The city’s disclosure of records has become a sore point in a lawsuit contending the City Council broke state law by secretly deciding to repeal a controversial head tax on big businesses before a public meeting and vote.
A judge has ordered the city of Seattle to hand over “all identifiable records as soon as possible,” but no later than Sept. 28, related to city officials’ internal discussions about repealing a head tax on big businesses and to a council member’s call for then-Mayor Ed Murray to step down amid sex-abuse allegations last year.
King County Superior Court Judge Timothy Bradshaw’s order on Friday partially granted plaintiff James Egan’s motion seeking to force the city to hand over an untold number of records that have yet to be disclosed following his lawsuit contending the City Council broke Washington’s Open Public Meetings Act (OPMA) on both matters.
Lincoln Beauregard, Egan’s lawyer, asked the judge to order the city to disclose all the records within five days. Bradshaw granted the order but gave the city up to two more weeks to hand over the records. The Sept. 28 deadline coincides with the date city attorneys had estimated they could meet to produce the records.
A spokesman for City Attorney Pete Holmes said the judge’s order “affirms the date that the city already proposed for the production of all relevant records in response to the motion to compel, and we fully intend to comply.”
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But before Beauregard forced the issue, the city hadn’t specified when it would turn over the remaining records.
“The main goal was to force them to do exactly what we said — make a commitment rather than vague and dodgy answers, and to get an order so that if they get caught withholding other stuff, it is a violation and possibly contempt,” Beauregard said.
The city’s disclosure of records has become a sore point in the case. After The Seattle Times reported about key text records disclosed to a local blogger that hadn’t been provided to Egan or to the newspaper in response to a Public Records Act request, Beauregard broke off settlement talks with Holmes’ office.
Egan’s lawyer accused the city of deliberately withholding “smoking gun” records in hopes of settling the case before having to turn them over in legal discovery.
Since then, Holmes’ office has turned over more than 34,000 additional records to Egan, contending it has been working in good faith to identify and quickly disclose them.
The city also has provided more records to The Times that it hadn’t released before closing the newspaper’s June 11 request seeking city officials’ written communications leading up to the public head-tax repeal.
The latest batch of records — including Mayor Jenny Durkan’s text conversations on the weekend before the repeal — came only after the newspaper contended in an appeal that the city hadn’t released all the records it should have. The city now says more records will be coming by Oct. 26.
Egan sued the city on June 14, two days after the council repealed the head tax following a surprise announcement by Durkan and seven council members a day earlier about the need to reconsider the tax. Arthur West, an open-government activist, also later separately sued the city.
Even before the council voted, government transparency advocates raised concerns that the council may have violated the state’s public-meetings law, which requires a government body’s “actions be taken openly and that their deliberations be conducted openly.” The law forbids a quorum, or majority, from secretly meeting to discuss official city business.
Holmes repeatedly has denied that the city broke the law.
In a declaration last week, Holmes said the city’s discovery response in the legal case has been more complicated than usual because “events leading up to … the repeal involved both political and official conduct” by council members, making it difficult to discern which communications are subject to the public-meetings law and required to be disclosed.
Among the tens of thousands of pages of records the city disclosed after an Aug. 8 discovery deadline are emails from July 17, 2017, in which then-Councilmember Tim Burgess suggested changes to a draft statement by five council members to support keeping Murray as mayor in the face of Councilmember M. Lorena González’s public call for him to step down or potentially face impeachment.
When it eventually was released, the news release didn’t include Burgess’ name and listed only four council members — one shy of a majority.
Beauregard contends the records demonstrate that the city deliberately tried to conceal illegal private discussions by a quorum on the issue.
“This is pretty egregious,” he said.
Holmes’ declaration may signal at least part of the city’s strategy in fighting the alleged OPMA violations — that council members’ discussions before the head-tax repeal vote weren’t city business, but private, political-campaign discussions that aren’t subject to the public-meetings law.
Some of the council members had discussed dismal polling results with key backers of Bring Seattle Home, a political campaign aimed to defend the tax, in the days before the repeal vote.
But such an argument could open another can of worms for the city: It’s illegal to use public resources, such as city staff time, on political campaigns.
Toby Nixon, president of the Washington Coalition for Open Government and a Kirkland City Council member, agreed that it can sometimes be hard for elected officials “to draw a bright line between agency business and campaign business.”
“However, I think it’s BS in the case of the head-tax related vote counting, which is the OPMA violation people are focused on,” Nixon added in an email. “Those were absolutely related to city business. City staff was being used, which would be absolutely illegal for a campaign interaction.”