JEFFERSON CITY - By failing to preserve many e-mails as public records, the office of former Missouri Gov. Matt Blunt ran afoul of two state record retention laws, a 15-month investigation concluded.
But investigators do not plan to refer any violations to prosecutors.
In a report filed with the Cole County Circuit Court Tuesday morning, investigators Mel Fisher and Rick Wilhoit cited several areas of noncompliance with the law.
The investigators stopped short of saying that Blunt had specific knowledge of the legal compliance issues, in part because they were unable to interview him. They said the governor had received bad legal advice.
"Absent the opportunity to conduct an interview, the (investigative) team is unable to determine if Gov. Blunt had ... any independent and/or special knowledge that might negate any good faith belief he had in the incorrect legal advice that he received as governor from his general counsel, Henry Herschel," the report says.
The report blames Herschel, who was Blunt's top attorney and the custodian of records, for not understanding the state statutes and offering incorrect and sometimes contradictory advice to Blunt and other employees of the governor's office. Blunt replaced Herschel as general counsel shortly after the investigation began. Herschel is now a state administrative law judge.
Herschel's attorney, John Comerford, did not directly dispute the assertion that Herschel gave bad advice. But he said "there was not a shred of evidence" that Herschel ever broke the law, and he called his client "an excellent lawyer."
The report is inconclusive on the most explosive issue that came up during the investigation: whether an employee or employees of the governor's office sought to destroy records on the backup tapes. There is insufficient evidence to "prove or disprove" that allegation, the report says.
In comments attached to the report, Blunt, through his attorneys, denied most of the report's conclusions.
"The findings and conclusions the report reaches ... are rooted in no small part on legal assumptions and conclusions that are at odds with the text of the statutes," wrote the governor's lawyers, John Holstein and James Meadows, in response to the report.
The former governor defended Herschel, though admitted in his response to the report that he "may have been imperfect in some of his advice."
Blunt and his spokespeople have consistently referred to the investigation as being politically motivated and without merit.
Fisher and Wilhoit, both former state patrolmen, were appointed by then-Attorney General Jay Nixon to investigate allegations of possible violations of two sections of state law - record retention and the Sunshine Law - in November 2007 after several media reports that the governor's office was not preserving e-mails. Blunt had said then that e-mails were not public record. At the time, Nixon was embroiled in a political battle with Blunt as the two positioned themselves for the 2008 race for governor.
Blunt later decided not to run. Nixon won the race and became governor in January.
The 46-page report - with more than 2,500 pages of exhibits contained on four CDs - summarizes its findings with eight conclusions, including that the governor's office's policies on record retention were inadequate. The report says that because the office in many cases failed to retain e-mails, compliance with the Sunshine Law was virtually impossible.
Citing several Sunshine Law requests as examples - going back to an Aug. 27, 2007, request made by the Springfield News-Leader and including a Sept. 14, 2007, request by the Post-Dispatch - the investigators point out that while the governor's office denied records existed in response to those claims, the ensuing investigation found hundreds of pages of documents that should have been retained and were responsive to the requests.
The documents were found on backup tapes of state e-mails that the Post-Dispatch, Kansas City Star and The Associated Press sued to preserve and obtain. Those records show former Blunt chief of staff Ed Martin using his state e-mail address to rally political allies to criticize Nixon over abortion issues and to criticize the process by which Missouri chooses its judges.
Hundreds of Martin's e-mails were responsive to Sunshine Law requests filed by reporters and others, but they were not provided in accordance with the law, the report found.
In depositions cited by the report, Herschel told investigators that the Martin records wouldn't be provided in response to Sunshine Law requests because the requests didn't specifically seek a search of backup tapes.
But between Oct. 27 and Nov. 1, the investigators say, four requests came in that asked for backup tapes, and those requests were never provided to the Office of Administration, which kept the backup tapes.
The release of the report brings to an end the legal battle between the investigators and Blunt. With the report in hand, attorney Lou Leonatti, one of two lawyers appointed by the court to oversee the investigators' work, filed a motion to dismiss the case brought against Blunt. Leonatti declined to comment Tuesday.
The lawsuit and a separate civil lawsuit brought by the fired deputy counsel of the governor, Scott Eckersley, together have cost taxpayers more than $1.5 million in attorneys' fees. Eckersley claims he was fired for offering advice that suggested the governor's office was not properly following the Sunshine Law. His lawsuit is ongoing in Jackson County Circuit Court.
Get the latest developments in the Matt Blunt e-mail scandal.