In FOIA officer case, judge grills city’s lawyers over lack of candor on missing phone
A Richmond judge on Wednesday sharply questioned how the city of Richmond and its lawyers could have looked at a mostly blank cell phone without figuring out something had happened to the text messages that should have been on it.
The phone in question belonged to former city spokeswoman Petula Burks, who is being sued by former city FOIA officer Connie Clay. In the long-running and highly contentious lawsuit, Clay claims she was wrongfully fired for insisting the city follow Virginia’s transparency laws and respond properly to requests for public records.
A court hearing in the case this week was as testy as ever, with two teams of lawyers accusing each other of misrepresenting the truth and an attorney for Clay accusing the city of perpetrating a “cover-up” of evidence that has tainted the case so badly it can’t be fixed.
Though it didn’t come until several months into the legal proceedings, the city’s lawyers say Burks lost her city-issued cell phone during air travel in the summer of 2024 and therefore the city is unable to provide text message evidence from that device that could potentially shed light on what motivated Burks to fire Clay.
The lost phone detail only came to light after the judge hearing the case had personally searched a barely used replacement phone Burks received from the city shortly before she left City Hall in July of 2024.
Graham Moomaw
On Wednesday, Circuit Court Judge Claire G. Cardwell repeatedly questioned how the city’s representatives led her to review a replacement phone that was “completely irrelevant” without telling her the original had gone missing.
“At no time in all of these hearings… did you tell me, ‘Judge, you’re looking at the wrong phone. You’re looking at a phone that has nothing to do with this case,’” Cardwell said as she admonished the city’s lawyers for not disclosing the issue sooner or in a clearer fashion.
The city is being represented in the case by a team of outside lawyers from the Ogletree Deakins law firm. While discussing the lost phone Wednesday, Ogletree attorney W. Ryan Waddell apologized to the judge several times.
“I apologize that we did not realize this sooner,” Waddell said.
At one point, he offered to travel to Philadelphia at no cost to the city to search for the missing phone.
“We didn’t learn about this until September,” Waddell said.
Clay’s attorneys, Sarah Robb and Tom Wolf, are asking the judge to take the unusual step of officially declaring the city has allowed evidence to be destroyed.
They want the judge to either end the case altogether by ruling for Clay or instruct future jurors about the missing phone and tell them they can assume it contained evidence that didn’t look good for the city.
Cardwell didn’t immediately rule on that question after this week’s hearing, saying she would consider it for a few days and issue a ruling resolving several matters at once.
The case is currently set for a jury trial in June.
During Wednesday’s hearing, Robb argued the city’s lawyers failed to be fully truthful with the court, casting doubt over anything the city says if the case moves forward to a trial.
“That story has more holes than Swiss cheese,” Robb said after hearing the city’s lawyers explain why the lost phone problem was discovered so late in the case. Clay filed her lawsuit naming Burks as a defendant in March of 2024. That meant the phone, which the city says was not backed up digitally, went missing months after the city knew it was being sued and had to preserve records relevant to the lawsuit.
The opposing attorneys should have immediately realized there was an issue, Robb added, when they looked at the phone they later turned over to the judge.
“How long does it take to search a blank phone and realize that it’s blank?” she said.
Cardwell seemed highly skeptical that the city didn’t know a phone relevant to the case had gone missing or couldn’t foresee it was something the lawyers and the court needed to know about.
Waddell said Burks presumed everything from the original phone had been preserved, but didn’t notify Ogletree about what had happened to it.
“It didn’t come up that there’s another phone that I lost?” Cardwell asked.
“No, your honor,” Waddell replied. “It didn’t.”
Cardwell said it was clear to her as soon as she looked at the replacement phone that everything she expected to find on it wasn’t there.
“You just thought that was the phone?” the judge said. “Didn’t this make you wonder what happened here?”
Some of Wednesday’s discussion centered on an article The Richmonder published in December about a city IT document that indicated the missing phone had been found and was being kept “in a secure location with airport security” until officials could get it back.
The city’s lawyers indicated they just learned about that document too, and have since undertaken efforts to try to find the phone.
The existence of the IT report, the judge said, meant the city knew the phone had gone missing long before its representatives casually revealed that fact in court.
“Do you think it’s a problem that your client knew that and it could have been retrieved?” Cardwell asked.
Though the city’s lawyers claimed they were unaware of the IT report until The Richmonder brought it to light through a FOIA request, the judge said it was a case of the city “finding it in their own stuff.”
Even with the apologies over the phone issue, the city’s lawyers argued it’s a distraction that’s largely irrelevant to the main legal question: Did Clay’s complaints about how the city handled FOIA make her a government whistleblower and protect her from being fired?
The city says the answer to that is no, because Clay was fired for being unfit for the job and clashing with co-workers.
The city’s lawyers say they’ve turned over every document they know about, but nothing seems to satisfy Clay and her attorneys.
“She’s fishing for something else that doesn’t exist,” Waddell said.
Dispute over CAO’s non-attendance at settlement meeting
The judge previously ordered the two sides to try to work things out by attending a settlement conference overseen by a mediating judge on Dec. 11.
That meeting apparently didn’t go well. Instead, it caused a new dispute over whether the city fully complied with an order from the judge to have an actual city official attend the settlement conference alongside the hired lawyers.
Chief Administrative Officer Odie Donald II, the top City Hall appointee of Mayor Danny Avula, was the city’s designated representative for the settlement talks.
Because Donald didn’t attend in person, Clay’s lawyers contend the city didn’t follow the judge’s orders. The city insists it did comply, because Donald was available to participate by phone if needed.
Wolf, a local attorney who recently joined Clay’s legal team, said the whole point of settlement conferences is for the parties involved to talk to each other and hear the same things “without the spin” of the lawyers.
“That is why attend does not mean be available by phone if your lawyer calls you,” Wolf said.
Wolf said Donald did not appear remotely at any point during the settlement conference. Robinson, however, said the CAO was “completely available.”
“My clients attended. They were there. They were available,” Robinson said.
The judge told Robinson “available isn’t present,” and said she understood her own instructions to mean anyone participating remotely should be in attendance “the entire time.”
The two sides also disagreed on whether Robinson was or wasn’t cleared to show up to the settlement conference an hour later than originally planned.
Clay’s team is asking the judge to order a new settlement conference with full participation by a city government representative.
Cardwell said that, before ruling on the matter, she wanted to talk with the settlement conference judge about what he did or didn’t authorize in terms of meeting logistics.
Contact Reporter Graham Moomaw at gmoomaw@richmonder.org
