K.J.’s email scheme

How the mayor's ‘bulletproof’ system to avoid public scrutiny might backfire

Read a Q-and-A with SN&R's legal counsel for the K.J.-email lawsuit at here.

“Gmail was our bulletproof method of communication, beyond the reach of the city and the public.”

That’s how R.E. Graswich, a former senior adviser to Mayor Kevin Johnson, described the parallel email system set up inside the mayor’s office to avoid California’s public-records law. “Our private little system,” he called it. (Read Nick Miller’s interview on Graswich here.)

We knew Johnson’s staff routinely does city business using special “OMKJ” Gmail accounts—for “Office of Mayor Kevin Johnson”—which are issued upon hire. In fact, Graswich estimated 80 percent of the work done by the mayor and staff was done using OMKJ emails, rather than official city of Sacramento accounts.

More troubling still, Graswich said the email accounts were used for a mix of city business and noncity business, involving the mayor’s various nonprofits and outside initiatives. They were also used to do political campaign work “on city computers and in City Hall,” he said.

If you’re thinking, “Gee, that sounds pretty illegal,” you may be on to something.

The mayor’s spokesperson Ben Sosenko has lied on multiple occasions, telling local media that the OMKJ emails are only “used for noncity business.”

We know that’s not true, however, because SN&R has in its possession plenty of emails from city employees doing city business with OMKJ email accounts—Sosenko in particular.

Sosenko has also said several times that all the noncity business being done on city time with city employees was “for the benefit of the city.”

Team K.J. wants it both ways: When they want the public to foot the bill for the mayor’s outside projects—including the ugly takeover of the National Conference of Black Mayors—it’s all for the benefit of the city. But when the public wants a little scrutiny of those activities, suddenly it’s all private, noncity business.

Recently on Capitol Public Radio’s program Insight, Sosenko said the public can’t see the OMKJ emails because they include things “political in nature or campaign related.”

That’s another reason why the city needs to disclose the emails from the OMKJ accounts right now. If the mayor’s office is breaking city rules, or state laws, doing election business on city time, the evidence is probably in those OMKJ accounts.

Unfortunately, the city attorney and city manager are in denial.

SN&R has been trying for weeks to get City Manager John Shirey to address Johnson’s public-private boundary issues. Thanks to the Public Records Act, we know Shirey doesn’t care.

One email from city spokesperson Linda Tucker to Shirey about SN&R’s multiple interview requests reads: “Checking in w/you about whether we even reply or say something like ’No, he’s too busy managing the City to read the tabloids.’”

Three weeks later, every newspaper in town, along with every radio and TV station, was asking for answers.

Since March, the city had been releasing some emails from the OMKJ accounts to SN&R in small batches. It was only through Johnson’s surprising lawsuit against SN&R and the city—seeking to block release of a category of emails he claims are protected by attorney-client privilege—that we learned the mayor was actually hiding most of his emails from these OMKJ accounts. (See “It is what it is,” SN&R Feature Story, July 9.)

That’s because City Attorney James Sanchez revealed in court two weeks ago that the city is only providing emails that wind up, by chance, on city email servers, after being copied or forwarded to other employees’ CityofSacramento.org email addresses.

When SN&R reiterated our earlier public-records request, insisting all of the OMKJ emails were subject to the California Public Records Act, Sanchez said he couldn’t do anything about it.

“If those communications are not on a city server, they are not public and we cannot force the release of those documents,” he told SN&R.

When SN&R pointed out that the OMKJ email accounts were clearly assigned to city employees for city work, Sanchez raised another excuse: Smith v. San Jose.

In 2013, the Santa Clara County Superior Court ruled that all emails used by San Jose city officials to conduct city business—even if they are sent using personal phones and private email accounts—were subject to the California Public Records Act. The Sixth District Court of Appeal overturned the ruling, and now the case is before the California Supreme Court.

“Those are the arguments currently before the California Supreme Court,” Sanchez said of SN&R’s objections.

We’re going to have to call bullshit. The San Jose case involves a comparatively limited scenario, involving messages on private devices and actual personal email accounts. The OMKJ email accounts are not “personal” accounts at all. No one using an OMKJ account would have any misunderstanding about the fact that it’s their “work email,” issued by their boss, to do city work. And now, we hear the OMKJ email system is the main email system for the mayor’s office.

The city attorney is using Smith v. San Jose as a cop-out. And it puts the city in a precarious position, says Thomas Burke, the attorney who helped SN&R handle the mayor’s lawsuit.

“This has enormous legal implications for Sacramento,” Burke says.

It’s not just a matter of denying citizens access to public records. It also means the city is helpless to access documents it may need to deal with any number of legal problems. “Whether they be the [Fair Political Practices Commission], or document retention, or litigation against the city,” Burke explained.

This also relates directly to city’s other big email scandal: The attempt to delete 50 million emails, over the objections of local citizen groups.

The city wants to be able to destroy emails after two years, and says we should trust procedures that are in place to sort out the “transitory” emails and archive the “important” ones.

We now know that policy is pretty much useless, because the city doesn’t even control a major portion of its emails. If the mayor isn’t going to obey the California Public Records Act, why would he follow the city’s records retention policy?

It’s K.J.’s scheme. But it should be dawning on the city manager and city attorney that they screwed up by letting this situation develop.

“They know now, through this lawsuit, that city business is being conducted by city employees on city time, and they don’t have the ability to access those records,” says Burke. “Something has to change, and it needs to change immediately.”