Legislature should look into the PDC's investigation of Spokane Public Schools

By Laurie Rogers

 

(Note: This is a VERY long blog post, but this is what it takes to properly tell the story of the PDC's investigation of Case #12-145 regarding Spokane Public Schools. A PDF of this article can be found here. I encourage you to forward it to legislators and ask for a legislative investigation of the Public Disclosure Commission. It's my belief that, left unchallenged, the long-term negative consequences of the PDC decisions on Case #12-145 will last for generations.)

“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.

Here is a link to some of the district records the PDC officials cited as showing activity reflecting a violation of RCW 42.17.130.

I sent other records to the PDC that ultimately were not cited. Here is a link to some of the other records.
 

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

 KIDS Newspaper is a free periodical that Spokane Public Schools distributes each month of the school year in elementary schools. It is not a school district publication. In September and October 2011, the periodical carried paid union endorsements of three candidates for public office, including school board candidate Deana Brower. Brower’s campaign manager, according to The Spokesman-Review, was school district administrator Kevin Morrison. Brower and another union-endorsed candidate narrowly won their race that November.

WAC 390-05-290 says (bolding added):

(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.

According to WAC 390-18-010:

(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.”

On October 22, 2011, the local newspaper ran an article titled “Union broke law with Kids News ad.” In the article, Jenny Rose took responsibility for running the ads. But on Nov. 16, 2011, Jenny Rose wrote to an employee about the newspaper coverage:

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.

According to WAC 390-32-030 :

(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.”

On Feb. 24, Stutzman answered my question about citizens testifying.

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.

 

Please note: This information is copyrighted. The proper citation is:

Rogers, L. (March 2014). "Legislature should look into the PDC's investigation of Spokane Public Schools." Retrieved (date) from the Betrayed Web site: http://betrayed-whyeducationisfailing.blogspot.com