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Appeals court orders city to hand over Kilpatrick documents

Records can't be released until Friday
February 13, 2008

By DAVID ASHENFELTER, JIM SCHAEFER AND M.L. ELRICK
FREE PRESS STAFF WRITERS

The Michigan Court of Appeals today ordered the city of Detroit to release the rest of the settlement documents that Detroit Mayor Kwame Kilpatrick used to conceal that he and former Chief of Staff Christine Beatty lied under oath at last year’s police whistleblower trial.
The appeals court also ordered the city to release a transcript of a 5-hour deposition in which cops’ lawyer Mike Stefani told the Free Press how the secret deal came about.

But the public will have to wait a while longer to read the documents. The appeals panel delayed the release of the records until Friday to give the city more time to appeal its decision to the Michigan Supreme Court.The appeal was denied “for failure to persuade the court of the need for immediate appellate review,” the 3-judge appeals panel said in an 6 paragraph order. The decision, signed by Judges Brian Zahra, Helene White, and Karen Fort Hood. It came one week after Wayne County Circuit Judge Robert Colombo Jr. ordered the city to release the documents, which the Free Press has been trying to obtain since October.

Today’s decision is the latest chapter in a saga that began last August when a Wayne County Circuit Court jury awarded Brown and former mayoral bodyguard Harold Nelthrope $6.5 million after accepting their claims that Kilpatrick and Beatty forced them out of their jobs because they were investigating alleged misconduct by the mayor’s security team, an inquiry that might have exposed the affair.Kilpatrick had vowed to appeal, but less than 24 hours after the secret deal was struck, he announced he was settling the lawsuit and a second whistleblower case brought by former mayoral bodyguard Walter Harris for $8.4 million. Kilpatrick said he had decided to settle on the advice of pastors, business leaders and Detroiters. He made no mention of the text messages.

After the Free Press requested the settlement agreement under the Freedom of Information act, a city lawyer initially said the settlement did not exist. The Free Press asked again and the city eventually produced 9 pages, which turned out to be the portion of the settlement crafted for public consumption. It contained no mention of the text messages or other crucial terms of the actual settlement agreement. The Free Press filed an FOIA lawsuit on Jan. 3 to obtain the rest of the documents.On Jan. 23, the Free Press published an online story about its review of nearly 14,000 text messages that Kilpatrick and Beatty exchanged on her city-owned pager in 2002 and 2003. The messages showed they had lied under oath when they denied at the cop trial that they had been involved romantically. They also gave misleading testimony about the firing of Brown.Two days later, the newspaper published a follow-up story in which the cops’ lawyer, Mike Stefani, said the $8.4 million settlement was governed by a confidential agreement. Stefani said the terms of the deal prohibited him from discussing it. Colombo then ordered Stefani to submit to a Free Press deposition and provide all of the settlement documents.At that hearing before Colombo, city attorneys denied any knowledge of a secret agreement.Colbert-Osamuede told the judge she was “not aware of any confidential agreements.”During a five-hour deposition on Jan. 30, Stefani provided the documents to the newspaper and explained how the single settlement evolved into public and private agreements.

Last Wednesday, Colombo ordered the release of the documents and a transcript of Stefani’s deposition, but left the materials under seal so the city could appeal his decision. The judge urged the city not to challenge his ruling, saying the documents were clearly public.But the city did appeal the release of some documents last Thursday. Free Press lawyer Herschel Fink and other lawyers were prohibited from divulging the contents of Stefani’s deposition or the documents. The city urged the appeals court to overturn Colombo’s decision arguing that two documents – known as exhibits 11 and 10 – are not public records.Exhibit 11 is the original settlement agreement that the city negotiated Oct. 17, two days before the Free Press requested a copy.Exhibit 10 is a document Kilpatrick signed on Oct. 27 rejecting the Oct. 17 agreement.

Lawyers for the mayor and the city later split the Oct. 17 agreement into public and private parts. The mayor and other city officials have argued that there was nothing wrong with negotiating the secret agreement, saying both sides were merely seeking the return of private documents acquired during trial preparation. They said it’s done all the time.But legal experts have said that applies only to lawsuits involving private individuals or private businesses. City Council members and Attorney General Mike Cox have said governmental lawsuit settlements must be public because taxpayers have a right to know how their money is being spent. The city also argued that private information of Brown and Nelthrope was contained in the agreement. Stefani, their lawyer, said that was an insurance policy crafted by Kilpatrick’s lawyers in case they needed to argue that the document should remain sealed.Brown and Nelthrope said the city already aired their private information during the lawsuit, and that they had no problem with unsealing the document.

Meanwhile, Wayne County Prosecutor Kym Worthy is investigating Kilpatrick and Beatty for possible perjury charges and said today she expects her office to take action in the case within the next 30 days. The City Council last week ordered an audit of the mayor and Law Department.Contact JIM SCHAEFER at 313-223-4542 or jschaefer@freepress.com.