Shumlin administration looks to lock down certain agency records

Peter Shumlin

Gov. Peter Shumlin. File photo by Elizabeth Hewitt/VTDigger

The Shumlin administration has asked several state departments to hit the delete key on certain “duplicate” emails, according to sources who asked not to be identified for fear of retaliation.

State agencies in the past have retained their own records of correspondence with staffers at the governor’s office except under special circumstances.

But as Gov. Peter Shumlin prepares to finish his term, nine sources say word came down from the Fifth Floor last summer that correspondence with agencies is redundant and only one copy should be kept — by the governor’s office.

Sources also say agencies have been asked to bundle the documents, and in some cases, contracts, and funnel them through the governor’s office before they are sent to the state archive.

Records kept by the Shumlin administration in the state archive will be held under an exemption from the Vermont Public Records Act known as executive privilege for at least six years. Executive privilege allows the governor to keep his or her communication private. Extending the exemption to communication between the governor’s staff and state agencies is a gray area in the law.

In this scenario, documents that previously would have been held by state agencies and available to the public will not be subject to public records requests. Nor will they be available to the incoming administration of Gov.-elect Phil Scott.

Sources say it’s an unprecedented power grab by an outgoing administration.

Scott Coriell, the governor’s spokesman, flatly denies that any “directive” has been made ordering state agencies to destroy “duplicate” records.

“We are going above and beyond what any administration has done in terms of providing the public with an immense amount of information about the governor’s activities during his tenure,” Coriell said.

The administration is the first to provide electronic emails for archiving. In the past, only printed copies of the emails were kept from Dean and Douglas administrations.

“I think that’s a big step, I think that’s an appropriate step to take,” Coriell added. “I think it will prove valuable to see how their government functions and works.

The Shumlin administration is now in the process of determining which electronic records will be preserved for posterity as part of the archival record of Gov. Peter Shumlin’s six year term in office.

In the past, the governor’s office has negotiated a memorandum of understanding with the Secretary of State’s office over what records can be destroyed or held under executive privilege.

Under the Douglas administration, for example, the former state archivist went back and forth with the governor’s office over what staff emails with agency officials could be held under executive privilege. In general, few emails were kept in the Douglas archive because the staff made a practice of eschewing email correspondence, sources say.

A new provision passed in 2008 gave the governor more authority to determine what falls under executive privilege and weakened Secretary of State’s authority to negotiate. Destruction of records at the agency level is governed by a different provision of the Public Records Act.

While the state archivist and the Shumlin administration have had ongoing discussions about records retention for the archive for more than a year, the governor’s office and the Secretary of State have not yet come to an agreement about what records may be held under executive privilege in the archive and for how long.

Letter from Condos, Hoffer

The allegations that the Shumlin administration has asked for the destruction of emails have been persistent and eventually came to the attention of Secretary of State Jim Condos and State Auditor Doug Hoffer.

Neither Condos or Hoffer would agree to provide comment for this story.

Doug Hoffer
VTDigger placed a public records request for a letter sent by Condos and Hoffer to the governor’s office.

In the letter dated Oct. 17, Condos and Hoffer raised concern over a reported “directive” related to preservation of “duplicate” emails.

“It has come to our attention that the Office of the Governor may be providing direction regarding the management and retention of email messages created or produced by agencies and departments under the supervision by the Governor,” Condos and Hoffer wrote in the one-page letter sent to the governor’s legal counsel, Sarah London.

Condos and Hoffer reported that at least “one agency/department” had contacted the State Auditor’s office, concerned that agency secretaries and department commissioners had been “directed to delete ALL emails” between their “agency/department” and the governor’s office.

Also, the letter stated, the “understanding” from the concerned party was that the governor’s office would “manage and preserve those emails.” Similar information was shared with the Vermont State Archives & Records Administration, Condos and Hoffer wrote. VSARA falls under the oversight of the Secretary of State’s office.

London, the governor’s counsel, provided a three paragraph reply, writing that she had already responded to Condos’ staff three weeks earlier about the issue and questioned why the matter had resurfaced. She referred Condos and Hoffer to the Vermont Attorney General’s Office, which has been directly involved in advising the governor’s office regarding public records retention.

“Your staff acknowledged the clarification that day,” London wrote, adding the governor’s office has “heard nothing from your office” since that time.

“We look forward to discussing your willingness to appropriately manage the duplicate records of the Governor’s Office consistent with the attached MOU,” she wrote.

A call this week to London was returned by Coriell, the governor’s spokesman.

“There was no directive from the governor’s office telling people to delete emails,” Coriell said, adding that there may be confusion because this is the first time a governor is sending electronic emails to the Secretary of State’s office for archiving.

Several sources said that in addition to deletion there had been requests to agency officials to bundle correspondence with Shumlin’s staff and certain contracts for the governor’s office for archiving.

Coriell denied that any such request had been made.

Agencies have been asked, he said, to label policy formulation documents with the governor, or his senior staff, “executive privilege.” That’s so the Secretary of State’s office can determine “how and when they should be released consistent with our document retention schedule,” Coriell said.

The governor’s office is not redacting anything, he said aside from some information in its constituent service database such as personal email addresses and Social Security numbers.

An unsigned draft MOU between the Shumlin administration and the Secretary of State lays out the process for the release of archival records subject to the claim of executive privilege prior to the end of the six-year period.

Scott Coriell, Susan Allen

Scott Coriell, press liaison, and Susan Allen, secretary of civil and military affairs. File photo by John Herrick/VTDigger

The documents could only be released by a court order; with written approval by Shumlin; to the staff of the state archives “in so far as necessary to assure archival security”; or, if the record had intentionally been placed in the “public domain” by either the governor or attorney general.

Executive privilege was first invoked by the administration of former Gov. Madeleine Kunin in the case, Killington v. Lash, according to a footnote of the draft MOU.

In that decision the Vermont Supreme Court ruled that a governor may claim an exemption to the public records act by asserting executive privilege to preserve “the confidentiality of intergovernmental documents reflecting advisory opinions, recommendations and deliberations comprising parts of the process by which governmental decisions and policies are formulated.”

In a separate footnote, in the 2005 case, Judicial Watch v. State, the Vermont Supreme Court “affirmed the longstanding practice of accepting a retiring governor’s official papers with restrictions on public access to designated portions of the official correspondence for a period of years.”

And, the footnote adds, recent previous Vermont governors and secretaries of state have agreed to periods ranging from six to 10 years, and in the most recent instance, Gov. James Douglas and the secretary of state office agreed to a six-year period. That’s the same period contemplated in the draft memorandum by the Shumlin administration.

Jason Gibbs, spokesman for the Gov.-elect Scott’s transition team, said he didn’t know enough about the records retention policy of the current administration, or past administrations, to comment.

“The last time I worked in state government the legal counsel in the governor’s office handled all of the decisions around what was archived, and by whom,” said Gibbs, who served as spokesman and adviser to Gov. James Douglas.

He did say he would expect that public policy deliberations at the agency and department level to continue to be public record, available to the public and the incoming administration.

“But that’s not to say what they’re doing would restrict that,” he said. “I don’t want to be critical of them without knowing the details.”

CORRECTION: An earlier version of this story incorrectly described a change in the public records law governing executive privilege and destruction. The date of the change was also incorrect.

Alan J. Keays

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  • Bye bye EB 5 emails……

  • Rob Skiff

    The Governor may be working to sweep some unethical and/or illegal activity under the rug. He is using a blanket request to shield his actions about EB5 program or other various regulatory issues the benefit his campaign donors or even our Congressional team especially Leahy? What do you have to hide? Clearly something nasty.

    • Richard M Roderick

      Nothing here to see folks, Move along, move along, clear the the sidewalks.

      I would also watch to see if there are boxes of papers going to the boiler providing underground heat to state offices.

  • Gary Shattuck

    The contempt that this administration has repeatedly demonstrated towards the integrity of our state’s public records is absolutely remarkable. However, I have complete confidence that SOS Condos and Auditor Hoffer will reign in this most recent attempt by it to destroy even a single piece of paper or bit of data.

    Claims of so-called “redundancy” are highly specious and researchers at our archives hardly need the interference of ham-handed bureaucrats making that work even more difficult. Those of us relying on those resources will be watching closely.

  • Neil Johnson

    Perhaps any correspondence should be two years shorter than the statutes of limitation or perhaps those should be extended in cases like this to two years longer than statutes of limitation. How did our state avoid getting an F in ethics?

    Saying they are duplicate records is a cop out. It allows the Gov to have “complete control”. Bet this directive came direct from Pres. Obama. It would be really good to know the conversations about healthcare in our state between the two. Vermont was just a guinea pig and we’re finding the medicine was actually worse than the disease.

  • Wayne Ellis

    “Sources say it’s an unprecedented power grab by an outgoing administration.”

    Now what would the good Mr. Shumlin be so keen to hide?
    Could it be VT Digger has dug up something here?

    just woner’in

    • David Tucker

      The contracts related to disbursement of federal funds for cell coverage and broadband expansion would be of interest.

  • Kim Fried

    If this was a couple years ago this administration would be using a shredder to destroy documents that belong to Vermont’s citizens. It’s just plain embarrassing that this is happening in Vermont. I guess, based on how the Legislature and Administration does exactly what Shumlin tells them to do, we the citizens will have to wait six years to see exactly what these elected and appointed officials were doing during the past six years. Do you think it has something to do with the statue of limitations? I rather see thousands of pages of documents all redacted like the EB5 documents that were requested by Vermont Digger. Black pages, more black pages, at least it’s something for our tax dollars.

    • Neil Johnson

      If we strived for and achieved an Ethics grade of A+, we would have access to all this information as it happened.

  • David R. Black

    Sounds and smells like a chapter taken from the recent 2016 U.S. Presidential election email scandal textbook.

  • Frank Tershow

    An elected official in office during an investigation that includes his office being involved, should not have any right to protect a single document, paper or electronic. Shumlin’s effort HIDE something is very concerning and should NOT be allowed. You are elected by the people and the people have a right to know what you were up to while in office, especially when you aided in the largest fraud in Vermont history. Vermont Digger could possibly change history and the way Governor’s treat the position they are elected to. Mr. Scott, please do all you can to not allow this to go through. For the people!

    • Gov. Shumlin likely wants to restrict access to “contracts” because there is high probability that the $68M State Auditor Hoffer unearthed in his 12/2015 report is likely much, much, higher – – – should a thorough inventory be taken across state government. There is a reason why the Governor has abandoned state procurement policy during his tenure and it smells. Not long ago, the democratic party including recent gubernatorial candidate Sue Minter were championing Gov. Shumlin’s “proud legacy”. Some legacy.

  • Isn’t it interesting that the people we elect and are supposed to be working FOR us have the audacity to refuse to allow us to bear witness to what they have done or said via emails. Smells like something is rotten in Montpelier. They can’t even decide to implement an ethics committee to oversee these shady transactions. Shumlin is not going away in a very open and graceful way BUT a least he is going away.

  • Carl Werth

    Hiding, shredding and lying. This will be the Sumlin legacy.

  • Carl Werth

    Should be Shumlin, of course.

  • John Poratti

    Shumlin and Hillary think that laws don’t apply to them, and destroying the evidence is there way out. Certainly smells of something to hide.

  • Shumlin lost credibility with me a long time ago. I suggest getting this in front of a judge or perhaps ask Julian Assange for assistance…

  • Wendy Wilton

    Wouldn’t we love to know what’s in those emails? EB5, healthcare or energy related policy issues? Could be a number of things Mr. Shumlin does not wish to see the light of day. However, nothing prevents the whistleblowers from retaining these items in memory after the transition occurs, even if they fear retaliation at thus moment. Whatever is hidden in the dark will be exposed in the light.

  • JP Cook

    The hubris, the arrogance, the total disregard for democracy and transparency goes unabated with Governor Shumlin. I was addressed down several years ago by Mr. Shumlin at a Vermont Press Association meeting for asking an uncomfortable question about his transparency relative to Green Mountain Power’s rate setting. The questioner before me (a male) essentially was tell Mr. Shumlin of his disingenuous behaviors; that speaker received no such reprimand. Gov. Shumlin has done more to destroy Vermont, Vermont integrity Vermont’s brand mystic than any governor in the previous 100 plus years.

  • Scott Thompson

    First-rate reporting here, thank you! The risks of abuse inherent in this notion of “executive privilege” are so high, we absolutely have to have it monitored down to the details. I’m glad that Mr. Condos & Mr. Hoffer are on the case, but I’m even more glad that VTDigger has turned its searchlight gaze on the issue. There are few stronger motivations for good behavior than knowing that thousands of people are watching for word of what you’re up to.

  • David White

    Where is ag sorrel? Haven’t all these doc been deemed part of an investigayion?

  • Todd Morris

    Mr Hoffer being an avid reader, and frequent commenter of VT Digger to ensure the readers are kept well informed of facts I look forward to his insight

  • todd spayth

    Transparency in government? NOTHING that is done for the good of the people, should be kept private, period.

  • Really? Words fail me.

  • David Tucker

    Contracts are clearly public documents already (even though some exclusions of portions of same related to confidential vendor info may be respected) so what purpose is served by bundling them and sending them to the Governor? All contracts are also maintained just down the hall from the Govs office, so it’s not like he can’t access one if there was something he needed or wanted to know. if everything in this story is fact, there is reason to be concerned.

  • Ralph Colin

    Does any of this come as a surprise to anyone? It was perfectly predictable. The complete absence of ethics and integrity in the Shumlin administration and its spilling over onto the leadership of the House of Representatives is disgusting and reprehensible.

    At some point in the future, regardless of their efforts to hide or destroy unpalatable documentation which they’d rather see disappear, the truth will come out and the real story of the shenanigans and the perfidy promoted by the current administration and its collaborators in the General Assembly will surface. You can count on the fact there is someone now hiding in the bushes who, for personal reasons or compensation, will spring forth and spill the beans. It’s just a matter of time.

    Perhaps VTDigger will be able to enhance that process. It should make a great story; perhaps even a TV documentary.

  • John Zuppa

    Shumlin is trying to “one up” Clinton to make sure that rural America feels justified in ousting the Democrats…(and to save his own rear-end)…

    BUT make no mistake about it…There is no honesty on the Republican side either, Especially in Trumpf’s admin…

    SO…What does the ordinary citizen do?…When something is so intolerable?…

    Read Thomas Paine..??…and then…Act..!!

    “Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.”…TP

  • Ed Gomeau

    I have been a local government administrator in three states for over 40 years and also worked briefly for the federal government. I am originally from Rhode Island which is the birth place for corrupt politics. But no where have I seen the arrogance, or disregard for ethics and standards of good public service than in Peter Shumlin. He deliberately ignores the ‘public’ part of being a public official, responsible and accountable to Vermont citizens. Despot is too kind a description for this ‘government in the shadows’ operative. While his clumsy attempts to circumvent the principles of honest, ethical, open government are insulting and an affront to not only Vermont but to the millions of hard working, dedicated public officials past and present everywhere, perhaps it is better to just seal off the past six years as if they didn’t happen or were just a bad dream.

  • David White

    Where is ag Sorrel? Aren’t these email part of an on going eb-5 investigation ?

  • Timothy D. MacLam

    $humlin’s contempt for Vermonters, dishonesty and secretive ways continue into his last weeks in office. He needs to take another out of state vacation so we can be protected against further skullduggery in his remaining time. Should we inventory the contents of the 5th floor as well?

    • Simple solution! Class action suit by some. low income folks for a cease and desist, until all pending investigations are complete utilizing legal aid system…

      • walter moses

        I agree. Let’s hire Shap Smith’s law firm.

  • If it walks like a duck, talks like a duck,..
    Doesn’t this fit right into the governors MO? And at this point who would trust this attorney general?

  • Steve Merrill

    Not to worry, I’m SURE there’s nothing to see here, these are not the drones we’re looking for, you may go about your business. Especially do NOT ask about the e-mails ‘tween FINRA, Stenger, Quiros, and $hummy, they’ll come out in the lawsuits that’ll drag on for MORE than the six years to daylight. This “Gray Area” reminds me of sewage treatment plant’s “Grey Water”, not quite solids needing treatment, but yet not clean enough to use. And we thought Jim=Jobs was bad. At least we keep the lawyers in the black, there’s plenty of work here in the “Kingdom” for all of them! SM, N.Troy.

  • This is shameful. There are multiple lawsuits stemming from Quiros’ EB-5 fraud and the involvement of our state officials and agencies needs to come out into the open. I should think that the lawyers for the plaintiffs would seek an injunction against the destruction of any evidence in the state records. Since one of those lawsuits was files by the state, our A.G. should be screaming bloody murder. And the judge in Miami, Davin Gayles might also want to know about what is alleged to be going on in the Governor’s office.

  • Kathy Leonard

    So, legislators….will you enact ethics legislation THIS SESSION, please? Or will we sink into the swamp that dissolves trust in state government? Pls bring this up, Ben Jickling and Jay Hooper newly elected of Randolph, as it has gotten lost in the previous political avoidance..

  • Todd Morris

    Crikets from Mr Hoffer. We all know he is reading every one of these comments and usually is quick to add his opinion. I think his silence is telling us all something. Gov Shumlin is trying to ensure many EB-5 and Vermont Health Connect docs are buried because they indicate unethical or illegal activities by the governor and other state leaders. My opinion is that the governor purposefully misled the public because he knew all to well his policy positions would not be supported by the populace. He was using the VT tax payer as his springboard to a national role in what he presumed would be a Clinton administration. In my opinion there is little doubt about that. I want Doug Hoffer to tell me how wrong I am

  • Homer Sulham

    I believe Howard Dean sealed much of his records also.

  • rosemarie jackowski

    After the Jerry Dodge scandal, nothing should surprise us.

    • Neil Johnson

      Just neighbors helping neighbors, the Vermont way. Just Montpelier leading the way to a transparent government, writing ethics laws to protect the people and reduce extra emails from clogging our system and reducing efficiencies.

      (extreme sarcasm button stuck on)

  • Frank Tershow

    This deserves a protest in Montpelier!

  • barry Kade

    Apparently Trump supporters had the wrong target. It should have been Shumlin. Lock him up.

    • Jim Ackerman

      Barry, this guy has smelled of fish since the day he took office, but yet, scandal after scandal, and nothing ever comes from it..
      Putney Pete, the Teflon man!!

  • Jim Ackerman

    The administration of this sneaky & slippery excuse for a governor has been clouded with anything BUT transparency.

    From the EB-5 scandal to the poor mentally challenged neighbor in Calais.

    It’s simple. If he wasn’t guilty of something shady, he wouldn’t be issuing these orders..

    But, what if anything will come of it??
    His cronies under the dome won’t pursue it?? Nor will the media who protects him..

    Great reporting VT digger.

  • It’s good to see Vermonters comments because they are consistent with what I’ve felt all along. Governor Shumlin and many of our political and law enforcement officials including United States Attorney Eric Miller should be investigated for obstruction of justice. There is an urgent need to hold those who violate the public trust accountable under the law. Attorney General-elect TJ Donovan is an advocate for giving folks a leg up, but there is also an urgent need for our new attorney general to re-calibrate the state’s law enforcement priorities to include “equal justice under the law” and hold those who violate the public trust accountable.

    President-elect Trump should also retire United States Attorney Eric Miller in favor of someone who will abandon “selective” enforcement of federal fraud laws, takes his oath seriously, and isn’t afraid to prosecute white collar criminals as Mr. Miller recently let another fraudster walk with no prison time. http://bit.ly/2gSRtfU

  • Patty Morale

    So Clinton-esque

  • Does this really surprise anyone? If it does, you must’ve lived in Vermont less than a week,
    – How many free trips did our governor and others take with the EB5 fraudsters?
    – Who in the executive branch signed off on the EB5 fraudsters not paying the fees to the state
    – Who in the executive branch allowed key economic department employees to resign or grab other state jobs?
    – Who is Bill Stenger working for right now, Who arranged that job.
    – which Gov. is up to his knees in the EB5 swamp ?

  • The makes perfect sense,
    especially if illegal and illegitimate actions are ongoing.

  • J Scott Cameron

    Every politician in Vermont supports transparency in government unless and until it comes to the disclosure of his/her own documents. Is anyone surprised by this?

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