Court Filing: Ashe Co manager, sheriff failed to produce text me - | WBTV Charlotte

Court Filing: Ashe Co manager, sheriff failed to produce text message records

Sheriff Terry Buchanan in court. (Corey Schmidt | WBTV) Sheriff Terry Buchanan in court. (Corey Schmidt | WBTV)
JEFFERSON, NC (WBTV) -

The petition filed by District Attorney Tom Horner to remove Ashe County Sheriff Terry Buchanan from office was unsealed by a judge late Wednesday afternoon.

The petition was filed on Monday after Buchanan was indicted on three felony charges of obstructing justice and three misdemeanor counts of willful failure to discharge the duties of his office.

The charges and removal petition are related to Buchanan’s failure to fully respond to a records request from WBTV. The removal petition unsealed late Wednesday outlines ways in which Buchanan actively worked to keep some of his records - which should have been produced to WBTV - from being produced in response to the station’s request.

In addition to providing more details behind the DA’s case against Buchanan, the removal petition also gives new evidence showing both Buchanan and Ashe County Manager Sam Yearick have failed to produce all public records responsive to WBTV’s request.

Previous story: Ashe Co sheriff facing criminal charges, suspended from office stemming from WBTV records request

WBTV sent its first request for public records to Buchanan and the county’s five commissioners in early April. The station sent a subsequent request for records from Yearick in early July.

The requests were sent as part of an investigation into the circumstances surrounding Buchanan’s appointment to sheriff in January 2017. 

Buchanan reacts to WBTV’s request

Buchanan first made his displeasure with WBTV’s public records request known in comments he made before the Ashe County Board of Commissioners on April 17, 2017, that the DA’s removal petition characterizes as a “diatribe.”

In the remarks, Buchanan repeatedly questioned why a reporter from a Charlotte TV station would send a request for records to Ashe County. The removal petition quotes Buchanan’s closing portion of his remarks.

Document: Click here to read the full removal petition filed against Buchanan

“I just want the citizens to know that these types of things should not be allowed, they should not interfere with county business, and I think it’s a shame that we’re allowing these sorts of things and having outside reporters to come in here to do something that’s unprecedented and has not happened in the past,” he said.

The same day as the commissioners’ meeting, the removal petition says, Buchanan submitted his own request for records of the previous sheriff to the county’s records clerk.

In the months that followed, the removal petition says, Buchanan would continue to express his displeasure with WBTV’s records request.

“It became apparent that Buchanan was contemptuous about WBV’s Public Records Request and was transferring that animosity towards Clark,” the DA’s petition says, referring to county records clerk Ann Clark.

Buchanan launches criminal investigation

The chain of events that led to Buchanan’s indictment and the DA’s request he be removed from office on Monday started in mid-June; two months after WBTV first submitted its request.

According to the removal petition, that’s when two county IT employees were called to the Ashe County Sheriff’s Office and interrogated by investigators who worked at the sheriff’s office.

The first employee, the petition says, thought he was being called to the office to assist with an IT issue but, instead, walked into a conference room where investigators would question him.

At issue was the fact that county employees requested text message records from Buchanan’s personal cell phone in the course of attempting to obtain records potentially responsive to WBTV’s request.

Previous story: Sheriff investigating county employees for attempting to fulfill a public records request

The removal petition says county employees came to request copies of text messages from Buchanan’s personal phone after Buchanan provided the number associated with that phone to Ann Clark, the records custodian, when she asked him for his phone number in order to retrieve his county text messages from the county’s cell phone provider.

The removal petition says criminal investigators with the sheriff’s office tried to interview Clark but she refused.

The sheriff’s investigation into Clark became public June 19, 2017, when WBTV published a story about the investigation.

The station’s story was prompted by an email from Clark in response to an inquiry from a WBTV reporter asking about the status of text messages from Buchanan.

“I, along with two employees in our IT Department, are currently under criminal or administrative investigation by the Sheriff regarding work to obtain his text messages in response to the public records request by Nick Ochsner, therefore I do not believe that I am at liberty to answer this question,” Clark said in her email.

Ashe County Sheriff’s Office Chief Deputy Rick Clayton confirmed to WBTV on June 19 that the office was involved in what he characterized as an administrative investigation into Clark. Clayton just laughed when a WBTV reporter asked him for a comment regarding the sheriff’s decision to have his detectives investigate a county employee for attempting to fulfill a public records request.

Investigators with the North Carolina State Bureau of Investigation got conflicting accounts of how the investigation into Clark and the two other county employees came to be.

According to the removal petition, “Buchanan denied that he and the Ashe County Sheriff’s Office were involved in a criminal investigation on Ann Clark for the release of his personal cell phone. He then stated that he had stepped back and recused himself from the investigation. He acknowledged that Mickey Boyles, an employee of Buchanan’s, was investigating the matter for Sam Yearick and a couple of county commissioners.”

But the petition says Yearick provided a different characterization of how the investigation started in an interview with SBI investigators in August.

“Ashe County Manager Sam Yearick stated that Buchanan started the investigation into the release of his cell phone records by Ann Clark,” the petition says.

Text messages not produced

The removal petition includes a text message exchange between Buchanan and Yearick that is responsive to WBTV’s July request to Yearick but had not previously been produced.

The text exchange reveals that Buchanan was involved in the investigation by his office into Clark and also shows that the sheriff intended to file criminal charges against her.

“If nothing happens to her from the county charges will be forthcoming,” Buchanan told Yearick in the text conversation, referring to possible action by the Ashe County Board of Commissioners against Clark.

“We can’t discriminate on employees when they mess up,” Buchanan said.

The text exchange took place on June 16, 2017, and should have been included in the text message production made by Yearick in response to WBTV’s request for records.

Instead, WBTV received a copy of  Yearick’s text messages with the exchange redacted.

Under the North Carolina Public Records Act, all documents - including text messages - in which public business is transacted is required to be made public upon request. The law contains various exemptions to that requirement - including to records of a criminal investigation in the custody of the agency conducting the investigation - but Yearick had no apparent basis in the law to withhold the conversation.

A county employee reached by phone Thursday confirmed to WBTV that Yearick redacted his own text messages records for production to WBTV.

There are other redactions to the text message records produced by Yearick but it is not clear whether the other messages were improperly withheld. Yearick did not provide a reason for the redactions, as required by law.

Yearick refused to provide an explanation as to why he did not produce the messages to WBTV when contacted by email on Thursday.

“Sorry Nick but I haven’t had an opportunity to read the petition yet,” he said.

The removal petition cites Buchanan’s failure to produce all records responsive to WBTV’s records request as a primary reason why he should be removed from office.

“The Defendant has willfully neglected or refused to comply with a Public Records Request, submitted pursuant to Chapter 132 of the North Carolina General Statutes by Nick Ochsner of WBTV News on April 6, 2017, by delaying, hindering, and obstructing the fulfillment of the request,” the petition says.

An attorney for Buchanan did not immediately return a voicemail seeking comment on behalf of the sheriff.

A judge ordered Buchanan suspended from office with pay pending a full hearing on the removal petition.

That hearing is currently scheduled for November 13, 2017.

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