A judge will consider next week whether polling data and other communications by city officials related to Seattle’s ill-fated head tax should be kept under wraps or publicly disclosed in a civil suit accusing council members of breaking a state law aimed at ensuring their decisions on city business are made openly.
Lawyers for James Egan, one of two men now suing the city for allegedly violating the Open Public Meetings Act (OPMA) in the lead-up to the City Council’s sudden repeal of the controversial tax, argue in pleadings filed this week that the city is improperly withholding polling data and other records despite a court order to turn over relevant records by Sept. 28.
“(T)he City’s elected leaders are knowingly continuing a pattern of discovery evasiveness,” lawyers Lincoln Beauregard and Julie Kays contend in a motion asking the court to hold the city in contempt.
City Attorney Pete Holmes and David Bruce, a $395-an-hour private lawyer whose firm was hired this week to assist in the city’s defense, counter in their own motion the records in question reflect city officials’ “personal political activity and other private matters” — not city business — so aren’t subject to disclosure.
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The city wants the court to grant an order protecting the records and asks that a special master be appointed to manage further discovery disputes, “in an effort to ensure that Seattle’s scarce public resources may be devoted to actual civic problems of the day — like homelessness — rather than expansive litigation over a technical application of the OPMA.”
Egan also seeks to force EMC Research to comply with a subpoena for its head-tax polling data. An attorney for EMC has objected, calling Egan’s subpoena “oppressive, harassing, overbroad (and) unduly burdensome.”
King County Superior Court Judge Timothy Bradshaw could rule on all motions by next Thursday.
At the center of the latest scrum over records is EMC’s polling data generated 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 several council members and Mayor Jenny Durkan’s top deputies about EMC’s unfavorable polling on the tax the weekend before the council repealed it.
Through a series of phone calls and texts, Durkan’s deputies then privately lined up a majority of council members for a 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 so-called Employee Hours 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 later sued, arguing the behind-the-scenes dealings predetermined the public vote, breaking the meetings law that prohibits a government body’s quorum from making decisions in private.
The city denies it broke the law, calling the pre-vote maneuverings in court papers “the normal everyday stuff of legislating.”
Disclosure of records has become a sore point, with Egan’s lawyers previously accusing the city of deliberately withholding “smoking gun” documents in hopes of settling the case before having to disclose them. After an initial Aug. 8 discovery deadline, Holmes’ office parceled out more than 34,000 documents amid protests of foot-dragging by Egan’s lawyers. Bradshaw last month ordered the city to disclose all records “as soon as possible,” and no later than last Friday.
The city met the deadline 42 minutes before close of business on Friday by disclosing another 1,103 documents. But city attorneys noted in court papers they weren’t turning over any “campaign/ballot measure-related documents” contained on city officials’ private devices or servers, arguing those records are private and not relevant.
Egan’s pleadings cite texts sent shortly after the polling briefing in which Councilmember M. Lorena González and an aide discussed a plan by Durkan’s deputies for “triangulating” the polling results among council members with the goal to “have unity on a repeal.”
“The related polling data played an integral role in the decision to repeal the head tax,” Egan’s lawyers argue.
Holmes and Bruce counter that city officials’ “private political activity” is outside of city control and didn’t become official business until “sometime over the weekend of June 9-10.”
Before that, records reflecting their discussions on personal devices and servers “are not — and cannot be — relevant or reasonably calculated to lead to the discovery of admissible evidence in this matter,” they contend.
Bruce and his law firm — contributors to Holmes’ re-election campaign last year — will be paid up to $145,000 for helping with the case, according to a city contract. It’s the 21st time Holmes has hired the firm since he took office in 2010. Holmes last year denied any quid-pro-quo when hiring outside lawyers, saying he does so as needed based on track record and expertise.