The Martin Chronicles has obtained several e-mails related to Villa Hills Mayor Mike Martin’s Thursday, January 5 “barbecue” of city documents. We will set aside for now the concern that the e-mails flying back and forth between councilmembers may be creating a “serial quorum” in violation of the Open Meetings statutes. One e-mail of particular interest is from Martin protégé, Councilman Mike Pope. As is our rule, we have reprinted Mr. Pope’s e-mail in its entirety and have not corrected any of his spelling or grammatical errors.
Without jumping to any conclusions, I agree it would seem appropriate to make sure that any documents that are being destroyed have gone through legal scrutiny. If these are just payroll records or other administrative documents that are years old and beyond record retention requirements, probably no big deal. But given the current environment I think it would be reasonable to keep a list of what is being destroyed and make it a public record.
Wouldn’t shredding be just as effective? Are you still aloud to burn that kind of stuff within city limits even with a burn permit?
Thanks,
Mike
It is critical to note that “the current environment” has nothing to do with whether or not public records can or should be destroyed. This is painfully true particularly when that government agency is embroiled in a lawsuit. The governing authority in this matter is The Kentucky Revised Statutes (KRS). Let’s take a look at what the KRS has to say about what took place on January 5.
KRS 519.060 is titled “Tampering with public records”. The statute says a person is guilty of tampering with public records when “Knowing he lacks the authority to do so, he intentionally destroys, mutilates, conceals, removes, or otherwise impairs the availability of any public records”. The statute further states that tampering with public records is a Class D felony.
Our researchers also reviewed The Kentucky Department of Library and Archives (KDLA) procedural guide for destruction of public records. The KDLA has been empowered by KRS to set forth the rules regarding records retention. Let’s explore the guide.
Under Section 2.0 “Principles of Destruction”, it clearly states “A public agency must not dispose of any records required for current or pending legal action or where the records may be required as evidence in a court case. An agency must not destroy records that are the subject of a current or pending Open Records request or an administrative or judicial appeal of an Open Records decision.”
Well, Villa Hills is a public agency facing current legal action where the records may be required as evidence in a court case. Furthermore, Villa Hills is an agency dealing with pending Open Records requests. How can a reasonable person now know whether any of the records burned were relevant to the court case and/or the pending Open Records request? Is that reasonable person required to take the word of Mayor Martin or the allegedly temporary clerk hired to help during the tax season that ended November 30, 2011? No, they are not.
Why? Because the Public Records Division requires agencies to complete a Records Destruction Certificate when destroying records. Records Destruction Certificates are readily available from KDLA’s website. If the mayor now provides Records Destruction Certificates they should certainly be closely scrutinized. Those certificates should also be compared to the records that the police recovered from Thursday’s bonfire.
The KDLA also speaks to Mr. Pope’s question about burning the records. Section 3.1.3 states, “Records should only be burnt if there is no environmentally friendly method of destruction available. Records should be burned in accordance with any environmental guidelines and local burning restrictions. Densely packed paper does not burn well, so burning should take place in an industrial facility (not a ‘backyard’ incinerator).” We only mention this because it is fortunate that the mayor chose to direct the public works crew to burn the records in a hastily-dug fire pit. That is precisely why some of the records survived.
Mr. Pope writes that it would be appropriate for any documents to go through “legal scrutiny” before they are destroyed. Has Pope considered the possibility that Martin avoided having the documents reviewed by the city attorney prior to their burning because the mayor would have been advised not to destroy them?
Finally, we wonder if Mr. Pope mentions “payroll records or other administrative documents that are years old and beyond records retention requirements” based on a “fireside chat” with Martin. If so, how will Pope react when provided evidence that the records destroyed were not simply old payroll records or outside the strictures of records retention requirements? If an impeachment vote is looming, will Pope still resist Martin’s removal after learning that Martin has lied even to him?
Our researchers will continue to review relevant statutes and state guidelines and to report to you.
