The city of Bainbridge Island has been hit with a lawsuit over Councilwoman Rasham Nassar’s use of her personal cellphone for official city business.
The lawsuit was filed Friday, July 12 in Kitsap County Superior Court on behalf of two Bainbridge residents who claim the city failed to adequately respond to requests for public records from Nassar’s personal cellphone.
David Dunn, a former detective for the Seattle Police Department and also a former member of the U.S. Secret Service Electronic Crimes Task Force, and Brian Wilkinson, a Bainbridge firefighter, said in their lawsuit against the city that Nassar refused to use a city-provided cellphone after she joined the council in January 2018 and instead decided to use her personal cellphone for both personal and official business.
City officials did not immediately respond to a request for comment Friday morning from the Review. Nassar also did not respond to the Review for comment.
Dunn and Wilkinson have been outspoken critics of land-use development regulations that have been adopted by the city council since 2018, and Dunn said in court documents that he submitted a public records request in September 2018 for council emails and other council communications that referenced zoning, development regulations and related issues.
Dunn said he wanted to learn more about how the ramped-up regulations adopted last year — which increased the cost of development on his property — came to be.
But when the city supplied public records to Dunn in January of this year, he noticed that text messages from Nassar appeared to be missing from Jan. 2, 2018 through June 21, 2018.
In a Jan. 22 email to the city’s records clerk and City Attorney Joe Levan, Dunn raised concerns about the missing texts.
Dunn was later told that Nassar’s infant son had destroyed her mobile phone by dropping it in a jar of olives. The phone was apparently destroyed, and Dunn was told that the messages he had asked for were not retrievable.
When Dunn asked if the phone was still available for a more thorough forensic investigation, he was told it had been turned in to an Apple store, according to the lawsuit.
Dunn, in the lawsuit, said he did not believe that the destruction of the phone would actually result in the loss of public records, and that they could have been retrieved from the solid-state memory in the damaged phone, or they could have been retrieved from Nassar’s service provider, or from a non-handset storage location.
Dunn, in the lawsuit, also questioned whether the destruction of the phone was unintentional.
“This is because on that same date — June 21, 2018 — Nassar became aware that she herself was the subject of a code enforcement complaint that alleged that she and her husband’s property was in violation of the very land-use laws that she had been a strong proponent of,” the lawsuit states.
Nassar and her husband are the subjects of an ongoing code-enforcement case for illegal development on their nearly 6-acre property on Sands Avenue. It was first reported to Bainbridge officials in January 2018 on the city’s website on its See-Click-Fix map, a program that allows residents to report problems such as potholes, illegal signs and other violations of the city code. A city inspector who visited the property in 2018 found two structures in a wetland area and its buffer, and city officials said only one building on the property — a home built in 1910 — was permitted on the land.
Nassar and Trent Riely-Gibbons were given a “Warning of Violation & Order to Correct” on June 28, 2018 and were told to stop all work in environmentally sensitive “critical areas” on their property.
The city is still working with Nassar and her husband to bring the property into compliance with city regulations.
Dunn also said the city has not shared any information regarding Nassar’s cellphone’s “purported destruction, and the attempts to recover the public records from backup sources or salvaged internal memory.”
The lawsuit was filed by Nicholas Power, an attorney based in Friday Harbor.
The lawsuit states the city violated the state’s Public Records Act in multiple ways, including by withholding public records, failing to conduct an adequate search for the records that were sought, not properly safeguarding and retaining public records, and stalling on the release of records that were ultimately provided.
Dunn and Wilkinson are seeking penalties of $100 a day per page for each record, for every day the documents were withheld from the public, as well as reasonable attorney fees.
The city of Bainbridge Island has had legal trouble with safeguarding and adequately providing public records in the past.
The city was sued in Kitsap County Superior Court for violations of the Public Records Act in 2013 after it was discovered city council members were using their personal email accounts to conduct public business, and two councilmen named in the lawsuit deleted public records from their personal email accounts that had been sought by the public.
The city settled the case for $487,790, but the cost to the city also included hundreds of thousands of dollars spent on challenging the lawsuit. One councilman resigned as part of the settlement.