A Superior Court judge ruled Friday that Clark County violated the state’s public records act and must pay $15,750 in penalties for mishandling a dispute with former Councilor David Madore over the release of messages from his private cellphone.
The ruling from Judge Daniel Stahnke stems from a lawsuit filed last year by Community Planning Director Oliver Orjiako that alleged that the county didn’t adequately respond to his public records request for texts from Madore’s cellphone related to county business.
The lawsuit, which was related to harassment and whistleblower complaints Orjiako filed against Madore, cited Nissen v. Pierce County, a 2015 state Supreme Court decision that determined that communications generated on elected officials’ personal devices are public records if they pertain to public business.
Much of the case hinged on the question of whether an elected official’s actions regarding the release of the records should be considered separate from the government agency they are in charge of.
Bill Richardson, deputy prosecuting attorney, argued in court that the county did “everything it reasonably could” to get the records, as well as an affidavit from Madore affirming he had complied with the request. Richardson cited case law that he said demonstrated that Madore’s actions should be considered separate from the county. Saying that the case broke “new ground,” he noted how the councilor, who lost in a re-election bid last year, frequently stated that he acted on behalf of the public, not the county.
“I think he espoused that religiously during his term of his office,” he said.
Greg Ferguson, attorney for Orjiako, argued that the county wasn’t “forthright” in releasing records and that the “the actions of the public official are the de facto actions of the agency.”
In April 2016, a month after Orjiako made his request, Ferguson filed a lawsuit on his behalf alleging that the county withheld records. In July, Ferguson subpoenaed Madore for records. Three months after the records request was made, the county produced more texts in response. At the time, Madore was under investigation for allegedly harassing Orjiako. Ferguson said that Madore was posting racially charged memes on his Facebook page; the records request was intended to reveal the councilor’s texts during the turmoil.
Ferguson argued in court and in filings that there is evidence Madore concealed messages. He said separate records requests turned up messages from Madore regarding county business that were left out of the initial request. He also said that Madore texted with more than 60 people involved with county government and that, suspiciously, none of these texts were included in the county’s response to the request. He also pointed to an email where Madore admitted to deleting texts. Ferguson said there may be some messages that will never be uncovered.
“In the context of all the actions of the county and Councilor Madore … we believe there was definitely deception, there was deleting of records,” he said.
It wasn’t until August that Madore submitted an affidavit stating that he finished searching for records. Ferguson noted that it was a modified affidavit meant to provide him “wiggle room” should more records turn up.
Richardson said that the delay was because of a “misunderstanding” on the part of Madore. He said that in April 2016, after the county made its initial response to the request, Madore approached staff stating that there were texts he had converted into emails and sent to his county email account that may have been left out. He said this “started an arduous trek” for county staff to retrieve them and that records weren’t destroyed but rather improperly converted to emails.
In court filings, Richardson included an email thread showing staff and Madore discussing efforts to retrieve the records. The emails also show that staff becoming frustrated at Madore’s reluctance to sign the affidavit.
Court filings show that Madore had retained Nick Power as his attorney who cautioned him against signing the affidavit. Stahnke acknowledged that county employees were in a difficult position. He said he was more concerned with the county having a system to comply with the law.
“At least the employees did their best efforts to try and rein in these records from Mr. Madore,” said Stahnke.
However, Stahnke reasoned that Madore was “one and the same with the county.” He said it was, after all, the taxpayers who voted him in.
After the ruling, Ferguson said that he was happy with the ruling but “lukewarm” about the penalties, saying they should have been higher to deter future public records act violations and “hubris” from other elected officials.
“Citizens need to be careful about who they vote into office,” he said.
Richardson said that since the Supreme Court issued its Nissen ruling, the county has proactively changed its policies. After the Nissen decision, Clark County was one of the first counties in the state to draft an affidavit to ensure officials and employee complied with requests. He also said that elected officials and employees have moved away from using personal phones for county business.
“But you can’t predict all the traps and pitfalls,” he said. The county council could vote to appeal the decision, he said.
Toby Nixon, president of the Washington Coalition for Open Government, said he’s not aware of any similar cases in the state of Washington. He said that other court cases have upheld the idea that public officials shouldn’t be considered separate from their agencies. He said that public agencies can file for “replevin,” a rarely used legal maneuver that compels officials to turn over documents.
“It’s kind of a harsh way to do it, and you’d hope that elected officials would just voluntarily turn it over,” he said.