The latest rulings come amid contentious courtroom wrangling over a lawsuit contending the Seattle's City Council broke Washington's Open Public Meetings Act in the lead-up to its abrupt repeal of the employee-hours tax in June.
A judge ruled this week a political consultant must disclose unfavorable polling results on the city of Seattle’s controversial head tax, and the city must turn over a cache of council members’ emails and other records that City Attorney Pete Holmes and his team of outside lawyers argued should be kept secret as “private political activity.”
King County Superior Court Judge Timothy Bradshaw’s latest rulings in the ongoing discovery dispute came in oral and written orders on Monday and Tuesday as part of a lawsuit contending the Seattle City Council broke Washington’s Open Public Meetings Act (OPMA) in the lead-up to its abrupt repeal of the employee-hours tax in June.
Under Bradshaw’s rulings, EMC Research must disclose by Friday an online slideshow about polling results that was presented to four council members and two of Mayor Jenny Durkan’s top deputies during a conference call on the weekend before the council formally voted to kill the tax.
“The Court found the presentation to councilmembers and staff is potentially highly relevant to this case as it may characterize, and imbue with (OPMA) meaning, the urgency and activities at issue,” said Bradshaw’s court order, dated Tuesday.
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The city also must “produce and divulge” by Friday parts of two yet-identified council members’ private communications now in the city attorney’s possession, under a separate order signed by Bradshaw. Holmes also must request Durkan and each council member, as well as their employees, to search their “personal files, devices and accounts” to produce any additional emails, texts or other records generated since June 5 that “are related in any way to the repeal or proposed repeal” of the tax. Such records must be turned over by Oct. 31.
Attorney James Egan, one of the plaintiffs in the case, and his lawyer, Lincoln Beauregard, said they expect the records will help prove their claims the council repeatedly violates the open-meetings law by secretly rigging votes.
“If you’re lucky enough to get elected to the city council, follow the rules,” Egan said of Bradshaw’s rulings. “Don’t think that your private cellphone is somehow exempt in this kind of a lawsuit.”
EMC conducted the polling for Bring Seattle Home, a political campaign formed to oppose the big business-backed No Tax on Jobs referendum that sought to overturn the head tax. Previously disclosed city text messages show SEIU Local 775 President David Rolf, whose union bankrolled Bring Seattle Home, briefed the city officials during a conference call in the days before the referendum campaign prepared to turn in its signatures to qualify a repeal measure for the ballot.
Through a series of phone calls and texts, Durkan’s deputies then privately lined up a majority of council members for a council repeal effort, records show. The mayor and seven of the council’s nine members later issued a joint statement justifying consideration of a reversal on the head tax, which had been approved unanimously less than a month earlier. The council ultimately voted 7-2 in a public meeting to repeal the $275-per-employee tax on large businesses that aimed to raise an estimated $47 million annually for housing and homeless services.
Egan and open-government activist Arthur West separately sued the city, arguing the behind-the-scenes dealings predetermined the public vote and broke the meetings law that prohibits a government body’s quorum from making decisions in private.
The city denies it broke the law, describing the pre-vote maneuverings as “the normal everyday stuff of legislating.”
The city has turned over about 40,000 pages of records during a contentious discovery period — the pretrial procedure when parties to a lawsuit disclose evidence. But it held on to what attorney Stephen Willey described Monday as “a small volume” of two yet-to-be identified council members’ communications contained on a thumb drive and in a stack of Gmail records.
Holmes recently hired Willey’s firm, Savitt Bruce & Willey, for up to $145,000 to help with the case. They’ve since argued the undisclosed records involved officials’ protected activity with a private campaign that was unrelated to official city business and carried out on personal devices not under the city’s control.
Citing Washington’s broad discovery laws, Bradshaw ruled Monday all ambiguities over discovery “are to be resolved in the favor of disclosure,” and further ruled ownership and control over a device doesn’t matter if it contains records potentially relevant to an OPMA claim.
The city can exclude from the records communications about “purely personal matters,” such as a council member’s text messages about a medical appointment. But Bradshaw ordered that if the city elects to withhold any record, it needs to create a log summarizing what wasn’t disclosed and for what reason.
Egan and his lawyer didn’t get everything they wanted. Bradshaw denied Beauregard’s request for a contempt order against the city for withholding the records. The judge also denied the city’s request that a special master be appointed to handle further discovery disputes.
“We’re pleased the Court denied the Motion for Contempt, and the City appreciates the Court’s acknowledgement that drawing lines in discovery matters is complex and difficult,” a spokesman for Holmes wrote in an email Monday.
But West, a regular litigant in government-transparency cases who this week received $13,000 to settle a similar OPMA case against the city of Yakima, noted Bradshaw simply didn’t buy the city’s main argument.
“Public officials do have privacy rights, but they don’t have privacy rights to conduct political discussions of matters related to city business in private,” West said.