March 15, 2022: The Sammamish City Council owes its citizens a full and transparent accounting of the Dave Rudat mess. In fact, there is an overriding public interest to do so.
There is a cover-up that is keeping all the sordid details out of public view. The Settlement Agreement approved on a 4-2 vote in which Rudat, the City Manager, receives an estimated $300,000 golden parachute raises questions whether the council entered into the agreement to cover up charges by Rudat’s supporters of malfeasance on the part of most of the previous council. Six of the seven members of the previous council—Christie Malchow, Chris Ross, Ken Gamblin, Kent Treen, Pam Stuart, and Tom Odell—deny the accusations. Karen Moran did not respond to Sammamish Comment’s inquiry.
Malchow, who was deputy mayor when the investigation of Rudat began and one of its chief supporters, is now mayor. She has mishandled this entire affair. The object of scathing criticism during the probe, fellow council members said she chickened out when it came to the first vote in November whether to fire Rudat or suspend him. Bowing to criticism, fellow council members said she counted the votes and realized she would not prevail—so rather than vote to fire Rudat, she supported suspension instead.
Malchow said the information presented to the council only supported the suspension.
But how is the public to know? The Sammamish taxpayers funded the hiring of two outside counsels to conduct the investigation and another to represent three minority council members who opposed the probe from the start. The total cost has not been tallied, but it is certainly in the tens of thousands of dollars, as the investigator alone charged the city more than $30,000, the agreement shows
Estimated cost of the probe, settlement
With an estimated $300,000 settlement to Rudat—who Odell moved to fire for cause, which would have meant no settlement—the cost of this probe alone may be near $400,000. Taxpayers have a right to know the facts leading to this settlement.
Taxpayers also have a right to know whether any of the allegations made by Rudat supporters that the council members were guilty of their own ethical violations are true. The investigative report may prove or disprove these allegations, for which no evidence by those making the charges has been provided.
Last week, the City finally responded to The Comment’s Public Records Request (PRR) for the reports by saying it was exempt from public disclosure because of attorney-client privilege and work product. The Comment learned that on November 15 last year, outside counsel Jayne Freeman wrote the City counsel the study had been completed and it was covered by the attorney-client privilege.
Attorney-client privilege binds an attorney to confidentiality to protect the client’s interests. The privilege belongs to the client and the client can waive it. In this case, the client is the City of Sammamish. The City Manager, Rudat, has the power to waive the privilege and make the investigation report, which he claimed exonerated him, public. Why hasn’t he?
The City Council can also direct the City Manager to waive the privilege. Why hasn’t it?
Series of City Manager terminations
Then there is the question of overpaying terminated City Managers. Dave Rudat is getting six months of severance pay on top of his contract six months’ severance. Lyman Howard got six months on top of his six months contract severance. Rudy Rudometkin got six months on top of his six months contract severance.
The City Council is by contract allowed to terminate it without any reason, just like any other employer in Washington, which is an “At Will” state. Neither Rudometkin nor Howard were subject to disciplinary action and no wrongdoing was charged against them – so they were due a six months severance pay.
Each collected about $300,000, or 12 months’ worth of severance, in order to not sue the city. But on what claims?
Settling over litigation
It seems like the City Council factors the cost of litigation into paying off the terminated city managers. But should it? How can taxpayers know what exactly these city managers were paid for if no claim was made public? It seems like the City Council is negotiating against itself, and now all a city manager has to do is threaten litigation to collect double the severance pay.
But threatening litigation and bringing one are two different stories. Bringing a lawsuit requires good faith claim and can subject a frivolous litigant to sanctions and fines. In many contracts, the prevailing party collects its attorney fees from the losing party. It seems wiser for the City Council to include such provision in future contracts – it will serve as a deterrence to empty litigation threats.
In Rudat’s case, at least two council members (Odell and Stuart) thought he should have been terminated for cause, meaning the council members believed some wrongdoing was done. In that case, no severance was due. The only public claim Rudat made was a bizarre conspiracy theory during the December 14 Council meeting against the whistleblower, The Comment’s editor, Miki Mullor, and Council Members Odell and Malchow. Rudat’s claims, even if true, do not exonerate him from the alleged wrongdoing the investigator found. Did the City Council decide to pay him off to avoid the public drama Rudat and his supporters were likely to cause? Is that a good use of taxpayers’ money?
If not, and there was a legitimate reason for the payoff, the public deserves to know.
Back to public records request suppression
Why did it take 16 weeks for the City attorney to tell The Comment the investigation reports were an attorney-client privilege and would not be released? It was so-labeled November 15.
Other documents, including a text message and emails requested by The Comment, took 70-90 days to produce. In the case of the text message, Malchow produced it to the City the day after our PRR was filed—but the City didn’t produce it for 69 more days.
Other documents requested by other citizens, The Sammamish Independent and The Seattle Times, took similarly long times to produce.
It takes little imagination to conclude that the City has been engaged in stalling tactics that amount to a cover-up.
Malchow, now the Mayor, declined to comment whether the taxpayers deserve a full accounting and the release of the investigative reports. Malchow frequently City confidentiality reasons relating to privileged information obtained in Executive Session for doing so.
But in this case, it’s a convenient excuse. Malchow surely can say whether the public has a right to know without breaching Executive Session information.
Among the questions to be answered are:
- What did the investigation reveal? Rudat claimed he was exonerated. If so, why not release the supporting documents to prove this?
- To what extent did Rudat share or allow a “Family Member” to obtain information that was legally privileged in connection with a lawsuit or confidential data from Executive Sessions? And was this the result of an innocent, careless set of acts, as Rudat claims, or was there intent?
- Were there breaches of Executive Session information by Council Members, as claimed by Rudat and his supporters? Six of the seven previous Council Members say they didn’t share information. Does the investigation confirm or deny this, or is it silent? And what of the seventh member, Karen Moran?
- There is suspicion that the reports contain politically damaging information against Moran and Treen. If they do not, releasing the reports would dispel this suspicion.
- Did the City’s insurance company dictate that a settlement was cheaper than defending a lawsuit and risking a costly judgment for Rudat?
The City Council can waive attorney-client privilege. Why won’t it?
So can Rudat, as city manager (he’s in office until March 31), which if the reports exonerate him, one thinks he would. But he won’t. Why?
Former Council Member Odell filed a complaint with the State Attorney General’s office seeking an investigation of the entire sordid affair and full release of the investigation reports. He is spot on.
The City Administration and City Council are engaged in a cover-up. This is the long and short of it.
Written by Scott Hamilton, founder of Sammamish Comment, with contributions by Miki Mullor, editor of Sammamish Comment.
Copyright (c) 2022 The Sammamish Comment