An attorney for the South Bend Common Council told The Young Turks he may subpoena witnesses — possibly including Mayor Pete Buttigieg — starting as early as next week, to testify about police issues including Buttigieg’s demotion of Darryl Boykins, the city’s first black police chief.
Buttigieg demoted Boykins and fired civilian police staffer Karen DePaepe in 2012 for their handling of recorded police phone calls, some of which DePaepe transferred to cassette tapes. The tapes have been one of South Bend’s biggest mysteries and controversies ever since.
The Council has for years pursued a lawsuit to force the tapes’ release. TYT reported last month that, in city legal documents, DePaepe describes white police officers on the tapes discussing using Buttigieg’s 2011 campaign donors to get him to remove Boykins. The donors told TYT they deny knowledge of any such plan.
DePaepe also wrote that officers spoke in ebonics and said, “It’s going to be a fun time when all white people are in charge.”
Attorney Bob Palmer, who represents the Council in its suit, said on Tuesday that he planned to present the subpoena option to the Council during a closed-door meeting Wednesday afternoon. Those executive-session meetings are secret by law, but for the Council to tell Palmer not to issue subpoenas, or order the suit dropped entirely, would require a vote at an open meeting. The next open meeting is Monday.
In interviews Tuesday, two of the city’s nine Common Council members told TYT they would not oppose subpoenaing Buttigieg and others. Council Pres. Tim Scott released a statement the same day saying the Council is still “concerned with the decisions and processes” by which Buttigieg demoted Boykins and fired DePaepe. Scott’s statement — responding to a South Bend Tribune editorial opposed to dropping the suit — also suggested that nothing is to be gained by pursuing the suit for another three years, “if the final result is nothing more than verification of the accuracy of the Young Turks’ stories.”
Scott referred questions to Palmer. Council member John Voorde told the Tribune last week that he thought no one in an earlier executive session objected to dropping the suit if TYT’s reporting could be corroborated by asking DePaepe. Voorde and the five other Council members did not respond to TYT’s emails.
Palmer said on Tuesday that he could begin pursuing subpoenas as early as next week to secure testimony by year’s end — barring a strategic change coming out of Wednesday’s meeting, or a vote by the Council on Monday.
Palmer said he planned to brief the Council on Wednesday about possible strategies including:
- Dropping the suit and instead subpoenaing witnesses to verify TYT’s reporting;
- Putting the litigation on hold for “a short period” while seeing what can be verified; and
- Authorizing subpoenas to go beyond the scope of TYT’s reporting.
These measures would represent strategic shifts requiring Council approval. Without a vote to shift gears, Palmer said, he is both obliged to continue pursuing the suit and free to seek subpoenas if he so chooses.
Palmer said he believes he can legally ask witnesses whether they have seen documents similar to the ones in TYT’s report. “That might be enough verification to some Council members that what you [TYT] have is true and accurate, and that nothing more exists out there that the Council needs to be aware of.”
He said if he issues subpoenas he’d prefer to start with DePaepe and her attorney. The documents consist primarily of DePaepe’s statements about the tapes. (Additional new details about the demotion and firing were revealed in another document, a redacted deposition of aide Mike Schmuhl, now Buttigieg’s campaign manager, released by the city in response to TYT’s public-records request.)
What Palmer called “the path of most resistance” would involve subpoenaing Buttigieg’s attorneys and mayoral spokesperson, Mark Bode. “And I could work all the way up to Buttigieg himself, if I found that necessary. I don’t want to start with him because it would be easiest for him to say, ‘I’ve never seen any document like that before.’ And there’d be no way I could prove or disprove it.”
The Buttigieg campaign told TYT last month that he kept his distance from the litigation that generated DePaepe’s descriptions of the tapes’ contents and he remained unaware of what she said. Buttigieg approved a settlement in the final suit against him shortly before he was expected to be deposed by DePaepe’s attorney. He has yet to comment publicly on TYT’s revelations about the tapes, but his campaign has not disputed the authenticity of the documents.
Palmer said he would need Council approval to question Buttigieg about any 2011 discussions he had regarding getting rid of Boykins. “Yes, if the Council wants to go in that direction and conduct an independent investigation. Again, it would be based on your [TYT’s] independent documentation, because now we would know what we would ask. We would be able to isolate instances in which maybe his donors tried to put pressure on him.”
Palmer said, “The Council has not considered going that far yet. Quite honestly, we have not had an opportunity to sit as a group, to work through all the implications that your documents leave open for us.”
“This seven years of litigation,” Palmer said, “all boil down from the statement that he, Boykins, was demoted and DePaepe was fired because of alleged violations, or potential violations, of the Federal Wiretapping Act, which was one of Pete’s stories.”
Prior to Wednesday’s executive session, Palmer said some of the Council members were aware of the strategic options he planned to outline for them. “The feedback that I’m getting,” Palmer said, “is pretty much, let’s do whatever we need to do to find out what’s on the tapes.”
That sentiment was echoed by Council member Oliver Davis, who told TYT on Tuesday, “I’m comfortable subpoenaing everybody.” Davis rejected the option of dropping the suit. He said the Council has been blamed for more than $2 million in legal costs, but most of that stemmed from Buttigieg fighting the tapes’ release and authorizing settlements for Boykins, DePaepe, and several officers.
Jake Teshka, the Council’s lone Republican member, said he has “a good relationship” with Buttigieg and has praised his leadership publicly, but also opposes dropping the suit. Teshka said he’s open to simultaneously using subpoenas to verify TYT’s reporting. “I don’t see why the two can’t be done concurrently.”
“It’s not great timing,” Teshka said. “Absolutely not, right? I would hate to be seen as, you know, subpoenaing the mayor and trying to, you know, play in presidential politics. That’s certainly not what we’re trying to do here.”
He said that if the subpoenas went out, “It would be towards the aim of finally getting closure for a lot of people, specifically folks in the African-American community at a point in our city’s history where, look, right now in South Bend things are tense. And violence is up. And people are looking to us to fulfill the promise that…you would get us transparency, that you would get us the information we need about what’s on these tapes.”
Questions about Boykins’ demotion and DePaepe’s firing, Teshka said, are “a huge part of my consideration.” He said that many in South Bend had no question some police used racist rhetoric on the tapes. “The bigger picture is, why would the [Buttigieg] administration spend millions of dollars to…protect a couple of rogue cops using the n-word if that’s all it was, right? And so I think that’s where the suspicions of a lot of folks in South Bend have been raised.”
Like Teshka, Palmer said there was no animus toward Buttigieg. “The Council has decided to try to find out what happened in the police department that caused the demotion and the firing, and if I can find the answer to that and it makes Mayor Pete look like the genius that some people think he is, more power to them.”
Palmer continued, citing an epithet one officer on the tapes used about Buttigieg, saying, “If my doing my job leads people to believe that he’s a ‘fucking pipsqueak,’ like somebody said, that’s fine, too. This is not aimed at him.”