Prosecutor says he won’t defend sheriff against recall effort

EVERETT — If an effort to recall Snohomish County Sheriff Adam Fortney moves forward, Prosecutor Adam Cornell’s office will not defend the sheriff at public expense.

Last week Fortney requested that taxpayers cover the cost of his legal bills after his public criticism of Gov. Jay Inslee’s stay-at-home order led a citizen to petition for his removal from office.

Cornell denied the request Tuesday after giving “considerable thought” to a Facebook post Fortney made on his personal but publicly viewable page, “Snohomish County Sheriff Adam Fortney.” The sheriff, who did not respond to a request for comment Thursday, opined in a post at 8:36 p.m. April 21 that Inslee’s order — a sweeping response to the COVID-19 pandemic — was unconstitutional. Fortney declared he would not enforce it.

Other police leaders in the state have said they would not actively patrol for violators or book people into jail, instead opting for an educational approach outlined by the Washington Association of Sheriffs and Police Chiefs. And according to the governor, the vast majority of Washingtonians have complied voluntarily.

Fortney’s 1,100-word dissent drew frustrated responses from county Executive Dave Somers, state Attorney General Bob Ferguson and Inslee himself. It made headlines across country, including a mention on the TV talk show “The View.”

Some people, anxious over the order’s dramatic effect on the economy and local businesses, applauded Fortney for speaking his mind.

Snohomish County resident Lori Shavlik filed a petition to recall Fortney on April 23, asserting that he “used his position as an elected official to encourage citizens to defy the law and violate the Governor’s Emergency Proclamations,” as well as local health directives.

Cornell sent a letter to Fortney on Tuesday stating that he, too, interpreted the post as a call to defy public health officials and the governor; as a pronouncement that medical science and statistical modeling is “flawed and not to be trusted”; and as a signal from the county’s chief law enforcement officer that the public may ignore similar orders if they appear to intrude on constitutional rights.

“By directly or indirectly encouraging people to disobey data-driven, science-based lawful orders handed down expressly to limit the spread of COVID-19 and to protect our health and well-being during this pandemic emergency, your statement is fairly construed to support behavior that puts all citizens at greater risk of harm and death,” Cornell wrote. “Put simply your words were akin to yelling ‘fire’ in a crowded theater.”

The civil division of the county prosecutor’s office effectively serves as the county’s in-house legal team. Under Revised Code of Washington Title 4.96.041, county government and the attorney representing the county — Cornell — must approve any request to pay legal bills to fight a recall effort.

It was unclear Thursday whether Fortney had retained private legal counsel.

Cornell earlier expressed concerns about Fortney’s comments in a statement released April 22.

“State and local emergency proclamations are legally binding on all of us,” the prosecutor wrote, “whether we agree with them or not.”

Fortney, a former night-shift patrol sergeant, took office in January after winning a race against his former boss, Ty Trenary.

Caleb Hutton: 425-339-3454; chutton@heraldnet.com. Twitter: @snocaleb.

Zachariah Bryan: 425-339-3431; zbryan@heraldnet.com. Twitter: @zachariahtb.