Demands for answers over Durkan’s, Best’s deleted texts

Seattle Mayor Bruce Harrell and interim Police Chief Adrian Diaz aren’t saying whether there will be an investigation to assess whether any civil rules or criminal laws were broken when text messages were deleted from the phones of former Mayor Jenny Durkan and former police Chief Carmen Best.

But a City Council member and the head of a nonprofit dedicated to government transparency are calling for an outside investigation into how the texts from crucial weeks during 2020’s racial justice protests went missing.

“This is clearly a critically important moment in our city’s history that we need to get to the bottom of, and only a full, fair and independent investigation can give us the answers we need,” Councilmember Andrew Lewis said this week.

A long-awaited forensic analysis released by the city last week indicated Durkan’s phone was manually set to automatically delete texts in July 2020, resulting in the deletion of texts between Oct. 30, 2019 and June 25, 2020. Durkan has said she did not delete the texts and noted that the majority of her deleted texts have since been reproduced from other phones.

The forensic analysis, commissioned in response to lawsuits over the city’s handling of the protests, also found data consistent with testimony Best gave in a November 2021 deposition that she “periodically deleted” her texts.

Several state rules and laws — civil and criminal — govern the retention of public records, including texts, as well as violations related to destroying them.

Guidelines for preserving public records require that texts and other communications by local elected officials about public business be kept for at least two years before being transferred to the state’s archives “for appraisal and selective retention.”

Anyone who willfully destroys a public record that’s supposed to be kept is guilty of a felony under state law. Most elected and public officials in Washington, including mayors, are required to take training that include information about retaining records.

Last Saturday, after the analysis was released, Harrell said he would consult with City Attorney Ann Davison’s office to determine an appropriate “legal course of action.” But Harrell’s office this week hasn’t shared any next steps and Davison’s office has declined to comment, citing attorney-client privilege.

The analysis didn’t determine who changed the text retention setting on Durkan’s phone. The city’s information technology department, which configured city phones, has said it’s not the department’s practice to change retention settings to delete messages.

The analysis also didn’t review why at least seven other officials, including fire Chief Harold Scoggins and several police commanders under Best, also failed to retain their texts from the summer of 2020.

Best hasn’t yet commented on the forensic analysis, for which the city paid $496,525 through 2021. When asked about the matter last May, Best said she didn’t know how her texts disappeared, noting she thought her phone was being backed up.

Angelo Calfo, a lawyer representing some of the plaintiffs now suing the city, said Thursday his firm conducted the depositions of Durkan and Best in 2021 that are referenced in the city’s forensic analysis, but the report didn’t fully represent Best’s testimony.

Best testified that “she periodically deleted some texts,” Calfo said, but also testified that “she didn’t have an explanation for why her phone, when given to us, had no texts on it.”

Calfo added that Best testified, too, that “all of her texts on a second, personal phone she used during that time were also deleted after she had the phone reset at the Apple store.”

Similarly, the city has said Scoggins in October 2020 lost his texts after getting locked out of his iPhone and getting it reset at the Apple store.

The city’s Office of Police Accountability (OPA) isn’t investigating Best or the other police commanders with missing texts, OPA interim director Gráinne Perkins said in an email Thursday. Former OPA director Andrew Myerberg opted “to allow this matter to be handled via the court” before leaving the OPA to take a job in Harrell’s Cabinet a few weeks ago, Perkins added.

The missing texts are “still the subject of litigation,” she said. “After this litigation is complete and if the OPA receives a formal referral, at that time the OPA will evaluate investigating the matter and whether the case needs to be sent to an outside entity for review.”

Lewis said he planned to talk with Harrell and other officials about finding an appropriate way to pursue an investigation.

Councilmember Dan Strauss said only: “There are a lot of questions left unanswered that I would like to have the answers to.” No other council members commented in response to questions this week.

Mike Fancher, a former Seattle Times executive editor who now serves as president of the Washington Coalition for Open Government, separately this week called for an investigation.

“There should be a neutral, third-party investigation,” Fancher said. “If that investigation indicates there was criminal conduct, that should be pursued, as well.”

During his mayoral campaign last year, Harrell described Best as a friend and a model police chief. Diaz was a close confidant of Best’s and served as her top deputy. Last Saturday, a Harrell spokesperson said the mayor believed that “any potential investigation should involve a neutral third-party investigator,” rather than the Police Department, “to prevent the appearance of a conflict of interest.”

Some lawyers for plaintiffs suing the city over how the 2020 protests were handled have said there appears to have been deliberate destruction of public records and evidence in their cases.

Calfo, whose firm represents Capitol Hill businesses and residents suing over damage allegedly suffered because of Seattle’s tolerance of a protest zone, said it’s not his place to say if there should be a criminal probe.

“But we’re doing our own investigation to get to the bottom of this and we’re willing to share our findings with any law enforcement agency that wants to look at them,” he said.

David Perez, representing Black Lives Matter Seattle-King County in a suit over the Police Department’s protest response, said City Hall needs to act.

“The obvious next step here is for the city to determine who destroyed the evidence and hold that person or persons accountable,” he said. “If the city doesn’t … then it’s open season on public records. Any official or functionary can start destroying records.”

Then-City Attorney Pete Holmes’ office initially hired a California cybersecurity company to undertake the work in November 2020.

The public didn’t find out about the deleted texts until May 2021, after a public records officer in Durkan’s office filed a whistleblower complaint. At the time, Holmes’ office said the forensic analysis would be done by late June 2021. Instead, the analysis was released much later, with Durkan and Holmes no longer serving at City Hall. Their terms expired at the end of 2021.

The Times is suing the city over how Durkan’s office and the Police Department handled requests by reporters, some of which were made before texts were deleted.

A spreadsheet provided by the city last week to open-government activist Arthur West shows that a draft of the forensic analysis was provided to the city as early as June 2021.

This week, Davison’s office said the city didn’t receive the final analysis until last month. The office didn’t respond to questions about why the work took that long.

According to the Police Department’s policy manual, when supervisors become aware of allegations that an employee has violated any laws or rules, they’re required to investigate or refer the matter to others. The manual also directs employees to report allegations of serious violations, including potential crimes, to supervisors or directly to the OPA.

When asked this week whether the department intends to investigate Best or the current commanders, or ask another agency to, a spokesperson for Diaz said the department “cannot make any comment about this due to the current litigation involving this issue.”

Pierce Murphy, a former OPA director, said the matter is well within the OPA’s authority to investigate, even though it involves an employee who no longer works for the department.

“We did investigate matters even after someone separated from the department, particularly if it was something of the importance to the public or the public’s trust, or about the department’s reputation,” Murphy said.

Best should have been aware of the rules and laws related to public records, lawyers suing the city have said.

Calfo said his firm told Holmes’ office in late June 2020 to preserve Durkan’s, Best’s and Scoggins’ phones for evidence in the case.

“They didn’t do that,” he said.

Rebecca Boatright, the Police Department’s director of legal affairs, said this week that department employees receive yearly, mandatory training on records retention and are required to affirm they’ve read department policies, which clearly set out their duties with regard to public records.