Where the sun don’t shine

When Mayor Kevin Johnson sued this paper in June, he did so to stop the release of emails and documents that he claimed were private attorney-client conversations. But, upon acquiring a list of them last month, SN&R has learned that the emails in question involved more than just the mayor. Everyone from city staff to public-relations experts, volunteers and even interns are included on the threads, all discussing Johnson's “coup” (their words) of the Atlanta-based National Conference of Black Mayors in 2013.

Based on the emails, it’s also actually difficult to tell who is a city of Sacramento employee and who is simply latched on as an employee of one of Johnson’s many private groups and nonprofits.

And, of course, there’s the question of who is paying for all these noncity people to do what the mayor has said is city work—and whether they’re operating out of City Hall or private offices when they perform whatever public or private work that they’re doing.

All these questions come on the heels of last week’s unanimous city council vote to approve sweeping and ambitious good-government reforms. The electeds passed a new ethics code, a watchdog commission to enforce said code, a new “sunshine ordinance” and a lot more.

Councilwoman Angelique Ashby, who pushed the reform package to the finish line, told SN&R that the city was “biting off a big chunk” when it comes to accountability and restoring trust in leadership.

That may be true. But will the reforms change business-as-unusual inside Johnson’s office?

Or will the mayor continue to blur the lines when it comes to public and private (and even campaign) work inside City Hall? Will the use of private Gmail accounts by city employees persist? And will K.J. continue to raise unlimited monies for his private groups, which pay for the employees and volunteers who run what critics have referred to as Johnson’s “parallel government”?

SN&R’s fight with the mayor over the allegedly private emails is also a window into why good-government reforms are needed at City Hall.

Consider this past June, when the mayor’s attorneys—Philadelphia-based Ballard Spahr, which represents Johnson pro bono—claimed that nearly 500 emails and records pertaining to the NCBM should not be released by the city. SN&R challenged this claim and, just like that, the number of allegedly privileged emails and records fell to just under 150.

“[W]e determined after careful examination that a majority of the potentially privileged documents flagged by the City Attorney’s Office were not in fact privileged,” Johnson attorney Scott S. Humphreys wrote in an email on July 29.

On that same day, Ballard Spahr also delivered a “privilege log,” or a list of the emails in question—including such information as who wrote them, sent them or was copied on them; the subject title, and so on—to SN&R. This paper was surprised to discover that the mayor only authored seven of the dozens of emails he hopes to keep secret.

The rest of these communications were written by the likes of Aisha Lowe, a “volunteer” with the mayor’s schools nonprofit Stand Up; Stephanie Mash and Mariah Sheriff, also Stand Up “volunteers”; and city staff, interns and others. The three aforesaid individuals composed more than 50 of the emails that the mayor alleges are privileged conversations.

Lowe, Mash and Sheriff were never employed by the city of Sacramento. Last week, Deadspin.com writer Dave McKenna reported that the Walton Family Foundation, a major donor to Johnson’s private nonprofits during the NCBM takeover attempt, likely contributed to the payment of their salaries. “Between 2012 and 2014, while he was planning and executing his NCBM coup, Johnson reported at least six grants from that foundation totaling $1.625 million,” McKenna wrote.

The email log also reveals that the mayor’s use of private Gmail extends beyond just a few staffers. One email, authored by Mash on September 16, 2013, and sent to 13 individuals, including senior mayoral city staff such as Daniel Conway and Cassandra Jennings, plus other noncity-employed volunteers, was composed under the following subject line: “Urgent: Please send all of your NCBM emails to NCBMlitigation@gmail.com.”

SN&R has in the past criticized the mayor’s use of Gmail as a way of avoiding public scrutiny and even preventing the city from accessing its own mayor’s records.

As of last week, on September 18, K.J.’s attorneys at Ballard Spahr still were arguing that the emails in question should remain private. They claim that all the individuals in the records, whether volunteers or city staff or interns, “worked for the NCBM,” and that “the privilege attaches to those persons who were working under our clients’ direction,” Humphreys wrote.

SN&R’s counsel says this argument “makes no sense.” This paper will be filing a motion challenging the privilege of the records in the coming weeks.

It remains to be seen whether sunshine from last week’s good-government reforms will reach the mayor’s office.

On one hand, Nicolas Heidorn, with government-accountability outfit Common Cause, referred to the reforms as imperfect but “phenomenal.” He specifically praised the inclusion of an ethics commission that will enforce the city’s code.

“We didn’t get 100 percent of what we asked for, and I also want to acknowledge that we were asking a lot,” he told SN&R.

On the other hand, Eye on Sacramento spokesman Craig Powell decried the reforms, calling them threadbare and slapdash. He also criticized Common Cause and the League of Women Voters for meeting with city leaders behind closed doors in ad hoc committees to forge the ethics-reform deal, calling the move “offensive to the concept of public participation and input.”

Common Cause initially partnered with Eye on Sacramento in pushing for sunshine reforms at City Hall, but there was recently a splintering in the group.

Councilwoman Ashby was quick to point out the new reforms’ many upsides:

The city has hired an independent budget analyst. There is the ethics commission and code, a new Office of Compliance (with a $450,000 annual budget), plus items like a redistricting commission to better ink council boundaries. She explained that the city worked with a former investigator with the Fair Political Practices Commission—which has levied major fines on the mayor in the past—to toughen up the reforms. “It’s a much better packet because of their involvement,” she said.

Citizen groups still hope to hold the city to the fire and push on some key issues, in particular fundraising for private groups and the use of private email for public work.

“We want the city to go much further on transparency than current practice,” Heidorn wrote in an email, specifically citing changes to ad hoc committee accountability and email policies.

EOS and Common Cause also want to see more clarity on the issue of “behests,” or financial contributions to an elected official’s private groups or nonprofits, such as the mayor’s Stand Up group, among others. Many of these donations are not made public, and there are no limits on the total sum that can be given. EOS wants to put an annual cap on the amount that can be “behested” to a city official. Common Cause wants behests to be “something we’re going to continue to move on,” according to Heidorn.

As for the mayor’s private Gmail use, Councilwoman Ashby told SN&R that the soon-to-be-conceived “sunshine ordinance” will look at how an official can use personal emails. The city clerk and attorney will craft language for the ordinance in the next 60 to 90 days.

In the meantime, SN&R anticipates a return to court to challenge the mayor in the coming weeks.