Clark County Councilor David Madore has prevailed in one of three claims brought against his fellow councilors and County Manager Mark McCauley.
On Friday, Judge Daniel Stahnke ruled in Superior Court that the county must follow its requirement that it publicize all contracts on its website, even if they relate to sensitive investigations by the Human Resources department.
However, Stahnke ruled that the county didn’t have to fork over emails between McCauley and the Prosecuting Attorney’s Office. He also denied Madore’s request for a declaration that the councilor was entitled to his own separate county-funded lawyer because the prosecutor’s office had become too conflicted to advise him.
After the ruling, Nicholas Power, a Friday Harbor attorney who filed the suit on behalf of Madore in October, said that the order requiring the county to publicize its contracts was a victory for transparency.
“Nobody’s above the law,” Madore added.
Councilors Jeanne Stewart and Julie Olson as well as McCauley, who were all named as respondents in the suit, were present for the hearing and declined to comment immediately after. Councilor Tom Mielke, a Madore ally who was present, declined to comment. County Chair Marc Boldt was not present for the ruling.
Olson later told The Columbian that she was content with the judge’s opinion and was ready to move on from any lingering legal drama.
“Really, the truth is, this was an immense amount of wasted time and taxpayer money,” she said.
The ruling is the latest in an ongoing feud between Madore, who lost reelection and will step down this year, and county staff and the majority of the council.
McCauley entered into two contracts with outside investigators this year to look into allegations that Madore harassed county staff and violated the Washington Open Public Meetings Act. Madore complained that the contracts weren’t publicized on the county website as required by code.
“It’s a very specific provision,” Power told Stahnke, of the county code requiring that contracts be publicized. “There is no wiggle room.”
Deputy Prosecuting Attorney Jane Vetto argued that the county was justified in not publicizing the contracts under the state’s public records law and a Human Resources department policy.
But Power said any issues surrounding confidentiality could be resolved with a Sharpie marker, pointing out that governments routinely redact sensitive information on documents made publicly available.
In July, Cowlitz County Superior Court Judge Stephen Warning ruled that McCauley violated county code by not posting one of the contracts online. Power called it “troubling” that the issue was again being argued in court.
The issue is ongoing. In November, the council approved an ordinance, opposed by Madore and Mielke, that altered the requirement that contracts be publicized if they concerned sensitive HR investigations. But the ordinance was suspended after Madore turned in more than 200 signatures for a petition calling for it to be referred to voters. Madore has until March to submit more than 19,350 valid signatures to trigger a vote. If he doesn’t, the law goes into effect.
McCauley contacted The Columbian after the hearing to note that the county will comply with the ruling.
No emails for Madore
In August, Madore requested all the emails between McCauley and 145 employees in the prosecutor’s office over a 2 1/2 -year period. The request was initially filed as a public records request but Madore abandoned it, only to again request the information as a councilor. In September, Madore brought up the issue at a council meeting. But Boldt, Stewart and Olson, who have clashed with Madore, voted against him being allowed to do so.
In court, Power said three councilors shouldn’t be able to block Madore’s lawful request.
He also pointed to an email by Deputy Prosecuting Attorney Chris Horne that showed him “bending over backwards” to justify the contracts. Power explained that Madore made the request because he was “disturbed” by the handling of the contracts and that Madore was justified in seeking more communications.
“We want to see the communication between McCauley and anyone else who is advising McCauley that this is an appropriate method of entering these contracts,” he said.
Vetto argued that councilors are legally entitled to communications for a legislative purpose but that Madore’s request didn’t meet that requirement. She also said that the council was legally justified in denying Madore’s request.
“If you make a public records request, you’re going to get the records,” she said. “They’re going to have some redactions in them, but you’re going to get them.”
Power countered that Madore was seeking the emails because he wanted the law followed, which he argued is a legislative purpose. He said that if the emails were produced under the state’s public records law, they would be heavily redacted because of information covered by attorney-client privilege and wouldn’t contain information Madore was entitled to as a councilor.
If Madore was indeed entitled to view all county communications that would otherwise be covered by attorney-client privilege, “Where would that ever stop?” asked Stahnke. Stahnke ruled against Madore.
No separate lawyer
The lawsuit argued that the prosecutor’s office had become so conflicted during past skirmishes involving Madore that it couldn’t provide him unconflicted advice and the councilor was entitled to hire his own lawyer at county expense. Specifically, the lawsuit argues that the office’s advice to the council that it could vote on whether or not Madore could view emails between the office and McCauley showed that it had become conflicted.
Although Madore’s term ends this month, Power suggested himself as a special deputy prosecutor for Madore.
“The law is clear,” said Vetto, who argued that Madore failed to prove a conflict. “We represent the board.”
Vetto said that Chris Horne and Christine Cooke, the two deputies who typically advise the council, were temporarily “walled off” by Prosecuting Attorney Tony Golik to avoid any conflict during the investigation into Madore. Vetto said Madore was offered his own deputy for advice, which she said he never used. She also argued that a disagreement between a deputy and a county officer didn’t constitute a conflict.
Power said there was no assurance of the “viability of a screen” between the deputy prosecutor offered to Madore and the other deputies, especially when a majority of the council opposed Madore and could direct the prosecutor’s office.
But Stahnke said an adequate “wall” has been put up in the prosecutor’s office. He added that while there may be a “personal conflict,” the prosecutor’s office is not conflicted.