The Gristle

Of Blackberries and brambles

Tuesday, January 10, 2012

OF BLACKBERRIES AND BRAMBLES: Whatcom County Council got back to work this week, making committee assignments and approving legislative calendars, no doubt preparing another set of do-overs to undo last year’s do-overs… and covering their bottoms freshly nipped by state watchdogs.

The Washington State Auditor’s Office—empowered by citizens to regularly perform accountability audits of local governments and taxing authorities—issued an advisory to county management in November, finding weakness in the way the county tracks and manages small capital assets such as laptop computers and video cameras. The office also noted several violations of the state’s Open Public Meetings Act (OPMA) in council communications.

“We identified three occasions in which County Council members sent email to the full council,” Audit Manager Sadie Armijo noted in a letter to county officials. “On two of the occasions, a council member responded back to full council. Email exchanged among council members discussing business with a quorum present meets the definition of ‘action’ of the governing body under the Open Public Meetings Act, which requires such meetings to be open to the public,” Armijo.

Each involved council conducting public business through email back channels; and each revealed a lack of clear, simple county policy regarding electronic communications and public disclosure. The Gristle logged several of these exchanges as they occurred, but it’s worth reviewing them in light of the findings of an independent audit.

In February 2010, council exchanged thoughts on the funding of Whatcom County Superior Court, the only county department that has routinely blown past its budget over the past several budget cycles. Council President Sam Crawford triggered the exchange, broadcasting his impatience with an increase in court costs of more than $1.25 million from 2005 to 2008.

“That’s a whopping 30.4 percent increase (over 2005), and doesn’t include the 2009 breakout of the drug court,” Crawford noted. “Unless there’s something I’m missing here, it’s time for the leadership in our court system to work with the resources we’ve allotted and commit to a positive result for our community.”

Crawford triggered a similar exchange in September 2010, the Auditor’s Office found, when he invited an open discussion of proposed zoning changes to the Rural Element of the county’s Comprehensive Plan.

Although not detailed in the Auditor’s report, Crawford’s glibness on his Blackberry has dunked the council member repeatedly in hot water. Crawford survived a review by the County Ethics Commission after he allegedly deleted an email that suggested a backroom deal on the Caitac rezone north of Bellingham. Freshly smarting from that, Crawford sent an email in April to selected county residents describing a proposed rural rezone, instructing that they delete any evidence the information came from his personal email account, as well as his (knowing) instruction to delete the instruction. Under state law, council members’ emails are considered public records, subject to release through a public disclosure request, even if they’re written and sent through a council member’s personal email account. Crawford later apologized.

The third exchange was triggered by a public weblog post by Council member Ken Mann, also in September 2010, complaining of a burdensome public records request. The request was indeed broad, but was prompted by a citizen’s concern over exactly the kinds of shennangians described above—that council business was being conducted in a non-transparent fashion, in violation of OPMA. Mann’s exasperation triggered a nastygram from Barbara Brenner to all her council colleagues, screeching about the “disgusting,” “foul,” “ludicrous” attempt by a citizen and voter to learn more about her county government.

“I am a big supporter of protecting the ‘public’s right to know,’” Brenner ranted, while seething at the request’s “voyeuristic, power tripping ends.”

Mann recoiled at the backlash his blog post received from unsympathetic readers, and he scheduled a session where council might receive guidance from the county’s legal department on some simple, bulletproof procedures and policy on how they might process communications in the future. The prosecutor’s office was singularly unhelpful in this request (“it’s complicated”), which might have been so simple as to advise council members to file a copy of their public discussions with the council office.

It seems clear the public’s interest may be illuminated and expanded by these communication tools, where elected officials may express aloud, and with some reflection and detail, their thoughts on matters of policy. These tools can deepen and enrich the interactions of elected officials with citizens and voters. Blog posts and widely broadcast emails allow us to peer into their deliberations, and a sanction against these communiques would only chill the discussion without reforming the underlying concern that “insider trading” and underground dealmaking goes on among a quorum council members outside of public scrutiny.

Council policy may be assisted by recommendations forwarded to the state Legislature this week by the Washington Coalition for Open Government.

“Many violations of the Public Records Act are caused by ignorance, not subterfuge,” WCOG reported in their brief. “But ignorance can be costly when government is sued for public records violations.”

Among other improvements, the organization recommended treating electronic records the same as public records when it comes to retaining and handling them. They recommended restoring the original intent of the attorney-client privilege exemption to exempt mere speculation that legal action could arise from sought-after information, a charge that has commonly thwarted records requests by Whatcom residents. They also recommend training on procedures, to help keep Sam’s Blackberry out of the brambles.

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