Shumlin administration: Outgoing Douglas officials at ANR deleted email as a matter of course

Agency of Natural Resources Secretary Deb Markowitz. VTD/Josh Larkin

How and why emails sought by the state employees union were deleted isn’t clear, but Shumlin administration officials confirmed on Tuesday that correspondence between Douglas administration officials at the Agency of Natural Resources was deleted.

By whom, is anyone’s guess at this point.

When comes down to this: Immediately after Wayne LaRoche, commissioner of the Department of Fish and Wildlife, and Jonathan Wood, secretary of the Agency of Natural Resources, left office, and before the Gov. Peter Shumlin was sworn in last January.

At that time, the Vermont State Employees Association was in the middle of litigation over budget records related to the firing of an employee and the Marshall86 plan for employee computer surveillance. The Douglas administration insisted that the union pay $1,200 to inspect the email correspondence. VSEA sued, and eventually won a court-ordered right to review the documents at no cost. When Abigail Winters, the union’s counsel, went to see the records, Shumlin officials at ANR told her the items couldn’t be found.

Winters sent a letter to Jeb Spaulding, the secretary of the Agency of Administration, and Vermont Attorney General William Sorrell on Monday, alleging that the email correspondence was
“willfully and permanently” deleted. Sorrell, she wrote, failed to place a litigation hold on the documents.

On Tuesday, Spaulding and Sorrell said they couldn’t discuss the matter with the press. Yesterday, Spaulding said he held a meeting with staff to figure out what happened. He was nonplussed by the attention the issue had generated among members of the media, and said it was a distraction from his work – he said he was pulled away from figuring out how to resolve the Low Income Heating Assistance Program funding problems to talk to reporters.

“I think it’s unfortunate that the VSEA sent a letter to the Agency of Administration, and we didn’t get a copy until after the press had it,” Spaulding said. Had the union come to him first, “a lot of misunderstanding about the policies and practices” employed by the Shumlin administration would have been resolved, he said.

“We are doing our level best to follow best practices,” Spaulding said. “It is not the policy of the Shumlin administration to destroy documents.”

“Transparency” has been one of the governor’s watchwords, and state officials were provided with document retention training shortly after Shumlin was sworn in.

No one in upper level management was made aware in advance, Spaulding said, of the deletion of the Douglas administration emails.

Deb Markowitz, secretary of the Agency of Natural Resources, says she learned in her first week on the job that it was the Douglas administration’s practice to delete emails “after an employee at any level left employment at ANR.”

Markowitz put an end to the practice “right then” and notified Beth Robinson, the governor’s former general counsel “to see what was happening across state government to make sure that stopped.”

Wood’s emails were deleted the day he left; LaRoche’s correspondence was eliminated some weeks before the transition. Markowitz said Brendan Cosgrove’s email was not deleted before he left ANR, though the correspondence in question was not found.

The fact that the documents sought by the union were missing did not come to light until last summer.

Markowitz said she has no reason to believe that the practice of deleting email under the Douglas administration was limited to employees in leadership positions at ANR.

It’s not clear whether email correspondence from Douglas officials in other departments was eliminated.

Mike Bertrand, executive director of the Vermont GOP and former commissioner of the Department of Banking, Insurance, Securities and Health Care Administration, said to his knowledge, the Douglas administration followed best practices for email retention. Calls to Gov. Jim Douglas and Neale Lunderville, former secretary of the Agency of Administration were not returned.

The Shumlin administration has not developed policies for retention of email documents. As of Oct. 13, employees were told not to delete important material, according to Richard Boes, commissioner of the Department of Information and Innovation. Boes is working with the Vermont State Archives and Records Administration to develop a retention schedule for documents transmitted via email.

Prior to that date, Boes said his department’s policy was to delete emails by agency or department request. Since he took office in June, no such requests had been made.

“DII doesn’t make the decision on deleting emails,” Boes said. “The assumption is that the agency or department requesting that will have taken appropriate steps to retain any information our public records are necessary to retain.”

Boes said he couldn’t offer any specifics about the VSEA requested emails. He said he didn’t know whether the documents could be retrieved, but there should be an auditable trail that indicates who requested the deletion.

Attorney General William Sorrell said he didn’t think it was “necessary” to put a litigation hold on the documents. He held out hope that the emails could be found.

“It remains unclear whether the records have been irretrievably deleted,” Sorrell said. “If they were deleted and not retrieved, then that was a total mistake and shouldn’t have happened. But we don’t know and we won’t know for days.”

ANR, which has a separate IT department from DII, “diligently pursued retrieving” the files, David Englander, agency counsel, wrote in an email to Winters, but they were permanently deleted from the State’s archives “consistent with past practice.”

Winters said in an interview that she felt ANR employees were “trying very hard to get the documents.”

“They were as surprised as we were that they found this was done,” Winters said. “If it comes to light after all this that’s great, we were just hoping to prevent this from ever happening again.”