City Council’s e-mail ethics vague
City messages go to personal accounts
October 26, 2008
Steamboat Springs — After discovering city staffers were privy to confidential e-mails, City Attorney Tony Lettunich recently asked the Steamboat Springs City Council to communicate with him using personal e-mail addresses.
And whether out of convenience or inattention, council members also have used their personal accounts for other city-related matters, underscoring a legally vague issue that has gained national attention this campaign season. From Steamboat Springs to Denver to Alaska, questions arise when politicians use private accounts to conduct government business.
Tipped by a September records request by the Steamboat Pilot & Today, council members began to wonder who was seeing their e-mails, Councilwoman Cari Hermacinski said. Council members learned their e-mails were being copied to a number of places within City Hall, including the city manager’s office. This included privileged information from Lettunich, and especially was disturbing for a council that negotiated a severance agreement with former City Manager Alan Lanning in July.
“As it turned out, the city manger had been privy to all the e-mails we received regarding his contract,” Councilman Jon Quinn said.
Lanning did not return e-mail and cell phone messages Friday.
“The stuff on attorney-client privilege really made my blood boil,” Hermacinski said, “especially if somebody was reading it who isn’t a City Council person. : (Lanning’s) assistant (Lauren Mooney) was, in fact, getting sent all of them.”
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Hermacinski is an attorney who works with the telecommunications industry across the country. Council members are not sure whether the confidential e-mails were read.
Hermacinski and City Council President Loui Antonucci said they do not recall anything from the negotiation of Lanning’s severance agreement that suggests he had knowledge of their correspondence with Lettunich. The agreement outlining Lanning’s severance package was more generous than what was stipulated in his original contract.
“We basically gave Alan what he wanted,” Hermacinski said. “There wasn’t a tremendous amount of negotiating going on.”
“Nobody really knew that was going on,” Antonucci said about council members’ e-mails being copied to city staff members. “I don’t think there was anything subversive about it. I don’t know if they were reading everything that went through.”
Quinn, however, thinks it is inexcusable that Lettunich was not aware of the practice.
“In my humble opinion,” he said, “it was a little bit less than honest that that wasn’t disclosed to the city attorney.”
Paul Strong, a former council member who was president in 2004 and 2005, thinks he was the first to request that city staff be copied on council e-mails. He said it was “a good way for somebody in the city administration to know what was going on.”
Hermacinski said the use of personal e-mails in correspondence with Lettunich was a limited stopgap measure while city technicians worked to secure council members’ city accounts.
“We’re using our personal e-mails only when Tony Lettunich wants to send us something that’s attorney-client privilege,” she said.
As of Friday, Information Services Manager Mike Schmidt said the problem had been corrected.
Although e-mails sent to the council as a whole continue to be copied to City Clerk Julie Jordan and acting City Manager Wendy DuBord, e-mails sent to council members’ individual city accounts are not.
Current and former council members say they rarely, if ever, use or used e-mail to communicate with fellow council members or discuss city business. They said Lettunich has warned them endlessly about the potential for holding an illegal meeting electronically.
When e-mails are sent and received by council members, however, city and personal e-mail accounts often intertwine. Although Schmidt said council members have the ability to send and receive e-mail through the city’s Web site, most prefer to have all e-mail forwarded to their personal inboxes for convenience.
“I didn’t know whether I was using my city account or not,” former Councilman Towny Anderson said. “It all came to the same spot.”
Schmidt said he thinks Councilman Scott Myller is the only one who uses the city’s Web-based e-mail. Antonucci, Hermacinski and Quinn all have their e-mails sent to private accounts such as Yahoo and Gmail.
“When I reply to someone, it comes from my Gmail account,” Quinn said. “In my mind, that’s just kind of a limitation on technology that we have right now. I just don’t use Web mail.”
Hermacinski said that when she e-mails council members, she doesn’t pay attention to which e-mail address she sends messages.
“I hit whichever one comes up first,” said Hermacinski, referring to an address book feature that automatically brings up a person’s e-mail address when she starts typing a name. Hermacinski has city account e-mails forwarded to her business e-mail address.
Antonucci said he rarely uses e-mail for city matters, but he occasionally e-mails Hermacinski, the president pro tem, to arrange meetings.
“I don’t know what her city account is,” said Antonucci, who has his city account e-mails forwarded to a Yahoo account. “If I just type in Cari, her e-mail address comes up.”
Asked if this use of personal accounts poses problems for those who might request their e-mails, Antonucci said, “I never really thought about it,” and Hermacinski said council members should try to use their city accounts.
Councilman Steve Ivancie said he prefers direct or telephone communication to e-mail, and he does not think the council members are using e-mail inappropriately.
“I have never participated in a serial meeting,” he said, “and if I were seeing that happen, I would speak up.”
The vice presidential candidacy of Alaska Gov. Sarah Palin has brought national attention to the issue of government officials conducting public business on private accounts.
Newspapers including The New York Times and Anchorage Daily News reported that Palin frequently uses a private Yahoo e-mail account to conduct state business. The Bush administration, Texas Gov. Rick Perry and Missouri Gov. Matt Blunt also have been linked to controversial e-mail practices.
Colorado laws, like many across the nation, are vague on the subject.
“I don’t know of any legal impediment to doing that,” said Geoff Wilson, general counsel for the Colorado Municipal League “I know that it’s becoming more common.”
In August, The Denver Post sued Colorado Gov. Bill Ritter for his refusal to turn over 19 months of personal cell phone records. The newspaper reported that the governor “only occasionally uses his state-issued cell phone for calls : and carries a second cell phone not provided by taxpayers from which he regularly conducts state business.”
Wilson said he thinks the outcome of this lawsuit and future ones will help clear the water.
“I don’t know if that’s really well defined yet,” Wilson said. “This new age presents some challenges we’re all wrestling with a little. : This is so uncertain.”
Open records laws in Colorado define policy makers’ e-mails as “correspondence.” Such an e-mail is considered a public record unless it is “not connected to official duties not involving public funds,” “a message from a constituent to an elected official or vice versa that clearly implies expectation of confidentiality,” or one of a number of materials such as background information, drafts or research that are defined as “work product.”
Colorado Public Records Law makes no distinction between personal and government e-mail accounts, leading Wilson to think the law would apply equally to both.
But the practice of using a personal e-mail account raises questions about whether officials could prevent inspection by deleting e-mails, whether records contained on accounts not provided by taxpayers could be withheld and more. It also is not clear who would be considered the custodian of such records.
Using the example of a City Council member, Wilson said a records request for an e-mail on a personal account should be filed with the city. But Jordan said the request would have to be submitted to the individual council member.