Legal aide to Gov. Blunt raised e-mail concerns before firing

ST. LOUIS -- Newly released e-mail records reveal a former legal counsel for Gov. Matt Blunt was fired shortly after cautioning his colleagues that their defense of e-mail deletions ran contrary to state law.

The roughly 60,000 pages of e-mails released under a legal settlement with the media put focus on the assertions of fired legal counsel Scott Eckersley, who went from being praised by his bosses to banished from the office in a matter of weeks -- just as he was raising red flags about their handling of e-mails.

Blunt officials have claimed Eckersley never raised concerns about their e-mail practices and was fired for justifiable reasons. The e-mails also confirm Eckersley performed private-sector work with state resources and repeatedly was tardy to work, two factors cited in his dismissal.

The documents add details to the controversy that has dogged Blunt's administration, shaken up his inner circle and highlighted the increasing use of e-mail communication for governments that once relied solely on phone calls, paper memos and face-to-face meetings.

"This little soap opera that we watched demonstrates vividly how important it is to have a stated, concrete policy at all levels," said Charles Davis, executive director for the National Freedom of Information Coalition at the University of Missouri-Columbia. "And a policy that can be audited is terribly important -- that you not only have the policy but occasional checking to make sure people are complying with the policy."

An analysis of the e-mails was conducted as a collaboration of The Associated Press, St. Louis Post-Dispatch and The Kansas City Star, all of which had submitted Sunshine Law requests about a year ago seeking Blunt administration e-mails culled from Missouri's computerized backup system.

Blunt's office initially told the AP and Post-Dispatch it would cost $23,000 to retrieve, review and copy the e-mails and rejected the request from The Star. The media groups sued, and the governor's office ultimately provided the e-mails for free under a legal settlement.

But Blunt's administration said about 1,400 e-mails were exempt from full disclosure under the Sunshine Law for a variety of reasons. Some of the exemptions cited "staff termination concerns."

The records, provided in 22 boxes that Blunt's office says took 570 hours to prepare, also show that:

--Blunt officials failed to provide e-mails sought last year under public-records requests, in some cases denying the e-mails existed. The computerized backup system shows they were sent and received by Blunt staffers.

--Blunt aides used their state e-mail accounts to coordinate efforts with interest groups. They rallied anti-abortion interests against the Republican governor's potential political opponent, Democratic Attorney General Jay Nixon. And Blunt's aides worked closely with opponents of Missouri's judicial selection process to try to derail a Supreme Court appointment.

--Some governor's office employees made derogatory remarks about Nixon and looked for opportunities -- as Eckersley said in an e-mail to Blunt's top brass -- "to take a poke at him."

--Blunt rarely used his state e-mail account. Instead, he routinely conducted state business using a campaign e-mail address, which would not have been captured on state computer servers. Some of Blunt's e-mails were included in the documents provided to the media only because the other participant in the conversation was using a state e-mail account.

Noticeably absent from the e-mails was any hint among his staff that Blunt -- several months later in January 2008 -- would end his re-election bid, a decision that stunned supporters and opponents alike. Blunt said he wanted to spend more time with his family and that he had accomplished most of his goals in his first term.

Blunt spokeswoman Jessica Robinson said the e-mails reinforce the position of Blunt's administration about Eckersley's dismissal. There were no e-mails that state Eckersley was fired for raising concerns about the office's e-mail policies.

"The reason for his firing had nothing to do with the Sunshine Law or the record-retention law," Robinson said, "and his e-mails bolster what we had said and our contention that he was dismissed for poor job performance and doing outside work on a state computer and on state time."

The e-mails provided to the media were sent or received by Blunt; Eckersley; former chief of staff Ed Martin; communications director Rich Chrismer; former general counsel Henry Herschel; and Rich AuBuchon, the former legal counsel and acting director of Blunt's Office of Administration.

Most of those people are now gone from Blunt's administration. Martin resigned under pressure shortly after the controversy broke, Herschel transferred to another government job soon after Martin left, and AuBuchon recently left to become chief of staff for Lt. Gov. Peter Kinder.

The AP submitted an open-records request for the e-mails Oct. 31, 2007, shortly after Eckersley went public with allegations that he had been fired in September after raising concerns that colleagues weren't following e-mail retention requirements.

At the same time Eckersley made his allegations, Blunt's administration sent an unsolicited stack of documents to the media defending Eckersley's dismissal and disparaging him by claiming he had viewed a "group sex Internet site," among other things.

Eckersley has since filed a wrongful termination and defamation lawsuit against Blunt and his top aides.

The controversy over e-mail deletions in Blunt's office began in September 2007, when the Springfield News-Leader published a column stating it had filed a Sunshine Law request for e-mail communications between the governor's office and anti-abortion interests. The newspaper was told the e-mails didn't exist. As an explanation, Martin and Chrismer both said governor's office employees regularly delete e-mails from their computers.

Those e-mails, however, were captured by a backup system that takes a daily snapshot of the state's computer servers. The records provided to the media show Martin sent e-mails Aug. 20, 2007, to numerous abortion opponents, including Roman Catholic Archbishop Raymond Burke, urging them to put public pressure on "confirmed abortion supporter" Nixon to step aside from defending the state against a lawsuit filed by Planned Parenthood.

"Please help gin up outrage. He will tank the defense," Martin wrote in one such e-mail, to Kerry Messer of the Missouri Family Network.

Following the denial of the records request, Blunt personally defended the deletion of e-mails and Chrismer asserted "there is no statute or case that requires the state to retain individuals' emails as a public record."

In fact, e-mails are public records under state law. Depending on the topic, some can be deleted soon after receipt, but others must be kept for three years and those that relate to the development of state policies must be permanently saved.

About the same time the media were questioning Blunt's e-mail policies, records show Eckersley was assigned to update the office's Sunshine Law policy.

On Sept. 14, Eckersley sent separate e-mails to Herschel, who was his boss, and two other governor's office employees recommending that Blunt's office respond to the media by acknowledging that e-mails can be public records that must be retained. The next day he sent the same memo to Martin, who replied, "Please wait." Eckersley responded to Martin "I only sent this to you and HH -- will not do anything else with it -- just an FYI for you."

On Sept. 18, former Blunt policy analyst and speech writer Jonathan Bunch e-mailed Eckersley expressing dismay over the office's public statements about e-mails and the continued media coverage of it.

"You have GOT to find a way to get someone to pay attention to the actual statutory language and kill this thing before it makes it through another week," Bunch wrote.

Shortly after noon the next day, Eckersley e-mailed Martin, saying: "ED-I just want to make you aware that we do have an official office policy on records retention (in the employee manual)."

Martin copied in both Herschel and Chrismer in a response telling Eckersley to give the information to Chrismer.

When he did so, Chrismer asked Herschel to rein in Eckersley.

"Henry, can you, in a very kind way, ask Scott to not send me emails about email retention?" Chrismer wrote. "I am not complaining, but I would prefer to discuss in person."

In a separate e-mail sent about the same time to Herschel, Eckersley said: "GMB (an abbreviation for Blunt) is going around saying we don't have an office policy ... I don't think Chrismer gets it."

By then, Eckersley appears to have irreversibly angered his bosses.

Herschel e-mailed a former governor's office attorney, saying he wanted to run a research question by him, adding "Scott looked at it, but I'm not sure of him."

At 3 p.m. that same day, Eckersley e-mailed Herschel with a reminder that he's planning on taking off Oct. 1-5. "Let me know if there is a problem," Eckersley wrote.

"More than he knows," Herschel wrote as he immediately forwarded Eckersley's message to an assistant.

Eckersley and Herschel had a verbal confrontation on Sept. 21. Over the weekend, the governor's office directed state computer technicians to block Eckersley's computer address. Eckersley was told not to come to work the next week.

On Sept. 24, Martin had the locks changed because of Eckersley. AuBuchon ordered a search of Eckersley's computer and a listing of his phone records. The office also began monitoring e-mails on Eckersley's account.

On Sept. 25, Martin sent an e-mail to a private-sector lawyer saying he needed a new attorney in the governor's office. Eckersley was not officially fired until Sept. 28. In a letter to the media a month later, AuBuchon said Eckersley was fired for cause "after months of performance-related problems."

AuBuchon asserted in a subsequent interview: "Mr. Eckersley never once voiced a concern, never once wrote an e-mail, never once talked to other employees in the office evidencing any concern that the governor's office was not complying with the Sunshine Law or any record retention policies."

Eckersley's attorney, Jeff Bauer, said Friday night that the newly released e-mails confirm his client's account that he was fired after raising concerns to top Blunt aides about their e-mail policies.

"It is a sentinel event which shows you everything he's been saying from day one is absolutely true and everything they have said is absolutely false," said Bauer, who declined to let Eckersley comment.

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Associated Press writers Chris Blank, Christopher Leonard, Alan Scher Zagier and Christopher Clark contributed to this report.

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On the Net:

Gov. Matt Blunt: http://www.gov.mo.gov

St. Louis Post-Dispatch: www.stltoday.com

The Kansas City Star: www.kansascity.com