Where have I been? Well I’ve been waiting!
At last night’s Spokane City Council Meeting the City Council passed an amendment to Ordinance C35451 relating to public records requests; amending SMC section 1.04A.030 and adopting a new section to chapter 17G.050 of the Spokane Municipal Code.
This ordinance amended Section 1.04A.030 of the Ethics Code to provide that it is a violation for a City officer or employee to willfully and without just cause delay or fail to produce any city record in his or her possession in response to a public records request. This ordinance also provides that upon request, the City Hearing Examiner will review and render a decision on the legal validity of any claim of exemption to produce a city record asserted in response to a public records request.
When the CC passed the new section to the ethics code it completed the settlement agreement between the City of Spokane and myself, well almost anyway they still must write a check made out to the Center for Justice in the amount of 50 Grand. They have 30 days to do that, if they don’t then of course there is NO DEAL.
Settlement Agreement:
https://files.acrobat.com/a/preview/0f6c6112-e7a1-4684-be4c-7b37f85fa70c
Exhibit A
https://files.acrobat.com/a/preview/92d85070-c46c-430f-a9b0-3c2177d8d12c
Exhibit B
https://files.acrobat.com/a/preview/9ea96196-0dd4-4f1d-ba7d-569417740631
Exhibit C
https://files.acrobat.com/a/preview/51e44493-c6d1-462c-ab78-514244a8dded
To put it in layman’s terms from this point forward if a City Employee has willfully and without just cause withheld a public record we Citizens have a right to see, they have violated the ordinance and are subject to being held accountable as an individual. Prior to this ordinance there was absolutely NO METHOD by which an INDIVIDUAL could be held responsible for violating the Washington State Public Records Act, now Spokane is the only City in the State of Washington where the individual/s can be held directly accountable, and as Kip Hill in his story points out can be punished and be subject to removal from office:
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“Any city of Spokane employee intentionally withholding public records will be subject to punishment, including possible removal from office, as part of ethics code revisions that will be voted on by the City Council on Monday night.”
http://www.spokesman.com/stories/2016/nov/13/spokane-city-council-to-consider-public-records-po/
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In the past, Our City Employees and Elected Officials had little concern about playing hide the records as they could never be held individually responsible, only the City as a Corporation could be and of course that meant spending OUR MONEY NOT THEIRS to defend and settle Public Records Act Violations, in some cases amounting to six figure settlements plus the cost of defense.
http://www.spokesman.com/stories/2006/oct/03/city-settles-lawsuits-over-rps-documents/
http://www.spokesman.com/sections/rps/
The reality of course is that it will be necessary to put together a good ethics violation complaint and present it to the Ethics Commission. I’m sure the City when considering my demands and agreeing to them considered that putting an ethics violation complaint together would be a task most folks aren’t willing to take on, but there are some of us who do have the time, energy, and expertise to do it.
If you recall the email and letter exchange between Nancy Isserlis and Bob Dunn regarding Monique Cotton and Isserlis writing the new City of Spokane Ethics Code, you might find it somewhat ironic considering her New Ethics Code, which went into effect in January 2015 makes, putting an ethics case against an individual easier than one might think. I won’t get into how it does for obvious reasons and I’m sure once the City Attorneys read this story they will, or at least should be able to figure it out.
The second aspect of the Ordinance is a provision that allows an individual seeking public records to appeal to the City Hearing Examiner decisions made by the City to withhold public records based upon claimed exemptions to the Public Records Act by the City. Claiming nonexistent PRA exemptions is and always has been a tactic used to hide the truth, and in the past the only recourse available to someone seeking independent review of the claimed exemption was through the Court System. Now, at least there is a process by which one can have the City Hearing Examiner, who is supposed to be “independent,” review what the City is trying to withhold and make of determination if it is legit. The only other time this has been done was during my PRRs. After I was unable to get the Washington State Attorney General’s Office to review the exemptions I agreed to have the City Hearing Examiner Brian McGinn review the City’s exemption claim.
https://files.acrobat.com/a/preview/8c873862-e7e8-4b89-b6b0-8121938c2275
https://files.acrobat.com/a/preview/394a9ecb-62d2-47fe-afbb-aa1bd7656c8d
Admittedly not the perfect solution since the Hearing Examiner is paid by the City and one must rely on his/her character and ethics, but at least it is something beyond letting an appointed City Attorney make the decision. If someone isn’t satisfied with the Hearing Examiner’s decision, there is still the appeal process through the Court System which in a way acts as a check and balance to the Hearing Examiner.
I contemplated a lawsuit against the City when it became apparent to me that they were withholding public records, something that was easy to see once I received the very first document dump in October 2015 long before the Cappel Investigation was even contemplated (BTW you might easily be able to guess who suggested that the City Council use their powers under the City Charter to investigate the Cotton/Straub issue back on Wednesday September 23rd, 2015 at 6:06 AM).
As the Cappel Investigation got underway with Mayor Condon obstructing it at every turn, the City Council acquiescing at his every move, it became apparent to me that if the big-name media outlets who were also victims didn’t do the right thing I would go all in, someone had to. So, I contacted Rick Eichstaedt at the Center for Justice on July 28th, 2016.
Rick and I did meet of course, and needless to say my reputation proceeded me, so it was only natural that Rick was a bit concerned about having a devout Crumudgenist for a client. Being the good lawyer he is throughout this process Rick somehow managed to put up with one of those “Difficult Clients.” I did specifically tell Rick that I would make every effort to be a good client, and only occasionally did I stray.
During our first meeting I explained to Rick that I had a three-fold objective for initiating the lawsuit.
1) There would be a public apology or acknowledgement from Mayor Condon.
2) There would be some type of punishment or penalty for an individual violating the Public Records Act.
3) That the Center for Justice, NOT ME, get any monies resulting from the lawsuit.
Right away the law firm the City hired to defend the lawsuit made it clear the City wanted to settle, however getting a public apology or acknowledgement would not be politically feasible. Since I had told Rick I would try and be a good client, I told him to inform the City’s lawyers “That’s too bad!” rather than my standard “Tough shit!”
A short time later the City offered up Mediation, something I am quite familiar with but not from the standpoint of a plaintiff. It took some convincing from Rick to get me to agree to Mediation, but I finally agreed thinking it would be fun if the City paid for it, and it was.
For folks, not familiar with Mediation, the simple explanation is both sides go to a lawyer’s office who is paid to act as a facilitator in coming to agreement so the cases don’t end up in Court. Generally, the sides are separated into two different rooms and the Mediator goes back and forth between the two rooms trying to convince each side to reach agreement. Rick and I of course ended up with the worst of the two rooms because it didn’t have a nice couch to nap on while we waited for the City’s Lawyers and Risk Manager to figure out what they were going to do. The City contingent had a nice couch to nap on but I doubt they had time to use it, as there was not waiting for my answers to their proposals.
The Mediator was a nice guy and good at what he was paid to do, to Rick’s relief, I only had to Curmudgeon-up a couple of times. One of those times was when the City lawyers finally figured out that Mediation would go nowhere unless I got an acknowledgement from Condon. When the Mediator walked into our room and began to read Condon’s first proposed acknowledgement I stopped him before he even got through the first sentence and somewhat nicely said something like “Not acceptable!” So, after the all-day session we ended up with this:
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MAYOR’S STATEMENT ABOUT PUBLIC RECORDS LAWSUIT
SETTLEMENT MUST BE APPROVED BY CITY COUNCIL
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Spokane Mayor David Condon released the following statement about the mediated settlement of a lawsuit filed by Brian Breen regarding a public records request. The settlement must be approved by the City Council. The statement is as follows:
“On behalf of the City of Spokane, I want to acknowledge the concerns with the disclosure of records on November 24, 2015. I understand the damage to transparency that can be caused by even the appearance of lack of transparency. I have committed in my recent budget to increase the amount allocated for addressing public records requests. I will also recommend to the City Council that a formal change in administrative policy occur so that the City Hearing Examiner will review appeals of disputes regarding public records requests. Finally, I will recommend that the City’s Ethics Code be amended to address willful intent by employees in withholding records from the City Clerk’s Office.”
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When I read these sentences in the City’s proposal, I laughed to myself knowing that only a fool would believe that the “I will also recommend” had nothing to do with “I” and all to do with the lawsuit. It was forced upon him…not his idea at all. So, I let it pass and gave it the OK.
“I will also recommend to the City Council that a formal change in administrative policy occur so that the City Hearing Examiner will review appeals of disputes regarding public records requests.”
“Finally, I will recommend that the City’s Ethics Code be amended to address willful intent by employees in withholding records from the City Clerk’s Office.”
The actual wording of the amendment to the Ethics Ordinance was something that couldn’t be agreed to during the Mediation so we spent several days going back and forth with the City over the language. That of course required me to Curmudgeon-up several times, and especially when the City tried to include language that was an attempt to mitigate holding an individual responsible. We ended up with this:
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- Failure to Produce Public Records
No City officer or employee shall willfully and without just cause delay or fail to produce any city records in his or her possession or control in response to a public records request filed with the city pursuant to Chapter 42.56 RCW.
- A “city record” is a “public record” as defined by RCW 42.56.010(3).
- “Just cause” to delay or fail to produce means:
- A reasonable belief that production of the record is exempt from public disclosure pursuant to Chapter 42.56 RCW or other statute which exempts or prohibits disclosure of specific information or records; and/or
- The city record is subject to legal review to determine whether it is subject to an exemption from disclosure pursuant to Chapter 42.56 RCW; and/or
- The requester has been notified in writing that additional time is required to produce the city record and/or determine whether it is subject to an exemption from disclosure pursuant to Chapter 42.56 RCW.
Section 2. That there is adopted a new section 17G.050.075 to chapter 17G.050 to read as follows:
17G.050.075 Review of Public Records Disclosures
- Upon request, the hearing examiner shall review and render a decision on the legal validity of any claim of exemption to produce a city record asserted in response to a records request filed with the city pursuant to Chapter 42.56 RCW.
- A request for a determination shall be made in writing with the office of the hearing examiner.
- No fee may be assessed for any request for a determination.
- A written determination on the legal validity shall be rendered within fourteen calendar days of the request.
- The failure to request a legal determination with the office of the hearing examiner does not constitute a failure to exhaust administrative remedies for the purpose of seeking judicial review pursuant to RCW 42.56.550.
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Which I am fairly satisfied with, especially considering the options it opens for anyone, including myself, doing a Public Records Request.
I’m not sure that the City Lawyers even contemplated the possible ramifications of the new ordinance as I did from the get-go and this portion of the Public Records Act. If they didn’t they will now.
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RCW 42.56.580
Public records officers.
(1) Each state and local agency shall appoint and publicly identify a public records officer whose responsibility is to serve as a point of contact for members of the public in requesting disclosure of public records and to oversee the agency’s compliance with the public records disclosure requirements of this chapter. A state or local agency’s public records officer may appoint an employee or official of another agency as its public records officer.
(2) For state agencies, the name and contact information of the agency’s public records officer to whom members of the public may direct requests for disclosure of public records and who will oversee the agency’s compliance with the public records disclosure requirements of this chapter shall be published in the state register at the time of designation and maintained thereafter on the code reviser web site for the duration of the designation.
(3) For local agencies, the name and contact information of the agency’s public records officer to whom members of the public may direct requests for disclosure of public records and who will oversee the agency’s compliance within the public records disclosure requirements of this chapter shall be made in a way reasonably calculated to provide notice to the public, including posting at the local agency’s place of business, posting on its internet site, or including in its publications.
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During the process of my lawsuit we did have some discussion of demanding that there be a Public Records Officer completely independent of the City’s Executive and Legislative Branches, which I thought would be a great idea and would take at least some of the politics and legal responsibilities away from an appointed City Public Records Officer, but accomplishing that would be a monumental task given the current state of City affairs.
To be clear once the language of the new ethics ordinance was agreed to there were overtures about the City Council making some changes that weren’t agreed upon. That of course would have meant that there was NO DEAL so someone thought better of it. It is important to understand that at any time the City Council can change the new language to anything they want, and remember this directly affects them as well as all City Employees, so I’ll be keeping track and I hope others do as well. If they happen to come up with something that attaches even more accountability I’m all in, if not, I’m not.
Hopefully it is quite clear to everyone that my lawsuit wasn’t filed for me to grab some easy money, the check as I demanded will be made out to the Center for Justice for them to spend on much needed oversight. As a matter of fact, bringing the lawsuit cost me some money, not a lot but enough to have to listen to some minor complaints from my boss about how many new pairs of shoes it would have bought.
WHAT ARE THE REALITIES?
The reality is, as I’ve mentioned before, greater care will be taken by City Employees to cover their tracks. There will be far more face to face meetings in hopes that what transpired during those meetings won’t become public. City employees will be far more careful in what they say on the public record. It means more work for the media, if they really want to do the work.
It also means that at last individuals working for the City of Spokane can be held individually responsible and instead of our money being spent to defend them or make a payout, it will come directly out of their own pocket as well as the possibility they will lose their job.
WHAT’S NEXT???
Lots of stuff…get ready Terri Pfister. Since the Mayor’s changes at SPD they have become even less transparent!
I REPORT YOU DECIDE!!!
Buffalo Brian Breen 