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Orjiako lawyer files brief over Madore texts

He says county didn’t do enough to retrieve messages

By Jake Thomas, Columbian political reporter
Published: May 23, 2017, 6:41pm

An attorney representing a Clark County department director in a public records lawsuit has filed new documents in court supporting his argument that a former county councilor operated in secrecy after he refused to turn over text messages on his personal cellphone. The county has responded with documents intended to show it’s done all it can to release the records.

In April of last year, Community Planning Director Oliver Orjiako sued his employer, alleging that it failed to adequately respond to his public records request for messages from then-Councilor David Madore’s personal iPhone related to county business. The request was tied to harassment and whistleblower complaints Orjiako filed against Madore, accusing him of harassment.

Orjiako’s lawsuit cites the state Supreme Court’s Nissen v. Pierce County decision, which concluded that text messages and other communications created on an elected official’s private devices are public records if they concern public business.

“We hope that in the future the county realizes they can’t sit on their hands when they realize that public records are being lost or destroyed,” said Orjiako’s attorney Greg Ferguson, who added that the outcome of the case will likely influence how the county responds to similar requests in the future.

In a brief filed earlier this month, Ferguson states that three months after he filed the lawsuit and served Madore with a subpoena, the county released an additional 254 pages of text messages. According to the brief, the release included 35 text messages that had not been previously disclosed, which Ferguson argues is proof that the county violated the state’s public records act.

Ferguson said that after he filed the lawsuit he became aware that Madore had been texting with other individuals in Clark County that weren’t included in the county’s initial response to his records request. The brief states that the county admitted that Madore exchanged texts with at least 62 people involved with county government while in office. The county has maintained that none of the communications regarded county business, according to the brief.

Washougal City Councilman Brent Boger said Ferguson approached him and asked for texts between him and Madore regarding county business, which he supplied him. Ferguson’s brief states that these texts should have been included in the initial records release and points to it as proof that the county hasn’t complied with state public records law. The brief also argues that Madore has likely destroyed some texts.

“Consequently, the public and Mr. Orjiako will never know what they said nor will anyone know the secrecy under which Madore operated what was essentially a ‘shadow government’ during his years in elected office,” reads the brief.

The brief said that the county should have subpoenaed Madore (who didn’t return a call for comment) or gotten orders to get records from his service provider. Ferguson is seeking statutory penalties against the county for the 35 text messages he claims the county withheld for 90 days. Ferguson said the penalty could run as high as $100 per text per day.

“Our position at this point is that Clark County did everything it could to comply with the public records act,” said Bill Richardson, deputy prosecuting attorney. In response to Ferguson, he’s filed a declaration accompanied with email threads documenting the county’s efforts to retrieve the records.

One email sent from Nick Power, Madore’s lawyer, in May of last year states that the councilor was still searching for communications responsive to the records request. Last summer, Madore wrote to Richardson stating that he wanted to “maximize transparency” and expressed concern that texts he had turned over hadn’t been provided to Orjiako and Ferguson. He also asked why the county hadn’t subpoenaed Verizon, his cellphone provider.

One email thread shows Mindy Lamberton, a public records coordinator, became frustrated at Madore’s reluctance to sign an affidavit that confirmed he had made a good-faith effort to comply with the request. Madore, under advice from Power, eventually signed a modified affidavit in August that references the Nissen case and indicates he “believe(s)” that he turned over the texts. Ferguson said that he suspects Madore deleted some less-flattering texts and the affidavit gave him some “wiggle room” in case more texts were discovered.

Richardson said that the county believes it has received all of Madore’s records.

“We have to have faith in our public employees that they turn over records,” said Richardson.

Clark County Superior Court Judge Daniel Stahnke is expected to hear the case June 2. Ferguson filed a $750,000 tort claim against the county in August last year based on complaints against Madore. Ferguson said he hasn’t filed a formal lawsuit but there is a three-year statute of limitations to do so.

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Columbian political reporter