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Release of sealed documents not end to Detroit mayor’s troubles

Associated Press Writer

DETROIT, Feb. 27, 2008 (AP): Mayor Kwame Kilpatrick has lost one battle in an ongoing text-messaging sex scandal, but his next fight may be to stay out of legal jeopardy while saving his job as head of one of the nation’s largest cities.

A prosecutor is expected to rule by mid-March on whether she will pursue felony perjury charges against Kilpatrick and his former top aide for statements both made under oath in a whistle-blowers' trial that eventually cost Detroit taxpayers $8.4 million.

Records made public Wednesday also reveal a trail of deceit—signed off on by Kilpatrick and former Chief of Staff Christine Beatty—detailing the cover-up of an affair between the two as a factor behind the huge settlement amount.

For the mayor, whose public image already is tarnished by an earlier release of the intimate and sexually explicit text messages left on Beatty's city-issued pager, the records and deposition of an attorney representing two former officers in the whistle-blowers' lawsuit also point to betrayal of the public trust.

The about-face by the city to quickly settle the lawsuit is directly linked to the text messages, said attorney James E. Stewart, who represented The Detroit News, which along with the Detroit Free Press filed suit to get the documents released.

``The city said you keep quiet and we're going to find a way not to tell the City Council about the agreement,'' Stewart said Wednesday afternoon. ``Everything from that point on is an attempt to hide the text messages and what they show from everybody.''

Those records and Michael Stefani's deposition by attorneys for the newspapers were made public Wednesday when Michigan's Supreme Court denied Kilpatrick's effort to keep the documents sealed.

City lawyers took their appeal to the highest court to try to stop Wayne County Circuit Court Judge Robert Colombo Jr.'s order releasing documents from the whistle-blowers' agreement as well as Stefani's Jan. 30 deposition.

The documents are related to the text messages, but they do not include the actual messages.

They do include an initial Oct. 17 settlement agreement of the whistle-blowers' suit, which included a clause keeping the text messages secret; Kilpatrick's rejection of that agreement on Oct. 27; and a copy of an escrow agreement detailing how documents related to the settlement would be placed into a safe deposit box.

``There's nothing new there,'' Sharon McPhail, the mayor's legal adviser, said of the documents. ``It really was all about the principle of protecting the mediation process.''

In Stefani's five-hour deposition, he explained that he thought Kilpatrick rejected the Oct. 17 agreement because the Free Press had filed a Freedom of Information Act request asking for the settlement.

``I'm presuming, but don't know for a fact, that they _ that is, Mayor Kilpatrick and perhaps Beatty, did not .... want the reference to the text messages in the Settlement Agreement,'' Stefani said.

After the mayor rejected the Oct. 17 agreement, a separate confidentiality agreement detailing how the text messages would be kept secret was reached Nov. 1 between all parties.

`` ... it dawned on somebody that they didn't want the text messages referenced in the settlement agreement, so they'd have to separate it out into a separate confidentiality agreement and a separate settlement agreement,'' Stefani said in the deposition.

The city argued the documents and deposition should remain sealed because they involved communications between attorneys during court-ordered mediation, but the state Supreme Court ruled ``there is no FOIA exemption for settlement agreements.''

City of Detroit Corporation counsel John Johnson said the city is disappointed by the ruling.

``Opening up settlement information to public view will most certainly put a chilling effect on parties trying to settle cases,'' Johnson said in a statement. ``This ruling discourages the city from entering into the time honored and cost effective process of mediation.''

The Free Press first reported last month on the embarrassing text messages between the married mayor and Beatty, who also was married at the time. Beatty announced her resignation shortly thereafter and Kilpatrick made a televised speech apologizing to family and constituents but avoiding direct mention of the allegations.

The Free Press has not said how it obtained the text messages.

Kilpatrick and Beatty denied under oath having a physical relationship in the whistle-blowers' lawsuit filed by Deputy Police Chief Gary Brown and officer Harold Nelthrope. They claimed they were fired or forced to resign for investigating claims that Kilpatrick used his security unit to cover up extramarital affairs.

Wayne County Prosecutor Kym Worthy is looking into that testimony as part of the possible perjury case against Kilpatrick.

Detroit City Council President Ken Cockrel Jr. said he received a subpoena from the prosecutor's office and appeared Wednesday for a deposition. He said the deposition took about 45 minutes but declined to offer any details.

Cockrel said fellow City Council member Kwame Kenyatta also appeared for a deposition on Wednesday.

``This is complete vindication for the idea that public officials cannot lie under oath and go behind closed doors in secrecy to make decisions with so much public money in the balance,'' Free Press Editor Paul Anger said in a story posted on the paper's Web site. ``The public's right to know has been upheld.''

A jury ruled against the city in September, and despite vowing to appeal that decision, Kilpatrick agreed to pay $8.4 million to Brown, Nelthrope and a third former officer who filed a separate lawsuit.

Other settlement agreement documents made public Feb. 8 reveal that Kilpatrick and Beatty authorized and signed the confidential agreement with the three officers and their attorney to keep the text messages secret.

The text messages are from Beatty's city-issued pager for two months each in 2002 and 2003.

Stefani said he subpoenaed the city's communications carrier, SkyTel, for text messages from those periods because they appeared to coincide with a long-rumored wild party at the mayor's official residence in 2002.

``... the Manoogian Mansion party was supposed to have taken place in September. And I wanted to see if there were text messages about that,'' Stefani said in the deposition.

In his deposition, Stefani also described the city's abrupt decision to reach a settlement once Kilpatrick's lawyer, Sam McCargo, learned that he had copies of the text messages. Stefani said he and McCargo spoke in a parking lot.

``And McCargo looked ashen or shook up,'' Stefani said. ``And he looked at me, and he said, `I had no idea about these. Have you filed it with the court?' And I said, `No, I haven't filed it yet, but I'm going to do that tomorrow.' And he said, `Give me some time.' And a few minutes went by. He called back, he says, `Boy, I was lucky. I got the mayor right at the airport.'''

An envelope containing the text messaging information given earlier that day to McCargo also included a motion by Stefani saying he was entitled to enhanced fees because of the amount of time he spent on the case.

``The basis of my motion was that if Beatty and the mayor had not lied since day one through all of these depositions, we would have not had to incur anywhere near a million dollars' worth of attorney time,'' Stefani said in the deposition.

Stewart said Kilpatrick had refused to settle until that information was given to McCargo.

``When Mr. Stefani showed them he had the text messages, demonstrating the mayor and Ms. Beatty had lied under oath, suddenly the mayor is called, the corporation counsel appears in the settlement discussions and the case is settled for a hundred cents on the dollar,'' Stewart said Wednesday.

Associated Press Writers David Eggert in Lansing and David N. Goodman and Jeff Karoub in Detroit contributed to this report.





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