The city of Bainbridge Island has been offered a settlement in the public records lawsuit against the city and three council members.
But after one closed-door executive session on the lawsuit last week, and another set for the council this week, the offer is still sitting on the table.
Althea Paulson and Robert Fortner filed a lawsuit against Bainbridge Island and council members Steve Bonkowski, Debbi Lester and David Ward on Sept. 10, that claims the city and the council members failed to turn over public records that had been requested by the two government watchdogs.
Paulson and Fortner had asked for emails the council members sent and received from their personal email accounts, and while the city did release some documents, the pair said the three council members withheld emails that should have been released.
The lawsuit also quoted an email written by Bonkowski where he admitted deleting emails that he had received.
The three council members have declined to talk about the lawsuit. Last week, the council met in an executive session closed to the public to talk about the lawsuit and the settlement offer. Another executive session is planned for Sept. 18.
The settlement offer is no surprise. Earlier this month, both Paulson and Fortner said they were willing to drop the lawsuit if the city and council members released the public records they had earlier requested.
Dan Mallove, the attorney representing Paulson and Fortner, tendered a settlement offer to City Attorney Jim Haney on Sept. 4.
In the settlement offer, Mallove said the pair would drop the lawsuit if Bonkowski, Ward and Lester agreed to turn over the hard drives of their personal computers to the city for an independent, third-party inspection for emails that should have been released.
The lawsuit would be dismissed, Mallove told the city attorney, if the city then released any emails that were found that were subject to the state's Public Records Act.
Lawyers for the city have since filed a motion in Kitsap County Superior Court to have Bonkowski, Lester and Ward dismissed from the lawsuit, which named them as members of the city council and as individuals.
In the court filing, Jessica Goldman, an attorney for Summit Law Group, and Ryan Vancil, the attorney representing Lester, said the Public Records Act does not permit lawsuits against private citizens.
They also said that ordering the council members to turn over their personal computers or hard drives would violate the council members' constitutional right to privacy.
"No legal authority exists for the sweeping violation of privacy demanded here," lawyers for the council members said in their motion to dismiss.
But Mallove, the attorney for Paulson and Fortner, said elected officials do not share the same level of privacy that an ordinary citizen should expect.
"I think it's a very interesting and challenging legal issue because I believe that these three individuals are not acting as mere private citizens," Mallove said.
"They are acting as publicly elected officials, and when they run for public office and accept public office, they agree to be bound by the city's governance manual and by the requirements of the open Public Records Act," he said.
"Essentially I think these individuals don't have the same privacy rights as a private citizen would," Mallove said.
The attorney also said the three council members willfully violated the city's governance manual and are also trying to circumvent the state's Public Records Act.
The city's response to the lawsuit does not mention the city's governance manual, which sets out a code of conduct for city officials. In the manual, adopted in 2010 and updated last year, council members are told to use only their city email accounts for messages that relate to city business or performance, and to stop using private email accounts for sending or receiving messages that meet the definition of public records.
The manual also instructs council members to preserve copies of emails relating to the council's work and to forward those messages to the city clerk.
Mallove said the three council members should not be trying to shield their communications from the public.
"They initially chose to conduct city business using their personal email accounts," Mallove said. "I don't think they should be able to circumvent the requirement that government be conducted in the open and for the benefit of the public."
City officials estimate they have found 4,149 emails that may be related to the record requests made by Paulson and Fortner, though only a portion of those emails have been released so far.
Some of the already released emails show Bainbridge citizens contacting the three council members repeatedly in recent years to talk about city business, and some of those emails were also sent to other members of the council. Some emails also show a majority of the council members — Ward, Bonkowski, Lester and Sarah Blossom — were receiving messages on their personal email accounts related to city business or potential council undertakings.
It's obvious, given that Blossom has turned over personal emails that show other council members as recipients of carbon copies — that Ward, Lester and Bonkowski have emails that are public records that have not been released, Mallove said.
"We know for a fact that there are documents out there that they have wrongfully refused to produce," Mallove said.
The city is facing a loss in court if the case proceeds, he noted, given that emails already released by the city show council members sending and accepting messages that clearly relate to city business and are therefor public records.
"We think this is a loser for the city and the city thinks this is a loser for the city," he said. "That is why we made this settlement offer."
Mallove said that if the city is successful in getting Bonkowski, Lester and Ward removed from the lawsuit as individual defendants, they will still remain defendants in the lawsuit in their capacity as council members.
Mallove also said the settlement offer will stand until Sept. 19, and city officials should seriously consider it.
"I think these three council members need to do a political calculus. How much additional legal exposure do they want to create?" Mallove asked.
"What these people are doing is exposing the city to substantial monetary liability, when all they have to do is produce the responsive documents," he said.
"Elected officials are supposed to be acting in the best interests of the city. I think it's very irresponsible and cavalier of them to force the city to run up substantial legal expenses in a case where they have clearly violated the [Public Records] Act," Mallove said.
A hearing on the city's motion to dismiss has been scheduled for Sept. 27.