A publication of the Kentucky Center for Public Service Journalism

Covington City Commission votes to send White report to County Attorney, Commonwealth Attorney

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By Mark Hansel
NKyTribune managing editor

The Covington City Commission received a report from Lexington Attorney Scott White at its December 12 meeting that suggested former Mayor Sherry Carran and City Manager Larry Klein may have engaged in illegal activity. Thursday the Commission voted to forward the report to the County Attorney and Commonwealth Attorney without a recommendation (file photo).

The Covington City Commission voted to send the investigative report compiled by attorney Scott White to Kenton Commonwealth Attorney Rob Sanders and Kenton County Attorney Stacy Tapke at Thursday’s Special Meeting.

The full Commission attended the meeting and all voted in favor of the order, with the exception of Commissioner Bill Wells, who abstained, saying he “had more questions than answers.”

White’s report is critical of former mayor Sherry Carran and former city manager Larry Klein, saying there is strong evidence that they violated state election laws during the 2016 mayoral campaign.

White presented the 30-page report and a detailed synopsis to the City Commission, which requested the investigation, at the December 12 meeting.

Covington Mayor Joseph U. Meyer said the report would be sent to the Commonwealth Attorney and the Kenton County Attorney without a recommendation.

Meyer read the following paragraph from a draft of a transmittal letter that will accompany the report.

“(Per) Mr. White’s recommendation (the City of Covington) is providing the enclosed copy of this report and appendices for your review and consideration. The city is neither filing a complaint, nor recommending that prosecution be initiated, but is fulfilling its duty to bring this matter to the appropriate authorities.

Among White’s conclusions are that Carran and Klein copied emails, then had them removed from their City accounts before they left office, which he said is a violation of state law, because the emails are a public record.

Meyer

He cited KRS 519.060 (1) (b), which provides that a person who “intentionally destroys, mutilates conceals, removes or otherwise impairs the availability of any public records,” without the ability to do so, is guilty of tampering with public records.

Violation of the statute is a Class D felony, which is punishable by not less than one year, nor more than five years in jail, according to the Kentucky Legislative Research Commission.

White reached the conclusion regarding the emails based on information provided by C-Forward Information Technologies, the Covington firm that manages the City email accounts.

White also criticized the Kentucky Office of the Attorney General (OAG) and the Kentucky Registry of Election Finance, for what he considered failure to properly investigate potential violations of campaign finance laws.

Those allegations, which also implicate Carran and Klein, are misdemeanors and cannot be prosecuted, if proven, because the statute of limitations has expired.

They stem from a complaint filed by the International Association of Firefighters (IAFF) Local 38, regarding materials allegedly compiled by city employees for use in a candidate forum and other election activities.

Wells said he was disappointed that commissioners only received the report two hours before White’s presentation. He also expressed concerns about several conclusions from the report and the investigation itself.

Wells questioned why Lisa Desmarais, the city finance director at the time of the campaign incident, was never interviewed. He also asked how White determined that the use of City resources equated to $2,000, the threshold required to report such actions as campaign activity.

Wells

Wells also questioned how White determined it was Carran and Klein that removed the emails that are the source of the more serious criminal allegations.

“(The report states) strong evidence exists that Klein and Carran emails have been removed, but it doesn’t say by who,” Wells said.

Commissioner Tim Downing said that, while the questions Wells asked were fair, there were answers, or resources available to get answers, for many of them.

“Some of the questions that you are discussing here today are valid, some of them are also in the report,” Downing said. “We have tools at our disposal to get to these answers.”

Commissioner Jordan Huizenga also had concerns about the report’s findings, and the lack of a chance to discuss it with White.

“Our opportunity to discuss and talk with Mr. White and ensure that it is something that is clear and concise and unopinionated – really a true and strict evaluation of the facts at hand – our opportunity to do that has been somewhat limited,” Huizenga said.

Huizenga asked if there could be another opportunity to bring White back before the commission to discuss those concerns.

Huizenga

Meyer said he didn’t think that was necessary and added that member of the commission could have contacted White directly if they needed clarity.

Huizenga said he has discussed the report with attorneys that are experienced and respected and they have indicated the voice and the language is written very much like it’s by a prosecutor and not an investigator.

White is a Lexington attorney with more than 30 years in practice and has served as a former assistant deputy attorney general, so he does have a background as a prosecutor.

“I don’t necessarily think it’s a bad idea to forward it to the Kenton County Attorney’s Office or the Commonwealth Attorney’s Office (but) I don’t want it to reflect poorly on the City,” Huizenga said. “There are other folks that look at the report that have great experience and much the same type of experience that Scott White has, that think there are legal arguments here that are somewhat sketchy. The way that it’s written is clearly opinionated.”

Meyer said after the meeting that the commission signed off on White to conduct the investigation and all members were aware of his credentials at that time.

Huizenga also expressed concerns about the wording of the transmittal letter draft, which is basically a cover letter for the report, and Covington City Manager David Johnston said those would be addressed.

“When we are talking about the transmittal letter, we are going to be communicating that these are the findings that Mr. White has provided,” Johnston said. “We will also need to echo that we had no input in the writing of the report – these were in his findings, independent of the City.”

Some in the community have questioned why the report was necessary, since the election is long over and both Carran and Klein are no longer associated with City governance.

Meyer addressed that issue in detail.

Carran

“I think the evidence is pretty clear that public resources were being used to support private campaigning and as long as I’ve been involved in public life that’s been wrong.” Meyer said. “It’s a violation of the public trust. It undermines the public trust in government when we are using public resources for private benefit.”

If the allegations are proven to be correct, it is also an illegal activity, he added.

“There are statutes that say we just can’t do it,” Meyer said. “It’s clear that public resources, people on the public clock, equipment, computers, email systems, were used for campaign or other private purposes.”

Part of the culture change that Meyer said needs to take place at City Hall is that people must understand that such behavior is wrong and will not be tolerated.

“We need to set a standard, for the employees and the people of our city, where we are just flat out saying, use of public resources, for private gain, whatever it is, is wrong,” Meyer said. “If we don’t get it cleaned up by referring, by taking some of these other actions, it’s going to rear its ugly head, time and again. We need to take affirmative action to say that this kind of behavior in this city is unacceptable.”

Commissioner Michelle Williams agreed that forwarding the report to the County Attorney and the Commonwealth Attorney was the right thing to do, so the City can move forward.

“If there is nothing to it, then let the next higher ups decide that,” Williams said.

Meyer said forwarding the report will allow the Commission to move forward on other issues facing City governance, including addressing procedural and policy issues.

The Commission took some steps in that direction at Thursday’s meeting, as well.

Senior City Solicitor Michael Bartlett provided an overview of the City’s record retention practices and procedures. The presentation provided some insights into how emails could be deleted by City employees, in violation of state public records laws. He also offered suggested policy and procedural changes that could prevent such an occurrence in the future.

Bartlett said that while the City had established adequate policies to ensure retention of records, such as emails, individuals could easily violate the procedure, by deleting documents.

“We are in compliance, but we cannot prevent noncompliance,” Bartlett said.

The Commission also discussed having John Shaaf, executive director of the Kentucky Legislative Ethics Commission train city staff on rules regarding the use of public resources for campaigns.

Other agenda items approved at Thursday’s meeting include:

-An order to create a committee from the Board of Commissioners to review the city’s ethics ordinance. The committee, which will consist of Meyer, Downing and Huizenga, is expected to make recommendations at the January 9, caucus meeting.

-An order authorizing the City to retain the services of Amye Bensenhaver to assist the City with reviewing existing open records policies and procedures. Bensenhaver will be paid $100 per hour, with total compensation not to exceed $5,000.

Contact Mark Hansel at mark.hansel@nkytrib.com

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