Former City Attorney Nancy Isserlis’ demanded apology for the report citing her office for the politically driven delay of public records has drawn a strong rebuke from the author.
Accusing Isserlis of using “diversion tactics,” attorney Kris Cappel released a letter Wednesday detailing why she found that Isserlis and her employee, Pat Dalton, delayed records requested by The Spokesman-Review from reaching the City Clerk’s Office in the weeks leading up to the November election. Cappel also accuses Isserlis of using attorney-client privilege as a shield to avoid a bar complaint from Mary Schultz, the attorney representing former police Chief Frank Straub in a multimillion-dollar lawsuit against the city.
“Ms. Isserlis knew about, physically possessed, or had control over the documents for 5 months before they were finally disclosed to the Clerk on November 10th and 11th,” Cappel wrote in the letter, which was sent Wednesday to Isserlis’ attorney, John Spencer Stewart. Cappel italicized and boldfaced “5 months” in her letter.
The rebuttal from Cappel follows Stewart’s charge in a letter last week that the report’s findings were defamatory. Stewart demanded a withdrawal of the report and a written apology from Cappel by Aug. 10. He has since declined to comment if legal action will be taken. No lawsuit has been filed.
Instead of apologizing, Cappel doubled down in her statement.
“You have provided no new, or different information that wasn’t previously considered,” Cappel wrote in the letter.
Cappel cites a “credible source” in the letter who reports that Isserlis’ unwillingness to participate in the investigation was due to a belief that Schultz might file a disciplinary action against her for divulging if Straub had admitted to having an affair with Monique Cotton, the police spokeswoman who accused him of sexual harassment.
“As explained to me, Ms. Isserlis was concerned that Straub’s attorney would file a bar complaint against her. I believe the concerns may relate to her conversations with Straub when he was confronted with Cotton’s sexual harassment complaints,” Cappel wrote in her letter.
Schultz said she did not contact Isserlis in any capacity, because she was named in Straub’s lawsuit against the city.
“She must be speculating,” Schultz said of Cappel. “I can’t account for what Kris Cappel would be saying.”
Cappel declined to name the “credible source” who had provided her information.
Isserlis and Erin Jacobson, a lawyer in the city attorney’s office who has since resigned, did not speak with Cappel, publicly citing ethical concerns in a letter dated to Cappel’s law firm in April.
But Tim Schwering, who was acting as the Police Department’s director of strategic initiatives at the time of Straub’s ouster, did speak with Cappel. In Cappel’s notes from an April 29 phone interview with Schwering, she wrote that Schwering told her that during multiple meetings with him both Isserlis and Jacobson had said Straub had admitted an affair. Those notes were provided as attachments to the report Cappel released through the city earlier this month.
Cappel wrote in her letter she believed the interviews Isserlis and Jacobson had with Straub about the sexual harassment claims, during which he allegedly admitted the affair, were not protected by attorney-client privilege. Condon had tasked them with conducting “fact-finding” inquiries, and Cappel believed that information could have been revealed in her investigation.
However, Isserlis declined to participate, Cappel wrote, without offering her specific reasoning for doing so.
“If Ms. Isserlis believed that a privilege existed, she could have stated that she was not conducting fact-finding interviews, that she had advised Straub that the conversations were privileged or that she had failed to advise Straub to the contrary and therefore, he may have a reasonable basis to believe that the conversations were privileged,” Cappel wrote. “She articulated none of this as a basis for her wholesale refusal to participate in the investigation.”
Cappel’s dismissal of Isserlis’ reasoning behind the delay of the records, which showed members of Condon’s administration moved Cotton to a different job following her allegations of sexual harassment by Straub, is the latest in a series of public arguments about the report. Cappel’s findings have now been used as support for a recall effort against Condon, and two multimillion-dollar lawsuits have been filed in the wake of Straub’s ouster and Cotton’s transfer.
Stewart, Isserlis’ attorney, continued the criticism leveled against the report by Condon, Dalton and City Administrator Theresa Sanders, all of whom denied political motivations for the delayed release of the records. Stewart wrote in his statement the request from The Spokesman-Review required legal review of 25,000 emails because of pending litigation.
Cappel dismissed those explanations in her letter. She said Isserlis could have reviewed the responsive records “in 10 minutes” and emphasized that it was only when Isserlis met with Jacobson that handwritten notes from Sanders wound up in the City Clerk’s Office, a week after Condon was re-elected.
“The delay was not because of the 25,000 emails,” Cappel wrote. “That justification is a red herring.”
Straub first filed a $4 million tort claim against the city on Oct. 8. He then sued the city Feb. 2 alleging violation of his due process rights. The lawsuit was dismissed by a federal judge in June. Straub has since appealed the ruling.
Cotton has not filed a lawsuit. However, the woman who held the communications job Cotton took over in the city’s Parks Department, Nancy Goodspeed, has filed a $1 million lawsuit claiming she was discriminated against and illegally replaced.
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