ATLANTA (AP) - A judge is mulling whether to sanction the Georgia attorney general’s office, the state ethics commission and the commission’s director for not turning over certain documents in a whistleblower trial after hearing arguments from all sides Monday.
Former ethics commission head Stacey Kalberman earlier this year won a whistleblower case claiming retaliation for investigating complaints against Gov. Nathan Deal. She has asked Fulton County Superior Court Judge Ural Glanville to issue sanctions, claiming that the state’s lawyers should have turned over emails and a memo showing communication between her replacement and top Deal aides.
Current ethics commission executive director Holly LaBerge and Senior Assistant Attorney General Bryan Webb, who defended the commission against Kalberman’s lawsuit, gave conflicting testimony Monday.
Kalberman attorney Kim Worth said lawyers for the state failed to give her a memo LaBerge wrote in July 2012 in which she alleged that an attorney for Deal threatened to block efforts to expand the agency’s authority unless LaBerge made complaints against Deal go away. Worth said she also should have received emails LaBerge sent to her own personal email account that included text message exchanges between herself and Deal chief counsel Ryan Teague and chief of staff Chris Riley.
Those documents should have been produced in response to requests for discovery in the case, Worth argued. It’s irrelevant that a jury awarded Kalberman $700,000 in damages plus attorneys’ fees; the harm was done when the rules weren’t followed, Worth said.
“What Stacey Kalberman wants out of this, your Honor, is a recognition that a violation occurred,” Worth said.
LaBerge testified Monday that she never saw discovery requests directed at her before the trial, though Webb said he sent them all to her office.
As part of a request from Kalberman’s lawyers, Webb told LaBerge to search her personal email accounts for emails that included names of certain past and present ethics commission employees and commissioners, LaBerge said. When she asked if she should include text messages, he said not unless they had to do with the names he’d given her, she said. Webb disputed that, saying he had asked her for all work-related emails in her personal email and didn’t remember giving her search terms.
LaBerge said Webb told her during the trial that he’d told the judge LaBerge wouldn’t testify about the memo unless she was asked about it. Webb said he told LaBerge before the trial to answer truthfully about the memo if it came up.
Webb insisted that the memo in which LaBerge said she felt threatened by Deal aides was not responsive to the requests from Kalberman’s lawyers. There is a difference, he said, between being relevant and being responsive. The text messages were responsive and he would have handed them over but he didn’t see them for the first time until last month, he testified.
None of the commissioners at the ethics commission, which is formally known as the Georgia Government Transparency and Campaign Finance Commission, ever instructed LaBerge to withhold documents or not to discuss documents, said attorney Alisa Pittman Cleek, who’s representing the commission.
Glanville said he would rule by next week. He asked a lot of questions of both LaBerge and Webb and indicated that it would be serious if documents were improperly withheld.
“The harm is that public confidence is lost,” Glanville said, adding that it could prompt others to think there are no consequences for not producing all documents during discovery.
Kalberman only seeks to recover her attorney’s fees from this action, and any money from sanctions should be donated to the State Bar or another entity, Worth said.