© 2014 Jack D. Wilson
My wife is a fan of mystery novels and always has several on hand from the Prescott Public Library. The title of this post is Email delusions – it could be sub-titled Magical disappearing emails. It is a non-fiction mystery involving emails that existed at one point but vanished into thin air almost magically. We have a central protagonist who would have us believe he does not know where the delete key is on the keyboard of his computer. He is supported by a cast of characters who all seemed to suffer from failing memory syndrome and could not recall emails or text messages they sent or received. All of this is juxtaposed against some hard evidence that calls into question the veracity of their stories. There was enough evidence to convince a senior federal judge that the central protagonist, Mayor Marlin Kuykendall, did not meet the requirements for qualified immunity.
A simple tale
This is a simple tale where emails that were relevant to a lawsuit were deleted after a federal court had ordered that they be preserved. However, there are many facets to this storyline that need to be traversed to fully appreciate how egos overarched Arizona State Statues not to mention an oath of office. As this mystery plays out you will learn about Arizona Revised Statutes on public records, the email system used by the City of Prescott and its own official Records Retention Policy that was blatantly violated. It is an open-ended mystery at this point as we wait for Judge James Teilborg to set a jury trial date. So let us begin our journey with some background on the City of Prescott’s email system.
City of Prescott email system
The City of Prescott provides email facilities to its employees, including the mayor and council members, via Microsoft Outlook software. Information Technology (IT) has procedures for backing up that email system every two hours in case recovery of emails is needed in case of a disaster. Nothing in that policy calls for the automatic deletion of emails by software or otherwise (for active employees). In fact, the only way an email message is deleted is if someone actually deletes it. Arizona Revised Statutes Title 39 – Public Records, Printing and Notices is rather specific about retention of public records. Emails, whether on official city equipment or on private email accounts, that deal with city business are covered under these statutes.
City of Prescott policies on Mayor & City Council member email deletions
Since City of Prescott contract attorney James Jellison stated that the mayor’s staff routinely deletes his emails I wondered when that had started. It certainly was not the case when I was mayor (state statutes on public records prohibit such a practice).
So on March 1, 2014 I submitted a Public Records request to Prescott City Clerk Lynn Mulhall (see Attachment A – March 1, 2014 Public Records Request). I asked for any policies, either formal or informal, regarding the deletion of mayor and city council email by the administrative assistant that supports them. In the response to my Public Records request nothing was furnished to me in that regard, hence I have to assume nothing exists. The only thing they sent me was a copy of the City of Prescott’s Data Integrity Policy. See City of Prescott Data Integrity Policy for a PDF of what they sent me.
On February 12, 2014 Daily Courier reporter Cindy Barks stated in a story:
“A portion of the attorneys’ arguments focused on whether Kuykendall had deleted the emails. Jellison maintained that the mayor did not delete the emails, “because he doesn’t know how,” and said the mayor’s staff regularly purges emails.”
The reference to the mayor’s staff is actually Patti Crouse, Administrative Assistant to the mayor and city council. Note the conflict between what defendant’s attorney James Jellison said in court and the total lack of any City of Prescott policy, either formal or informal, regarding the deletion of the mayor’s emails by his administrative assistant. Deletion of these emails is also a violation of Arizona Revised Statutes.
Covering your tracks, almost
An excerpt from the February 18, 2014 ruling by Judge James Teilborg is revealing (citations removed for readability):
“Riley, however, presents copious evidence calling into dispute the truthfulness and credibility of these assertions. For example, although Mayor Kuykendall and Goodman claim that they never conversed with each other regarding Riley’s YHS employment status, Riley presents an October 28, 2010 email from Goodman (a YHS board member) to Mayor Kuykendall stating
Just so you know, I had a meeting this morning with Ed Boks, Director of Yavapai Humane Society. [Riley] has now been placed on administrative leave and we will review this situation in more detail at our Board Meeting on Monday. I can assure you that this matter is of our utmost concern we sincerely regret any problems caused by her activities.
This was an email received at Mayor Kuykendall’s City of Prescott official email account. Despite numerous requests from Kay Anne’s attorneys Mayor Kuykendall did not produce this email or any other emails relevant to this lawsuit. This email was retrieved from Marty Goodman’s laptop. Following the discovery of that email and several others on Mr. Goodman’s laptop the Yavapai Humane Society settled with Kay Anne Riley.
Given the above, then the statements by Mayor Marlin Kuykendall in his deposition of November 28, 2012 are cast in a different light, a perjurious light. Read them and decide for yourself:
“Q . So you — is it a fair statement that your testimony is, is that you did not regularly receive e-mail communications from Mr. Goodman?
A . I didn’t receive them, no .
Q . Did you send e-mail communications to Mr. Goodman at any time that you recall?
A. I’m not — number 1, I personally have never sent an e-mail.”
Note that in the above series of deposition questions and answers Mayor Kuykendall states he does not email. His lawyer, James Jellison, tries to portray him as technically challenged, someone who in this day and age of smart phones and tablets does not use email. Let us dig a bit deeper as the mayor has a Macintosh computer at his home with a Google Gmail account in his name. The deposition of Nathan Keegan regarding that is enlightening.
Deposition of Nathan Keegan
Nathan Keegan is the City of Prescott’s Information Technology (IT) Director. He was deposed on December 4, 2012. On August 16, 2012 Nathan Keegan and a member of the City of Prescott’s legal department went to Mayor Marlin Kuykendall’s home to conduct a search of his Mac laptop for emails relevant to the lawsuit.
Q. “Did he tell you that he used his e-mail from his home computer?”
A. “He did. He didn’t really give any – my recollection is like I say, yes, I am super duper e-mail. He is very conversational.”
Q. “What questions specifically did you ask him?”
A. “It was very general questions like, hey , could you show me how you get into e-mail because if you walk up to the computer and, for example , Apple, I wanted to see if he goes into the Web to get his mail, if he starts a program to get his mail. If it’s on a Mac, what program on the Mac does he use to get his e-mail. Just very operational things like how would you get your e-mail normally.”
Q. “Did he show you?”
Q. “And what did he show you in that regard about how he gets on the e-mail?”
A. “He started the Apple Mail Client. It may have a different name, but that is basically what it is. It is an e-mail program that comes on an Apple computer, in this case it was linked to his gmail account. And then the Mayor went over and conversed with the attorney that was there. So I pulled out my list of search terms, search term one. Search the e-mail. Go through the list of search terms. None of the search terms produced a result. So the next thing was like, okay –”
You can’t have your cake and eat it too
On one hand we have Mayor Kuykendall protesting he does not use email. Prescott’s contract lawyer James Jellison attempts to cast Mayor Kuykendall as a technically inept bumpkin, a modern-day Luddite. During the February 11, 2014 hearing of KayAnne’s lawsuit at Sandra Day O’Connor Federal Courthouse in Phoenix each attorney was given twenty (20) minutes by Judge Teilborg to plead their side of the case. I attended that hearing. Attorney James Jellison actually tried to convince Judge Teilborg that in this day and age Mayor Kuykendall never uses email.
While on the other hand we have Mayor Kuykendall showing the Prescott Information Technology Director how to access his Apple Mac email program that links to his Google Gmail account and characterizing himself as “I am super duper e-mail.”
That is one example where it seems Mayor Kuykendall has impugned his own testimony. However, it is not the only example. Let’s take a look at the deletion of 24 emails from his Google Gmail account. It is an even more damaging example of deceptive behavior on the part of the defendant.
Deletion of 24 emails from Mayor Kuykendall’s Gmail Account
All members of Prescott’s City Council, the mayor and all council members, get a briefing from the City Clerk and the City Attorney after they take office regarding the Arizona Statutes on Public Records. They are advised that both their official city email accounts and any private email accounts are subject to these statutes. How do I know that? I was mayor and went through these briefings.
The City of Prescott has a specific policy on email retention entitled “City of Prescott Data Integrity Policy.” Here is an excerpt from the current policy:
“It is the responsibility of individual City employees and departments to maintain backup copies of documents, email, etc relative to State of Arizona guidelines and regulations.”
For more information on that policy, see City of Prescott Data Integrity Policy.
Now, let us look specifically at the circumstances of the missing 24 email. I have excerpted the following from Judge James Teilborg’s February 18, ruling (citations removed for readability):
- “Although Riley has made multiple requests for production of emails between Defendants and YHS, and specifically between Mayor Kuykendall and Goodman, Defendants have not produced such emails. Moreover, Mayor Kuykendall explicitly denied that he and Goodman communicated by email. (“the Mayor’s position [is] that he does not use email”)).
- Nonetheless, Riley discovered numerous emails relevant to this litigation where either Mayor Kuykendall or his assistant were senders or recipients of the emails. These emails were discovered from third-parties, YHS, Goodman, and Google, Inc.”
- On March 1, 2011, Riley served the City of Prescott and Mayor Kuykendall with the Notice of Claim.
- On May 18, 2011, Riley served a Public Records request on the City of Prescott requesting, among other things, emails between Mayor Kuykendall and YHS, Boks, or Goodman.
- Mayor Kuykendall had the responsibility to locate and produce records responsive to a public records request, although the IT Department was available to assist with the process.
- On August 15, 2011, Riley sent Defendants a Notice of Request to Preserve Documents and Electronically Stored Information.
- On July 16, 2012, Riley discovered twenty-four emails potentially relevant to this litigation through Google, Inc’s search (pursuant to subpoena) of Mayor Kuykendall’s private email address. This discovery revealed only the “to,” “from,” and “date” fields of the email, not the subject line or body.
- Riley had previously requested these emails on May 18, 2011 and May 15, 2012. Riley again requested Defendant produce these emails on July 30, 2012. Defendants did not search Mayor Kuykendall’s home computer and personal email account until August 16, Defendants produced none of the twenty-four emails from the Google list.
- On or about October 30, 2012, five emails were discovered through third-party Goodman (pursuant to a subpoena). Three of these emails were from Goodman to Mayor Kuykendall and two of these emails were from Mayor Kuykendall’s assistant to Goodman. This discovery revealed the full text of all five emails. Defendants had not previously produced these emails.
- On March 19, 2013, over Defendants’ objections, Riley obtained a court order directing Google, Inc. to produce copies of each of the twenty-four emails previously identified in Mayor Kuykendall’s private Gmail account. On or about March 25, 2013, Google, Inc. searched its servers but “did not identify or locate among its business records” any of the twenty-four emails. Google’s Custodian of Records produced a declaration confirming that, on July 16, 2012, the twenty-four emails existed in Mayor Kuykendall’s Gmail account, but that “[r]ecords regarding whether, when, how or by whom any emails that may have existed were deleted are not reasonably accessible to Google.”
The above information convinced Judge James Teilborg that the following rulings were justified:
“However, the Court finds adverse inference instructions to be warranted to the extent Defendants’ spoliation affects Riley’s ability to prove her claim. The Parties shall submit proposed adverse inference instructions with the other jury instructions to be filed before trial.”
“The Court has already found that Defendants acted in bad faith. Accordingly, Riley is entitled to her reasonable attorneys’ fees incurred in connection with this motion and seeking spoliated evidence.”
On April 25, 2014 a stipulation agreed to by both parties stated that KayAnne Riley will receive $35,000.00 for attorneys fees and expenses associated with spoliation (see $35,000.00 Spoliation Legal Fees Awarded to KayAnne Riley). Since that is more than the maximum amount that City of Prescott Attorney Jon Paladini can approved for payment on his own authority ($25,000.00) it will require City Council approval.
Who pays for Mayor Kuykendall’s actions?
The attorney’s fees incurred in connection with this motion and seeking spoliated evidence exceed $25,000 so they will need to be agendized for City Council approval. That will allow members of the public an opportunity to comment. Since 24 emails deleted as part of the spoliation were on Mayor Kuykendall’s private Gmail account it seems that he should be footing the bill for the %35,000.00, not the taxpayers.
The next installment
So we have now traversed the ins and outs of Prescott’s non-fiction mystery, Email delusions. As always, life is stranger than fiction. The “Big Fish” that Councilman Jim Lamerson depicts in his cartoons is facing a jury trial in the Sandra Day O’Connor Federal Courthouse in Phoenix. Mayor Marlin Kuykendall is the central protagonist. He will profess a total lack of knowledge of how emails work or where the delete key is on the keyboard of his computer. His pleas will be countered by evidence to the contrary. During the discovery part of this lawsuit his supporting cast of characters seemed claimed they could not recall emails they sent or received. That may well change during an actual trial when they face perjury charges for not telling the truth. It will be akin to a game of dominos, as one falls many will follow. So we may observe the specter of rats fleeing a sinking ship as many decide that throwing themselves under the bus and committing perjury is not in their best interests. I expect to see many telling the truth so they can play another day.
Related Blog Posts
If you enjoyed this blog post you may also enjoy this related blog posts. They are listed in chronological order, oldest to newest — this saga has been going on for quite some time, since 2010:
|Date||Blog Post Title|
|11/02/2010||Retribution and bullying – Prescott Arizona style|
|11/14/2010||Retribution and bullying – Prescott Arizona style – part 2|
|8/10/2011||ACLU Sues City of Prescott for Violating Free Speech Rights of Fired Employee|
|2/19/2014||KayAnne Riley versus Prescott Mayor Kuykendall–Update|
|2/22/2014||Legal Fees to defend Mayor Kuykendall|
|3/18/2014||Enough delaying tactics, time for a trial|
|4/25/2014||$35,000.00 Spoliation Legal Fees Awarded to KayAnne Riley|
Attachment A – March 1, 2014 Public Records Request
March 1, 2012
Prescott City Clerk
City of Prescott
Public Records Request
I am requesting the following public records:
Copies of any policies and/or procedures for the retention and/or destruction of emails from members of the Prescott City Council. This is to include official policies adopted by the City Council or specified by the City Manager and any informal policies or procedures (such as those followed by Patti Crouse or the Information Technology department). Period covered by this request: October 2010 through February 2014.
If this information is available in electronic format, please email it to me at (Email address redacted).
Jack D. Wilson
 “City accused of deleting Riley emails: Former YHS employee claims mayor got her fired for leading protest,” Cindy Barks, Prescott Courier, February 12, 2014