Fear Factor

You'll have to forgive me if this column reads a little shaky. You see, as I type it, I'm quaking in my boots: I think this newspaper has been threatened by Jackie Cherryhomes.

It all started two weeks ago, when one of our staff writers, G.R. Anderson Jr., reported that Cherryhomes, former president of the Minneapolis City Council, had engaged in some industrial-strength housecleaning when her term expired at city hall. Natalie Johnson Lee, who narrowly defeated Cherryhomes in a battle for the Fifth Ward council seat last fall, alleged that when she took office January 3, her predecessor had left behind almost no documentation of her 12-year term. Not only were the file cabinets virtually empty, Johnson Lee said, but Cherryhomes's electronic files had vanished from office computers. "'I haven't seen 'em, the record keepers haven't seen 'em, nobody has seen 'em,'" Anderson quoted Johnson Lee as saying. (See "Cherry-Pickin'" in our March 6 issue.)

Anderson didn't quote Cherryhomes as saying anything. That's because she didn't return the three phone messages he'd left until the evening of Monday, March 4, several hours after we'd posted his finished article on our Web site. When the two spoke the following day, this was Cherryhomes's side of the story:

"First, am I being tape-recorded? Because I will not speak if I'm being recorded. There were a number of inaccuracies in your story. I did not take files out of city hall. I took nothing but personal files, nothing other than a divorce decree and insurance files. I am not commenting any further, and I'm considering my full legal options at this point."

For the record, nowhere in Anderson's story does it say Cherryhomes took files out of city hall. The facts, as Anderson reported them: Fifth Ward computer files appear to have been purged; precious little paperwork remains; several city officials say they saw Cherryhomes and two aides loading up dumpsters; and neither Cherryhomes nor her aides subsequently produced any records in response to requests from the city.

On March 6 city council president Paul Ostrow sent a memo to city clerk Merry Keefe, directing Keefe to review the policies on how government records created by city council members are passed along to their successors. When it comes to Cherryhomes, most of Ostrow's eight-point directive amounts to closing the barn door after the horse has skedaddled. The memo does contain one tasty morsel, however: It instructs Keefe to "[r]eview your findings with the City Attorney and the Human Resources Director and determine any appropriate actions required..."

What's tempting about that tidbit is the mention of the city attorney.

Don Gemberling, director of the Information Policy Analysis Division of the Minnesota Department of Administration, says Cherryhomes may have run afoul of a couple of state laws. The juiciest is statute 138.225, which reads in part: "A person who intentionally and unlawfully removes, mutilates, destroys, conceals, alters, defaces or obliterates a [government] record...or... who knowingly permits any other person to do any of the foregoing acts, is guilty of a misdemeanor."

Slightly less imposing, Gemberling notes, is statute 15.17, a portion of which covers the "delivery to successor" of a departing public official's government records. "The problem with that law is that it has no teeth--no penalty associated with it," Gemberling says. Still, he adds, it does leave room for legal recourse: "The city could conceivably sue Cherryhomes and her aides to return those records." (One obstacle would be proving what, if anything, is actually missing. Although Cherryhomes admitted in a March 5 interview with Minnesota Public Radio that records were destroyed, she contended that everything she and her staff trashed was "duplicative of records that are preserved elsewhere in the city system.")

I asked Ostrow whether he'd urge the city to follow through with legal action if Cherryhomes is found to have violated the law. "That's one of the questions that can't be answered until all the facts are before us and we have a real sense of the extent to which anything has been irretrievably lost," he says, adding that he set a March 29 deadline for Keefe to report back. "Once all that has been done, it may be necessary to have a talk with all our staff, maybe including the city attorney."

Ostrow emphasizes that his chief aim is to ensure that election transitions are handled better in the future. "I think we need to think about what kind of system we've set up, even beyond the legal requirements," he says. "It can be a steep learning curve, and there's a wealth of information that's important to people when they come in [to office]."

Of course, in Natalie Johnson Lee's case, city employees are still working to locate that information--at considerable public expense. Does Ostrow believe Cherryhomes should be billed for it? "I think there's some logic there, in a general sense," he says. "Obviously it takes staff time, and that's a waste of a public resource. Whether there's any legal grounds, I don't know. But that's a frustration for me--the fact that there's staff time [being devoted to this matter] in an era of limited resources. That is troubling."

It would be nice to think Cherryhomes will be hearing from the city's lawyers before this paper hears from hers--but I'm not betting on it.


Headfirst appears every other week. E-mail the author at [email protected].

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