Thursday, March 03, 2005 | A memo sent from Mayor Dick Murphy’s chief of staff to the city of San Diego’s data storage house days after a federal inquiry reached its way to the mayor’s office has created a stir in City Hall – especially from Murphy’s political rival, City Councilwoman Donna Frye.
In a Feb. 18 memo written in techie-speak from the mayor’s top aide, John Kern, to the president of the San Diego Data Processing Corp., Kern requests that back-up tapes be made for the servers of the nine council offices and the mayor – tapes that would contain council e-mails, calendars and possibly sensitive personal information.
“The request would appear to be a request for all of the council members’ e-mails and files without the council members’ knowledge,” Frye said.
The mayor’s office said Kern was only fulfilling his obligations under a Feb. 11 subpoena from the U.S. Attorney’s Office. In the subpoena, federal agents requested documents and correspondence of another Murphy aide, ballpark administrator Dennis Gibson, as well as documents and correspondence related to the three major credit rating firms and the San Diego City Employees’ Retirement System. The subpoenas request documents from Jan. 1, 2000, to the present in the subpoena, as does Kern’s memo.
But Frye believes there’s no innocence in the departing Kern’s actions, and that the information gained from the files of all council offices could have been priceless as he restarts his political consulting firm when he leaves Murphy’s office April 1.
“The reality is that these are political offices. We can try to pretend that they’re not. We can pretend that everybody gets along, but the fact is that Mr. Kern will be leaving the mayor’s office to resume the campaign consultant business. The idea of the potential to take with him the entire City Council e-mail and files from January 2000 to the present, it raises serious ethical questions,” she said.
One memo, many interpretations
Tom Fleming, its president, said that he believed Kern didn’t know what he was asking for in the memo. He said Kern was simply looking for information specifically related to the credit rating firms named in the subpoena.
“The servers he was asking for contained a lot of other data. And he now understands what he wants from his request,” Fleming said.
When pressed on further technical details, he deferred questions to the corporation’s attorney, Don Del Rio. Del Rio didn’t return several calls for this story.
Two experts interviewed said that because of the highly-technical language used in the memo, it’s likely that the author had a strong command of the technical issues at hand or had the help of an informed advisor.
“It was John Kern’s intent to save only files from the mayor’s office in order to comply with the U.S. Attorney’s subpoena to the city. It was never intended to obtain any City Council files,” said Colleen Windsor, Murphy’s spokeswoman.
The one-paragraph memo requests “effective immediately, that you halt the over-writing and remove from circulation any and all back up tapes” from Jan. 1, 2000, to the present.
Thalheimer, who lost a bid to unseat the Murphy-supported Councilman Scott Peters last fall, left the DPC in March 2000. But when he was there, he said it was practice not to overwrite tapes for the council members or mayor – instead, the tapes were always preserved. Overwriting takes place when information is saved in the short-term on tape, but later deleted to make room for more data.
“The request is telling me that they are missing information and somebody’s realized that,” Thalheimer said. “Somebody knew that they were deleting information.”
The only way that over-writing would be performed, he said, would be if the city manager or mayor’s office were to directly request it.
“My initial reaction is that this stinks,” Thalheimer said after being showed the memo.
Questions surrounding the deletion of city files were raised once already in January, when e-mails turned up during investigations revealed a large file cleaning took place in city departments last December. Officials said it was part of a routine cleaning to open up space on city computers.
The Securities and Exchange Commission is investigating errors and omissions made in the city’s financial statements given to potential investors, while the FBI and U.S. Attorney’s Office are investigating possible public corruption. The investigations and revelations of errors in the financial statements have caused the city’s credit rating to essentially be frozen, leaving it with little access to borrow funds for long-term projects.
Kern also copied the memo to Del Rio, Eileen Hemenway and Pam Noughton, who is representing Murphy in the ongoing investigations. It is unclear who Hemenway is, though she is mentioned once without a title in recent DPC board meeting minutes.
The Feb. 11 subpoena came after suspicions were raised that the mayor’s office knew of the city’s growing pension problems in 2002, before public disclosures for ballpark bonds reported financial data that was rosier than reality.
DPC has also had its fair share of controversy. Former CEO Roger Talamantez resigned last year after an audit revealed that higher-ups in the organization ran up expensive bills on lavish partying and eating.
Howard Stapleton, who works in the city’s information technology services, said that it could be that Kern was being extra cautious in requesting that over-writing be stopped.
“My guess would be that given that there’s been an SEC investigation, that people would over-retain info now… I wouldn’t think that in this environment there would be overwriting going on,” he said.