Mayor Kevin Johnson and his staff use private email for public work—and there's no rule saying they can't

The Hillary Clinton email controversy brought public attention to an issue that open-government advocates have worried about for years: the widespread use of private emails by government officials to do public business.

The danger is that some government officials will use private email accounts to skirt public-records laws and avoid scrutiny by the media and larger public.

Sacramento Mayor Kevin Johnson also uses private emails extensively to do city business. In fact, he and his staff have created a sort of parallel email system, not connected to city servers at all.

That’s a big problem, says Jim Ewert, an attorney with the California Newspaper Publishers Association. “The practice essentially guts the California Public Records Act.”

The mayor’s office has refused to answer SN&R’s questions about these private email accounts. And, unlike some other government agencies, the city of Sacramento has no policy at all regarding the use of private email accounts by government officials. In this way, Johnson is exploiting a legal gray area, one which is being fought over in the California Supreme Court right now.

Like all city employees, the mayor and his staff are all assigned official city of Sacramento email addresses. But the mayor’s staff also uses a special set of Gmail accounts to do a lot of city business.

The accounts are private, but all branded with the letters “OMKJ,” for “Office of Mayor Kevin Johnson.” So, the email for Johnson’s chief of staff, Daniel Conway, is daniel.omkj@gmail.com. His press person, Ben Sosenko, is ben.omkj@gmail.com, and so forth.

The mayor himself doesn’t appear to use Gmail, instead preferring to use other email addresses to do some city business. For example, he has in the past used mayorjohnson@kevinjohnson.com. A more recently used address is seven@kevinjohnson.com. (Seven was Johnson’s jersey number in the NBA.)

The mayor’s office won’t say why these accounts are used instead of the official city accounts available, or under what circumstances they are used. Sosenko did not return several calls and did not reply to an emailed list of questions, but sent a statement:

“As has been widely pointed out in the media, elected officials in California have no clear uniform guidelines on the use of email. We look forward to the Legislature addressing this issue.”

But the Legislature is not likely to address the issue any time soon, Ewert said, while the issue is tied up in California courts.

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. But a year later, the Sixth District Court of Appeal overturned the lower courts’ ruling. And now the case is before the California Supreme Court, which may or may not hear it this year. A decision is more likely sometime in 2016.

In the meantime, “Most state and local agencies are looking at this like it’s the Wild West,” Ewert said.

So, SN&R turned to the Sacramento city clerk for some answers. This paper filed a California Public Records Act request with the clerk’s office for all emails from all “OMKJ” accounts going back two years. The records request also included some basic questions about the use of the accounts, such as the names of the employees using the accounts and the number of emails generated.

Many of those questions could not be answered, because the emails are not directly accessible by the city clerk. Instead, the messages are on Google servers, in accounts controlled entirely by the mayor’s staff.

The city clerk’s office asked for and acquired 371 pages of emails from the mayor’s staff and turned them over to SN&R as part of a request. Much of what the city has turned over so far concerns the Kings arena. And much of it is information that was already turned over as evidence in a lawsuit brought by a group of citizens against the Kings arena deal, which is still in process.

Most of the material disclosed is from early in 2013, and shows the constant communication between the mayor, his chief of staff Conway, spokesman Sosenko—all using private email accounts—and certain players in the arena deal. These included Kunal Merchant, the mayor’s former chief of staff who went to work for the mayor’s nonprofit arena booster organization, Think Big, then later parlayed that into a job with the Kings. Another frequent correspondent in this batch is Jeffrey Dorso, a Sacramento attorney who helped push through the deal.

Many of the emails are historically interesting, allowing readers a glimpse of how the sausage is made at City Hall. Many of the exchanges show the group developing its talking points and planning how to manage local media and Johnson’s colleagues on the city council. Some of the emails also seem to suggest the senders weren’t thinking that their messages would ever be made public.

For example, here’s an excerpt of an email from Dorso to the mayor and his lieutenants, on March 15, 2013:

“Met with [Sacramento Bee columnist] Marcos Breton today and put him in the dog house. He tried to back peddle [sic] saying it was just more neutral than negative. I hit him on this saying he needs to keep in mind his goals and focus on economic benefits of downtown development. He said he would do a better article Sunday. We will see.”

In another exchange, Conway tells the group about his efforts to lobby “The Steves” on the arena term sheet, meaning Councilman Steve Hansen and then-Councilman Steve Cohn. Hansen was asking for the vote on the tentative arena deal to be pushed back two days, and had concerns about what the deal would do for arts funding. Conway wrote: “Hansen said he’s a ’no’ vote on Tuesday but that he can ’support at the end of the day.’ Said two days will 1) allow Hansen to get assurances from Shirey that arts will be taken care of and 2) let public have input on term sheet.”

To which Merchant replied, “Hansen is a tool.”

And later, “Must Keep Shirey spine,” apparently meaning to keep City Manager John Shirey on board with the plan.

It’s not clear if the emailers presumed these records would remain private, or even if that was the point of setting up the outside OMKJ accounts.

And it’s not clear if these emails would have been turned over by the mayor’s staff if much of the material wasn’t already revealed in court. No other emails have been released so far, and no timeline has been given for the release of further material.

If more emails are forthcoming, it’s hard to be sure the mayor’s office is turning over everything it should—because the law is not settled, and because the city clerk doesn’t have access to the emails directly.

Assistant City Clerk Wendy Klock-Johnson told SN&R, “I don’t have cause to believe that when I’ve asked for records that they withheld them from me.”

But Ewert said the honor system is problematic. “It permits the owner of the account to make arbitrary decisions about what he or she wants the public to see,” he said. “You may not be getting the emails from the chief of staff or the press person, because they may not want you to see them.”

The city has no policies or rules about the use of emails. It does have rules about the retention of public records, and those rules apply to city emails generally. The current policy allows the city to destroy records after two years, but requires certain documents to be retained and archived for the public record.

But because the OMKJ emails are not in the city’s control, there is no way to know for sure if the mayor’s staff is following the records retention policy with regard to emails on private accounts. “We rely on our staff to follow our policies,” reiterated Klock-Johnson.

Craig Powell, president of the local government watchdog group Eye on Sacramento, said that given the current confusion in the law, the mayor should be commended for turning over some emails from his private OMKJ accounts. “He could simply cite the recent California court of appeals decision. … I think it shows he has a basic commitment to open government.”

But Powell said a better practice in the future would be to require that only city-provided email accounts be used for city business, and to treat all of those emails as public records. “That way no one will be going through emails making subjective judgment about what is or is not a personal or a city business email.”

Powell is describing something similar to the policy in the city of Auburn, not far from Sacramento. Auburn’s email policy, adopted in 2012, requires “all emails sent to or from City elected officials and staff to be sent via or copied to an address on the City server so they can be preserved and made available to the public.”

The rule was put in place to settle a lawsuit brought against Auburn by the California First Amendment Coalition, after an Auburn citizen alleged city council members were using private emails to get around the public records act.

CFAC executive director Peter Scheer said that no matter how the California Supreme Court rules, “government agencies need to have control over their business files. This is the case whether the files reside in a city hall file room, a database on the premises or the city manager’s personal email account.”

Ewert said the city needs to come up with its own policy about private emails accounts and city business. “Why is this practice being allowed in the first place? The city really needs to address that fundamental question.”