By Jim Young
Robo calls made during the last Crossville City Council election campaign in the fall of 2012 returned to the council's agenda last week with new details emerging from a long-sought copy of the executed search warrant for the home of Councilman Jesse Kerley.
The search warrant affidavit reveals information and evidence of several alleged actions that could be in conflict with state election rules.
During the regular July meeting of the Crossville City Council, Councilman Pete Souza brought an item before the council about “robo calls” and moved to have the city manager write a letter to District Attorney Randy York indicating the city did not want to pursue the matter further.
Souza said, “I don't see the point in stirring up any more trouble. I think it is time to move on. I make a motion that the city manager send a letter to General Randy York stating the city of Crossville no longer desires criminal action be pursued on the robo call issue and that the city incurred no damages.”
Crossville Mayor J.H. Graham III said, “I don't think the city council can tell the district attorney what to do or what not to do. Once we turn it over to him, it's his decision.”
Souza responded, “If (the DA) pursues it, that is his prerogative, but I'm saying I want to put this behind us.”
The city attorney was asked his opinion. Ken Chadwell responded the investigation is confidential. He added the DA does not have to tell anyone what he is investigating or not investigating. Chadwell explained he had asked York about the matter several months ago and York responded, in a cordial way, that when he was ready to tell something, he would tell something.
In that same conversation, York added he wanted people to know he did not investigate people because of who they are, but he also doesn't refrain from investigating people because of who they are. He just follows the evidence.
Chadwell said, “My advice would be just to let the district attorney's office and the TBI do whatever they see fit to do or not do, as the case may be.”
Souza's motion died for lack of a second.
For some time, the Crossville Chronicle has sought a copy of the search warrant return from the Nov. 1, 2012, search of Kerley's Tenth St. home. As late as July this year, the office of Cumberland County Court Clerk Larry Sherrill had said the public record was not available. Later that same day, when presented with information that the document was returned to Sherrill's office Feb. 28, 2013, at 11:21 a.m., a copy was finally located and provided to the Chronicle.
The search warrant was authorized by 13th Judicial District criminal court Judge David Patterson based on affidavits of DA investigator Terry Hembree and information provided to Hembree by Major Mark Rosser of the Crossville Police Department, who investigated the incident.
A letter dated Aug. 24, 2012, from York to Police Chief David Beaty notified him that since the potential crimes occurred in the jurisdiction of Crossville, his department was the correct office to investigate the matter.
Information provided by Rosser's investigation shows a political group identified as “Citizens for a better Crossville” was conducting robo calls to Crossville voters. The initial set of calls went out showing up on caller ID screens as the number for Crossville City Hall. The calls were what is known as a push poll and included information about then-councilman Boyd Wyatt in what Wyatt considered an unfavorable light. Wyatt was seeking re-election.
According to Rosser's investigation, subpoenas were sent to Microsoft for details on an email address in the name of “Citizens for a better Crossville” as well as Internet service providers, phone companies and other service providers.
Documents associated with the subpoena show on Aug. 15, 2012, an IP address assigned to then-candidate Jesse Kerley was used to sign up for and establish the email address email@example.com.
Rosser also said that Wyatt received an email from that same email address that threatened to “expose” him during the political campaign. The email was received by Wyatt on Aug. 15, 2012.
The initial robo calls that utilized the city hall phone number occurred the afternoon of Aug. 16, 2012. Also on Aug. 16, Wyatt received another email from the “Citizens for a better Crossville” email with a poll attached indicating that 79 percent of those answering the poll would not vote for Wyatt. A second email on that date included an attached photo of a political sign that read “Crossville or Boyd Wyatt, Can't have Both, Vote Him Out” and was identified as being paid for by Citizens for a better Crossville.
Other emails were received by Wyatt from the same email account Aug. 17 and 23. The Aug. 17 email included another image of the political sign along with a document making reference to sewer lines across Boyd Wyatt's son's property on Satsuma Dr. The email received Aug. 23 included a reference to Boyd Wyatt complaining about the robo phone calls.
The additional subpoenas secured by Rosser showed the Citizens for a better Crossville hotmail email account was accessed from several devices, all assigned to then-candidate Jesse Kerley.
Items taken into evidence from Kerley's residence, according to the log attached to the warrant, included an Apple Macbook computer, a Sony digital camera, a Panasonic digital video camera, a Ben Lomand web key pass, a political cartoon of Boyd Wyatt, a property report on James Wyatt, two political campaign signs by Citizens for a better Crossville and a Blitz Call manual.
Kerley's laptop computer was sent to the TBI laboratory and forensic technicians cloned the hard drive then examined the duplicated hard drive for information, retrieving a number of emails described as being in the “unallocated/deleted space” on the hard drive.
The deleted emails show a series of communications between Kerley's personal email and a Texas company that provides phone polling services, Voice Broadcasting, Corp. The emails between Kerley and the company's representative, Amber Valdez, discuss the wording of the push poll calls to be made as well as the need for a contract to be returned before those calls could be made.
The first set of calls was allegedly requested in an message from Kerley's personal email account to be made Aug. 16, 2012, starting at 4 p.m. Kerley's email also states that he returned the contract, sent a voter list to the company, and that he wanted to have 200 poll calls completed that evening.
The Chronicle spoke with Amber Valdez, identified as CEO of Voice Broadcasting Corp., who said the service her firm provides costs up to 5 cents per completed telephone call. Valdez said that, in addition to push polls, the service can also allow those receiving calls to volunteer or to be connected with local political volunteers.
When asked about the questions raised by the use of the Crossville City Hall number during last fall's election, Valdez responded, “I believe they chose to use that number.” She added that most people will purchase a no contract cell phone and use that number to show on the outgoing calls.
According to then-city manager Bruce Wyatt's Aug. 27, 2012, letter to York requesting the investigation into the calls, the night of Aug. 16 the city, “was absolutely flooded with people calling the city, responding to a return call to find out if there was a problem or why the city was engaging in the political process.”
The Chronicle requested a copy of Jesse Kerley's financial disclosure statement from the Cumberland County Election Commission and it shows expenditures for printing of cards, decals, newspaper ads and purchase of a copy of a voters list from the election commission. The report shows a total expenditure of $1,234.53. Nowhere on the report is there an expense for polling calls.
When asked about the “Citizens for a better Crossville,” Kerley said the calls were paid for by someone else but he refused to reveal who that was. According to Tennessee election laws, the use of “independent expenditures” can be legal to advocate for either the election or defeat of a clearly identifiable candidate “which is not made with the cooperation or with the prior consent of, or in consultation with, or at the request of, or suggestion of, a candidate or any agent or authorized committee of the candidate.”
Dru Rollins with the Tennessee Bureau of Ethics and Campaign Finance told the Chronicle that failing to fully report expenditures or attempting to hide a link between a candidate and an organization can be a violation of the statute. Rollins said these are not criminal offenses but up to a $10,000 civil penalty could be assessed in such a case.
A complaint would be made to the district attorney and his findings could be forwarded on to the state for their determination.
The Chronicle offered Kerley the opportunity to comment on the contents of the search warrant but he had no comments. Kerley did say he had only recently received a copy of the warrant himself.
Souza was also contacted and given some of the details from the search warrant and asked for his reaction in light of his call to have the investigation dropped.
Souza said, “I don't know what happened, but I want all the nasty business behind us. I would like everybody to start over when we get a new city manager. I just want it to go away.”
In addition to the civil penalty mentioned above, a letter from York indicates that making calls using a false or misleading telephone number has a penalty of up to $2,500 per call.