirmed by the mainstream press that the Mayor's computers have also been seized by federal agents.

The ultimate legitimacy of all of these investigations and possible seizures will rest on whether or not US Attorney Jim Letten is able to gather enough evidence of collusion/conspiracy between the Mayor, Meffert, and Meffert's associates to file charges that stick. Thus, all the interest in the Mayor's email archives.

--

What is increasingly clear is that there is else behind the swift action by federal investigators in regard to the release of Council emails, something else that has is only tangentially related to this one procedural miscue by the administration.

(Though it does seem like there may be criminal activity involved with it specifically, possibly on a number of levels.)

Rather - and I this most certainly isn't the first time I, Clancy, Oyster, or Zombie have made this point - the council email release controversy is a convenient pretext to fast track an ongoing and incredibly grave longer-term investigation into the overall politicization and corruption of the Mayor's Office of Technology.

Perhaps more consequential in the most immediate short term is what this e-maelstrom means in terms of the operation of municipal government. Where there was once a high-tension environment toxic to coalition building, now it is probable that there is only totally demoralized gridlock. Even now, though the e-maelstrom has only begun to escalate, it is simply impossible to imagine Council being able to do anything in concert with the Mayor's office.

14 comments:

Clancy DuBos said...

E,
Great post. And I love the name e-maelstrom. It does indeed sum it all up, as does your analysis. For once, I'm happy to live in "interesting times."

Anonymous said...

Man, my blood pressure is up about 40 points after reading this info. No wonder Nagin hated the idea of an IG and transparency!!!

Anonymous said...

How about one more element for the timeline?: The transparency hearing on Thursday, February 19th? And then also the aborted hearing and events of of Wednesday February 25th and 26th? It's amazing how all of these dates run together.

Anonymous said...

Just one more comment - somone needs to point out the effect this will have on our city government. The City Council, especially folks like Head, Midura and Fielkow, have been - or were - extremely effective in terms of staying in touch with their constituents. It was not unusual for them to communicate by blackberry or email about a myriad of concerns. That has really been hampered I think; my guess is fewer citizens will want to email their councilmembers now knowing (or believing) that their emails could very well end up in some random third party's or authority's hands. Sad, not sure if that was an intended consequence (anyone recall the efforts of trying to reach past councilmembers or other current ones?) or an unintended one, but it's not just City Hall / Council relations and communications that will be chilled, it will also be those between the Council and the citizenry.

Jeffrey said...

Awesome one, E. You, Clancy, Oyster, Dambala, et al are tearing it open while connecting the dots. Love it.

A few points:
1. I love 'e-maelstrom' as well, but I think you need to own it by using it with definite articles or even as a standalone proper noun sometimes! Not 'e-maelstrom scandal' but rather just 'e-maelstrom.' Kinda like Watergate can be 'the Watergate scandal' or it can be 'Watergate.' :)

2. I've asked the question before, but I am still curious what you guys think: what does this do to recovery if/when this administration goes down--or is at least heavily tainted--by this scandal? Blogojevich is largely off the radar, Baltimore's Mayor has already gone down, so do we get to own the tag of corruption again just as we are trying to turn a corner or real recovery?

3. Perhaps most importantly: E, your final point may be true, but perhaps we can bend it in the opposite direction. While this is most certainly the end of any productive relationship between the Mayor and council, it could also be the opportunity many of us have been waiting for to form new coalitions and enact new changes. NOLAStat comes to mind...

jeffrey said...

I like this post mostly because it includes the phrase, "blatantly legally ambiguous activity"

But also for other reasons.

E said...

Jeffrey1,

On point one, you're definitely right. Calling it the e-maelstrom scandal is cowardly. It is simple the e-maelstrom.

Point two sounds like a good post idea. I'll have to revisit that.

Point three is interesting and certainly the leadership vacuum has created room for progressive change - but not until May of 2010, when we're assured a new administration.


jeffrey2,

you're slaying me.

Anonymous said...

Jay Arena didn't start the petition supporting Washington. His is only the first signature.

E said...

Anon, can you tell us who started it?

Generally, the person who starts the petition gets the ball rolling with the first signature but I concede that it's possible that isn't what happened in this case.

bayoustjohndavid said...

Great post, but, as I've joked in the past, the Park Island Gang is bigger than Nagin and Meffert. Morial, Glen Haydel, and possibly Jimmie Woods (I found two listings) all live, or have lived, there. I've always said that the rift between Nagin and Morial looked more like a battle for control of graft than than a feud between a corrupt pol and a reformer.

Anonymous said...

Ok, so, how about just that last point - is Nagin covertly a Morial guy or a Jefferson guy? The last couple years it seemed to me he had been a Jefferson guy. Maybe he just fell into his orbit, or maybe he just always was, don't know. - It just seems to me that those backing Nagin and Veronica White and those opposing Stacy Head all seem to be funnelling or merging into one. Washington (anti-Head on projects and other issues) corresponds with WHITE (anti-Head on garbage contracts) just *two or so hours* after Zurich sends in a public records request (see DuBos timeline), and Nagin IT (Nagin/Meffert, etc.) it turns out deletes Nagin emails (Zurich request) and delivers Head/Midura/Fielkow emails (Washington request) to Washington and LJI, and who then should start a recall-Head movement but a police officer (NOPD/Riley/Nagin) with help from Malcolm Suber (projects, anti-Head) and Berryhill in what else, Gill-Pratt's (girlfriend of Mose J., and minion to $Bill) old district. Is this all convoluted and coincidental, really?

Anonymous said...

Sorry, of course I failed to mention that Washington was a key player in Jefferson's legal defense fund. And so was Nagin's brother in law.

http://www.blog.citizensforethics.org/node/28925

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