The Scott County Attorney’s Office will review whether criminal charges are warranted against Shakopee City Councilor Mike Luce for allegedly not turning over city-related emails from his personal account under the Minnesota Data Practices Act.
The state law controls how government data is collected, created, stored, used and released. If data is classified as public under the law, it must be released upon request.
Luce told the Valley News the requested emails do not exist, as he doesn’t conduct city business with his personal email account. Past data requests by the Valley News reveal Luce used his personal email account for city-related business in 2016, a date that falls within the scope of the data request in question.
According to emails obtained by the Valley News, the city received two record requests in May pertaining to Luce’s emails as a councilor. The first was a request from Star Tribune reporter Liz Sawyer asking for “any and all email correspondence Mike Luce has had with city staff ... and fellow city council members since Jan. 1, 2018.”
The second was a request from Kevin Wetherille, a Shakopee attorney. In his email, Wetherille specifically requested all emails pertaining to the city of Shakopee or Luce’s role as a councilor that Luce sent or received using his personal email address. Wetherille also requested a copy of all expense reimbursements for Luce since May 2017, emails between Luce and the city attorney and proof of Luce’s payment for his ticket to the Saints Healthcare Foundation Gala in April.
If a city councilor sends or receives emails pertaining to city business from their personal email account, those emails are considered public data under Minnesota law. According to city attorney Jim Thomson, the individual possessing potentially relevant data needs to provide that to the city for review. The individual should not attempt to evaluate whether it’s public, Thomson wrote in an email to the council.
City Administrator Bill Reynolds informed Luce via email of the data requests and asked him to turn over any potentially relevant emails from his personal email account. Other councilors were asked to do the same in response to Sawyer’s data request, according to Reynolds, and they complied.
Reynolds informed the city council on May 24, the day after receiving Sawyer’s request, that it would need to turn over any personal emails relevant to the request, and city staff would harvest relevant emails from each member’s city email account. On May 25, 29 and 30, Reynolds emailed Luce to follow up on Sawyer’s request and warned Luce that if he didn’t respond, Reynolds would have to tell the Star Tribune that Luce is not complying with its request.
At a June 5 council meeting during which the two data requests were discussed, Reynolds asked Luce if he intends to comply with state law, to which Luce responded, “I’ll think about it.”
In an interview with the Valley News, Luce said he complied with Sawyer’s request — he just chose not to go through Reynolds to do it.
“I called and left a message for the starr tribune (sic) reporter who made the request that the only email sent from my personal email to another council member was that of a court document refferencing (sic) the open meeting law violations of members of the victoria city council sent to me by the mayor of victoria,” Luce said in an email to the Valley News.
Sawyer confirmed Luce left her a voicemail on June 8 pertaining to the email, but she has not seen a copy of the email.
On June 7, Reynolds emailed the city council, including Luce, to explain the potential legal ramifications if the city does not comply with Sawyer or Wetherille’s requests. Luce responded saying the information “will be useful in forcing your co operation (sic) with my last request that you claimed you had not (sic) intention of providing.”
Luce was referring to a public data request he made for Reynolds’s calendar, which Reynolds has repeatedly declined to fulfill. Reynolds responded by email to Luce and said he will not provide his calendar because of Luce’s “extensive history of harassing people, and of stalking people.”
Mark Anfinson, a media attorney, said Reynolds’s calendar would not be considered public data under the law, because it falls under the category of personnel data.
“There is a court decision holding that calendars of government employees are not public data,” Anfinson said. “Generally, city council members don’t have the right to demand private data. (Luce) isn’t carrying out some duty in his capacity as a city councilor that he needs that data.”
After at least one more emailed warning to Luce about the legal ramifications of noncompliance, Reynolds sent a letter to Wetherille on June 27 with “enclosed documents under the City of Shakopee’s control.” He noted the city could not compel Luce to turn over relevant emails from his personal account or proof of payment to the gala.
Luce maintains there are no such emails in his personal account.
“I checked it and I found nothing. I have none, so what am I supposed to do? I don’t use my personal email for city business. I only use the city email, because then you can call the city and they can give it to you,” Luce said. “Isn’t that the prudent thing to do?”
In regards to the gala ticket, Luce told the Valley News he did not use government funds to pay for the ticket. According to Anfinson, Luce’s payment for his ticket would only be considered public data if government funds were used to pay for it.
“If it was a gift to him or if he paid it out of his own pocket, then it wouldn’t be government data,” Anfinson said.
On July 11, Wetherille responded to Reynolds’s letter saying the response was deficient.
“The actions (or inaction in this case) of Councilor Luce has exposed the City to serious financial liability,” Wetherille wrote. “I have no desire to pursue the City for the actions of one rogue official, yet I fear Minnesota law provides no other alternative.”
Wetherille’s letter requests the city pursue criminal charges against Luce for his alleged noncompliance, and if it doesn’t, he intends to pursue the matter legally on his own.
Failure to comply with the data practices act could result in the city being liable for damages up to $15,000 per violation. An individual who violates the law is subject to a misdemeanor punishable by up to 90 days in jail or a fine up to $1,000.
No charges have been filed by the Scott County Attorney’s Office as of 11 a.m. Thursday.