What SN&R learned from its legal battle with Kevin Johnson—and what could happen next
A routine request for public records led to our next hearing on April 22
It’s been more than a year since SN&R reporter Cosmo Garvin filed a routine Public Records Act request with Sacramento’s city clerk, asking for records involving the mayor’s office and the National Conference of Black Mayors. Three-hundred and sixty-six days as of this past Tuesday, in fact. This means that more than 100 of Mayor Kevin Johnson’s public emails and records have remained inaccessible, hidden, secret, for much longer than the normal week-or-two turnaround.
As SN&R’s attorney wrote in a motion filed with the Sacramento Superior Court this past October, the lengths that the mayor’s attorneys have gone to prevent SN&R from its legal right to access these public records has amounted to “an extraordinary lawsuit … to keep from the public emails subject to the California Public Records Act.”
We’re not alone in this view. The digital-media-rights nonprofit Electronic Frontier Foundation wrote last year that Johnson’s suit against this paper was harmful to government transparency and the freedom of press everywhere. “[SN&R] hasn’t done anything wrong—it simply asked for documents, which the city attorney agreed SN&R could have under the California Public Records Act. But now it’s facing mounting legal bills as Johnson has taken the newspaper to court to prevent the emails from seeing the light of day.”
SN&R’s CEO Jeff vonKaenel revealed in his column this week that those legal bills are projected to reach $75,000. (Read more about this here.) SN&R readers have generously have donated to defray these costs. (Learn more about that at www.gofundme.com/SNRlegalhelp.)
And, last year, journalism-advocacy outfit First Look Media, who also backed a grant to Chelsea Manning’s legal defense, donated $15,000 to SN&R’s legal battle.
“Although the media and political reach of this case may be regionally focused, it bears a significant public interest,” First Look wrote in its announcement of the grant last fall. “If the mayor succeeds in blocking public review of emails sent in his capacity as mayor that relate to the use of public resources, it could set a precedent that undermines the public’s right of access to governmental information.”
This paper agrees, which is why we stood up to the mayor when we were named in the injunction last July.
And now, SN&R will return to Sacramento County Superior Court on Friday, April 22, at 10:30 a.m. We’ve filed a motion to have a judge perform an “in camera” review of the remaining 158 emails and documents, because it’s clear that they are not valid attorney-client communications. They’re conversations between the mayor, his staff, volunteers, interns and public-relations contractors. They have zero to do with Johnson and his private legal discussions.
It’s been a long road to this court date. Johnson’s legal team at Ballard Spahr, which is working pro bono, has avoided any and all review of our claims and good-faith meetings with our attorney. SN&R also hoped to bring aboard Gawker Media in this case, since the website Deadspin also has an interest in K.J.’s secret emails. Deadspin would’ve significantly helped out with our legal bill—yet Ballard Spahr blocked Gawker from joining in on the battle, as did the city of Sacramento attorneys (without explanation).
But, no matter what goes down that Friday morning in court, SN&R feels as if it has already won.
Here’s why: On July 2 of last year, Johnson sued SN&R, and the city attorney’s initially decided to withhold more than 500 emails and documents from the public. No other media outlet in town stood up to this move, besides SN&R. And so, because we challenged it, on July 29 Ballard Spahr agreed to turn over more than 400 emails. “We determined after careful examination that a majority of the potentially privileged documents flagged by the City Attorney’s Office were not in fact privileged,” the firm wrote. That was a major win for freedom of the press.
What did SN&R learn from these documents and emails? A boatload:
A majority of these records pertain to Johnson’s involvement with the National Conference of Black Mayors, the embattled Atlanta-based group that he took over as president in May 2013. After Johnson was elected leader, he sued the group and its executive director, Vanessa Williams, and ultimately drove NCBM into bankruptcy last year.
K.J.’s secret emails are a window into his office’s so-called NCBM “coup.” For instance, while Johnson’s spokespeople say his initial mission was to salvage the group, not destroy it, his staff nevertheless clearly held contempt for NCBM long before he became president. As one staffer wrote in a 2012 email: “I’m glad I’m not black. Those people don’t make no sense!”
A quick take on the Johnson-NCBM drama timeline, based on records obtained by SN&R: The mayor joined NCBM in 2011. Around this time, and unbeknownst to most of its members, the group was in a bad place: debt, late rent and it’d even lost its nonprofit status. This came on the heels of the imprisonment of its former president, Mayor George Grace.
In the spring of 2013, Johnson was angling to take over NCBM as president. In fact, executive director Vanessa Williams was in favor of his election to the top spot with the organization. Johnson’s team said it had the best intentions, but that only after revelations of crummy bookkeeping and shady spending did he and his staff pursue more aggressive strategies.
This claim by Team K.J., however, doesn’t align with the fact that his staff produced the now-infamous “National Conference of Black Mayors Annual Meeting Coup’” presentation sometime in early 2013, before he became NCBM president. This coup presentation included discussions of how to “find a replacement for [executive director]” and ways to fire Williams for “cause.”
It’s also suspect that, by June 4, 2013, mere days after his election as president, Johnson himself sent emails to Williams and then-NCBM legal counsel Sue Richardson. “Sorry we haven’t had a chance to talk,” Johnson wrote to Williams, “but I am very concerned by the things I am hearing and learning and we have to act fast.” In that same email, Johnson also attempted to persuade Williams to show up at his pro bono attorney Ballard Spahr’s offices—for a surprise deposition.
“Let’s work together to get these matters resolved,” he concluded the email.
The emails also offer further insight into how Johnson uses private employees from his nonprofits, such as education nonprofit Stand Up, as city staff. And vice versa: how city employees spend a whole lot of time working on noncity projects.
Some of the work is benign, or even for the public good, such as in the spring of 2014, when Stand Up employees and city staff worked with the NCBM and the White House to register more people for the Affordable Care Act.
A significant amount of city employee time was spent pushing Stand Up’s education-reform agenda on members of the NCBM, however. Stephanie Mash was a paid Stand Up employee and city of Sacramento “volunteer” during most of the period between May 2013 and August 2014. Her email signature states that she was with the “Office of Mayor Kevin Johnson, city of Sacramento,” but for most of those months Stand Up paid her salary. She did things like prepare documents for private meetings between Johnson, his wife Michelle Rhee and billionaire charter-school backer Eli Broad; as well as coordinate efforts to elect Johnson as NCBM president.
The emails and records obtain by SN&R from the lawsuit show how Mash and nearly all of the mayor’s staff use special “OMKJ” Gmail accounts, for “office of mayor Kevin Johnson.” For instance, Mash’s email was “firstname.lastname@example.org.” The K.J. team employed these addresses not only to skirt Public Records Act requests, but to project the image that private employees are actually on City Hall payroll, according to former staffers who’ve spoken to SN&R.
The issue became such a time suck for Team K.J. that, at some point in 2013, an “OMKJNCBM” Google Group was created to facilitate communications.
By August of 2013, the Johnson machine was in full PR mode, feeding anti-Williams stories to media and lobbying mayors to vote for her resignation. Leading this outreach to fellow mayors was an employee on city payroll, mayoral adviser Cassandra Jennings, who at one point emailed her colleagues worried that she was spending too much time on noncity business.
The emails show that Team K.J. wanted to keep the drama on the hush-hush. For instance, in December 2013, when the ousted NCMB executive director started sending out ACA recruitment emails on the organization’s behalf, Mash wrote: “I’m wondering if we can get the White house to take her off the distribution list? On the other hand, we might not want them to know how messy this is.”
And, by September of that year, Mash had created a special Gmail account just for the NCBM drama: “Urgent: Please send all of your NCBM emails to NCBMlitigation@gmail.com.” was the subject line of a September 13 email, sent to senior mayoral staff and noncity volunteers.
At this time, Johnson was still promising other mayors that his intentions were to “restore” the NCBM to its former glory. But, by the spring of 2014, Johnson had moved to dissolve NCBM into bankruptcy—and had launched a new black-mayors group: the African American Mayors Association.
While it’s clear that the mayor’s secret emails are anything but privileged conversations between Johnson and his attorneys, on Monday Ballard Spahr filed a petition opposing SN&R’s motion to have a judge review the remaining 158 records, referring to our lawyer’s argument as “meritless” and “absurd.”
But is it? Doesn’t the public have a right to know who works for the mayor’s office, how they present themselves to the outside world and what technology and software they’re using to communicate? And, of course, who pays for those employees: private groups like the Walton family or Sacramento taxpayers?
Does anyone inside City Hall care?
SN&R reached out to mayoral candidates Angelique Ashby and Darrell Steinberg on this matter. We asked campaign spokespeople for the candidates’ thoughts on using private email in lieu of city addresses, and if noncity employees should be allowed to work inside City Hall. Or whether private Gmail accounts that were used for public work should be turned over to the city attorney.
We also asked whether the candidates, if elected, would establish private nonprofits or groups so that companies or individuals could “behest” them donations. And, if so, whether the current system of behest disclosures is sufficient, or if the city needs additional rules to regulate and oversee behests. Neither candidate’s representatives bothered to respond by deadline.
There are a few possible outcomes at the April 22 hearing. Judge Christopher Krueger could side with SN&R and tell the city to hand over the remaining 158 emails and documents. Or he could force us to go back to the drawing board, to shore up our argument. Or he could rule against us and force us to appeal.
Still, no matter what happens, it’s clear that public information isn’t always public in Sacramento—and that’s a problem that won’t be going away even when K.J. is long gone.