Mayor London Breed likely to elude consequences for deleting text messages

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Mayor London Breed will, in all likelihood, avoid any serious consequences for her practice of deleting official text messages, after her re-election loss to Daniel Lurie. This comes despite a city task force deciding on Wednesday to keep in place its ethics referral against the departing mayor.

The Sunshine Ordinance Task Force, which is responsible for oversight of public records laws, moved last night to maintain its recommendation for the Ethics Commission to investigate Breed’s “willful” violation of public records laws. 

Breed, along with City Attorney David Chiu, was castigated by the Sunshine Ordinance Task Force in October for routinely deleting text messages dealing with city business. The task force had asked the Ethics Commission to investigate Breed for the practice, which members called an “egregious” and “negligent” violation of the law.

While the Sunshine Ordinance Task Force is responsible for public records laws, investigation and punishment of ethics transgression belongs to the San Francisco Ethics Commission, a staffed city department.

But it is unclear if the referral will have any effect. The Ethics Commission is circumscribed in its enforcement over public records laws, according to a 2014 city memo, and the city attorney’s office said on Wednesday that the Ethics Commission is unlikely to take action.

“If this task force submits a referral to the Ethics Commission regarding Mayor Breed’s alleged misconduct … and Mayor Breed is no longer serving the city in her official capacity as an elected official, then the Ethics Commission will return the referral back to the task force for lack of jurisdiction,” said Valerie Lopez, a deputy city attorney, speaking to the Sunshine task force at Wednesday’s hearing.

A 2014 memo from the Ethics Commission additionally notes that its power to enforce against public records violations is limited: Commissioners can ask officials to “cease and desist” the conduct and produce the records, publicize the violation, issue a warning letter, and/or seek an official’s suspension or removal from office. The latter, however, is moot when that person is already leaving office, as Breed is.

“Notably, the Ethics Commission has no apparent authority to enforce any order it issues by (for example) imposing a fine, seeking injunctive relief, etc.,” the memo reads.

Members of the Sunshine task force, for their part, were unfazed. All said they would continue the referral and do so before Breed leaves office on Jan. 8, to put the ball in the Ethics Commission’s court.

“Even if the Ethics Commission doesn’t act on it, I feel that we have a duty to just have this in the record,” said Lila LaHood, the executive director of the San Francisco Public Press and a Sunshine task force member. “By continuing to follow through, it also sends a message to future leaders in San Francisco that we’re serious about this, and they need to maintain their correspondence in appropriate fashion.”

“If we rescind it,” added Chris Hyland, another member, “it seems like it might disappear and it doesn’t record in history the track record of this particular mayor. I think that would be a disservice.”

The Ethics Commission does not comment on pending investigations, and did not return a request for comment. 

The mayor’s office has held that text messages are not considered official records for the purposes of retention because “day-to-day routine emails and texts” are exempt from such laws. Half-a-dozen public records attorneys disagreed, however, and some told Mission Local the city could be open to litigation if Breed did not change her practice.

“The mayor’s compliance officer is wrong,” Karl Olson, a longtime public-records attorney, told Mission Local in September. Olson successfully argued a 2017 case in front of the California Supreme Court finding that public officials’ messages, even when sent on personal devices, remain public records.

Olson, in an opinion piece published last week, urged Mayor-elect Daniel Lurie not to conduct official business via text and then delete his messages, saying the practice is illegal, and charting a new path might “clear up the stench of corruption, sleaze, and scandal” voters have come to associate with City Hall. “Don’t be like your predecessor,” Olson wrote. “Don’t just pay lip service to transparency.”

The mayor’s office did not respond to a request for comment, but the mayor’s legal compliance officer said during the meeting he had nothing to add beyond their prior position, that text messages are “non-records” for retention purposes.

Breed’s practice came to light after Hazel Williams, an activist who frequently files public records requests, began asking for the latest official text messages from Breed, Chiu, and other city officials over the summer. Both officials use their personal phones to conduct city business.

The mayor’s office and the city attorney’s office told Williams they had “no responsive records,” indicating that both officials routinely delete their text messages.

Olson, for his part, said he hoped the Lurie administration would take a simple step to cure this issue: Use government devices for government business.

“The [California] Supreme Court encouraged public officials to either use a government electronic device, or copy it,” Olson said in an interview Wednesday. If officials continue using personal devices for official business, Olson said, public records will remain hidden. “They’re never gonna be found.”