LAUREL PARK — Public records in one Henderson County town were deleted by a former commissioner in apparent violation of North Carolina law, Carolina Public Press has learned during an ongoing investigation into a controversial town project.
CPP has been looking into allegations from residents of Laurel Park about the federally funded development of Rhododendron Lake Park. During the first phase of that park’s development, the town received funding from the Army Corps of Engineers to have an area company conduct stream mitigation, which attempts to restore a body of water to a more natural state.
The project had its supporters and detractors from the beginning. Some wondered whether a state-of-nature park was appropriate on a narrow piece of land in a residential community.
With the first phase complete, some residents say the resulting park is as bad as they feared but also isn’t what residents were promised. They complain that some town officials railroaded the project through in a secretive manner and taxpayers now face substantial costs from a project that leaders pitched as relying on federal dollars.
In an ongoing effort to investigate these claims for a planned upcoming report, CPP continues gathering records and conducting interviews.
But CPP encountered the issue of missing emails earlier this month when seeking correspondence to and from town staff and elected officials about the project.
Town Manager Alison Melnikova received a public records request from CPP for email correspondence related to the Rhododendron Lake Park project. She set up a special account for all involved to forward their emails from both town accounts and personal accounts that were used to discuss town business.
The town manager then gave CPP access to this account of more than 80 files, some containing dozens of emails. Analysis of these files is ongoing.
But problems also emerged. Former Commissioner Rich Cooke, who resigned in January 2015, said he had deleted all of his emails from the two accounts he used, neither of which were town accounts.
Cooke talked with CPP by phone on Monday about the situation. He said he was unaware of any reason he had to keep the emails.
A second unrelated issue involved some correspondence belonging to Commissioner Paul Hansen, who discovered that older emails from one of the accounts he had used were no longer accessible, possibly because of updates to his computer. However, Hansen indicated that he did not intentionally delete the emails.
CPP has asked about whether either of these groups of files can be recovered. While the question remains open for some of the files, it appears likely that some are permanently lost.
While many emails between either Cooke and Hansen and other town officials are included in the files the town has provided to CPP, emails that remain unavailable would include any emails between only the two of them or between either of them and third parties with whom they discussed the park project.
And how Cooke specifically handled third-party emails has already raised questions about his actions.
Cooke’s correspondence is of special interest to CPP’s investigation because of fragments that appear in other town officials’ emails to and from him.
CPP discovered that Cooke passed on emails from citizens who believed they were confiding in him to other town officials about whom they were complaining.
One of the residents who contacted CPP about her suspicions regarding the park project, Virginia Gambill, had frequently copied Cooke on emails among her and a small group of like-minded residents and property owners.
In June 2015, Cooke forwarded several of these messages to current members of the town board, whom the emails described critically.
Gambill expressed shock when CPP brought Cooke’s actions to her attention last week. She said she trusted Cooke during his time on the board because he initially voted against the park project.
But Cooke told CPP Monday that the situation was more complicated. He opposed the project and still does. He resented claims from those pushing the project that the town would lose out on federal money if it didn’t move within a period of weeks to approve stream mitigation.
But as time went on Cooke said he also objected to the content of Gambill’s emails, which he said included unsubstantiated allegations against the mayor and some commissioners.
Calling these emails “vile” and “libelous,” Cooke said he was receiving them unsolicited from Gambill and eventually asked her to stop sending them to him. He decided last year that current town commissioners ought to know what was being said about them, so he forwarded the earlier messages, he told CPP.
Because the emails continued after he asked for them to stop, Cooke said he didn’t believe he acted in bad faith or was ethically bound to tell Gambill that he was passing them to the people about whom she was complaining.
However, Gambill disputes this version of the facts. She said Monday that Cooke never objected to receiving her messages and never asked her to stop sending them. She also disagreed with the characterization of their contents. Gambill said she has expressed suspicions about the motives of some town leaders, but has always drawn the line at raising questions, not making outright accusations.
CPP examined several of the emails that Cooke forwarded and was unable to identify any passages that would rise to the legal definition of libel. Generally they were critical of the mayor and several town commissioners, but made none of the specific allegations of fraud that Cooke described as so offensive.
Typical of the tone is this passage from one of Gambill’s emails that Cooke leaked to the other town leaders:
“My instincts tell me that the citizens and taxpayers of Laurel Park have been sold down the river…as suspected. We need to meet at some point in time with an attorney who can advise what could possibly be done to rectify this sad miscarriage of fair and open dealings on the part of some town officials and (the businesspeople involved in the project).”
Gambill also said none of those who received the leaked messages from Cooke bothered to tell her or other members of her circle of friends that their emails had been transmitted without their knowledge.
Also problematic, Cooke’s emails passing on the information from Gambill used his business account with the Hendersonville office of Beverly-Hanks & Associates Realtors, where he is an agent.
CPP talked with company officials there Friday. They said the company does have a strict policy on personal use of emails. They said the emails in question appeared to constitute an unpermitted use of Cooke’s account.
Cooke told CPP that he didn’t intentionally use the office email in this way, but has set up his personal email to filter into his office account, to make keeping up with emails easier.
He said he didn’t initiate any communications from the office account, but the emails from Gambill showed up there due to his filtering system and so his act of forwarding them required use of the Beverly-Hanks account.
Credible ignorance of the law?
CPP also asked the town manager about Cooke’s claim that he didn’t know he had to keep emails.
“Mr. Cooke was on the Town Council when an ethics policy was adopted, in which email is not specifically discussed, but does reference public records,” Melnikova said in an email response Monday. “He also attended the required state ethics training after his re-election.
“I want to be fair to Mr. Cooke — the retention of email is not something that’s a weekly or even monthly discussion topic with the Council.”
But she also shared a memo she sent to all board members in March 2014, less than a year before his resignation, warning against too much emailing on items of public business, which could rise to the level of conducting a meeting by proxy. After that warning she addressed the issue of which email accounts constitute a public record.
“The use of an official town email address or a personal email address doesn’t matter,” she told commissioners. “It’s the content of the message, not the storage location that determines whether something is a public record.”
Despite the apparent clarity of that message, the town does not have a written policy on email retention, a point that Cooke emphasized in describing his decision to delete the files.
Town Attorney Monica Gillett-Stallings told CPP on Friday that the situation may be changing.
“We are using this as an opportunity to review our policies and hope other communities will learn from our experience,” she said.
CPP consulted with North Carolina Press Association Chief Counsel Amanda Martin on legal issues raised by the Laurel Park situation.
Although municipalities can craft their own email retention policies to guide staff and elected officials in compliance with state law, Martin advised that those policies can’t be less stringent than state law. There would be no legal policy the town could have adopted that would have allowed Cooke to delete those emails.
Gillett-Stallings emphasized that the deleted emails came as a surprise to current town officials. “Mr. Cooke is a former town commissioner and sought no information from any town official prior to his decision to delete his town-related emails,” she told CPP in an email. “The first time we learned of the deletion was in response to the request from CPP.”
Cooke also told CPP that he acted independently and was not in any way coerced into deleting the files. He also said he deleted all of his town-related emails, not just those related to the park investigation.
Third-party public records
While the facts involved in the situation are disputed between Cooke and Gambill and the ethics of his actions in passing on apparently confidential emails from a third party may be open to debate, the situation also may be instructive about open-records law.
When anyone sends an email to a town staff member or elected official regarding something related to town business, that file immediately becomes a public record and there is no legal presumption of confidentiality. As a result, concerned citizens should be cautious about creating a public records trail when they write to one public official to complain about others.
At the same time, Cooke acted voluntarily in disclosing the otherwise secret emails, not in response to a records request from his former colleagues on the town board. Also, at least one of the emails he forwarded came several months after he had resigned and would not have been covered by open records laws had he not forwarded it to current town officials.