5/17/2015
Auditor's emails at center of New Castle County government rift; Weiner: "I am of the opinion that there could arguably be ethical, professional and criminal violations of the law in that email. I want to protect this body"

In the wake of the email release, Weiner has suggested hiring an outside legal consultant to look at the emails. It was not a political decision, he said.

"I am of the opinion that there could arguably be ethical, professional and criminal violations of the law in that email. I want to protect this body," he said last month.

Wilmington lawyer David Finger, who represented the Coalition for Open Government on legal matters, said the Wasserbach emails are public, regardless of any motives behind their release.

"I believe that emails to or from county-sponsored email addresses, on county time and at county expense, is related to a public purpose, as it reflects how the taxpayer-paid employee is utilizing his or her work time."

Auditor's emails at center of New Castle County government rift 

The News Journal 8:02 p.m. EDT May 16, 2015

Story Highlights

• New Castle Auditor Bob Wasserbach last month released an audit of county investments.

• Officials in the executive branch questioned whether Wasserbach could be objective.

• Wasserbach is a business partner of lobbyist Rhett Ruggerio.

• A FOIA request has produced more than 1,000 pages of emails between Ruggerio and Wasserbach.

The files appeared in the email inboxes of the 13 New Castle County Council members on April 17. Included were 10 years of correspondence that Auditor Bob Wasserbach sent from his government email address to business partner and lobbyist Rhett Ruggerio.

The data dump included hundreds of messages between the friends, from discussions about weekend plans to missives about college football conferences. But what drew the most attention were the emails about politics, like Wasserbach in 2008 saying he wanted to campaign for Wilmington Mayor James M. Baker and, in another, exploring a possible state position if gubernatorial candidate John Carney won the election.

The 1,017 pages of documents were distributed as the executive branch was bracing for Wasserbach's audit of controversial New Castle County investments. County Executive Tom Gordon and Chief Administrative Officer David Grimaldi for months had been critical of the investigation and Wasserbach, arguing the investigation was politically motivated.

The ensuing April 22 audit was hardly a blockbuster – the primary suggestion was to ramp up oversight of investments – but records obtained by The News Journal show that in the weeks leading up to its publication, legal staff within the government sparred over the appropriateness of making the Wasserbach-Ruggerio emails public. The release, records also show, was the product of an atypical Freedom of Information Act review process that has now mushroomed into calls for an outside investigation into Wasserbach's activities.

Grimaldi and Councilman Bob Weiner contend the emails are ethically questionable and potentially criminal. Wasserbach said he's done nothing wrong.

Attorneys for the council say the emails are private, despite being sent through a government account.

"The request has to state a public business," said Carol Dulin, a lawyer for the County Council.

Wilmington lawyer David Finger, who represented the Coalition for Open Government on legal matters, said the Wasserbach emails are public, regardless of any motives behind their release.

"I believe that emails to or from county-sponsored email addresses, on county time and at county expense, is related to a public purpose, as it reflects how the taxpayer-paid employee is utilizing his or her work time."

County Councilwoman Lisa Diller said the situation is troubling.

"I don't think there is anything unclear about what happened. Mr. Wasserbach's personal emails were illegally obtained. What is the point of having two branches of government ... ?" she asked.

The FOIA issue has touched off a dispute between the legal teams advising the County Council and executive branch about the appropriateness distributing private emails sent using a government email address.

"The open document law was enacted to allow us, the public, to observe and evaluate our public officials," said John Flaherty, president of the Delaware Coalition for Open Government, who spoke with both Wasserbach and administration officials. "If they we whiling away their time on private business on public time, we have a right to know."

FOIA request divides county officials

The correspondence was requested in March by Andye Daley, of Middletown, who asked for all emails between Wasserbach and Ruggerio dating to 2005 under the state Freedom of Information Act. Daley, who previously ran for County Council and supported Gordon's successful 2012 county executive campaign, said she made the request because "there has been a lot of talk about the auditor's property deals with Ruggerio, who I know to be a registered lobbyist."

Under state code, auditors can't be actively involved in partisan political activities.

Ruggerio, of Lewes, runs the firm Ruggerio Willson & Associates, which represents organizations from small community groups to Fortune 500 companies. He previously was chief lobbyist for the city of Wilmington and served as an assistant to Baker, where he met Wasserbach, then the city auditor. Together, they own two rental properties in New Castle County and two in Sussex County.

Wasserbach, of New Castle, became county auditor in 2005, after being appointed by the County Council. Last summer, he launched the audit into the shift of $92 million in surplus taxpayer money to a new money manager, UBS, in November 2012. The transfer was recommended by Grimaldi without the contract going out to bid, a move that was rebuked by some on the County Council.

Grimaldi, who has a background in finance, has been vocally opposed to the audit. He has said Wasserbach's connection to Ruggerio is a conflict of interest because Ruggerio lobbies for home builders and the County Council regulates property development. Grimaldi also has pointed to Wasserbach's 14 campaign contributions to Democratic candidates.

Wasserbach said the Gordon administration attacked him because he was doing his job and they worked to discredit his objectivity.

"They have been in office for two-and-a-half years and it wasn't until the investments audit that there were these attacks on my character," he said.

On March 17, the Daley request went to County Council FOIA administrator Betsy Gardner, who ruled the state open records law didn't apply because the request didn't indicate government business being sought. She consulted with council lawyer Dulin, who agreed.

After being denied, Daley on April 7 asked Grimaldi for executive action, emails show. The legislative and executive branches each have their own FOIA administrators and legal teams, but on April 8 county Solicitor Darryl Parson, who serves as attorney to county administration, wrote a legal opinion saying Daley's request was legitimate and urged the council to fill the request.

"So we may return to other County work, the Clerk of Council should endeavor to fulfill Ms. Daley's initial FOIA request. If not, the Office of Law will notify Council and respond in the appropriate manner," Parson wrote in an email to Gardner obtained by The News Journal.

The note touched off a back-and-forth between the executive and legislation branches. Gardner and Dulin disagreed about the request's legitimacy. Eventually, Parson used his authority to access Wasserbach's archived emails and forward them to Gardner, with instructions to redact any material exempt under FOIA law before sending the documents to Daley, records show. He also copied the County Council on the message, sending all of the unedited Wasserbach emails to their inboxes.

Ultimately, the executive branch sent Daley the requested documents, overriding Gardner entirely.

County Attorney Bernard Pepukayi said the messages were sent to the entire board because Wasserbach reports to them.

"Because it is council's response, we thought it would be appropriate for them to know what is or is not being responded to on their behalf," Pepukayi said.

Ed Danberg, a former county attorney who is handling FOIA requests on a part-time basis for County Council, said the distribution "is entirely unusual."

"Typically, you would not distribute unredacted documents without having gone through them for privileged information before you distribute them to County Council members," Danberg said.

He said the situation indicates a break in protocol.

"It negatively impacts the separation of powers between the executive and legislative branches of county government, because it demonstrates that the executive is able and willing to read County Council's email without restraint," he said.

Ruggerio: Emails reflect personal conversations

Gordon would not elaborate about the release of the Wasserbach documents. He said the County Council staff has sought to protect Wasserbach by not filing the FOIA request.

"We did our best to shine light on the infection," Gordon said.

Under state code, auditors can't volunteer for a political campaign, ask for contributions or express "an opinion as an individual privately and publicly on political subjects and candidates, or involvement in nonpartisan or public community organizations or professional groups."

The News Journal also obtained the emails sent to council members, which show:

• Wasserbach on Aug. 28, 2008, told Ruggerio he was about to make a donation to then candidate-for-governor Carney and was "thinking about whether" he had a chance to get a position in his administration.

• On Sept. 2, 2008, he told Ruggerio he wanted to help with the mayoral campaign of Baker. Another email notes: "I'm volunteering for the Mayor's campaign later this afternoon."

• On March 26, 2010, Wasserbach said he invited Bruce Crescenzo, a member of the county Audit Committee, to a golfing fundraiser. Crescenzo now is chairman of the committee, which is Wasserbach's primary regulator.

The vast majority of the correspondence deals with non-political issues. Some are embarrassing, like Wasserbach's email after Gov. Jack Markell named Jeffrey Bullock secretary of state in January 2009: "Jeff Bullock as Secretary of State??! I've lost a great deal of confidence in Markell."

In a November 2010 email about city officials, he said, "I guess they need a good consultant so they can sit around and feed their fat faces."

Wasserbach, in an interview, said he was never involved in partisan political activities while in office and doesn't feel the emails show any wrongdoing. The golf trip, for example, was purely professional, he said.

"I was just looking for someone who plays golf," Wasserbach said. "I looked at it as more of golfing with a professional colleague."

As for the email indicating his intent to volunteer for Baker, Wasserbach said he was there for a few hours, ate food and talked to people, none of which he'd consider partisan political activity. He said the Faithful Friends correspondence was apolitical for an organization he's passionate about and didn't distract him from his job duties.

"If I did do something during the day, it doesn't take into account that I have many times done work things outside the work day," Wasserbach said.

Ruggerio said his emails reflect private conversations.

"He sometimes uses his work email to email friends not about work," Ruggerio said. "Should we have some privacy? Probably, but that is the way it is now."

Gordon has also said lawyers for the council are trying to protect Wasserbach. Dulin said the accusations are without merit.

Council President Chris Bullock said he would not talk about the issues between Wasserbach and the executive office. He supports an effort to purchase an independent email server for the council. Some council members previously have accused the executive branch of going through their government email accounts to uncover political dirt.

"We need separate email systems. There is a level of distrust between the administration and council and until we get those systems that distrust will persist," he said.

'Documents speak for themselves'

In the wake of the email release, Weiner has suggested hiring an outside legal consultant to look at the emails. It was not a political decision, he said.

"I am of the opinion that there could arguably be ethical, professional and criminal violations of the law in that email. I want to protect this body," he said last month.

The council also approached the Attorney General's Office about conducting an investigation, but the agency said it doesn't provide legal advice to county governments.

Flaherty said it would be appropriate at this point for the county Ethics Commission to take over. The seven-member panel investigates alleged violations of the county ethics code, which deals with conflicts of interests.

He said the executive branch's behavior also raises questions.

"Grimaldi needs to realize there is an appearance issue here for him, too, if he has an ax to grind. That is why he needs to get an opinion from the Ethics Commission. Everyone has their agendas," Flaherty said.

Wasserbach said he already has asked the Ethics Commission to review his correspondence with Ruggerio.

Smiley contends the Gordon administration is lashing out because it doesn't have enough council support to fire Wasserbach. Ten council votes are needed to remove the auditor.

"Quite frankly, I found it to be a slap in my face to get someone else's personal emails," he said during a meeting last month. "Which tells me I'm sure that probably everybody's here is being read."

As the rift continues, Wasserbach said he is continuing his reviews of county finances but says the administration is directing department heads to withhold information from him on matters he is seeking.

Grimaldi said Wasserbach hasn't shared with the administration an audit plan for the year submitted to the county executive, which is required by state law. Grimaldi said executive staff wants to make sure taxpayer money is spent wisely and that the Wasserbach emails show the county auditor is not making objective assessments.

"The documents speak for themselves," Grimaldi said.

Neither Gordon nor Grimaldi would comment on specific correspondence that indicates wrongdoing.

Wasserbach said county officials are punishing him for doing his job. If he's made any mistakes, Wasserbach said, it was how he wrote his correspondence.

"Looking back on it now, I wouldn't have used my work email for some of those emails," he said, "because I never thought those private emails would get out into the public."

Contact Xerxes Wilson at (302) 324-2787 (302) 324-2787 or xwilson@delawareonline.com. Follow @Ber_Xerxes on Twitter.

About this series

This is the second in a three-part series on personal attacks and conduct by public officials in New Castle County government.

Come back Monday for a look at how an audit of a Delaware pet shelter has become a political issue for New Castle CountyAuditor Bob Wasserbach.

Visit delawareonline to read the Wasserbach emails released to the County Council and see videos with key figures in this story.

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