Special Report: (10 pages when printed.)

• Council Members routinely used private email accounts for City-related business.
• Expansive Public Records Request during 2015 Council elections brought issue to fore.
• One Council Member, acting as a private citizen, demanded emails on private account from another Council Member.
• The City Attorney, paid for by tax dollars, became de facto attorney for the “private citizen” Council Member.
• Two Council Members subsequently failed to produce emails from their private accounts.
• One of the two Council Members failed to produce emails from her private account again in 2016 pursuant to a PRR.

Hillary Clinton’s email was a story that wouldn’t die in the presidential campaign, dogging her right through the Nov. 8 election.

The City of Sammamish has its own problems over emails. Council members routinely used private emails for city business and when it comes to complying with the Washington State law for Public Records Requests (PRR), some members aren’t always forthcoming with documents.

One City Council Member was explicit that a controversial topic should be discussed using private emails to avoid public disclosures through City emails.

The City Attorney’s position on compliance in responding to Public Records Requests appears inconsistent.

The issue is about transparency in government and complying with the law.

Requirements to hand over emails from personal accounts is well established in Washington State. A Bainbridge Island case is illustrative. See here and here.

Failure to disclose

Sammamish Comment discovered on two occasions that at least two City Council Members failed to produce city-related emails from their private accounts pursuant to PRRs. It was only because The Comment had prior knowledge of the existence of one email and subsequently specifically asked for this email that it was produced.

In an earlier case, a third City Council Member produced emails from his private account that included communications with two other Council Members to and from their private accounts. The two Council Members did not produce the same emails under the same PRR request until after The Comment threatened to file a complaint with the State Attorney General’s Office.

The issues in Sammamish over the use and production of private account emails aren’t new.

Eastside Fightfighters Union vs Sammamish

In 2013, Sammamish officials studied whether to withdraw from the Eastside Fire & Rescue (EF&R) consortium and form the City’s own fire department.

City officials objected to what they considered Sammamish shouldering an unfair share of the costs for operating EF&R, which stretches from Issaquah/Sammamish to North Bend, Carnation and large swaths of unincorporated King County.

Because financial contributions were then based on assessed valuation rather than the number of calls, Sammamish—the richest City in the group based on home values—paid the highest proportion. Sammamish officials said Issaquah had more calls, given its large commercial and senior citizen populations, and should pay more.

Relations between the Sammamish members on the EF&R board and representatives from other areas deteriorated. The poor relations spilled over to the City Council levels. Thus, Sammamish officials began considering leaving EF&R and forming a Sammamish fire department.

Both moves were controversial, leading to a series of City Council meetings packed by EF&R firefighters, their union and members of the public speaking in opposition.

The City Council formed a special three-person committee to study the financial implications. The committee consisted of former Sammamish Council Members Lee Fellinge, Kathy Huckabay and Ron Haworth.

Fellinge and Huckabay were already on record critical of EF&R costs. Huckabay’s preference for leaving EF&R were well known. Haworth, a former fire chief, was also known for being fiscally conservative.

Huckabay and Haworth were original members of the City Council, elected in 1999. Haworth chose not to run for reelection in 2005. Fellinge served six years on the Council before deciding not to seek another term.

Huckabay left the Council in 2012 of her own volition. By 2013, she chose to run again and would be elected in November 2013, taking her seat the following January.

The EF&R firefighters’ union president, Jon Wiseman, led the members’ opposition to leaving EF&R. Wiseman argued that EF&R could provide more services and spread cost better for Sammamish than a stand-alone department.

City officials objected to the cost and governance of EF&R. Ben Yazici, City Manager at the time, followed Council direction to do a financial analysis, but some Council Members privately complained Yazici dragged his feet because he didn’t want to be the one to negotiate a labor contract with a new Sammamish fire department.

Public Records Requests

As tempers flared and the controversies heated up, Wiseman, the firefighters union president, filed a Public Records Request (PRR) for emails and other documents. What he discovered were apparent violations of the Open Meetings Act and extensive use of private emails by Council Members.

Huckabay and Haworth weren’t on the Council then and used their private emails. In some emails, Bob Keller, a Huckabay ally and candidate for City Council in the November 2013 election, was copied. Since he wasn’t yet on the Council, he, too, used his private email.

So did Council Member Tom Odell, who then was serving as Mayor.

Odell, Wiseman’s PRR revealed, wanted to keep correspondence out of the City domain.

In emails dated Oct. 8-9, 2013, Odell responded to emails between Huckabay, Fellinge and Haworth, copied to Keller and sent to Odell’s City email address that criticized him and Council Member Ramiro Valderrama. Odell and Valderrama appeared before the County Boundary Review Board threatening to close Station 83 if Klahanie annexed to Issaquah, another hot issue that ran concurrently to the EF&R debate. Station 83 is commonly called the Klahanie Station, and it is at Issaquah-Pine Lake Road and SE 32^nd. Sammamish owns the station, which then (as now) served the then-unincorporated Klahanie area.

Fellinge, Huckabay and Haworth complained about Odell and Valderrama appearing before the BRB and threatening to close Station 83.

In response to the back-and-forth, Odell wrote Oct. 9:

“This conversation should have taken place on private e-mail. Now that you have hit reply all, it is on the city server and subject to FOIA request and that is almost certainly coming. In the future check the return addresses for me.”

Open Meetings

Many emails about the EF&R provided to Sammamish Comment that circulated during

2013 and even earlier, in 2009, were sent to all City Council members in addition to others. Many of these were innocuous but some were of detailed substance concerning budget and costs issues. One such email, Nov. 20, 2009, was sent from Council Member Don Gerend’s private email address to the entire Council, City Manager Yazici and others, about “Budget and related questions.”

Under State law, including the entire Council could constitute a meeting as defined under the Open Meetings Act, for which in this case and others no public notice was given.

The technical committee held meetings without public notice, the Eastside Fire Fighters union charged.

“[The] OPMA (Open Public meetings Act) requires that meetings of, or on behalf of, a governing body of a public agency, such as the Sammamish City Council, are open to the public. The TAB discussed, evaluated and made recommendations about the future of fire service on behalf of the Sammamish City Council and also is subject to OPMA,” the EFF said in a press release at the time.

Expansive PRR for Valderrama emails

During the heated and bitter Council election in 2015, a Redmond resident, Stephanie Megan Pipes, filed a PRR for all of Council Member Valderrama’s emails from his City and his private email account for all of 2014 and year-to-date 2015.

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Valderrama said at the time he was advised by City Attorney Mike Kenyon that personal emails that were about city business had to be produced. Valderrama had 18 months’ worth of emails to manually go through on his private email account.

Valderrama said he was told by Kenyon to turn over virtually everything in response to the Public Records Request.

The City likewise had 18 months’ of emails to produce for Valderrama’s city email account. It turned out some were corrupted and couldn’t be produced without undertaking technical restoration. One email came from a friend of Valderrama’s that was personal in nature, sent to Valderrama’s City email address by mistake via the Microsoft Outlook auto-populate feature. The sender immediately realized the error and within minutes emailed the City to explain the mistake and asked to delete the email.

It was this email that was one of two objectives for the blanket request, and which became the subject of a subsequent court action.

When the City declined to honor the request to withhold the mistakenly sent, personal email, the sender filed a lawsuit against the City under a Jane Doe name to protect her identity. The City informed Pipes that if she wanted the emails, she would have to hire an attorney to represent her. Pipes declined to do so and abandoned pursuit of the corrupted files and the personal email.

In the meantime, Valderrama had made a circumstantial case that Pipes was connected to Huckabay. He concluded Pipes had fronted for Huckabay, who opposed Valderrama’s reelection, in filing the PRR.

The City joined Doe in Doe v Stephanie Megan Pipes and City of Sammamish in stipulating the emails in question should not be released.

Huckabay pursues Valderrama’s emails

When Pipes declined to pursue further action for the City to produce the corrupted emails, or hire an attorney to seek the withheld email that was personal in nature sent to the City by mistake, Huckabay submitted her own PRR demanding all the emails for which Pipes “changed her mind,” including the corrupted files and the personal email.

Jane Doe filed suit against the City again to block release of the personal email. She also sued Huckabay as an individual.

Huckabay, who has been a public servant for decades in Issaquah and Sammamish, and who is a CPA by profession, is not naïve about the legal system and the need for an attorney when lawsuits are filed. But she didn’t retain an attorney in Jane Doe v City of Sammamish and Kathleen Huckabay (15-2-22321-6). Nevertheless, in contrast to the Pipes matter in which the City informed Pipes she needed to hire an attorney, the City chose to defend the case in court rather than let the matter drop.

Kenyon wrote Sammamish Comment in an email in 2015 that the City was not representing Huckabay. However, an objective reading of the City’s Response reads as if the City was the de facto attorney pleading on behalf of Huckabay, and/or Huckabay was bootstrapping off the City’s legal arguments.

King County Superior Court records dated Nov. 3 and 5, 2015, paint a picture that Huckabay, acting as a private citizen, relied on the taxpayer-funded City Attorney to pursue release of the Valderrama emails.

The Court sided with Jane Doe and ruled the mistakenly-sent email was not subject to public disclosure. In the end, Kenyon billed the City for nearly $4,000 in legal fees. Huckabay, who was without her own attorney throughout the adjudication and who benefitted from the City’s representation, paid no legal fees. It’s not believed she repaid the taxpayer funds expended by the City to pursue her PRR.

While Huckabay pursued Valerrama’s emails from his private account, she withheld emails from her private account in response to public records requests.

Emails and the Initiative

When the City was badgered by Harry Shedd, chairman of Citizens for Sammamish, and Valderrama to put the right of Initiative and Referendum to an advisory vote in April 2015, the Council officially took a neutral position.

Frank Blau wrote Huckabay on her private email what her position was going to be in the coming campaign. Blau then, as now, is on the City Planning Commission, but it was clear he was making the inquiry as a private citizen. However, he did not use Huckabay’s city email address.

Huckabay replied using the same private email Blau wrote to, saying she would remain neutral. However, within days, she began an active campaign opposing the advisory vote. Many of her communiques were split between city and personal email accounts. One crucial correspondence was with the City Attorney, Mike Kenyon.

This exchange came to light when Huckabay sent an email from her private account to this writer after a long expose about her surreptitious campaign against the initiative. She wrote:

Pity you don’t tell the whole story about how, even though required, this group chooses not to file with the PDC….

K

Kathleen Huckabay

Deputy Mayor

Note that she signed the email in her role as Deputy Mayor despite sending this from her private email address.

A subsequent email from Huckabay said the City Attorney rendered the opinion Shedd’s group had to file with the State Public Disclosure Commission for expenditures.

Sammamish Comment subsequently filed a PRR specifically for Huckabay’s emails from her private account with respect to the initiative and referendum. She produced an email from then-Deputy City Manager Lyman Howard forwarding an email from Kenyon that read in part:

I express no opinion whether “Citizens for Sammamish” is required to register and report with the PDC, and cities typically do not involve themselves with those issues.  Any citizen with a concern in that regard is free to make inquiry to the PDC in that regard.  Thanks.  MK

Michael R. Kenyon

Kenyon Disend, PLLC

Had Huckabay responded to The Comment’s article from her city email address, knowledge that she was using her private account for city topics likely would not have arisen. Her city-related correspondence from her private accounts was not produced with the original PRR targeting initiative and referendum data.

Vance, Huckabay and Odell

In October 2015, Sammamish Comment filed a PRR for emails, including from private addresses, from Huckabay, Odell and then-Mayor Tom Vance for “any topic” relating to the city for a narrow period. Some of the information produced subsequently was used in an article about intimidation of supporters who endorsed Valderrama, who was then running for reelection.

All three produced some emails, but Odell produced emails from his private address to Vance and Huckabay at their private addresses that they did not. Among these were emails with environmentalist Wally Pereyra regarding city participation in restoration of Zackuse Creek. Additional emails that Odell wrote to Vance and Huckabay, all on private email addresses, were not provided by the latter two.

Sammamish Comment complained to City Attorney Kenyon about the failure to produce the relevant emails. Kenyon, who told Valderrama he had to produce his emails, was more circumspect when it came to Huckabay doing the same.

Kenyon replied to The Comment:

I’ll start by stating the obvious – the Public Records Act requires a city to provide public records responsive to a request, but a city has no obligation to provide non-public records.  A threshold inquiry regarding all public records requests received by the City of Sammamish is whether potentially responsive documents are public or non-public.  At times, it is quite easy to make the determination whether or not a record is public; at other times, the lines are quite muddy.

…[I]t appears that the City inadvertently included in its transmittal certain of Kathy Huckabay’s e-mails that would not meet the definition of “public records.”  To the extent that either Tom Vance or Tom Odell (or anyone else, for that matter) also retained e-mails on their personal computers that do not constitute “public records,” those e-mails would not be produced in response to a public records request.

Kenyon did not address why Pereyra’s Zackuse Creek emails, clearly related to city business, were produced by Odell but not by Vance or Huckabay.

Nor did Kenyon explain why Valderrama earlier in the year had to produce nearly every email from his personal account but now there was apparently a different standard for other council members.

In the same email, Kenyon defended the City’s involvement in going to court to argue for release of the Jane Doe email mistakenly sent to Valderrama through a Microsoft auto-populate error.

In short, while the law is clear that, “The purely personal e-mails of those government officials are not public records” (Forbes v. Gold Bar, 171 Wn. App. at 868 (2012)), the law is not at all so clear on the correct distinction between public and non-public records.  Just a few weeks ago, the state Supreme Court in Nissen v. Pierce County ruled that the definition of a public record “casts a wide net” and can include “any information that refers to or impacts” government.  Similarly, in Oliver v. Harborview Medical Center, the state Supreme Court ruled that medical records of individual patients in fact constituted public records.  As I mentioned above, at times, the lines are quite muddy.

Thus, the legal interpretation of producing public records in Sammamish appears muddy, indeed, depending on who is involved.

By this time, the Bainbridge Island case was also adjudicated–and directly on point.

Claiming Hornish conflict of interest

Following a tip, The Comment learned that a citizen last year emailed Huckabay and others in the City seeking to disqualify Council Member Tom Hornish from anything dealing with the East Lake Sammamish Trail. The citizen email to Huckabay was to her private email.

In the course of pursuing this tip, The Comment filed a PRR for all emails from May 1 through June 15 concerning the ELST.

The City produced only a few emails relating to ELST and none from the citizen or between the citizen and Huckabay. Huckabay wrote the City that there were no relevant emails on her personal account.

However, given The Comment’s information and belief, a second, specific request was made naming Huckabay and the citizen. This time, the City produced an email from the citizen and Huckabay from Huckabay’s private account. The records production showed Huckabay forwarded the citizen’s emails to the City for discussion about Hornish’s ability to stay involved on ELST issues. The City failed to produce this email in response to the original PRR.

The issue, of course, is that had The Comment not already known of the existence of the citizen-Huckabay emails, these never would have been produced in response to a lawful PRR.

It was clear from the emails obtained through the PRRs that the effort to disqualify Hornish was coordinated. The citizen’s comments were very similar to those of Mark Cross, the unsuccessful candidate for City Council in the November 2015 election and a close ally of Huckabay. Cross also emailed the City questioning Hornish’s conflict of interest.

A comment posted by a reader of The Comment in response to an article about the ELST also used virtually identical language. The reader is the husband of a city employee.

The effort was short lived. City Manager Lyman Howard made it clear that on most issues, Hornish has no conflict.

Hornish no longer to recuses himself on issues surrounding ELST. He was once president of one of the appellants, Sammamish Home Owners, but resigned after he was elected to the Council in November. Some litigation in which he was the litigants’ lawyer has been settled or withdrawn. He’s withdrawn as the lawyer in other lawsuits.

He’s obtained legal opinions, including from Kenyon, that he doesn’t have a conflict. The City Manager, Howard, also said so in an email to the citizen raising the question.

Hornish expects another effort through Huckabay or her friends seeking his recusal on trail issues now that focus has shifted to the middle portion, Section 2B, on which Hornish lives.

Long history of personal email use

The use by City Council Members of personal email for city business goes back years and it continues today.

Former member Nancy Whitten made it a practice of either forwarding any city-related emails she received on her personal email to her City address, or adding her City address to any reply. Current Council Member Christie Malchow follows the same practice. But other Council members don’t.

For years, at least a decade, the City did not issue Planning Commissioners city email addresses. All communications went to and from Commissioners’ private emails. More recently, Commissioners have city email addresses, but it’s unclear when this change happened. It’s also unclear if other city committees, such as the Parks Commission, Arts Commission and others, have city email addresses.