SN&R challenges Mayor Kevin Johnson's secret email policy in Sacramento court

This week, media outlets all over the country are piling on Kevin Johnson. Esquire Magazine’s Charles P. Pierce even wrote on Tuesday that the mayor was a “truly awful human being,” a “grifter,” and that President Barack Obama needs to “cut him loose.” Ouch.

There are also rumblings of investigations into K.J.’s sexual misconduct by the likes of The New York Times and HBO’s Real Sports with Bryant Gumbel.

This resurgent attention on mayor’s molestation allegations and inappropriate sexual behavior is crucial. But it’s not the only challenge Johnson faces as his political future floats in limbo.

There’s also K.J.’s secrecy problem.

This is where SN&R would like to update readers on its ongoing litigation with the mayor. A lot has happened since Johnson sued this paper in July. For instance, last week, SN&R filed a major challenge in the case.

A quick recap: K.J. sued SN&R earlier this year to stop the release of emails that he says are private conversations between himself and his attorneys. SN&R disagrees with this claim.

In fact, after reviewing a log of the emails, we now know that these are not special or protected communications between a lawyer and a mayor. These are email messages that include everyone from interns to PR experts, staffers and volunteers.

It’s worrying that the mayor would want to hide these emails from the public. And it’s also disconcerting that all of his employees—paid city workers, private volunteers with his education nonprofit, and so on—spend an inordinate amount of time working on non-city-of-Sacramento business.

In the past months, Johnson’s attorneys at Ballard Spahr, who represent the mayor pro bono, have not sufficiently proven that these emails and documents in question are privileged. And so, on October 7, this paper requested that the city of Sacramento provide the court with copies of all the records so that a judge can review them privately and determine if they should be made public.

We expect a day in court sometime next month.

“This is an extraordinary lawsuit,” our attorneys wrote in a summary of our case, filed with the Superior Court of Sacramento earlier this month.

The bizarre drama and conflict dates back to May 2013, when Johnson completed his self-proclaimed “coup” of the Atlanta-based National Conference of Black Mayors and was elected president of the organization. The NCBM challenged Johnson’s election, however, and that’s when Ballard Spahr ended up representing K.J. and his interests.

Things came to a head on April 30, 2014, when Johnson declared bankruptcy for NCBM—and then, the next day, May 1, launched the African-American Mayors Association, a competing national group in direct conflict with the NCBM. Johnson also resigned from NCBM that month, and Ballard Spahr went on to represent him at AAMA, as well.

If you’re keeping score at home: Ballard Spahr in theory represents AAMA and NCBM, two adversarial groups.

It’s complicated because Ballard Spahr, as attorney for Johnson and AAMA, ended up suing NCBM. This litigation has been ongoing since June 2013.

But now Ballard Spahr also claims to represent NCBM and Johnson in its suit against SN&R—even though current NCBM leaders say that Ballard Spahr doesn’t speak for them.

If you’re confused, so are we: How is it legal for the mayor’s private attorney to represent a group that they’ve filed a lawsuit against? How can Ballard Spahr represent both groups at the same time?

That’s now up for a judge to explain. Meanwhile, fast forward to June 23 of this year: Ballard Spahr threatened to sue SN&R writer Cosmo Garvin if he kept asking for emails relating to the NCBM and Johnson’s private “Office of Mayor Kevin Johnson” Gmail accounts.

K.J.’s secret Gmail use was a red flag to us at SN&R, as it clearly was a way for the mayor to circumvent transparency and hide his office’s doings from the public. SN&R had requested the city to turn over these private Gmails, since the accounts are being used for public work, but so far the city attorney has said they do not need to comply with this request.

Anyway, when Ballard Spahr threatened us, Garvin told them to buzz off—and their threat of litigation became a reality on July 1, when K.J. sued this paper.

Lawsuits are expensive. Kevin Johnson knows this. His attorneys work for free. SN&R’s do not.

During the summer, this paper worked to resolve its lawsuit with the mayor informally. But it’s clear that both K.J., his attorneys and even the city of Sacramento attorneys were not interested in any resolution. They want to prolong this case, they worked to delay and obstruct—and they want to make things more costly for us.

Attorneys at Deadpsin, for instance, wanted to join our suit. Deadspin has been covering Johnson and the NCBM for a while and has submitted similar public-records requests as SN&R here in Sacramento. They’re a news organization and have a vested interest in the case. And the city, as is their duty, should be responsive to Deadspin and allow them to become a “real party” in the suit.

Deadspin joining would also mean that SN&R would not have to bear all the legal costs alone.

It’s disconcerting, then, that the Sacramento City Attorney has sided with Ballard Spahr and Johnson, not us—their co-respondent in the case—and has blocked Deadspin from joining as a real party. When asked by our attorney, the city would not give us a reason why.

This, of course, was a huge red flag: Why does the city attorney care if Deadspin joins the case? Does the mayor have some leverage over the city attorney? What’s going on here?

It’s worth noting that Deadspin and its writer Dave McKenna has been at the forefront of criticizing and investigating the mayor’s sexual misconduct, including a recent interviewer with Johnson’s then-15-year-old accuser. Deadpsin also published a police video of K.J.’s accuser, which prompted ESPN to cancel the mayor’s high-profile “30 for 30” documentary last week.

This week, it was also revealed that Ballard Spahr attorneys attempted to place a gag order on a former NCBM executive director, preventing her from speaking further to Deadpsin.

SN&R also has learned that, while Ballard Spahr represents the mayor for free, the firm has made attempts to acquire paid work with the city of Sacramento. For instance, Ballard has pitched its services on the mayor’s Think Downtown housing initiative—at the same time it was urging the city attorney to not release Johnson’s emails.

Here we are, nearly four months and $48,000 in legal fees later, awaiting a day in court, which possibly will be next month.

Upon review of a log of the emails the mayor wants to keep secret—a list showing who sent them and received them, and so on—it’s clear that the records in question should be made public.

These emails and documents have been sent, received and read by a wealth of K.J. staffers, volunteers, interns and PR employees, including many with the mayor’s private education nonprofit Stand Up.

Our attorneys argue that courts consistently view these kinds of disclosures to staff and employees as a waiving of attorney-client privilege.

Johnson’s attorneys have not proven that attorney-client privilege exists, either.

Our case received international attention this past Monday, when First Look Media announced a $15,000 grant to support our legal defense fund.

“Although the media and political reach of this case may be regionally focused, it bears a significant public interest,” First Look wrote in a blog post on Monday. “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.”

First Look’s Press Freedom Litigation Fund has also assisted the legal defense of Army intelligence whistleblower Chelsea Manning, among others.

SN&R’s readers have also given more than $15,000 in support of its legal defense at a Go Fund Me site.

And so, even though this paper remains legally marooned, the grant and support from our readers shows that the public cares about issues of transparency in government. That people care bout a mayor who uses private email to hide public business from those who put him in office. That voters will do more than raise an eyebrow at an elected official who blurs the lines of public and private work. And that Sacramento no longer trusts Kevin Johnson.