Several failures led to county’s $575,000 settlement

Snohomish County recently paid $575,000 to settle a lawsuit alleging that the county committed multiple violations of the state Public Records Act. As attorney for the plaintiff, Citizens for Sustainable Development (Citizens), I would like to add some additional information to supplement the Herald’s article regarding the settlement, “County to settle public records lawsuit for $575,000.”

One of Citizens’ requests sought emails from the county’s Agricultural Advisory Board. In violation of the county’s own policies, the board members used their personal, non-county email addresses to conduct Ag Board business. It is undisputed that these emails were public records, but many of the board members would not turn them over. Although the county’s attorneys repeatedly warned the board members that the county would face significant financial liability if the emails were not provided, many of the board members would not listen. For example, see the Ag Board meetings of March 8, 2011, tinyurl.com/AgBoard030811 and Sept. 11, 2012, tinyurl.com/AgBoard111112.

Under county code, the County Council can remove board members for misfeasance, but no action was taken, then or since. Members of the Ag Board include influential county businessmen Brian Bookey (who provided no emails for approximately 640 days), Dave Remlinger (“Monroe project meets permits, owner says,” The Herald, March, 24, 2011); Mark Craven and John Postema, who resigned in October, 2011.

As a result of the board members’ failure to comply with either the Public Records Act or the instructions of the county’s attorneys, many of their emails were not turned over for nearly two years. Consequently, the county was liable for violating the act, and decided it was preferable to settle rather than risk going to trial.

Citizens also requested emails regarding the county’s Sustainable Lands Strategy, a project that grew out of the county’s obligations under the Growth Management Act. The Sustainable Lands Strategy was launched by County Councilman Dave Somers, see “County Councilman Dave Somers is working to find harmony between farmers, environmentalists and tribes;” The Herald, July 27, 2010.

In violation of county policies, Councilman Somers used his personal, non-county email address to receive secret emails from the county’s land strategy facilitator. In one of these secret emails, the county’s land strategy facilitator, Dan Evans, wrote to Councilman Somers, stating “I’ll be sending a safer email to your official addresses. …”

These secret emails, which Citizens requested in December 2010, were indisputably public records. But the county denied they existed, and only turned them over in July, 2014, a couple of months before the lawsuit was settled. Were it not for the lawsuit, they would never have been provided.

Another request at issue in this case sought records regarding a county-commissioned appraisal of “residential development rights” in the floodway and floodway fringe of the Snoqualmie River. The county relied on the appraisal to justify spending nearly $1 million in public funds. Having previously sent the county a 67-page letter explaining why residential development rights in the floodplain were essentially valueless, Citizens wanted to verify that the appraisal was properly performed and supported. But the county provided only a few records, and denied that any others existed. It was not until Citizens scheduled the appraiser’s deposition — more than 2.5 years after the records had been requested — that the county finally turned over nearly 1,000 pages of supposedly “nonexistent” records.

Washington courts have frequently noted that the public has a legitimate interest in seeing that government agencies conduct themselves fairly and use public funds responsibly. The courts have described the Public Records Act as furthering “the laudable goals of governmental transparency and accountability.” In a leading case, the state Supreme Court explained:

“The stated purpose of the Public Records Act is nothing less than the preservation of the most central tenets of representative government, namely, the sovereignty of the people and the accountability to the people of public officials and institutions. Without tools such as the Public Records Act, government of the people, by the people, for the people, risks becoming government of the people, by the bureaucrats, for the special interests. In the famous words of James Madison, ‘A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.’”

Citizens’ requests were submitted over a period of six years, and the records obtained were incorporated into scores of detailed comment letters sent to local, state and federal authorities. Were not for this lawsuit, the county would have successfully kept many of these records hidden from the public.

Ultimately, this case resulted from the county’s apparent preference for keeping some of its activities secret when doing so is not permitted by the Public Records Act, and its apparent desire to coddle influential, well-connected county residents who sought and accepted the privilege of being appointed to the county’s powerful Ag Board.

DeWelle Ellsworth is an attorney representing Citizens for Sustainable Development.

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