April 11, 2022: Sammamish Mayor Christie Malchow, who is the swing vote on whether to release the ethics investigation report about former City Manager David Rudat, is now firmly in the camp of keeping the report secret.
Malchow, whose first term in office heavily focused on transparency, is the key vote in covering up the details of the ethics probe that cost Sammamish more than $300,000 to Rudat in severance pay, a golden parachute, benefits and legal costs.
Why? Malchow says, “What I did not verbalize at the vote was I’m trying to look forward, not backward. It is critical this Council be forward thinking for the benefit of our residents and the staff that serve them. We have a new city manager position to fill, staff to provide some stability to, and if we are looking in the rear view mirror constantly, how will we assist ourselves in filling that city manager void and how can we possibly move forward to get city business accomplished for our residents?”
News Flash to the Sammamish City Council and to Mayor Malchow: Until the ethics report is released, this story won’t be relegated to the past.
Drip, drip, drip
Information has been dripping out and will continue to drip out, drop-by-drop. A court action by Rudat’s daughter, Stephanie, against Sammamish Comment editor Miki Mullor revealed the details of Mullor’s ethics complaint that started the investigation. Public Records Requests that had been stalled for months while Dave Rudat was city manager are finally being produced. In them are records revealing damning information against several council members—including a flip-flop by Malchow over access to the ethics investigation.
Malchow said that “I voted against it for the reason stated by [Council Member] Moran during the vote; this would be a precedent setting method for attorney-client work product distribution.”
First, so what? The entire Rudat investigation was unprecedented. But keeping the report away from fellow council members is mind boggling.
Second, the council has been down this path before. Last November, when city councils and other bodies across the state were prohibited from meeting in person by Gov. Inslee’s emergency COVID-related order, outside counsel Jayne Freeman initially FedExed the 44-page report to the council for review before an executive session. The ensuing rhubarb—with then-Mayor Karen Moran and then-Council Member Ken Gamblin leading the opposition—protested distributing the report. The outside lawyer initially wrote the council on Nov. 1 that she would be sending information by FedEx to all members in preparation for a Nov. 5 executive session. No council member objected until after the mailing took place Nov. 3, but before receipt.
In the subsequent back-and-forth, Malchow, then deputy-mayor, wrote:
“Tom [Odell, then a councilmember] asked me about these documents and what I told him was to seek the advice of our attorney on dissemination of documents. I didn’t say yes or no to them just simply that we should ask for her advice and follow that. I don’t know what that advice was, but presumably she didn’t see issue with disseminating documents. We do not have Council rules that prohibit documentation being disseminated, it’s the RCWs that drive what you can and can’t do with documentation produced in executive session and if they become a public record. Which is why when we disseminate documents during executive session under normal circumstances, staff then takes them back with them. We would need Janie’s [the outside counsel] guidance to make sure we are following the RCWs and not creating public records, which is what I think the unspoken fear is here. (Emphasis added.)
“I’d like Janie’s opinion on disseminating the docs in advance as it pertains to Executive Session, the RCWs guiding the creation of a public record by its dissemination in advance, and if it’s a record regardless as the taxpayers funded its creation. Without Janie’s guidance here, we are hypothesizing risks that may or may not exist.”
Freeman, the outside lawyer, wrote, “I did not receive any response to my November 1 midday email below before my office mailed documents via Fed Ex to you the next day at 4:30p.m., but this morning have received conflicting information regarding whether the City Council wants any documents or information presented prior to Executive Session or only during the Session.”
Sammamish Comment reviewed the applicable RCWs, the Revised Code of Washington state, and there is nothing specifically on point prohibiting dissemination of materials subject to executive session or attorney-client privilege, if done by agreement. Only unauthorized dissemination of information is subject to sanctions.
Parenthetically, former council member Pam Stuart was sanctioned by the council in place at the time for unauthorized disclosure of executive session material. (Stuart denied doing so.) She was banned from attending five executive sessions. However, the RCWs made it clear that only by a court order could a sanction be imposed. The council’s action—which Malchow supported—was illegal.
Malchow wanted a physical copy
In a Nov. 12 email, Malchow wanted to hold a physical copy of the report—a request like that of Howe.
“I’d like to know if there’s any way to either get the summary, or have Janie or Kathy physically come to City Hall Tuesday with it. This is a matter where I need to hold and read a document at my own speed & not have it read to me to arrive at a conclusion. How do we make this happen?” Malchow wrote.
Howe, in her motion, wanted her and other council members who were new (Amy Lam and Kali Clark) to have the documents to read. Although her motion would have been like the original dissemination, the intent to read a physical copy was the same that Malchow had five months earlier.
Blocking public access
Malchow’s earlier email also makes it clear that the council’s intent was to keep the report out of the public record.
“We would need Janie’s [the outside counsel] guidance to make sure we are following the RCWs and not creating public records, which is what I think the unspoken fear is here.”
So far, the cover-up preventing the release of the ethics reports continues, with Malchow emerging as the swing vote to bottle up the reports. But if the council—and Malchow—think that stonewalling will kill the story, just ask Richard Nixon and Donald Trump how that worked out for them. Nixon wound up resigning his office. The outcome for Trump remains to be seen. Sammamish City Council members are no better than presidents of the United States.