City of Bainbridge Island had multiple chances to settle lawsuit on text messages

Bainbridge city officials had multiple chances to reach a settlement over a public records dispute before the case grew into a Superior Court lawsuit.

Bainbridge city hall was slapped with a lawsuit earlier this month from two island residents who allege the city failed to adequately respond to requests for public records from Councilwoman Rasham Nassar’s personal cellphone.

Nassar has not responded to a request for comment, but city officials defended their attempts to provide public records.

The lawsuit was filed July 12 in Kitsap County Superior Court. In an email to the Review, city officials said it was too soon to comment on the case.

“We just received the filing [July 12], and so the city attorney has not yet had a chance to fully review [it],” City Manager Morgan Smith said in an email to the Review.

“More generally, the city takes its commitment to public records and transparency very seriously, and we work hard to meet both our legal requirements and the expectations of our community in this respect,” Smith added.

The lawsuit was filed by David Dunn, a former detective for the Seattle Police Department who was once a member of the U.S. Secret Service’s Electronic Crimes Task Force, and Brian Wilkinson, a Bainbridge firefighter.

The pair claim 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.

Dunn, who has been an outspoken critic of stricter development regulations that have been adopted by the council, said he requested a year’s worth of city emails and text messages that related to land use.

He said the city’s adoption of an updated “critical areas ordinance,” regulations that restrict development of properties with environmentally sensitive features such as wetlands and steep slopes, had cost him tens of thousands of dollars and had prevented the “reasonable use of my property.” Getting the records, he said, would have helped him understand how the new rules 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.

Olive-can incident

City officials later said that the city did not have any text messages from Nassar’s personal cell phone from Jan. 1, 2018 (when she first joined the council) through June 21, 2018, because her phone had been destroyed.

In an Aug. 25 email from Nassar to Smith, obtained by the Review via a public records request, the first-term councilwoman told the city manager that her phone was “ruined and deemed irreparable” by an Apple store technician in Berkeley, California.

“I was told the hardware was damaged by oil after my 2-year-old son soaked it in a can of olives while our family was en route to California for my sister’s wedding,” Nassar said in the email.

She said any information on the iPhone 7’s hardware could not be recovered, and that any data not uploaded to iCloud “was subsequently lost.”

“These circumstances were certainly not wanted nor were they intentional,” Nassar continued, and added that she lost photos from the birth of her second son as well as important contact information and other personal data.

Nassar also said that her use of the phone for city-related business was “limited to brief scheduling texts to request phone calls and meetings between myself and councilmember [Ron] Peltier.”

Nassar, noted, as well, that her Verzion cell phone account was a family account under her father-in-law’s name, and that a request for any text message data to and from her personal cell phone must be mailed in writing to Verizon’s legal department in New Jersey.

In the email, Nassar also said she would start following the advice of the city attorney against using her personal cell phone for city business.

While City Attorney Joe Levan weighed in on the issue with Nassar before that Aug. 24 email was sent, records provided by the city redacted that advice due to “attorney-client privilege.”

Nassar closed the email by saying, “Now that the city attorney has, as of today [Aug. 24, 2018], very clearly advised [redacted text] … I will refrain from using my personal phone from any and all communication that may constitute public record[s] from this date forward.”

Legal troubles

Nassar and her husband have been the subject of code enforcement action for illegal development on their Bainbridge property, and city officials began investigating complaints about work done without permits on their property in early 2018.

One complaint centered on “an un-permitted structure in a wetland buffer being used as living space,” which would have violated the city’s critical areas ordinance. The couple were given a “Warning of Violation & Order to Correct,” and were told to stop all work in environmentally sensitive “critical areas” on their property. They were also ordered to apply for and obtain permits for the work that had been done on their land, and to also submit a restoration plan to the city.

Nassar and her husband, Trenton Riely-Gibbons, however, did not apply for permits until the city threatened additional legal action, public records show.

Concerns raised early

In an earlier email to the city, Dunn said elected officials should follow the same rules faced by property owners, and called for an independent investigation into Nassar’s permitting troubles. He also called into question Nassar’s oft-repeated claim that their family’s use of the property was protected by “grandfathered” rights.

“In order to do nearly any kind of work on our land we are required to spends tens thousands of dollars and give up rights to huge swaths of previously unencumbered land,” Dunn wrote. “Somehow, when an elected official violates the laws that the city holds everyone else accountable to, there is no action. There has been no stop work order, there have been no fines issued,” said in the April 15 email. “There is no approved permit. All of the activity has occurred on land that is nearly 90 percent encumbered with actual wetland and stream setbacks and was not being actively farmed at the time of purchase.”

Questionable timing

In a later letter to Levan, the city attorney, Dunn said the timing of the destruction of the cell phone seemed suspicious.

He noted that emails between Mayor Kol Medina and Nassar showed that the mayor was made aware of Nassar’s land-use violations on June 20, 2018 — two days before her phone was destroyed.

He also pointed to an email that showed Nassar was notified of violations on her property before the phone was damaged, on June. 21.

“One would have to assume that the phone was working at the time she received the phone call and that the damaged occurred afterward,” he wrote. “This is highly suspicious as she was also attempting to get elected as the deputy mayor at the time and this came two days after the council had extensive land-use discussions at their working session.”

Dunn, in the letter, estimated that 208 messages were missing and had not been provided as public records.

He noted his actual losses on his property due to increased regulations, and said he would settle the dispute with the city for $93,000.

That amount, Dunn added, was lower than a public records lawsuit against the city that Bainbridge settled five years ago, which cost the city $750,000.

Dunn, in his letter to the city attorney, made it clear he would take his case to court.

“I feel comfortable that there is enough doubt in the timing of the destroyed phone that I will prevail,” he wrote. “It is clear that Nassar and by extension the city was negligent in not ensuring that critical records related to land use, the [critical areas ordinance] and all other city topics, were protected from destruction.”

Lawsuit no surprise

“They knew the lawsuit was coming,” Dunn said in an interview with the Review, and added the city had stalled on closing his records request to prevent the lawsuit from being filed.

“They wanted to put it off months,” he said.

The city also knew a lawsuit was likely because Dunn had previously filed a claim for damages against the city over the issue. Council members have also discussed the city’s legal exposure over the issue during executive sessions earlier this year.

Dunn said the city’s guidelines on protecting public records require that any texts or emails that councilmembers get on their personal devices require those officials to forward such records to the city for archiving.

In the partial set of records Dunn received, he said it was clear that councilmembers Nassar and Peltier were not following that policy.

Dunn said he met with the city attorney in March, but Levan told him the records he wanted weren’t destroyed following his request, but before.

That doesn’t matter, Dunn said, because the city still had an obligation to preserve public records.

Dunn has been the subject of repeated criticism by Nassar and Peltier, who have said they are being targeted for their environmentalist viewpoints.

Dunn said he doesn’t fit that description.

“I’m not a greedy developer; I’m a guy who built a single house and had to deal with this horrible city process,” Dunn said.

The lawsuit isn’t about what he’s had to personally pay to get permits to build on his property, he said.

“This is all about forcing the city to be transparent with its citizens,” Dunn said.

The city has not yet filed its response to the lawsuit in Kitsap County Superior Court.

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