Former Sacramento Mayor Kevin Johnson faces legal scrutiny for the second time in two years for deleting city-related texts on his cellphone.
Developer Paul Petrovich has made an issue of the erased texts as he sues the city for denying him a gas station permit in Crocker Village, a residential and commercial community he is building on a former railyard next to Curtis Park.
Petrovich contends Johnson and other council members colluded to deny him a fair hearing out of personal “animus.”
The developer has asked the judge to sanction the city because he says Johnson and other officials erased text messages that Petrovich contends may have supported his claims that some council members agreed beforehand to vote against him.
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Johnson and several officials acknowledged in closed-door depositions this summer they erased emails and texts from their private devices, but said they did it as a matter of course and did not destroy any potential lawsuit evidence as far as they remember.
Johnson said his emails are set to automatically delete after 30 days and that he habitually erases texts to declutter his personal cellphone, which he used as mayor for both personal and city business. When asked by Petrovich’s attorney during a deposition whether any deleted texts involved discussions of Petrovich or Crocker Village, Johnson said, “I don’t recall.”
Petrovich’s accusation comes two years after another judge admonished Johnson for erasing texts after being told not to by the city attorney.
Testifying in that case, involving the city’s downtown arena deal, Johnson called the erased texts “chit chat” and said he deleted them “without thinking. There was no ill intent.” The judge said the erasures by Johnson and another official were a concern, but concluded it was done through “carelessness, not malicious intent.” That judge ruled in the city’s favor on the arena deal.
Petrovich’s lawyers are asking the judge in the current case to take a more critical view of Johnson’s erasures. They point out he had been warned in that previous case that public officials are supposed to retain communications that could potentially serve as evidence in a lawsuit.
“He can no longer claim careless innocence for such conduct,” they wrote of Johnson in documents filed with the court.
The Petrovich legal team has asked Sacramento Superior Court Judge Michael Kenny to assume “that the destroyed evidence would have demonstrated that the council was biased, lacked impartiality and pre-determined their decision,” and to rule in their favor as a result.
The city’s lawyers, in response, call Petrovich’s accusation of destroyed evidence “the wildest form of speculation.” City attorneys said the city has consistently provided all relevant city documents to Petrovich and the judge over the past year-plus, including hundreds of pages of email messages and text streams.
“Bias must always be proven with concrete facts, not inferences of conjecture,” city attorneys wrote. “There is no evidence that the city has destroyed or refused to produce evidence at all, much less evidence that would be relevant to the issues presented herein.”
Johnson, whose term as mayor ended last year, could not be reached by The Sacramento Bee for comment.
In a deposition this summer, Johnson acknowledged that he kept auto-delete on his cellphone after being notified that he is required to retain texts and emails related to Crocker Village, but said he didn’t recall any related emails or texts that were deleted.
He also acknowledged that he did not check to see if any pertinent deleted emails were in his trash folder when he was asked earlier this year to search his devices for potentially relevant texts or emails. “I have no idea how that works. So, no I didn’t,” Johnson said. He said staffers handled technical aspects of his phones for him. “I was told that when they are deleted, they’re just deleted, not that they go sit somewhere.”
The Petrovich team also deposed Johnson staffer Scott Whyte, who said he regularly deleted his texts – calling it “an OCD thing” – until receiving notice that he should save his texts. At that point, he said, he began doing so and searched his devices, but didn’t find any texts about Petrovich or Crocker Village.
Other previously disclosed documents involving Whyte likely will play a key role in Petrovich’s arguments that some council members agreed beforehand on how to vote. Whyte, who acted as Johnson’s liaison with the council, wrote a foreshadowing memo before the November 2015 council vote saying Councilman Jay Schenirer “punches up to make motion,” Steve Hansen seconds it, and Johnson speaks in support of the motion.
Former Schenirer aide Joe Devlin and former City Manager John Shirey also sat for depositions this summer related to deleted texts. Both said they do not recall erasing any texts or emails regarding Crocker Village. Devlin said in depositions he frequently erases texts and emails, and acknowledged he could have erased some Crocker Village-related texts without remembering it. “It wouldn’t surprise me,” he said.
The issue of erased texts and emails is complicated by the fact that state law governing public officials’ use of private cellphones changed dramatically earlier this year during the middle of the lawsuit.
In a January 2017 ruling, the state Supreme Court ruled that when a public official uses a private device to send texts about public business, those messages are legally public documents and subject to public disclosure under the state Public Records Act.
That ruling acknowledges that many government officials now use personal devices at times to conduct public business, often as a convenience. Johnson, in depositions, said he exclusively used personal phones for both private and public communications, and did not use a phone the city provided.
Given that ruling, the city’s legal team said Johnson and others were not obligated to hold onto texts on their private devices until this year, a year after the lawsuit was filed.
San Jose attorney James McManis, who won that landmark Supreme Court case, said the Crocker Village judge nevertheless may take a serious look at whether Johnson took the proper steps to retain texts or find deleted texts.
“He is an elected official,” McManis said of the mayor. “This is not his first rodeo.”
But, McManis said, it is difficult for a judge to assess whether deleted communications may have been important in a case, given that the contents are gone.