Court Case Could Limit Private Emails From Being Used For Public Business

A case before the California Supreme Court could directly affect Sacramento Mayor Kevin Johnson and his staff's use of private emails and electronic devices to conduct city business.

The case, City of San Jose vs. Santa Clara County, a man named Ted Smith claimed he should be able to review messages "sent or received by public officials and employees on their private electronic devices using their private accounts."

A superior court denied the claim, but the state Court of Appeals overturned it.

In two different court cases this week in Sacramento County, the use of public and private email by the mayor and his staff has been the subject of court proceedings -- one lawsuit and one request for an injunction.

The mayor's spokesman is Ben Sosenko. Like the mayor, he also has a private [email protected] account and his email exchanges are evidence in a lawsuit over the downtown arena.

But, he says private emails have never been used for public business.

"There's a fine line between what is city business and what is private business," he says. "We follow the city attorney's lead on that distinction and I'm gonna have to direct you to the city attorney's office."

The city attorney is James Sanchez. He is involved in a different case that deals with Johnson's different emails.

"Well, I think it presents a number of questions. And you heard some of the discussion in court before the judge," says Sanchez. "If you have those kinds of accounts going on, you have the potential for mixing accounts, mixing information and from our standpoint, it creates a lot of problems."

Sanchez is a respondent in a request by the mayor to keep some emails from being released to the public because of attorney-client privilege.

Sanchez says it's unclear whether the mayor or any city employee is legally required to share with the city private emails when they deal with public business.

"That's an area of developing law," he says. "[The City of San Jose case] will really clarify those issues so from our standpoint, we have to look at those issues on a case by case basis."

The mayor does not seem inclined to halt the practice. Johnson was asked if he thought public employees should use private emails,

"Yeah, I'm OK with that," he says. "You can use them, but if you do they should be in the court and I think that was the case here."

Johnson made those comments Tuesday after testifying in the arena trial.

A court order is the only thing that guaranteed all of the emails in that trial were preserved.

The San Jose case is due to be heard on appeal. No date has been set yet.

Sacramento City Attorney James Sanchez says city policy is to use private email for private use and public email for public use, but there isn't a way to verify that unless a private email is sent to a city email address.