At a time when Clark County commissioners are considering how to put limitations on public comment topics, Clark County Environmental Services Director Don Benton is considering legal action against a person who has been prolific in speaking out against the hiring of Benton to his county role.
Benton, also a Republican state senator, confirmed on Wednesday that he and an attorney had sent a letter to Ed Barnes asking him to cease making claims that Benton is not qualified for his job at the county.
"I gave him the courtesy of putting him on notice that if he continues, then I will move forward with corrective action," Benton said. "I believe I would win (in court) hands down. I've spoken to four attorneys on this and they've all (agreed.)"
Barnes said he's received the letter from Benton's attorney and he isn't concerned about it.
"I'm not going to answer the letter," Barnes said Wednesday night. "Let him sue me."
Benton said he takes no legal issue with statements made about him in his capacity as an elected official, but believes he has rights as a private citizen in his job with the county.
"There are protections that allow people to lie about public figures, which is unfortunate, but those do not extend to private individuals," Benton said. "To visit my employer once a week and tell my employer I am unqualified, over the public airwaves, is untrue and is libel."
Benton said Barnes is among the most "prolific" of the individuals who have spoken out against him since Commissioners David Madore and Tom Mielke, both Republicans, appointed Benton to the environmental job in May.
In the aftermath of that hiring, dozens of individuals have criticized commissioners for their actions. The two commissioners have mostly accepted the critique, even as it grew personal, but attempted to stop speakers when they criticized Benton. The rationale has been that commenters should not critique county staff, a thought that Commissioner Steve Stuart, a Democrat, has agreed on.
Barnes has commented on multiple occasions, saying he believes the hiring was ill-advised, and has been critical of Benton's qualifications.
Further, Barnes said he's not going to stop making comment about the hiring of Benton by the county.
"I'm going to continue doing what a citizen has a right to do and let the chips fall where they may," he said.
Barnes, 80, is a retired leader of the International Brotherhood of Electrical Workers Local 48, based in Portland and encompassing Southwest Washington. He also is known as an engaged community volunteer. Barnes and his wife, Luanne, live near Truman Elementary School in the Vancouver school district.
High legal bar
Attorney Bruce E. H. Johnson, a partner at law firm Davis Wright Tremaine LLP in Seattle, said for Benton to sue, he will have to clear an extremely high legal bar.
"First, as an elected official, you would need to prove there was knowledge of the statement being false or with reckless disregard of the truth," Johnson said. "Second, statements in public hearings are considered absolutely privileged under the law."
Further, anti-SLAPP -- Strategic Lawsuits Against Public Participation — law in Washington was strengthened in 2010 through legislation that Johnson helped draft, and that Benton ultimately voted in favor of along with 45 other members of the state Senate.
According to the Davis Wright Tremaine website, the legislation broadened the definition of protected free speech to include "any lawful conduct in furtherance of the exercise of the constitutional right of free speech" related to issues of public concern.
The law also allows for an expedited hearing on the matter, and for a $10,000 penalty to be paid by the plaintiff if he or she fails to prove the speech was defamation.
When asked about the high bar set by the expanded law, Benton said he doesn't believe his concerns "hurts free speech or public comment at all."
"It keeps the comments germane, relevant and civil," Benton said. "Which is what representative democracy is supposed to be."
Mielke wants changes
Benton has an ally on the board of commissioners in Mielke, who put a halt to commenters at Tuesday's public hearing who began to make statements he viewed as personal in nature.
When Jack Davis, a frequent commenter who has delivered both scathing and humorous editorials to the commissioners, mentioned Benton and another employee, Mielke halted him.
After the meeting, Davis took issue with the interruption.
"If you would just say that in your article that Jack Davis knows the rules of practice and I'm tired of being interrupted," Davis said. "They are public servants, they are not our overlords and masters. And before they interrupt people at public comment, they should follow their own rules of practice."
Mielke later brought the discussion to commissioner's Wednesday board time meeting, saying he wants to see comments more limited to policy matters rather than personal attacks that "impugn" someone's character.
"I don't have to be called an airhead," Mielke said. "(But they can say) I messed up on a vote."
Meanwhile, it was fellow Republican Madore who countered Mielke during the discussion.
"That's one of the prices we pay," Madore said. "For the citizens speaking ill of us … I think it's important that we allow them."
Madore said the freedom of speech is a tenet of democracy, and that stymieing such talk is the first step in a slippery slope to reducing freedom.
Mielke contended that certain guidelines are acceptable, such as time limits on public comment or not allowing someone to boo or clap during a hearing.
Stuart, in his role as board chair, told the two the board needs to find a middle ground, as he can't enforce speakers to limit comments on Mielke's character while Madore says it is OK.
"How do you think that's going to fly for me," Stuart said. "I've caught flak for letting that happen."
In the end, the three agreed to limit some personal attacks, but Stuart said he'd first check with legal counsel on what the limitations are.
Madore said he would support the board for "unity" but added, "let's be really careful" when stopping commenters.