Vallejo officials’ handling of evidence destruction probe marked by confusion, concern

Officials for the city of Vallejo selected Boucher Law, an upstart consulting firm, to advise on matters relating to the 2021 destruction of evidence in multiple police shootings — but they did not seek approval from the city council, Open Vallejo has confirmed. 

“They went ahead and hired them without consulting us,” Councilmember Tina Arriola said in an interview Thursday. 

The decision to hire Boucher Law came amid revelations by Open Vallejo that senior Vallejo officials, including Assistant City Attorney Katelyn Knight, authorized the purge of records even though many were set to be disclosed under transparency laws. Knight is defending the city in a public records lawsuit filed by Open Vallejo in 2021.

“Given the nature of the allegations, our City Attorney’s Office has recused from involvement, and therefore Boucher Law is acting in the capacity as a legal advisor to the City,” Assistant City Manager Terrance Davis told Open Vallejo in an email Wednesday. The Boucher Law firm was incorporated in 2021 by a former human resources executive who was sworn into the California Bar five years ago, records show.

Asked about Boucher’s qualifications to handle an investigation into senior officials, Davis wrote, “to be unequivocally clear, Boucher Law is not conducting this investigation.” Instead, Davis said, the city will rely on the Sacramento-based workplace investigations firm Van Dermyden Makus.

Several public officials have claimed, since the publication of Open Vallejo’s article into the destruction, that the investigation had already begun. But in response to a public records request, the city said that the contract with Van Dermyden Makus “is still in draft form and has not yet been finalized or executed by either of the parties.” The city has known about the evidence destruction since at least May of 2022, when Open Vallejo deposed the police department’s then-public records coordinator, who testified she discovered the purge in the weeks before the deposition. 

As of Friday last week, the city council was unaware of the plan to retain either law firm, Arriola said. Also on Friday, Vallejo Mayor Robert McConnell told Open Vallejo the city council had not been consulted on the choice to hire the consultants.

The council has since been advised of the city’s plans, according to Davis. 

“The city council has met, discussed the issue, and we are proceeding forward with our investigation,” McConnell said in a Wednesday interview.

Open Vallejo reported earlier this month that the January 2021 purge violated city policy and potentially an agreement with the California Department of Justice, which is investigating the Vallejo Police Department over the “number and nature” of shootings by officers. Through legal counsel, Open Vallejo has asked the judge overseeing its lawsuit to consider a rare criminal referral for the destruction of public records.

When presented with the findings for that story on Feb. 4, Vallejo City Attorney Veronica Nebb said her office had not officially approved the purge because additional steps required for the proper destruction of public records had not been followed.

Days after Open Vallejo published its investigation, Nebb and City Manager Michael Malone informed the mayor that the city had retained Boucher Law to handle matters related to the destruction of evidence, McConnell told Open Vallejo in the Friday interview.

“They were also concerned enough about the details that were reported in Open Vallejo to order their own investigation. And they are the ones who chose the Boucher Law firm,” McConnell said. 

In 2020, the city of Vallejo hired Boucher, who had previously conducted anti-harassment training for city employees, to oversee the investigation of a human resources complaint into then-City Manager Greg Nyhoff; Boucher hired another attorney to conduct the review. Nyhoff was exonerated, but Boucher advised the city manager to fire three city employees, who were terminated soon after. In an ongoing wrongful termination lawsuit they filed in 2021, the former employees allege that they were fired in retaliation for complaining about misconduct by Nyhoff. Nyhoff resigned later that year with a more than half-million dollar severance package. 

On Friday, three Vallejo councilmembers, including Arriola, sent a letter to Vallejo officials requesting that the city schedule a closed council meeting to evaluate the city attorney’s performance. The council subsequently held a closed session regarding “significant exposure to litigation” on Tuesday.

Davis, the assistant city manager, said in his statement to Open Vallejo that the city attorney’s office had recused itself from the selection process and that Nebb asked Malone to initiate the review. 

“I led that search and selection process for an investigator,” Davis wrote. “Extra due diligence (and time) was exercised to ensure that an investigator was found that did not have real, or perceived, conflicts of interest with the City Attorney’s Office. A certified workplace investigator has been identified and initiated the investigation process. Those results will be shared with the City Council.” 

Davis wrote that Nebb’s request had been made months ago, but did not respond to questions about when the decision to hire the law firm was made, or why the city council had not been consulted during the months-long process. (Open Vallejo learned of the evidence destruction during the May 2022 deposition and filed a public records request soon after. News of the destruction first became public when the city published the request after it was filed last May; responsive records were disclosed in September.)

“The fact is that we were not consulted,” Arriola said. “And why weren’t we consulted? When were we going to be told?”

When asked why Nebb and Malone had failed to consult with the council before hiring an investigator, the mayor said, “Good question. You’ll have to ask the city attorney and city manager.”

Nebb and Malone did not respond to requests for comment for this story. 

McConnell said that as a result of Open Vallejo’s review, he has requested that the council consider extending the city’s retention period for records relating to killings by police.

This article was updated to reflect the city’s response to Open Vallejo’s public records request for the city’s contract with the Van Dermyden Makus firm.