LEWES, Del. — A newly released independent investigation into Lewes’ removal of a controversial HPARC meeting video found no evidence the recording was taken down to influence the May 9 city election, which was held just two days after the May 7 HPARC meeting. The report also concluded the video should not have been removed in the first place.
No evidence of election influence
Attorney Max B. Walton of Connolly Gallagher LLP wrote the report after being hired by Lewes to investigate the removal and later reposting of the May 7 Historic Preservation Architectural Review Commission meeting recording. One of the report’s four main findings is titled, “No Evidence Has Been Identified Supporting A Conclusion That The Video Was Taken Down To Influence The Election.”
Walton found Councilman Joe Elder and Building Inspector Jon Ward were upset by comments former HPARC Chair Kevin Mallinson made during the meeting. The report says Elder told a city employee Mallinson’s comments made him “look bad,” and Walton found Ward and Elder were among those urging City Manager Ellen Lorraine McCabe to take action.
However, Walton found no evidence showing the election was the reason the video was removed. “While the election may have been the next day, and Councilperson Elder may have been subjectively motivated to want a video out of public view that made him ‘look bad’ right before the election (and, indeed, the timing optics are not good), there are no objective verbalized facts provided to me indicating that the video was removed to assist Councilperson Elder’s reelection chances,” Walton wrote.
Video should not have been removed
The report separately concluded that the video should not have been taken down.
“In my view, the online video should not have been removed from public view,” Walton wrote. He said the recording was removed because of the content of Mallinson’s speech, calling that “likely improper.”
According to the report, Ward, McCabe, Elder and HR Manager Shelby Shockley met the morning after the HPARC meeting. Walton said he believes Ward made the initial request to remove the video, while McCabe made the ultimate decision and directed City Clerk Ashley Akgoren to take it down.
Akgoren initially raised concerns about removing the recording and did not immediately comply. After McCabe again directed her to remove it, Akgoren made the video private around 1 p.m. May 8.
Removal happened before legal advice
Walton also found McCabe ordered the removal before receiving legal advice from City Solicitor Alex Burns. “At the very least, the video should not have been removed without the Solicitor’s guidance,” Walton wrote.
Burns later provided advice that initially supported removing the entire recording. By the next morning, however, he clarified that while meeting videos generally did not have to be posted, “where one video is taken down due to disfavored speech, that is different.”
Mayor Amy Marasco then directed McCabe to restore the recording, writing on election day that the removal had not been authorized by Mayor and Council and that it was “inappropriate during an election to have taken such action.” The video was reposted at or just after 3:30 p.m. May 9.
No viable ongoing investigation
The report also rejected the explanation that the video needed to be removed because of an ongoing employee investigation.
Walton found a previous review involving Ward and Mallinson had already been completed and presented to Mayor and Council in April. However, the results had not yet been formally communicated to Ward, which Walton said could reasonably have left Ward believing the matter remained open. Walton ultimately concluded there was no viable ongoing investigation when the recording was removed.
Potential FOIA issue
Walton also raised a separate potential Freedom of Information Act issue involving Mallinson’s departure from HPARC. He wrote that it appeared council reached a consensus during an April 6 executive session not to reappoint Mallinson as HPARC chair.
Walton stressed that if his conclusion is correct, reaching that consensus in executive session would violate Delaware FOIA because public bodies are not permitted to reach consensus votes behind closed doors.
Recommendations
Walton recommended that Lewes adopt a formal policy governing meeting videos, including posting recordings within 24 hours and generally preventing them from being edited or removed. He also recommended that city staff seek legal advice before changing established practices involving public information, particularly when constitutional rights could be involved. Walton further recommended against making significant changes to established public-information practices immediately before an election.
“It looks bad,” Walton wrote. “The goal should be transparency for the public.”
Background
The controversy began after Mallinson used public comment at the May 7 HPARC meeting to criticize city leadership, Ward and Elder. The recording was removed the following day and restored May 9 while voting was underway in the Lewes municipal election.
Elder won reelection with 427 votes, while challenger Kevin Keane received 392 votes, a difference of just 35 votes.
