June 2, 2014 11:13:48 AM
OXFORD -- On Nov. 12, 2012, Karen Nelson walked into the office of the Mississippi Department of Marine Resources in Biloxi and asked for some information.
Any person could have received the same information. That was not an issue.
Nonetheless, an amateurish game of hot potato ensued. It took a federal judge and a courageous state judge -- who issued her ruling May 27 -- to say enough is enough.
The state judge, Chancellor Jennifer Schloegel, described the actions of state Auditor Stacy Pickering and Attorney General Jim Hood with a wonderful four-syllable word: "contumacious." She also reminded them "they are charged with enforcing the law, not subverting it." She fined them and six others (lawyers and state officials) $100 each (the legal maximum) for their contumaciousness and ordered them to pay almost $38,000 in legal fees incurred by Ms. Nelson's employer, The Sun Herald newspaper.
Now the underlying story is no biggie. The Legislature created the DMR in 1994 to perform a variety of duties. Along came Hurricane Katrina in 2005 and the agency suddenly had more duties and a heck of a lot more money.
It would have been difficult not to notice some of the unusual expenditures of the DMR, so the newspaper -- as any good newspaper would -- embarked on months of reporting what appeared to be irregularities.
As of today, there have been assorted resignations, indictments, guilty pleas and a smattering of folks are still awaiting trial, accused of feeding too copiously at the public trough.
Nelson's request was to see financial records of one component of the DMR.
But the wagons were circled.
And the newspaper had to sue.
An agreement of sorts ended the matter for a while when the DMR agreed to turn over all the records "in its possession." But unknown to the judge or the newspaper's attorney was that Pickering had issued a subpoena to DMR for the records, worded almost exactly as the newspaper's request, and they were no longer "in its possession."
The skullduggery and legal machinations only got worse.
In direct violation of one Schloegel order, boxes of records disappeared during the night, spirited from Biloxi to Jackson.
Schloegel said Assistant U.S. Attorney Roger Dowdy, who had subpoenaed the records from state custody to federal custody, tried to call her while she was preparing to issue a ruling, apparently to try to sway her.
When Schloegel was initially considering finding Pickering in contempt, she says Attorney General Hood advised her not to issue her contempt ruling until she found out whether the state Supreme Court would reverse her. (An interesting proposition, to say the least.) To paraphrase, "Forget the law; think this is not going to look good for you."
Later, a federal judge, U.S. District Judge Keith Starrett, was called on to make some rulings. His opinion had the tone of astonishment -- that anyone would argue public records magically become secret just because a prosecutor might use them as evidence.
Almost as novel as Hood's request was the argument that because the DMR had law enforcement duties and Mississippi law shields law enforcement investigatory information from release, the request was improper. That's like arguing that because the U.S. Army has undisclosed contingency plans in case of war, the price of a helmet is secret.
There may be appeals of Schloegel's ruling, but this case laid bare the lengths to which public officials went -- a buddy system -- to keep from complying with a very clear state law when they didn't want to. No doubt every official involved in this case has spoken in favor of "transparency" and has favored "accountability" -- at least until it was inconvenient to let the public know how much money the DMR was receiving and how it was being spent.
Hats off to The Sun Herald for consistent work in the best traditions of journalism.
Hats off to Chancellor Jennifer Schloegel for declining a membership in the good old boys club, for enforcing the law as written and for saying it best:
"Defendant Auditor and its counsel acted in bad faith by issuing state grand jury subpoenas in a patently obvious attempt to circumvent the Public Records Act and to hide the public records of the DMR."
Incidentally, information in the records in no way kept any prosecutor from doing his or her job in bringing criminal charges against those accused of mishandling (or stealing) public funds.
It was all about skirting the law to save face.
This time, though, the people won.