Berkshire DA Defends Office After Senior Staff Member Resigns Over Legal Concerns
On Monday, a senior staffer in the Berkshire County District Attorney office resigned in protest over what she described as a culture where politics took precedence over the law.
In 2018, first-term DA Andrea Harrington tapped Salem-based attorney Jeanne Kempthorne to serve as her office’s chief of appeals and legal counsel. A veteran of both private and public legal practice, Kempthorne also served as a commissioner on the state’s ethics commission and spent 11 years of her 36-year career as a federal prosecutor in Boston.
On January 13th, she resigned after an internal disagreement over the handling of a public records request from The Berkshire Eagle concerning the office’s investigation of unfounded claims of a racially motivated assault at Bard College at Simon’s Rock in Great Barrington.
“What led me to do it was a concern that what I thought was an inappropriate way to go about making certain decisions would continue unless a light was shed on it," said Kempthorne. At the heart of her protest is a December 16th request from an Eagle reporter concerning communications between the DA’s office and Simon’s Rock.
“She told me that her press person would handle it," Kempthorne told WAMC. "She did not give me any substantive response to my legal concerns. It was conveyed to me that public records compliance is about relationships between her press person and various press organs. And that it really is not something that she wanted me to devote much energy to.”
The Eagle reported that DA spokesman Andrew McKeever initially said the records could not be released – a decision that concerned Kempthorne.
“I said but I’m the record access officer, it is I who have to report to the secretary of the commonwealth," she said. "How do I do that? That’s really what I said to her, but in my own mind – if I’m cut out of the process, I can’t do the job.”
Even before her resignation, Kempthorne says she felt the office’s priorities were skewed for some time.
“I felt that consistently there was a misalignment between responsibility and authority," she told WAMC. "I raised this issue repeatedly. It didn’t lead me to leave, but I was very concerned about that misalignment. In other words – I’m the RAO, I have responsibility. But do I have the authority to actually do the job? That is what I thought is the problem, and increasingly, I felt that political considerations or personal considerations – things other than legal considerations – were playing too large a role. That was my sense as time went on. I raised concerns about it repeatedly, and I did not feel they were addressed.”
She said the dispute over complying with the public records request confirmed her belief that the DA was considering her own interests over the law.
“Overall I would say the DA is not experienced in prosecution, she’s not experienced in government, and she’s not experienced in management,” said Kempthorne.
Speaking with WAMC Friday, Harrington pushed back, calling Kempthorne a “disgruntled ex-employee,” and describing her tenure as rocky.
“This particular public records request was a request that we received," said the DA. "There was some discussion among senior leadership whether or not it was in our purview to provide emails from the Massachusetts State Police in response to a public records request.”
In an email exchange January 10th, Harrington said that she was “not concerned particularly about the content of these emails,” but that she didn’t “want to set a precedent of providing Massachusetts State Police emails if it is not required under the statute.”
“They were really updates on our investigation which was information which we have already provided to the press in our prior press releases – it was the rationale for the decisions that we made in the Simon’s Rock case,” said Harrington.
The redacted emails that were released to the Eagle included communications from Detective Lieutenant Edward Culver of the Massachusetts State Police about interviews conducted with an unnamed person involved in the investigation. They also included an incident report from Simon’s Rock Residence Director Sherri Brown, and emails between Culver and Vice Provost Susan Lyon about scheduling interviews around the investigation.
Harrington said she made the ultimate approval for the documents to be released.
“Attorney Kempthorne felt very strongly that those records should be provided, and I authorized them to be provided because she felt so strongly about it, and they were provided,” said the DA.
The records in question were released to the Eagle on January 10th by Kempthorne just after 4 p.m., around two hours after her email exchance with the DA.
Harrington says in her first year as DA, there have been no complaints made to the Secretary of State about how her office has handled public records requests and that no appeal had been made to a public records request response in this instance or any other.
“In this particular instance, I contacted the Secretary of State’s office because I think that is important that the public be advised that myself and my office are following the law as it pertains to public records," said Harrington. "So I look forward to getting a response from the secretary of state’s office as to the propriety of our actions. We did turn over the request records, so there’s no ‘there’ there.”
As to Kempthorne’s criticism of her own capabilities, Harrington pointed to her efforts to modernize the office’s approach to prosecution and implement reforms like ending cash bail and creating a Juvenile Justice initiative to divert minors away from the courts.
“We’ve accomplished so much in our first year," said the DA. "We are trying cases, we’re getting convictions, we’re building relationships with law enforcement, and I have undertaken an unprecedented community engagement effort in the district attorney’s office because I recognize that I represent the people of this community.”
Harrington says that Deputy District Attorney Richard Dohoney has been appointed record access officer and that her office is looking to hire a new chief of appeals.
The Berkshire Eagle declined to comment on this story beyond its original story published January 17th.