David Madore’s wide smile briefly faltered on his way to the Clark County council meeting on Tuesday.
A man, inconspicuous but for the small photograph of Madore he carried, approached him outside the council chambers and handed him a stack of papers.
Madore had been served.
It’s the latest action in Community Planning Director Oliver Orjiako’s lawsuit against Clark County, which accuses the county of failing to provide records in connection to whistleblower and harassment complaints he filed against Councilor Madore. But it also represents ongoing questions about Madore’s handling of public records. A second county employee has accused Madore of destroying records. A receptionist in the councilors’ office accused him of dumping two recycling bins full of documents from his county office following the departure of his private assistant.
Destruction of a public record is a class C felony. Though the criminal law is rarely enforced, violations could be punishable by up to five years in prison, fines of $1,000 or both.
Madore’s attorney, Nick Power, offered little response to a Columbian request for comment, saying he and Madore would not discuss pending litigation.
“While I understand that some officers of Clark County have been discussing the merits of this matter with the media, this is ill advised and not in the public’s interest,” Power said.
Madore, a Republican, faces heightened scrutiny as he runs for re-election to his county council seat, facing off in next month’s primary against Republican John Blom and Democrat Tanisha Harris. On the campaign trail and from the dais, Madore portrays himself as an advocate for transparency. Open government is among his chief values as a politician, Madore asserts, not hesitating to criticize his fellow councilors if he believes they are failing to uphold the same values. He recently went so far as to ask that if the county plans to hold closed executive sessions regarding his behavior, that those discussions instead be held in open session.
“Openness, transparency, full disclosure,” Madore said. “If it regards my performance, my behavior, my words, anything that I’ve communicated, then I’m accountable to the people.”
In Orjiako’s lawsuit against the county, the planning director alleges that county staff failed to ensure Madore provided all responsive text messages from his personal smartphone. He also asserts that Madore was allowed to avoid signing an affidavit confirming his smartphone was fully searched, and that Madore was permitted to delete public records.
The lawsuit relies on Nissen v. Pierce County, in which the state Supreme Court ruled that text messages created on public officials’ personal phones are public records if they deal with public business.
Orjiako’s attorney, Greg Ferguson, filed the public records request on March 31 for Madore’s texts related to county business in connection to the planning director’s whistleblower complaint. That complaint accused Madore of violating the Growth Management Act with his development of Alternative 4 for the Comprehensive Growth Management Plan. Orjiako, a black man, also accused Madore of race-based retaliation, of which private investigator Rebecca Dean found no evidence.
“At this point I am convinced that we may never find any ‘smoking guns’ useful in the employment case,” Ferguson said about the request. “It appears he has had the temerity to tamper with, destroy and deface public records, notwithstanding the law, for several years now.”
Orjiako is asking for $100 per day per withheld text, and $100 per day for each day Madore delays signing and submitting an affidavit declaring he’s turned over all records.
While Nissen requires agencies to produce public records even if they’re found on employees’ private devices, it limits agencies’ ability to obtain those records. It appears Clark County is running up against that wall. The case leaves it to the public officials to provide requested messages from their devices, and only to provide those that are about public business.
Clark County’s policy asks all employees to sign affidavits swearing they’ve turned over records requested from their personal devices.
Email records show Madore initially turned 20 text message conversations over to the county’s records officer in response to a records request from Ferguson, Orjiako’s attorney, then deleted them from his phone.
When Mindy Lamberton, a public records coordinator in the prosecutor’s office, asked Madore to sign an affidavit declaring he’d provided all records, the councilor resisted.
“I was not aware that county councilors were required to sign affidavits when they provide public records,” Madore said. “Is that standard practice for Clark County elected officials? Or is there something unique about me?”
Bill Richardson, an attorney in the Clark County Prosecutor’s Office, chimed in, telling Madore all employees must sign affidavits confirming they’ve turned all records over.
“Failing to do so unnecessarily exposes Clark County to potential litigation,” Richardson wrote in an April 14 email.
Yet Madore still has not provided a signed affidavit, Richardson said Thursday.
Madore later told Richardson that, since he was elected, he emailed text messages he believed were public records, then deleted them from his phone.
“As cleared with you, once each transfer was complete so that each record was preserved on the county email server, I was then able to purge the old records and reclaim the memory on my iPhone,” Madore said.
The email came as an apparent surprise to Richardson.
“I was not aware that you were using the county email system to archive public records from your personal phone and then deleting those records,” Richardson said.
He also asked if Madore was saving the metadata — data about data — when he transferred those messages. That remains unclear. A state Supreme Court ruled in a 2010 case that metadata is a public record that should be preserved.
Email records show Madore has asked the county to subpoena Verizon for his messages, but the county has not done so.
Denied text messages
Court records show Ferguson went a different route last month in an attempt to get Madore’s text messages. The attorney issued requests for admission to Madore, asking if the councilor had text messages pertaining to county business from about 80 different people, including a number of elected officials, county staffers, community members and Columbian reporters.
In each case, Madore either denied or admitted that he may have had text messages, but noted in each case that he was not “in possession of many of the text messages sent or received from his device and has sought the assistance of his phone carrier to obtain messages which are no longer on his device,” according to the requests.
In some cases, Madore’s responses were inconsistent with what other records show. Madore denied, for example, having texted Deputy Prosecutor Chris Horne during his time in county office, according to the request for admission the county turned over to Ferguson on June 30. However, Madore provided a text message to Horne in his initial response to Ferguson’s records request.
He also denied that he texted County Manager Mark McCauley or this Columbian reporter. A different public records request provided by Clark County for McCauley’s iPad records shows Madore texted the manager on one occasion, and records from this reporter’s own phone show Madore texted her on one occasion.
On June 23, Orjiako offered to settle the lawsuit if the county would pay him $75,000. County officials declined.
Ferguson’s subpoena, meanwhile, appeared to push Madore into action, the attorney said. Less than three hours after Madore was served this week, the councilor turned over a disk full of documents, Ferguson said. Madore has not, however, signed an affidavit swearing he’s turned all material over.
“Unfortunately the county is chained to this guy,” Ferguson said. “If he wants to take everybody down with him, then there’s not much the public can do until the next election cycle.”
Power, meanwhile, was confident Madore would soon be absolved.
“In due course the issues presented in the case will be adjudicated and this matter will be resolved and we are confident that such a resolution will fully discredit Mr. Orjiako’s version of events just as the Dean Report fully discredited his allegations of racism,” Power said.
Destruction of public records alleged
Jennifer Clark, a receptionist in the county councilors’ office, filed for whistleblower protection with the county’s Human Resources department after accusing Madore of destroying public records late last year.
Clark filed a complaint in May with the county Human Resources office and McCauley, reporting in an email that she “witnessed a number of improprieties while working with Councilor David Madore, including his willful destruction of public records.”
Clark also submitted her complaint to the Washington State Executive Ethics Board and the Washington State Auditor’s Office, alleging that after Madore’s personal assistant, Anna Miller, quit, she witnessed Madore throwing out “handwritten notes” and “folders with employees’ names/agencies.”
Email records show Miller — who was paid by Madore but had a desk in his county office and access to the councilor’s email — left Nov. 15, telling McCauley in an email she was looking to “move on to a new chapter.”
“Would you be so kind as to ask facilities to remove my desk from Councilor Madore’s office?” Miller asked McCauley.
On Nov. 16, administrative staff in the councilors’ office filed a request with facilities, asking that the desk be removed and that a recycling bin be brought to Madore’s office, according to service requests Clark gave to The Columbian. That request was marked completed on Nov. 20, records show. Clark provided three other work requests either for the delivery or pick-up of recycling bins between November and January she alleges were made for Madore. Unlike the November request, however, none of the three specify to which councilor they were to be delivered.
Clark alleges she witnessed Madore dumping documents from his office into the recycling bins on two occasions. In one bin, she saw empty folders labeled “Anita Largent” and “Kevin Gray.”
Largent sued Clark County in 2013 following Madore and Tom Mielke’s hiring of Sen. Don Benton, R-Vancouver, to lead the Department of Environmental Services. Largent, who was not allowed to apply despite serving as interim manager for the department, accused the county of violating state and federal civil rights laws and its own hiring practices. The county ultimately settled with Largent, agreeing to pay $250,000.
Gray was the environmental services director preceding Largent. Gray left after filing a whistleblower complaint against Mielke in 2013, alleging the councilor tried to stop an investigation into misuse of funds by county employees. Mielke and Madore agreed to pay Gray about $59,000 in severance, and Gray dropped his complaint.
The county defers to the Washington State Archives’ office for its records retention schedule, and is in the midst of writing a county-wide record management policy. That policy is slated to be approved by McCauley this summer, according to an email from Andrew Penta, a records management officer for Clark County.
Under the Open Government Training Act adopted in 2014, newly elected public officials are required to sit through public records training. Madore, however, was not required to sit through the training because he took office in 2013, and there is no evidence that he has done so.
Clark has no photographic or video evidence of the files she reports seeing in recycling bins in Madore’s office. She added, however, that tracking public officials to be sure they’re behaving legally and ethically shouldn’t be part of her job.
“As a public servant and especially as an elected official, I think you have a high level of accountability,” Clark said. “When you preach transparency with every breath you get, I feel you should ‘walk the talk’ with your own efforts.”