The Queen of Hearts

“OFF WITH THEIR HEADS!”
So demanded the Queen of Hearts when Alice blundered into Her Majesty’s Wonderland and had the temerity to question an edict.
Not so different has been the reaction of the Jefferson County Commissioners when a citizen dared criticize local government in a public meeting, or the Department of Community Development when a resident had the nerve to request public records.
And even though speaking one’s mind and reviewing government documents are rights guaranteed by the Washington State and United States Constitutions — as well as the state Open Public Meetings Act and Public Disclosure Act — citizens have been routinely muzzled by elected officials and had their document requests ignored by local bureaucrats. In fact, a common reaction to the demand for their legal rights has been,
“SO SUE US!”
Perhaps that is why the crowd at the open government forum in the auditorium at Port Townsend High School Dec. 9 was one of the largest seen by Washington Coalition for Open Government (WCOG) this year. People fed up with the unconstitutional treatment they’ve received at Jefferson County Commissioner meetings were there in force, including the resident who recently won a $41,515 judgment against the county for failing to turn over public records and the resident who is suing the county for attempting to crush dissent at public meetings, and, thankfully, there was a large group of public officials in attendance, too.
Ironically, the man with the most egregious record of muzzling protected speech in local public meetings, Commissioner David Sullivan, was seated square in the middle of the audience. Also present were David “The Flipper” Alvarez, the county chief civil deputy prosecuting attorney who in the past was pretty disruptive when he used his middle finger to respond to a rural resident who sarcastically lauded him for following the law, and “Bring It On” Al Scalf, the man who belligerently goaded a citizen to “Bring it on!” when faced with another potential lawsuit over his interpretation of the county codes.
One hopes they learned something about the law from the open government panel, which included:
◊Tim Ford, the Assistant Attorney General for Government Accountability, whose office advises the public — as well as state and local agencies — on how to solve problems regarding open meeting rules and public records requests.
◊Toby Nixon, former Washington State Representative and winner of the 2006 Freedom’s Light Award from the Washington Newspaper Publisher’s Association for his dedication to preserving and restoring trust in government through openness and accountability. He is president of WCOG.
◊Jerry Handfield, Washington’s State Archivist, who is responsible for documenting the history of state government and ensuring records created by Washington’s state and local government offices are efficiently managed and stored. He is also a national leader in the effort to ensure the retention and accessibility of government documents that are published in electronic form.
◊Wayne G. King, the District #3 representative on the Jefferson County Public Utilities District Board of Commissioners, a staunch supporter of open government and a signer of WCOG’s Open Government Pledge.
◊Frank Garred, a journalism instructor at Peninsula College, former director of WCOG and a member of the Sunshine Committee, which is working to eliminate some of the 300 exemptions to the Public Records Act.

Who’s in Charge?
Toby Nixon, the President of WCOG, made it clear from the outset that state and federal law give the people control over the bureaucrats, not the other way around.
“The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so they may retain control over the instruments they have created.” Nixon didn’t write that paragraph, it is the preamble to both the Washington State Public Records Act (RCW 42.56) and the Open Public Meetings Act (RCW 42.30.)
Nixon emphasized that local bureaucrats cannot discriminate against someone who asks for a public document, “just because they don’t like you.” He said the Jefferson County government staff cannot ask why you want a particular document. They cannot ask you to identify yourself when you show up at a public meeting, unless you decide to speak for the public record. They can’t demand that you fill out a particular form for a public document. (An email or a phone call is valid.) They must be prompt in responding to your request: Five days is the time limit to at least tell you when the record will be available, or explain that it is exempt from disclosure (and cite the reason.) They can’t charge you a fortune for copies, either: 15¢ a page is the maximum, but they must charge you less than that if the actual cost is less.
Nixon explained that if government workers inappropriately deny your request, the agency is liable for up to $100 per record per day. Unfortunately, the offending bureaucrat is not personally liable for the fine. The taxpayers pick up the tab.
“The largest penalty in the state was approximately $600,000,” Nixon said. And Mesa, a Washington town of only 400 people, was sued by a citizen and was forced to pay $220,000 for willfully denying public records. That kind of fine should be a wake-up call for all bureaucrats who sneer things like, “Bring it on!”
Nixon also emphasized that it is a felony to willfully destroy records prematurely. And that is a punishment that does hit the bureaucrat personally.

Who decides if ‘spirited’ speech is ‘disruptive’ speech?
The aforementioned Jefferson County Commissioner, David Sullivan, believes himself to be the “Decorum Czar” and has rebuked citizens who have calmly criticized local and state government, particularly the Department of Ecology (D.O.E.) and the Department of Community Development (D.C.D.), because, in Sullivan’s opinion, those statements were “negative” and “personal attacks” which he does not allow. An example, posted on YouTube, shows Jim Fritz addressing the commissioners on the proposal to release wolves in rural parts of the Olympic Peninsula.
“If the ecologists in Port Townsend want wolves released, I think they should be released in Port Townsend.” Fritz testified. At that point, he was interrupted by Commissioner Sullivan, who said,
“I’m going to remind you not to talk against individuals or groups of individuals. I’m in charge of decorum here, so it’s not allowed.”
Nobody in his right mind would call a simple statement about releasing wolves in Port Townsend “disruptive,” which is the only type of speech that can be prohibited in a public meeting. But Commissioner Sullivan persisted, cutting off another resident, Mike Belenski, when he criticized the job being done by the director of the D.C.D., Mr. “Bring it on” Scalf.
“I am in charge of decorum, and we don’t allow personal attacks,” Sullivan said.
WCOG’s Toby Nixon made it clear at the open government forum that Sullivan was violating the law, and that citizens should not allow themselves to be cowed by a self-appointed Duke of Decorum, or anybody else who attempts to take away their constitutional rights.
Belenski is suing the county over its restrictive “decorum” rules, which stated:
“All speakers shall confine their remarks to facts that are germane and relevant to County Government. Focus on issues, not individuals or groups of individuals. Please be respectful of persons present and not present.”
After Belenski filed suit, the restrictive paragraph was hastily removed from the rules for public comment.
Sometimes all it takes to wake up government officials is a letter from an attorney. Frank Garred, the journalism instructor, told the audience about a silly case in another county where 400 people came to a public meeting to protest the permit for a Walmart. They were told by a thick-headed official that they could not say the word “Walmart” in their testimony. The A.C.L.U. merely threatened to sue, and the official backed off.

Help from the Attorney General
Other than filing an expensive lawsuit in court, where can you go for help if your local government officials deny your right to speak your mind at public hearings, or to review government documents? The ombudsman for open government at the Attorney General’s office, Tim Ford, is a good place to start. His office has received 700 requests so far this year from citizens, agencies and attorneys on how to interpret public meeting and open records statutes. As vice chairman of the Washington Sunshine Committee, he is also working to close the exemption loopholes that allow some records to be kept secret by the government. And his office has sternly rebuked some elected officials for other subversions of open meeting laws, as in the case of council members who routinely emailed each other on their laptop computers during public comment periods, instead of paying attention to the citizens who were speaking.
“By sending emails to each other about agenda matters and other business during the meeting, they were essentially holding a secret meeting in the middle of a public meeting,” Ford said. When he contacted the city, they reformed their practice and cut out the shenanigans.
If you have a problem with public officials violating your rights, a good place to start is by calling Tim Ford’s direct line at the attorney General’s office: (360) 586 4802.

Who Guards the Records?
Dr. Jerrry Handfeld, the Washington State Archivist, told the audience that he is responsible for safeguarding all public records, both historic and recent. His goal is to make everything available on the internet some day, and his staff in the Secretary of State’s office has made good progress at the new digital archives center in Cheney, a state-of-the-art facility completed in 2004. Presently they provide 50,000 retrievals a month out of 26 million records searchable online. It is the first in the nation, dedicated to storing electronic records and making sure they are not lost or tampered with. He claims the records will last at least 100 years.
You can search millions of records, from births to deaths to marriages to military, census, naturalization, plats and surveys, power of attorney, professional licenses, and many others, at the digital archive site:
http://www.digitalarchives.wa.gov

A new weapon against violators?
Perhaps the most intriguing statement of the WCOG’s forum came from Nixon and Ford, when they answered a question from two citizens who wanted to know why bureaucrats who violate the law are not personally liable.
“There should be criminal penalties for withholding records,” said Dale Wilde of Jefferson County.
“We need to know how to compel government individuals to give out the records,” said Jason, a real estate agent from Gig Harbor. “‘If you don’t like it, sue us’ gets said all the time. And most people don’t have the wherewithal or the tenacity to pursue a lawsuit.”
While both Nixon and Ford agreed that criminal penalties are justified, they said even if the legislature were to pass such a law, it might be tough to convince prosecutors to arrest government officials.
But then they dropped a bombshell, and ears perked up all over the auditorium.
“If you can prove willful denial of public records, it would be grounds to recall the official,” advised Nixon.
Resident Larry Carter asked the Attorney General’s representative to repeat the statement.
“Yes,” said Ford. “It’s already been done.”
Perhaps if a commissioner knew he could lose his job, he’d be more careful about violating the law?

Learn about your rights
These are your rights, and you can cause a severe pain in the wallet for cities and counties that violate them:
Washington Public Records Act — RCW 42.56
◊All records must be available for inspection and copying unless exempt from disclosure
◊Cannot discriminate based on who is asking for the record
◊Prompt responses are required
◊Copies must be charged at the actual rate of copying, but cannot exceeed 15¢ per page
◊The courts review cases where records are denied
◊Financial penalties, attorneys’ fees and court costs, may be required from jurisdictions that violate your rights
◊ It is a felony to willfully destroy records prematurely

Washington Open Public Meetings Act — RCW 42.30
◊All meetings of governing bodies of agencies must be open to the public
Except for “executive sessions” allowed for limited purposes
◊No conditions can be attached to attendance
Except you can’t be “disruptive”
◊All voting, including items from executive sessions must be in public, without secret ballot
◊Meeting times and places must be published in advance
◊There are financial penalties for violations
◊Intentionally violating the act is grounds for a recall
For more information about your rights, go to:
http://www.washingtoncog.org or email your question to info@washingtoncog.org