Snohomish County Sheriff Adam Fortney will have to pay for his own defense against a recall petition filed after he publicly defied Gov. Jay Inslee’s “stay home, stay safe” response to COVID-19, according to a letter written by county Prosecutor Adam Cornell.
Cornell likened the sheriff’s decision to question the scientific underpinnings and constitutionality of Inslee’s orders during a pandemic “to yelling ‘fire’ in a crowded theater.”
Fortney had asked the county to pay for his legal defense in late April, following voter blowback from a lengthy public post on his personal Facebook page in which the first-term sheriff sharply criticized Inslee’s leadership during the pandemic and questioned the constitutionality of the measures put in place to slow the spread of the novel coronavirus which causes COVID-19.
“Yes I believe that preventing business owners to operate their businesses and provide for their families intrudes on our right to life, liberty and the pursuit of happiness,” Fortney wrote in a defiant 1,200-word exposition posted April 21. The following day, he held a media availability where he reiterated his criticism and promised that his office would not enforce the governor’s orders. While acknowledging that the virus is deadly, he stated that the “impacts of COVID-19 no longer warrant the suspension of our constitutional rights.”
The same day Fortney met maskless with reporters at police headquarters in Everett, Monroe resident Lori Shavlik filed a petition with the city auditor seeking to recall Fortney, a 23-year veteran sheriff’s patrol sergeant who took office in January after defeating incumbent Ty Trenary. The petition alleged that Fortney’s refusal to enforce the governor’s emergency orders and his decision to label the orders unconstitutional constituted malfeasance and are grounds for his recall, as first reported by The (Everett) Herald.
Washington’s law governing recall elections requires first a show of cause in superior court before the recall process can proceed. On April 27, Fortney requested that the county cover his legal expenses, citing a law that provides for indemnity of public officials acting in their official capacity. However in a response sent April 28, Cornell, the prosecutor whose office also oversees defense of Snohomish County in civil matters, said that “after considerable thought” he determined that the public statements and social media posts made by Fortney leading to the complaint “do not warrant a defense at public expense.”
Cornell, himself in his first term, found that — without commenting on the merits of the allegations — Shavlik’s petition “sets forth a colorable … question as to whether your public comments evidence malfeasance, neglect or a knowing failure to perform faithfully the duties imposed on you by law,” Cornell wrote. “At a minimum, the record before me is insufficient to conclude that the petition is false or frivolous.”
Fortney declined to be interviewed for this story.
Fortney, in both his Facebook post and in front of reporters later, reiterated that he took COVID-19 very seriously, but complained that Inslee was “picking winners and losers” by allowing some businesses to stay open. He also questioned the validity of epidemiological models predicting the spread and lethality of the SARS-CoV-2 virus and said his office would not actively enforce the governor’s “Stay Home, Stay Healthy” social distancing and business closure orders, which have since been extended to June 1.
“As your elected Sheriff I will always put your constitutional rights above politics or popular opinion. We have the right to peaceably assemble. We have the right to keep and bear arms. We have the right to attend church service of any denomination,” he wrote. “The impacts of COVID-19 no longer warrant the suspension of our constitutional rights.”
Cornell found that those statements and others “could reasonably be read as a call to defy public health officials and a declaration that Governor Inslee’s Stay At Home order is unconstitutional” and that citizens who look to the sheriff for guidance “have permission to disregard orders” intended by health officials to slow the spread of the virus.
“By directly or indirectly encouraging people to disobey data-driven, science-based lawful orders handed down expressly to limit the spread of COVID-19 and to protect our health and well-being during this pandemic emergency, your statement is fairly construed to support behavior that puts all citizens at greater risk of harm and death,” the prosecutor wrote. For that reason, no county lawyers will be assigned or funds expended to defend the sheriff as the recall petition moves forward, he said.
Cornell said that, should the petition be thrown out upon judicial review, he would revisit the decision.
While the sheriff would not be interviewed about the letter, he referred The Seattle Times to a post added Monday to his private Facebook page used for his campaign and now titled “Snohomish County Sheriff Adam Fortney,” where the sheriff stated “I have never encouraged defiance to the law” and praised Inslee’s response for letting a large number of protesters to gather peacefully at the state Capitol on April 22 to protest the closures and isolation orders.
“My statement that we, the Snohomish County Sheriff’s Office, will not be enforcing the order has not changed since the order went into effect on March 23,” he said. “The governor has not asked any law enforcement agencies to enforce the order.”
Forney is not without support. A “Defend Sheriff Adam Fortney from Recall” gofundme page has raised more than $37,000 from 700 donors as of Friday afternoon, many of them anonymous.