[T]op officials in Gov. Peter Shumlin’s administration said Monday that its request to delete old email accounts of former staffers was unrelated to state and federal fraud charges filed against developers with ties to the governor.
Last week Ariel Quiros and Bill Stenger were accused of misusing as much as $200 million obtained through the EB-5 immigrant investor program for projects at Jay Peak Resort and elsewhere in the Northeast Kingdom. It’s alleged that Quiros spent as much as $50 million of that money on himself or unrelated business ventures.
VTDigger reported Friday that Shumlin’s attorney, Sarah London, asked the Department of Information and Innovation to delete all archived emails for a number of former staffers who worked for the governor before January 2013.
Among the emails to be deleted were those of Alex MacLean, the governor’s former campaign manager and top aide, who later served as president of strategic communications at Jay Peak Resort from 2012 to 2015. MacLean has not responded to requests for comment.
Darren Springer, the governor’s chief of staff, said at a Monday news briefing that London’s request to delete emails was part of an ongoing archival process that involves determining what electronic communications should be saved for posterity.
The state archivist and secretary of state both told the administration that the deletion request went against state law.
No emails were deleted as a result of London’s request, and the governor’s office will wait for further guidance before moving forward, Springer said.
Springer said the governor and other top staffers were not aware that London had asked for emails to be deleted as part of the review process and, further, that no emails pertaining to Jay Peak or the EB-5 program could have been deleted as a result of her request.
That’s because all related emails from the governor’s staff had been placed under a “litigation hold” by the attorney general’s office months earlier in preparation for the state’s civil suit against Stenger and Quiros.
Springer said the administration is “very comfortable” releasing the Jay Peak-related emails from the former staff accounts but that it’s up to the attorney general to determine whether making them public could prejudice the state’s case.
London, who was not at the briefing because she was competing in the Boston Marathon, provided a statement that said she placed EB-5-related records for MacLean and other former staffers in folders on her email account to make them easily accessible for the attorney general.
“The litigation hold process and my request to DII had nothing to do with each other, and my request to DII had nothing whatsoever to do with the expected timing of any litigation,” London said in the statement.
Attorney General William Sorrell said Monday that his office would not allow the administration to release those emails. He said it’s possible they would become public during the discovery process in the civil suit his office filed against Stenger and Quiros.
Sorrell said his office issued the litigation hold in October to his own staff and the governor’s office, as well as the Agency of Commerce and Community Development and the Department of Financial Regulation, both of which were involved in oversight of the EB-5 program and participating in the Jay Peak investigation.
VTDigger and several other media outlets have had requests for records pertaining to the EB-5 probe denied on the grounds that materials placed under a litigation hold are exempt from disclosure under Vermont’s public records law.
Sorrell said the administration was, in effect, asking him to break the law by releasing those emails. “I hope the law is followed. I want to make sure the integrity of this serious enforcement action is upheld,” he said.
More recent emails and other records from current and former administration officials that pertain to the Northeast Kingdom EB-5 projects and the fraud investigation are also covered by the litigation hold.
Request blamed on ‘misunderstanding or miscommunication’
The governor’s office began preparing to archive its communications last year when Shumlin announced he would not be seeking re-election, Springer said. London has worked closely with Secretary of State Jim Condos and State Archivist Tanya Marshall to prepare for that process.
The Shumlin administration will be the first to archive its email correspondence, and preliminary discussions around records retention began as early as 2011, Springer said.
The secretary of state’s office provided draft guidance for retaining correspondence in November 2015. The administration received updated but still preliminary guidance March 30.
London was under the impression that the updated guidance was sufficient to begin archiving and destroying records, according to Springer. However, Marshall said the governor’s office has yet to file a written policy for records retention, and therefore no emails should be deleted.
“There was either miscommunication or misunderstanding between the secretary of state and Sarah as to where we were in that process,” Springer said, referring to finalizing a records retention policy.
London sent an email April 1 to DII Commissioner Richard Boes asking that he “remove the accounts of folks that are more than three years old.”
VTDigger initially reported — based on records obtained through a public records request sent to the secretary of state — that London first requested April 8 for the email accounts to be deleted.
Scott Coriell, a Shumlin spokesman, said he did not mention the April 1 email or provide it to VTDigger when asked about the situation initially, because he did not learn about it until after the story was published.
Officials in the governor’s office learned April 7 that federal charges in the Jay Peak fraud case were imminent, but as administration officials noted Monday, they had known for months that the Securities and Exchange Commission, as well as state officials, were investigating Stenger and Quiros.
London sent her April 8 request for the emails to be deleted to John Quinn, enterprise applications and servers manager for the Department of Information and Innovation. In her statement, London said she was following up on a phone conversation that day in which DII staff asked that she email her request for old accounts to be deleted.
Before complying with London’s request, Quinn asked Marshall if it was all right to delete the old accounts. Marshall responded that doing so would violate state law. When Condos was looped into the communications, he affirmed that, in his view, deleting the email accounts would violate state law.
Springer and other top Shumlin aides said they couldn’t explain why London had not included the secretary of state’s office in her emailed requests to DII on April 1 and April 8 for the accounts to be deleted.
Springer and Coriell said it’s possible that she did, and they would follow up with London when she returns from Boston.
