In a podcast appearance last year, Richmond Mayor Danny Avula said the public wasn’t hearing “the truth” about a lawsuit the city's former Freedom of Information Act officer has filed against City Hall.

This week, a Richmond judge ruled it’s the city and its lawyers making the truth harder to find by failing to preserve evidence on a potentially key cell phone that’s gone missing.

In an opinion issued late Monday, Circuit Court Judge Claire G. Cardwell faulted the city for a “reckless failure” to preserve the work cell phone issued to former city spokeswoman Petula Burks, who fired former FOIA officer Connie Clay in early 2024. 

Burks has said she lost her phone during air travel in the summer of 2024, shortly before she too left City Hall but months after she and the city had been sued by Clay and were on notice to preserve documents.

The judge granted Clay’s request for an adverse instruction to jurors set to hear the case this summer. That instruction will inform the jury that the city failed in its legal duty to preserve the phone. The instruction will also tell jurors they’re allowed to presume any lost evidence was “unfavorable” to the city and Burks.

“The Court still has not received a complete, consistent and definitive story regarding how exactly the phone was lost, where it was lost, when precisely it was lost and where it is now,” Cardwell wrote.

Monday’s ruling from the judge was a flashpoint in the two-year-old case about transparency in city government and how City Hall responds when outsiders ask for documents.

Clay claims she was wrongfully fired after she complained the city was routinely mishandling requests for public records under FOIA. Those internal complaints, Clay argues, made her a whistleblower who should have been protected from a firing she says was retaliatory.

The city’s lawyers, a team of outside attorneys from the Ogletree Deakins law firm, have argued Clay’s firing was justified because she was bad at the job, could not take instruction and repeatedly clashed with co-workers.

Though that main dispute has still not been settled, the case has taken a lengthy detour with two sets of lawyers fighting over whether the city has produced all the evidence that should exist.

Though the judge stopped short of ruling the case had been so tainted that Clay should win by default, this week’s order was the first time the court has formally agreed with Clay that the city has, at best, carelessly allowed evidence to disappear.

At several points in the 21-page document, Cardwell says the city’s representatives have made statements in court that are not true.

The city’s actions caused “prejudice” to Clay, the judge ruled, because it took eight court hearings for her to learn that “the evidence she seeks no longer exists” because the phone was lost. 

To try to resolve the evidence dispute, Cardwell ordered the city to give her the cell phone issued to Burks so that she could personally review it for text messages that might be relevant. Without disclosing anything was amiss, the city’s representatives gave the judge a mostly blank phone that had been issued to Burks as a replacement for the original phone that had been lost.

“That loss was not disclosed until September 2025. The loss and failure to take steps to preserve the evidence related to Burks’ phone is of great concern, but so is Defendants’ failure to disclose this fact,” Cardwell wrote. “Between the time when the phone was lost in June 2024 and September 24, 2025, when the fact of this phone’s loss was finally mentioned to the Court, Defendants appeared before this Court no less than nine times.”

The phone issue never came up during that timeframe, the judge wrote, even though the defendants — Burks and the city itself — “knew these facts and failed to disclose them.”

The city’s team has argued the lost phone isn’t a major issue because any text messages Burks sent to others about Clay would still exist on the other person’s phone. The judge disagreed with that logic, saying it would put too much of a burden on Clay to guess who might have received those texts and relies on an “assumption that each of those phones still contains all such messages.”

The city’s lawyers also claimed they were unaware of the missing phone problem until they revealed it in court. However, the city’s information technology department was or should have been aware of it. Last year, The Richmonder obtained a copy of a city IT report that indicated the lost phone was being kept at an unidentified airport after Burks reported it missing. 

Even though the IT report was in the city’s possession, the judge noted that it was only brought to her attention “after it was requested through FOIA by a member of the press and published by that journalist.”

Richmond’s lawyers told a judge a phone was lost in an airport. City documents show it might have been found

The newly released records show other officials asked multiple times if Burks had gotten the phone back.

The RichmonderGraham Moomaw

Because the drawn-out fight over evidence discovery in the case showed a “general lack of respect for the Court’s orders,” the judge wrote, the city must pay Clay’s attorneys fees for five legal motions she had to file over the course of 2025. The exact amount of the fees the city will have to pay is unknown, but they will add to the $633,000 in legal bills the city has already incurred so far.

The judge told Clay’s lawyers — Sarah Robb and Tom Wolf — to file supporting documentation by March 9 to determine the amount of the fees the city will have to pay. The city has to make the payment by March 23, the judge ordered.

In a separate procedural dispute over the handling of an expert witness Clay was considering using, the judge ordered Clay’s attorneys to cover city legal fees in the amount of $2,350. 

Cardwell also faulted Clay’s team for cancelling a court-ordered deposition of Burks without the court’s permission. Cardwell ordered Clay’s team to pay costs Burks incurred to travel to Richmond from another state for a deposition that didn’t occur. But because the phone issue has raised new questions for Burks, the court ordered the city’s lawyers to make her available again, this time virtually, to continue giving sworn testimony.

The case was originally set to go to trial in September. The judge postponed the trial due to the unresolved disputes over evidence and rescheduled it for June of this year.

That’s when jurors will be told the city failed to preserve the phone and that they can take that into consideration when they rule.

Judge faults city’s lawyers for misrepresenting what happened at settlement meeting

Cardwell said she was particularly concerned with an “apparent lack of candor” from Ogletree lawyer Jimmy F. Robinson Jr. in relation to a recent court-ordered settlement meeting to try to bring the two sides together.

The judge had ordered a representative from the city government to attend the meeting overseen by retired Chesterfield County judge Timothy Hauler. Chief Administrative Officer Odie Donald II was the city’s designee, but he did not attend.

Robinson, the lead attorney for the city in the case, has said Donald was available by phone if needed. Robinson indicated to Cardwell that Hauler knew about the arrangement to have Donald only participate by phone if he was needed.

“The settlement judge was not, as defense counsel represented to this Court, aware that the representative of the City of Richmond, authorized to approve or disapprove a settlement, was available by phone or on the phone with defense counsel Jimmy F. Robinson Jr. for portions of the settlement conference,” Cardwell wrote. “In fact, the settlement judge emphasized to this Court that it is essential to the success of any settlement conference to have the client or an authorized agent thereof present.”

In a footnote, the judge said the court “gives words their ordinary meaning” and linked to the dictionary definition showing that “attending” means “to be present at: to go to.”

Cardwell also faulted Robinson for implying he had permission from Hauler to show up an hour later than scheduled for the settlement meeting.

“The settlement judge did not, as defense counsel represented to this Court, agree to start the conference one hour later than the settlement conference judge had scheduled,” Cardwell wrote. 

She added that she was in “complete agreement” with Clay’s team that the city’s representatives “demonstrated a lack of good faith participation” in the settlement meeting.

The judge ordered the two sides to attend another settlement meeting. She specified that Clay, Burks and a representative of City Hall must attend the whole meeting “in person.” She also instructed all parties to “arrive on time.”

Contact Reporter Graham Moomaw at gmoomaw@richmonder.org