“He pities the plumage, but
forgets the dying bird.”
-- Thomas Paine, commenting on what he saw as Edmund Burke’s tendency to defend
the gentry
On September 28,
2011, I filed a complaint with the Public Disclosure Commission (PDC) regarding
election activities by Spokane Public Schools. These activities entailed a bond
and levy election in 2009 and a school board election in 2011.
The
complaint stemmed from public records I obtained from Spokane Public Schools in
January and July 2011. In those records, I saw a clear pattern of school district
officials using public resources to promote bond and levy ballot propositions,
as well as evidence of certain employees using public resources to assist in
the campaign of a school board candidate. There appeared to me to be multiple
violations of RCW
42.17.130, a law that governed disclosure, campaign finances, lobbying and
records. (The law was recodifed as RCW 42.17A.555 in January 2012.)
In the
afternoon of Election Day 2011 (Nov. 8), the PDC announced it would investigate;
the case was numbered 12-145. After two and a half years of investigation, PDC officials
Phil Stutzman and Tony Perkins presented their findings on 12-145 to
Commissioners at their Feb. 27 hearing in Olympia.
If you read
through the
PDC report, you might feel a cold chill down your back. There must be an
immediate and thorough legislative investigation of the Public Disclosure
Commission. The PDC has essentially sanctioned repeated violations of election law
with respect to school district elections.
If you
think I’m exaggerating, please read this article. Then, I invite you to read the
PDC report.
About the Public Disclosure
Commission (the PDC)
According
to Washington
State’s Administrative Code (the “WAC”), the Public Disclosure Commission
“has statutory authority for information gathering, recordkeeping, and
investigative and hearing procedures with respect to elected officials,
candidates, political committees, and persons and entities involved in lobbying
activities.” The
PDC is to engage in “strict, vigorous,
uniform and fair enforcement of the provisions” of the Public Disclosure Act.
Its five Commissioners
are to be bipartisan and are to “ensure that the provisions of the disclosure
law are fully met.”
The five Commissioners are “appointed by the Governor for one five-year term and
are confirmed by the state senate.” (Since 1985, all Washington State governors have been Democrats.) According
to RCW
42.17A.100, no more than three Commissioners should identify with the same
political party.
A Brief History of
this Citizen Complaint to the Public Disclosure Commission
In September
2011, I had no idea the PDC would go in the direction it did. At the time, I
had only just learned what the PDC was and what it was supposed to do, only
just received some of the records from Spokane Public Schools, and only just
learned that some of what I saw in those records was not allowed under state
law. My learning curve was steep, and the PDC doesn’t provide much assistance on
filing a complaint. There is no one locally to ask.
As I obtained
additional records from Spokane Public Schools regarding its levies (records that
should have been provided to me in January 2011), I recalled PDC official Tony Perkins
writing to me, “You are welcome to continue sending evidence my way.” So, I sent
additional evidence his way. I’m a citizen, not a lawyer, but I did my best,
making things as clear as I could, with spreadsheets and photocopies organized
chronologically. I clearly indicated which records I thought showed violations.
I was
told that a flood of “informational” activity, when done by public agencies, can
become “promotional” in such a way as to violate the law. I submitted what I
saw as a flood of campaigning, promotional language, overarching authority,
intimidation of teachers and staff to campaign for the bond and levy, and a
longstanding pattern of district leadership behavior with respect to elections.
Early in
the process of making my complaint to the PDC, I made it clear that the issue in
Spokane Public Schools is not teachers or staff; it’s the leadership. The
records indicated to me that the campaign for the bond and levy came from the
top of the district administration and wasn’t something the teachers and staff
thought up and organized on their own. I believed then and believe now that the
evidence of this contention cannot be missed in the complaint and in the records
I sent. I thought the PDC officials understood what I was telling them.
I later
found out that the PDC staff members assigned to the case are not attorneys.
And yet, it’s their job to review the documents, conduct interviews and apply
the law. The Stutzman/Perkins report has let district leadership off the hook
and set a precedent for districts to campaign as they please. Much of the
evidence I sent was not cited, and flimsy excuses were accepted, including we didn’t know, we fixed it now, and this is
legal because we always do it. Arguments that supported my complaint
were used by the PDC to excuse district behavior. Apparently, the PDC has
decided that professed ignorance – of employee activities and/or of the law –
is now a viable legal defense as well as a license to reinterpret the law.
Meanwhile,
without letting me know before they issued their report (or giving me the
opportunity to respond) the PDC criticized me for not doing things properly,
and insinuated that I colluded with a local teacher over the 2011 school board
election. For those who believe in the impartial application of the law, the
Stutzman/Perkins report is a grim read.
Analysis of the
Stutzman/Perkins report
Spokane
Public Schools contention: There was no “overarching” district plan; employees organized and campaigned on
their own
Associate
Superintendent Mark Anderson told the PDC that, while there were “multiple
inappropriate uses of public facilities” during the campaigns, “these uses were
conducted by individual Spokane Public Schools officials and employees, without
overarching authorization from the administration or school board.”
Judging
by the records, I would be surprised if any employee of the district believes
Anderson’s contention. I’m sure, however, that few would dare to publicly
dissent. Clear evidence of “overarching authorization” permeates the records,
and the fingerprints of the leadership structure are all over it. The PDC report
acknowledges much of that evidence, which includes: the leadership’s detailed, comprehensive and constantly evolving
marketing plan; the leadership’s detailed
instructions and wording for employees, delivered from the top to the bottom of
the organizational structure and passed on to teachers and staff; and the leadership’s persistent reminders to
vote, threats of lost programs and lost jobs if the propositions failed, as
well as promises of various rewards if the propositions passed.
Nancy
Krier is a former Assistant Attorney General representing the PDC, and is now the
open government ombudsman. She observes on
page 10 of this Sept. 13, 2001, memorandum that, with respect to agencies predicting
outcomes of failed propositions, “there seems little purpose for ... such
speculation, except to influence the election results.”
The
records clearly show Spokane teachers and staff working in mornings and nights
and on weekends to make calls from call sheets delivered to teachers, hand out
flyers that were delivered to schools, and wave signs asking the public to
“Vote Yes” for the bond and levies. Records suggest that “Vote Yes” signs were
stored on district property and were returned there after the campaign was over.
Nevertheless,
the PDC accepted the district’s claim of no “overarching authority.” Their
proposed penalties to all district leaders are therefore minimal. Some
examples:
- Nancy Stowell, former superintendent: Cited
but no penalty
- Mark Anderson, associate superintendent:
$700, with $400 suspended, for a net of $300 penalty.
- Kevin Morrison, administrator: $250, with
$200 suspended, for a net of $50 penalty
The
report proposed a net penalty of $350 for these three administrators; a net
penalty of $1,100 for the entire district leadership; and a net penalty of
$2,000 in total. Commissioners recommended increasing the net penalty to Mark
Anderson by $200; that modification to the PDC report is being considered.
These
findings and penalties provide little or no deterrence for leaders of other districts
and agencies who wish to campaign in the same way. In fact, this outcome could
be construed as authorization by the PDC to engage in similar types of conduct.
At the very least, the Commission’s decision encourages public agencies to be
willfully ignorant of the law, and to offer the “We didn’t know” excuse. It might
seem to agency officials that the less they know about the law, the better they’ll
fare with the PDC.
Spokane Public Schools contention: Their campaign activity on the bond and levy is “normal and regular”
According
to WAC 390-05-271, election law “does not
prevent a public office or agency from . . . making an objective and fair
presentation of facts relevant to a ballot proposition, if such action is part
of the normal and regular conduct of the office or agency.”
Associate
Superintendent Mark Anderson stated to the PDC that the district’s communications
on the bond and levy followed “its past and ongoing practice in communicating
information on a range of policy issues, including the district’s budget
process, school openings and improvements, student art and music events, and
milestones in graduation and registration rates.” Therefore, the district’s
campaigning theoretically follows a “normal and regular” pattern and doesn’t
fall into the prohibited area of being unusual or excessive.
If the
district’s argument is accepted, then violations under RCW 42.17.130 could
become legal simply by tying them to legal activity in which districts normally
and regularly engage. Put it another way: “I’m legally allowed to race my bike in
the backcountry, so I’m legally allowed to race my bike in the city.” Or, “I
normally and regularly speed down the highway, so that makes it legal.”
The problem with the PDC’s acceptance of Mark Anderson’s argument is that it
compares apples to oranges and declares them to be the same. The other activities
Anderson cited do not fall under RCW 42.17.130. In fact, according to WAC 390-05-273
(bolding added):
Normal and regular conduct of a
public office or agency, as that term is used in the proviso to RCW 42.17A.555,
means conduct which is (1) lawful, i.e., specifically authorized,
either expressly or by necessary implication, in an appropriate enactment, and (2) usual, i.e., not effected or authorized in or by some extraordinary
means or manner. No local office or
agency may authorize a use of public facilities for the purpose of assisting a
candidate's campaign or promoting or opposing a ballot proposition, in the absence of a constitutional,
charter, or statutory provision separately authorizing such use.
The
first requirement of the activity, therefore, is that it must be lawful. Conduct
that violates the law cannot be made lawful by repeated violations. Conduct
cannot violate RCW 42.17.130, even if it’s “normal and regular.” The district’s
argument is circular, that their activity is legal because it’s normal and
regular, and that normal and regular activity is legal. Besides being in
contravention of WAC 390-05-273, the argument sets up election law as flexible
and malleable, different for each individual and agency, without set standards
for citizens to understand and obey. It removes the principles of fairness and
uniformity that form the bedrock of American jurisprudence.
The PDC’s
Feb. 27 acceptance of the “normal and regular” argument absolves agencies for
activity to date and provides a PDC sanction for them to campaign as they
please from now on, if they do it regularly and if they profess to not know the
law. It allows them to include election activities in their “regular and
normal” activities.
Spokane Public Schools
contention: Bond and levy campaign materials were informational, not promotional
According
to RCW 42.17.130 (bolding added):
No
elective official nor any employee of his or her office nor any person
appointed to or employed by any public office or agency may use or authorize
the use of any of the facilities of a public office or agency, directly or
indirectly, for the purpose of assisting a campaign for election of any person
to any office or for the promotion of or
opposition to any ballot proposition.
The Public Disclosure Commission's own 2006 “Guidelines
for School Districts” cautions school districts: “The Districts need to be aware, however, that in no case will the PDC view a
marketing or sales effort related to a campaign or election as normal and
regular conduct.”
The PDC
report stated that the district’s “informational” material carried promotional language
such as “something for everyone” and “the bond would stimulate the economy.” (From
records I sent to the PDC, I can add more, including, but not limited to: “promote,” “campaign,” “necessary,”
“critical,” “essential” and “300 staff positions would possible (sic) be lost.”)
However, the PDC officials wrote this:
“.
. . the extensive informational activity . . . by officials of Spokane Public
Schools was authorized by statute and district policy, and followed the
agency’s practice in communicating information on elections and other major
policy issues . . . The district did not have the benefit of PDC staff’s
guidance on the content of its communications . . . If asked, PDC staff would
have recommended changes to some aspects of the communications, to lessen the
impression of a promotional tenor or tone. However, the remainder of the
communications constituted an objective and fair presentation of the facts. .
.”
In spite
of there clearly being promotional language in the district’s election
communications, the PDC report concluded that it does not “warrant formal
enforcement action.” The report recommended dismissing the allegation of the
district using “promotional” language, and the Commissioners did so.
Dismissing
a finding of promotional language by saying that other “communications constituted an objective and fair presentation of
the facts” is like saying, “You exceeded the speed limit only some of the
time, therefore you are not guilty of speeding any of the time.” The PDC has
interpreted the standard of compliance to be a standard of what it deems to be substantial
compliance, although this does not appear anywhere in the law or the
regulations.
In
addition, district administrators repeatedly sent around PDC regulations to
staff, which the PDC acknowledged. But, for argument’s sake, let’s say, as the
PDC said, that the district “did not have the benefit of the PDC staff’s
guidance. . .” Well, why didn’t it? Were
all district phone lines, computer servers and the post office out of service for
several years? Is there no requirement
that agencies understand and obey the law? Is ignorance of
the law now an acceptable legal defense? Can we all now just claim we just
“didn’t have the benefit” of legal advice? Spokane Public Schools pays its
contracted lawyers a
lot of taxpayer dollars each month for legal advice.
How do
citizens now determine what constitutes “information” vs. “promotion”? Which phrases
are actionable violations? Is a “promotional tenor or tone” a violation? The
PDC report did not clearly define “informational” vs. “promotional,” and it
blurred the line between them by turning campaigning, threatening and promising
into “an objective and fair presentation of the facts.”
Who will
dare now to challenge agencies on promotional language? The PDC has just agreed
that promotional language is not an actionable violation. Thus, it gave
agencies an official sanction to push the boundaries on campaign language –
with the edges of those boundaries no longer clear to anyone.
Spokane Public Schools
contention: It didn’t “authorize” or know of the distribution of campaign literature in the
KIDS Newspaper
(3) "Political
advertising" is defined under RCW 42.17A.005
to include a mass communication used for the purpose of appealing, directly or
indirectly, for votes or for financial or other support or opposition in any
election campaign. (4) Political advertising does not include letters to the
editor, news or feature articles, editorial comment or replies thereto in a
regularly published newspaper, periodical, or on a radio or television
broadcast where payment for the space or
time is not normally required.
(4) Printed advertising shall
clearly state, in an area set apart from any other printed matter, that it has
been paid for by the sponsor . . .
The
union endorsements of three elective candidates, published in the KIDS
newspapers, were paid advertisements, but didn’t follow PDC rules on advertisements.
They didn’t identify themselves as paid advertisements or indicate who paid
for them. They were not reported in a timely manner as contributions to three
elective campaigns.
The school
district twice distributed the newspapers containing these union endorsements to elementary schools,
where they were twice distributed to the children to take home. They also were
available to the public over two months near school offices and in the downtown
office.
Stutzman
and Perkins wrote that “the purchased, promotional content” (the union endorsements)
in the KIDS Newspaper was
“distributed without the knowledge or authorization of officials of Spokane
Public Schools.” They recommended dismissal of the allegation that the district
“authorized” the distribution. But I didn’t allege that the district authorized the distribution; I alleged
that the district “distributed” the
periodical, in violation of RCW 42.17.130. That the district did so is
indisputable. On Feb. 27, PDC Commissioners dismissed the allegation (as
reworded by the PDC).
The
district’s claims are dubious. The papers were twice distributed throughout the
elementary schools and were available to
employees and the public in the downtown office. No one looked at them? No
one ever looked at those newspapers over two months of distribution, not even
Kevin Morrison, district administrator and reportedly Deana Brower’s campaign
manager? Regardless, the question is irrelevant to the fact of their
distribution by the district.
With respect to the
disclosure of campaign contributions, the Spokane Education Association
(the union) president contended that it "didn't occur" to her that she was required by law to
disclose her paid advertisements in the KIDS newspaper. According to the PDC
report, union lawyer Mike Gawley said “the union did not disclose its
expenditures to run endorsement pieces in the newspaper, because it did not
occur to SEA president Jenny Rose that reporting was required.”
Between you and me
Sharon ‐‐‐I
purposely took the fall for that. . . . SEA did nothing wrong – we are using
WEA‐PAC money to pay
for those pages those 2 months because it is political information going out to
community members.
The PDC report
recommended dismissal of the allegation that the union failed to disclose in a timely
fashion its paid political advertisements in the KIDS newspapers. On Feb. 27,
Commissioners did so.
The PDC investigators
also appear to have accepted board candidate Deana Brower’s explanation that
she didn’t know there was an expense involved in the KIDS advertisements, and that
she viewed the advertisements in the same light as a newspaper endorsement.
(Never mind that these endorsements came from the union president, not from a
newspaper’s editorial board.)
Agencies
will notice that there was no consequence for using district time and resources
to repeatedly stuff campaign literature in the children’s backpacks. They’ll
see that “I didn’t know” or "it didn't occur to me" was an acceptable excuse for the district, the union
president, and a school board candidate. This could encourage them to campaign
at will and to knowingly maintain “plausible deniability.”
Spokane Public Schools
contention: Handing over private employee information to the pro-levy group is okay because
there was a longstanding records request on file, and anyway, it’s “normal and
regular conduct”
Each month during bond/levy season, Spokane Public Schools administrators
handed over to private group Citizens for Spokane Schools (CFSS) detailed
reports with private employee information (including address, phone number, and
amount of levy-campaign donation). The district’s argument to the PDC is that
there was a longstanding records request on file, even though it didn’t have
anything in writing. The district said it was merely following the Public
Records Act, as it is legally bound to do.
The PDC
accepted this argument, even though the Public Records Act does not authorize
continuing requests. According to WAC 44-14-04004 (bolding added):
An
agency must only provide access to public records in existence at the time of
the request. An agency is not obligated to supplement responses. Therefore, if
a public record is created or comes into the possession of the agency after the
request is received by the agency, it is not responsive to the request and need
not be provided. A requestor must make a
new request to obtain subsequently created public records.
CFSS should
therefore have submitted a new request each month. Stutzman and Perkins acknowledged
that the payroll records in question were “created, rather than pre-existing.” They
also found that “there was no written request for the payroll information on
file with Spokane Public Schools.” Oops. However, they added, “CFSS has since
submitted a written request.”
The PDC
therefore accepted a retroactive request
for created records containing
personal employee information, including home address and the amount contributed
to the bond and levy campaign.
Mark
Anderson emailed the superintendent in 2008 about giving payroll
information to CFSS. He noted to CFSS members that employee contributions had
dipped. He wrote: “Thus, in addition to talking about the bond plan, I think we
should discuss gearing up for this year’s October enrollment campaign to the
levy/bond committee, among other topics.” It appears from this record and others
that the district used disclosure of the payroll records specifically to increase donations to the pro-district levy group.
The PDC,
which was given the record noted above, said the district practice of handing
over private information to CFSS “has been in place for nearly twenty years” and
that “the district operates under a good-faith understanding...” The PDC
recommended the allegation be dismissed. On Feb. 27, Commissioners did so.
Mark
Anderson has previously made a big deal of privacy issues, redacting home
addresses and phone numbers for other records requests because the information
is “personal.” But for CFSS, this private information was handed out monthly. Does
the PDC not care about privacy laws? How would you feel, being a Spokane
teacher or staff member who does not contribute to CFSS, knowing that
the information is tracked and sent outside of the payroll system to a third
party? Would you feel intimidated or coerced? Who wants to be that
teacher who doesn’t contribute to CFSS?
Has any
district employee ever received a notification about these 20 years of private
information being released to CFSS? Has the district made any effort to protect
private information or offer employees a chance to opt out? When I’ve made
requests for records, the district has personally notified third parties whose
names appear in the records about my request. It also offered third parties the
opportunity to call the district about the possibility of filing for an
injunction against the release of information. Were employees ever given this
opportunity with respect to the CFSS donor report?
The PDC
has, in essence, provided districts everywhere with an official sanction to work
with and give pro-levy groups private employee information, specifically in
order to boost donations to those groups.
Public Disclosure Commission contention: Spokane teacher Jennifer Walther violated RCW 42.17.130 over “Face Off At
Ferris”
The only question that matters with respect to the 2011 “Face Off At Ferris” political
debates is this: Did Jennifer Walther “use
or authorize the use of any of the facilities of a public office or agency,
directly or indirectly, for the purpose of assisting a campaign for election of
any person to any office”?
The PDC
claims she did. The PDC report, however, damns Jennifer Walther with some of her
political associations and attempts to call it a case. The PDC failed to prove
that “Face Off At Ferris” was anything other than a fair debate between
candidates. In all of the pages of “evidence,” that’s the critical missing
link.
Who
filed the complaint against Jennifer Walther regarding Face Off at Ferris? I
didn’t do it. My name is all over the PDC letters and documents regarding
#12-145, but there is no indication of where Complaint #14-053 against Jennifer
Walther came from. The records I provided to the PDC do not include the vast
majority of documents about Jennifer Walther that appear in the PDC’s report.
It
wasn’t until January 23, 2014, that the PDC sent an email saying that “additional
evidence involving Ms. Walther has come to light” and brought up the Ferris
debate.
In
their report on Jennifer Walther, Stutzman and Perkins also focused an unusual
amount of attention on a few emails exchanged between Jennifer Walther and me, appearing
to attribute improper and unproved motives to both of us. At no point did the
PDC notify me or ask me about these communications. Jennifer Walther once again
became a target (as did I, but without my knowledge and without the benefit of the
avenues of recourse provided to school district officials and employees).
The
truth about my emails with Jennifer Walther, which the PDC has never attempted
to determine, is that I wanted to see a copy of a union letter sent in 2011 to
teachers on behalf of Deana Brower’s campaign. I’d only just met five of the board
candidates, including Deana Brower. If the letter said something consequential about
any of them, I wanted to know. Although I had my doubts about Deana Brower, and
I had chosen to support Sally Fullmer’s campaign, I remained open to new
information about everyone. I asked the union president for a copy of the
letter, and she refused to provide one. So, I asked Jennifer Walther if she had
one. The PDC concluded (without talking to me) that I (and thus Jennifer
Walther) was engaged in what they called “oppositional research.”
It
wasn’t “oppositional research”; it was just research. This contention is well supported
by my extensive labor during the 2011 election to meet every candidate,
interview every candidate, post
exact transcripts online, ask follow-up questions about math, and vet
candidates through “Where’s the Math?” It was a massive effort, and my
research continued throughout the election. The PDC turned me into a subject of investigation, however, without
allowing me the opportunity to explain or defend myself.
Jennifer
Walther didn’t coordinate my research for the 2011 school board election; she
answered my question. She did not campaign in that email string. The subject of
the emails was mine. The request was mine. Her email went to me and no one
else. The PDC dismissed charges against other district employees who
responded to someone’s email and did not forward it.
The PDC
report does not note that, following the 2011 Face Off At Ferris debate, the
district and local print media targeted Jennifer Walther over the debate. John
Rose, husband of the teachers’ union president, asked the district for records
on Jennifer Walther, me and the KXLY anchor who hosted the debate. Associate
Superintendent Mark Anderson directed staff to be sure that an Inlander reporter, Nick Deshais, received
a copy of John Rose’s initial request along with the second one. Anderson
wrote:
fyi..
..the first email I want to provide Mr. Deshais is the previous emails (sic)
from John Rose, requesting all emails between Walther/Woodward/Rogers as it
provides the “reason” for his request - I want Deshais to see the reason.
The
stated “reason” for John Rose’s records request was this: “I have questions
regarding the validity and origin of the questions that supposedly came (sic) the
students.” (However, the source of the debate questions could have been Sen.
Ted Cruz, a Texas Republican, and it
wouldn’t be a PDC violation.)
The PDC
doesn’t note that the John Rose/Nick
Deshais records requests found no collusion between Jennifer Walther, me and
the KXLY anchor because there was no collusion to find. The questions asked that
night were good and relevant. Candidates rose or fell on their own.
The PDC
report doesn’t note that the Ferris
debate was approved by the district and promoted by the district, and that it
was the second of its kind, organized and run in exactly the same way as the
first, and by the same teacher. It doesn’t note that the district “investigated”
the 2011 debate and laid the matter to rest without disciplining Jennifer
Walther.
The PDC
report does include a copy of an “Advisory Letter” the district gave Jennifer
Walther in 2011, telling her “that
the role that students play in the development of the debate questions needs to
be more clearly understood and advertised, to avoid any confusion by candidates
or attendees.” This letter, provided to the PDC as evidence, states in the last
line: “Because the letter is not discipline, a copy of it will not be retained
in your personnel file or your principal’s Supervisor File.” Yet, this same
Advisory Letter was handily available for someone to provide to the PDC.
The PDC
report does say that Jennifer Walther worked on the debate with known conservatives,
and that “some” of the questions came from conservative sources. The report
spends three pages in a flutter of political irrelevancy, trying to
lay the groundwork for an accusation of political bias.
When analyzed closely, those three pages boil
down to “she had an opinion,” “she organized the debate,” and “she met with
conservatives.” Since when did it become a PDC violation to:
-
have an opinion?
- organize a debate?
- communicate with conservatives?
- ask solid, timely and relevant questions of elective candidates?
Bias in
the Ferris debate was not proved, not by the PDC and not by the
union/district/media. Good questions were asked that night about things the
public wanted to know. The district/union/media school board pick won the straw
poll, and she narrowly won the election. After the debate, Deana Brower praised
the debate and thanked Jennifer Walther. The PDC has proved only that some of
the people Jennifer Walther communicated with were conservative or (OMG)
Republican. That is not yet a PDC violation.
Tellingly, the
Stutzman/Perkins report includes a transcript of the Ferris debate questions
for school board candidates, yet included zero argumentation showing actual bias in
the questions. This is the critical point. The PDC’s allegation of a violation
of RCW 42.17.130 during the Ferris debate is built on nothing.
The PDC report will
make it clear, however, to school districts and political action committees
across the state that the PDC can allow itself to be used, “under color of law,”
to attack people on the basis of political affiliation, without solid proof of
an actual violation of the law.
Meanwhile,
although she no longer works for the school district, former superintendent
Nancy Stowell was defended in Case #12-145 by Paul Clay, a lawyer for the
school district. (Paul Clay’s firm represents educational institutions and is
under contract to Spokane Public Schools.) Although teacher Jennifer Walther does work for the school district and
pays dues to the union, the school district and the Spokane Education
Association denied her access to legal representation through them.
Public Disclosure Commission contention: Laurie Rogers made mistakes in her submission to the PDC
The PDC
criticized me (after the fact) of not doing a perfect job in submitting my
complaint. I did my best, given that there are no clear guidelines or rules for
making a PDC complaint. Certain words such as “informational” and “promotional”
are not clearly defined. There is only a fill-in-the-blank form on the PDC’s Web site.
If the PDC had called me and asked me to redo the complaint, I would have done
so, but they never asked me or gave me that opportunity.
For my
last submission of evidence, which the PDC report criticizes as largely
irrelevant, the records were provided as the district gave them to me, in PDF
files. However, I gave the PDC a detailed
list of the exact records they should review. Stutzman and Perkins never
provided me with guidance other than to not send anything irrelevant. (It would
have been helpful to have known what they considered to be irrelevant.) They also
never told me about a five-year statute of limitations. Even if they had, the
last installment of records I provided was to show a pattern of conduct by the
school district leadership.
I contacted the PDC
a few times over the course of its two and a half years of investigation to ask
for a status update. After one of the requests, Tony
Perkins wrote on Jan. 8, 2013 (bolding added):
I’m
afraid I won’t have any other information to share until the PDC’s
administrators determine the disposition of the case—whether to issue charges,
or to seek dismissal of the complaint. At that point, you’ll receive prompt notification of whatever
action our administrators take.
But I
was not notified “at that point.” In
December 2013, without informing me, the PDC began sending out letters to
district employees. When
I asked on Dec. 19 for an update; the PDC response said nothing about the
letters. I was not notified about the allegations concerning me, nor allowed to
respond to them.
On Feb. 4,
2014, I again asked the PDC for a status update, now aware that letters had been
mailed to school district employees. On Feb. 7, Perkins wrote: “As I’ve said
previously, we’ll notify you when PDC administrators take action on your
complaint.” I asked him what he meant by “action.” On Feb. 12, Perkins wrote:
PDC
administrators can take action on your complaint by scheduling an enforcement
hearing and issuing a notice of administrative charges to Spokane Schools
officials, or they can schedule a report to the Commission in which they
recommend another action (e.g., dismissal of the complaint). You’ll be
notified either way.
It
appears to me that action had already been taken but that the PDC was not
forthcoming with me.
(3) The respondent shall be notified of the date of
the adjudicative proceeding no later than ten calendar days before that date.
The notice shall contain the information required by RCW 34.05.434.
The complainant shall also be provided a copy of this notice.
I have never received a “copy” of the notice with the information required by
RCW 34.05.434.
On
Friday, February 21, 2014, Stutzman
finally emailed me about the hearing on February 27. This email arrived
just six days before the hearing. Stutzman wrote nothing about the accusations
and criticisms of me in his public document. I was not invited to testify or
attend. I was not told that PDC hearings are public meetings. I was not told I
could submit evidence up to and including five days before the hearing. I was told only
that I could listen to the enforcement hearing online.
Enforcement hearings are governed by RCW 34.05, the
Administrative Procedure Act. According to
RCW 34.05.449,
“all parties” have “the opportunity to respond, present evidence and argument, conduct
cross-examination, and submit rebuttal evidence. . . .” In addition, “all or
part of the hearing may be conducted by telephone, television, or other
electronic means. Each party in the hearing must have an opportunity to
participate effectively in, to hear, and, if technically and economically
feasible, to see the entire proceeding while it is taking place.”
Only
the Respondent and PDC staff are parties to an enforcement hearing. Each
party, at its discretion, can call witnesses to testify. If a citizen
wants to speak at an enforcement hearing, he or she needs to appear in person
at the hearing and ask the Chair of the Commission for permission to
speak. The Chair will decide whether to allow the citizen to address the
Commission.
The PDC had made allegations against
me, but I was again not informed. I could have dropped everything and raced to
Olympia, yet still have been denied the opportunity to speak in my own defense.
The PDC hearing was televised online through TVW, but it suffered
substantial technical difficulties for the first half-hour. The audio was
garbled with multiple echoes and feedback loops throughout. I recorded it, but
I have no idea of what was said during the first half of the hearing.
I don't know if the PDC recorded the hearing. Tony Perkins was told in the hearing about the technical difficulties, but in his Feb. 28 email to me, he didn't mention them or offer me an audio of the hearing.
From the
Stutzman/Perkins report, citizens across the state will see that it’s now dangerous
to file a PDC complaint, that respondents and their lawyers have a greater
access to PDC officials than the complainant, that good intentions can be used
against those who file complaints with the PDC, that innocent people can become
ensnared in a noble effort, and that the PDC can accuse the innocent and let
violators off easy.
Consequences if the PDC report
and the Commissioners’ Feb. 27, 2014, decisions stand
-
Officials who engage in egregious violations of law can expect to suffer no more than a few hundred dollars in penalties.
- The PDC can offset, downplay, ignore, and mitigate evidence of wrongdoing.
- The PDC can accept flimsy excuses and dismiss acknowledged violations of law, even if respondents offer a defense that is illogical, insensible or not lawful.
- The PDC can absolve respondents of a consequence for violations if respondents claim ignorance and promise to do better in the future.
- PDC officials can assist violators by judging activities that are in violation as being “normal and regular.”
- The PDC can, without a formal process, allow respondents to become complainants and turn complainants into the accused.
- The PDC can use its office, “under color of law,” to attack citizens, without a formal written complaint and without solid evidence of actual violations.
- The PDC can, “under color of law,” accuse people of political associations and find them in violation because of those associations.
- The PDC can accept unsubstantiated accusations as if they are factual evidence of wrongdoing.
- The PDC can, “under color of law,” attack or imply impropriety on the part of whistleblowers and bystanders, without offering them notice or an opportunity for explanation or self-defense.
- The PDC can engage in selective enforcement, treat individuals differently, and penalize them accordingly. It does not need to be consistent in interpreting the law or in assessing punishments.
- The PDC can violate with impunity its own protocols.
Conclusion
The PDC
decisions regarding Case #12-145, if allowed to stand, will have a chilling
effect on this state’s open-government laws. Those laws are already are difficult
to enforce; the PDC report makes it clear that those who file reports against
agencies are at substantial risk of being turned into the accused.
The PDC has accepted school district campaigning as normal and regular
activity; accepted unsupported excuses for violations; and reinterpreted the
law without citations to the law, the rules or case law. From now on, it will
be okay to not know the law, to fix things “retroactively,” to enforce the law
selectively, to implicate whistleblowers and innocent bystanders, and to not
provide evidence of violations of the law.
It’s hard to understand. Is this the country these people want their children to
live in? A country with no clear legal standard, laws that are applied
unequally and inconsistently, laws that are impossible for citizens to understand
or follow, and laws that are used against the innocent and the whistleblowers?
We call that kind of country a tyranny. The PDC has dragged Washington State into
very dangerous territory.
A full and thorough investigation of the PDC, especially its investigation of
Case #12-145, not only is warranted, but is critically
necessary to the future of Washington State, including the future of those who would
cheer its decisions.
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