Nearly four months after the City Attorney’s Office accused the city’s former top bureaucrat of ordering city information technology staff to purge records tied to the 101 Ash St. debacle, the official chosen to answer questions about the allegation could not corroborate that directive under oath.
Jonathan Behnke, chief information officer for the city, testified in a deposition last Wednesday that his own fact-finding revealed that ex-Chief Operating Officer Kris Michell “did not direct anyone in my department to delete any data,” according to a draft transcript obtained by Voice of San Diego.
Instead, Behnke said he believed the catalyst for the City Attorney’s Office allegation that Michell ordered the deletion of records was her request that her executive assistant have her city-issued cell phone wiped as she prepared to leave City Hall following her abrupt resignation in fall 2020. Michell gave the phone to the assistant, who ultimately gave the phone to an IT manager who could reset it.
City attorneys selected Behnke as the person most knowledgeable about the situation to answer questions under oath. The deposition followed a subpoena from lawyers for a former city real estate adviser seeking the details behind the accusations leveled in a May letter from city attorneys and steps the city took to preserve and collect documents tied to its 101 Ash and Civic Center Plaza lawsuits.
Behnke did note that Jeff Sturak, the city’s former assistant chief operating officer, told him Michell ordered a city staffer to shred unidentified documents in her final week at City Hall and that Sturak had requested that Michell’s computer records, including her emails, be backed up indefinitely following her resignation.
But Behnke’s testimony did not match the specific allegation in the May letter alleging that Michell “directed city staff in the Information Technology Department to erase from your cell phone(s) and computer public records found in email, text messages and other chat tools” related to those lawsuits.
City Attorney Mara Elliott argued this week that Behnke’s testimony didn’t disprove the essential allegation of the letter. Elliott said that her office’s allegation that Michell directed city IT staff to purge records was based on information from San Diego police that Behnke wasn’t briefed on.
“What we do know is that (Michell) did dispose of documents,” Elliott said. “That’s not something that’s been refuted.”
Michell previously denied under oath in her own July deposition that she directed the city’s IT department to erase anything on her cell phone or computer before she left City Hall. She said she only had a staffer shred working documents, drafts and duplicate records including multiple drafts of 101 Ash-related investigations being conducted by outside law firms. Michell has said she only disposed of documents she understood could be purged per city policy and destroyed the drafts of the Ash probes to minimize confusion and clutter.
Michell also said under oath that she had handed over her city phone with the instruction to “get it ready for the next owner” and largely only sent text messages – which can be public records – about scheduling issues.
Michell speculated during her deposition that the City Attorney’s Office might have issued the letter to her for “media purposes” following a Superior Court judge’s order that the city turn over documents.
“(Michell) stands by her deposition testimony, and she has committed no offense,” Michell’s attorney Pamela Naughton said this week.
Elliott’s office stood by its May letter.
Elliott argued that the city IT chief shared what he had gleaned from his own discussions with current and former city staff and his knowledge of city record retention policies. She said Behnke didn’t have access to information she received from San Diego police in a February briefing about a document leak during the 2020 election.
Elliott said the letter her office sent more than two months later – which also urged Michell to help the city recover records and noted that destroying records violated city and state laws – was triggered by former city real estate director Cybele Thompson’s late April testimony under oath that Michell had provided documents to her after Thompson left her city post. Thompson had previously handed over hundreds of pages of records following a discovery request, including some that Elliott acknowledged even city lawyers had never seen despite months of litigation and fact-finding.
“That’s when I became alarmed,” Elliott said.
Elliott’s office issued the letter just under two weeks after Thompson confirmed Michell had handed over documents to her – and Superior Court Judge Timothy Taylor ordered the city to produce records it had not previously turned over to attorneys for ex-city real estate adviser Jason Hughes.
Under the city’s strong mayor form of government, Michell was the city’s top unelected official until she resigned in 2020. At the time, she said her departure was unrelated to the Ash debacle. She’s since said otherwise.
In early 2020, while Michell was the city’s chief operating officer, the city evacuated 101 Ash St. after a series of asbestos violations and a mismanaged renovation process that also played out on her watch.
The city soon hired three law firms to investigate the 101 Ash transaction and renovation.
Michell has said she became concerned that the city wasn’t being transparent about what had happened. She previously told Voice she was disheartened by what she felt was a City Attorney’s Office effort to control the investigative process, particularly once it engaged outside law firms to dig in. After other frustrations over how the situation played out, Michell has said she considered becoming a whistleblower and decided to approach then-city attorney candidate Cory Briggs, the city’s chief legal nemesis who was running against Elliott. She then gave Briggs a confidential memo from law firm Burke, Williams & Sorensen analyzing the 101 Ash transaction.
In early September 2020, NBC 7 San Diego published a story focused on the law firm’s analysis of the Ash deal that created a firestorm. NBC reported that the memo included a footnote – which Elliott and others later decried as fabricated – stating that Elliott’s office tried to shield now-Mayor Todd Gloria from a city-ordered probe of the 101 Ash debacle. The footnote suggested an interview with Gloria might have clarified why the city decided to go forward with the Ash lease given Gloria’s skepticism about a similar past deal and support of the Ash lease-to-own deal. NBC 7 retracted the portion of its story about the footnote a week after publishing.
Michell said in her deposition that she didn’t recall seeing the footnote in the version of the memo she gave Briggs and had “no knowledge of who wrote it.”
Michell resigned within weeks of the NBC story.
Since then, there have been a slew of revelations tied to the city’s 2017 acquisition of 101 Ash, a building it only occupied for a few weeks. Litigation revealed last year that that as part of the city’s acquisition of 101 Ash and a similar deal for nearby Civic Center Plaza, its landlord paid Hughes $9.4 million for his work on the two leases and that the two parties had secret agreements. Attorneys for the city have argued the payments to Hughes violated state conflict-of -interest law.
Hughes, who in 2013 volunteered to advise then-mayor Bob Filner on real estate issues, told multiple city officials he wanted to be paid by someone other than the city. Hughes has produced a letter he says the city’s former real estate director Cybele Thompson signed giving him the go-ahead to seek compensation for complex city lease deals. Yet the former real estate official and other ex-city officials have said that they didn’t know the city’s landlord paid Hughes.
Fast forward to 2022.
Elliott confirmed to Voice this week that she received a late February briefing on a police investigation into the leak of the Burke, Williams & Sorensen memo and the footnote she has deemed fabricated.
In a statement, the City Attorney’s Office wrote that police investigators revealed then that they had “ruled out every city employee but Kris Michell as the leaker of a confidential document that was later doctored with a fabricated footnote and given to NBC 7.”
Elliott’s office said police also said Michell was not cooperating with investigators and had hired a criminal defense attorney when police asked to speak with her. Elliot’s office said it also learned then of Michell’s alleged directives to purge records in her final days at City Hall.
San Diego police declined to comment on their investigation this week.
Michell’s attorney also did not respond to questions about those allegations.
Elliott’s office delivered its May 11 letter to Michell more than two months after the February briefing – and after facing scrutiny from a Superior Court judge and testimony from Thompson that Michell had given her records.
“We’re doing our job here and the responsible thing is to ask her for documents,” Assistant City Attorney Jim McNeill said this week.
A day before the letter went out, Voice emailed the City Attorney’s Office questions about Thompson’s testimony and the discovery dispute with Hughes’ attorneys.
City Attorney’s Office spokeswoman Leslie Wolf Branscomb responded on May 12 with responses to Voice’s questions and the letter delivered to Michell. Thirty minutes later, Voice emailed the City Attorney’s Office about a dozen questions including whether the city had confirmed records were destroyed at Michell’s direction and the status of the footnote investigation.
The spokeswoman confirmed that the letter had been delivered the previous day and said the City Attorney’s Office had “no immediate response to questions about an investigation.”
Voice soon published a story about the City Attorney’s Office letter.
In late June, attorneys for the city issued a subpoena to depose Michell and lawyers for Hughes called for a deposition with a then-unnamed official who could provide details on the accusations raised in the city’s May 11 letter.
Michell was ultimately deposed in July, and Hughes’ attorney Michael Attanasio sat down with Behnke last week.
Attanasio declined to say this week whether he’ll pursue additional depositions or discovery regarding the City Attorney’s Office allegations against Michell.
“The deposition of Mr. Behnke proved one of two things,” Attanasio wrote in an email. “Either city insiders are engaged in the destruction of key emails that would help Mr. Hughes, and are now covering it up, or the city attorney is willing to make wild accusations against just about anybody.”
Elliott’s office argued that Attanasio “continues to cry wolf in a pathetic effort to distract attention from his client’s actions.”
The City Attorney’s Office also reiterated its call to Michell to cooperate with its digging.
“If Kris Michell wants to make this right, and has nothing further to hide, she will voluntarily agree to allow the city to review city records on her personal devices,” Elliott’s office wrote.