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UPDATE | City officials stay mum on public records lawsuit
Members of the Bainbridge Island City Council named in a public records lawsuit declined to comment on their legal troubles Tuesday, saying they had not yet reviewed the complaint that was filed in Kitsap County Superior Court.
"Obviously, with a lawsuit, I don't have any comment. And particularly since I haven't seen the lawsuit," said Mayor Steve Bonkowski.
Bonkowski and two other members of the city council — Councilman David Ward and Councilwoman Debbi Lester — were also named in the lawsuit.
Ward declined to talk about the suit, as well.
"It would be inappropriate for me to comment on it as I haven't seen that," Ward said.
Lester did not respond to a phone call and email from the Review seeking comment, and City Manager Doug Schulze did not respond to a phone message early Tuesday.
Two Bainbridge Island residents filed the lawsuit against the city and the three council members this week after they said the city and the council members did not release public records that were sought from the council members' personal email accounts.
In the lawsuit, Bainbridge residents Althea Paulson and Bob Fortner said the city's governance manual requires council members to use only their city-supplied email account when sending or receiving emails that are public records, and that some members of the city council had been using their private emails to talk about city business but did not forward those emails to the city as required.
The city, in turn, was unable to provide the emails when Paulson and Fortner requested the records under the state's Public Records Act, despite repeated requests by city officials that asked the council members to provide those public records.
The lawsuit also claimed that Bonkowski, Ward and Lester would not let city officials inspect the hard drives of their personal computers so the public records could be retrieved.
Paulson also noted that Bonkowski had earlier admitted that he had deleted messages that he had received.
The lawsuit came after a nearly two-month wait for the records.
Paulson submitted her public records request on June 28, and said Tuesday it was a difficult decision to take the city to court over the issue.
"It was really hard. I agonized over it, and so did Bob," she said.
"No one wants to sue the city, especially when the city employees have been so cooperative," said Paulson, the former co-publisher of the Bainbridge Buzz news website and a blogger who writes on Bainbridge politics.
"Open government problems have been cropping up with these folks for the last year and a half or so," Paulson added. "We finally just decided the only step left was to file a lawsuit."
Fortner helped run the campaign to change the city's form of government in 2009 from the council-mayor model to the city manager-council model. He recalled how the city adopted a governance manual afterward that defined what the city and community expected from its representatives at city hall.
"It's comprehensive, it's thorough," Fortner said. "It draws a bright line between what the council does and what the city manager does."
The lawsuit alleges that Bonkowski, Ward and Lester have not been abiding by the policies set forth in the manual on council members' use of personal email accounts.
Fortner recalled how members of the council received an extensive briefing on the governance manual during a council retreat last year.
"I sat there and watched everybody agree that they would abide by the governance manual. And that hasn't happened," Fortner said.
The manual also spells out the requirements of the state's Public Records Act, he added.
The lawsuit was a last resort, he said.
"It is very hard," Fortner said. "I really respect what is happening at the administrative level of the city. But the laws of the state of Washington really don't give you much choice when you are up against something like this."
The lawsuit asks the court to order council members Lester, Ward and Bonkowski to either produce all the emails that were covered by the earlier public record requests or submit their computer hard drives for examination.
The suit also seeks unspecified damages, costs and attorney fees under the Public Records Act, which provides for fines of up to $100 a day for records that are wrongfully withheld.
Council members' use of their private email accounts to talk about city business became an issue earlier this year after the Review reported that Ward, Bonkowski and Councilwoman Sarah Blossom had been using their private email accounts to correspond about city issues.
The emails between council members showed that elected officials had been corresponding about the appropriateness of adding a new employee to the city’s surface water utility, and whether the Utilities Advisory Committee must abide by the state’s Open Meetings Act.
While Blossom provided emails from her private account in response to a public records request by the newspaper; Ward and Bonkowski did not.
Paulson later filed a request for the same records, and made an expanded request that covered more than 4,000 emails.
She later narrowed her request for emails where city employees or their work was criticized or discussed by council members.
Paulson wrote extensively on her blog about what she found in the emails that the city did provide, and she wrote that those included "behind-the-scenes strategizing and advocacy among some Utility Advisory Committee (UAC) members, frequent emails about city business from UAC Chair Arlene Buetow to certain council members’ personal email addresses, testy exchanges between Buetow and City Manager Doug Schulze, and scorching criticisms by Buetow of city staff, UAC colleagues and citizens with whom she did not agree."
In the lawsuit, Paulson said she had received emails from Blossom's account that had been sent to Bonkowski, Ward and Lester. Three "inconsequential" emails from Ward's private account were also provided.
Paulson noted that she was not given emails known to exist — such as those from Blossom to fellow council members — that had gone to Bonkowski, Ward and Lester.
Paulson told the Review Tuesday that the city has recently provided several emails that were sent to the personal email accounts of Councilwoman Anne Blair and Councilwoman Kirsten Hytopoulos. Those emails were turned over by Blair and Hytopoulos after city officials asked the council members to check their private email accounts for any correspondence on city issues they may have received.
In one case, the email was a forwarded email chain from a citizen to council members. In the other case, the council member resent an email she had already forwarded to her city account.
"They weren't particularly relevant to what my request was about," Paulson said.
The lawsuit was filed this week after the pair thought that the requested records would not be supplied.
Paulson said she met with Schulze, the city manager, and Interim City Attorney Jim Haney in mid-July in an attempt to get the emails released. The possibility of a lawsuit was mentioned then, she said.
"We laid our cards on the table they knew what we were thinking at that point," she said.
"Their hands are kind of tied," Paulson added, noting that it was up to the council members named in the lawsuit to release the records.
Paulson has been involved in two previous lawsuits over city records. Both times, she was sued by city employees after she requested records relating to employee performance.
One case was settled after Paulson received the records she was after. The second case went all the way to the state Supreme Court, where Paulson's side also prevailed.
Both Paulson and Fortner said they hoped the lawsuit would not be dragged out in court.
If the records are provided, Fortner said, "then the lawsuit goes away."
"I hope we can settle this promptly and everyone can be more compliant in the future," Paulson said.