A YouTube video posted on Jan. 29 about the San Juan County government has been viewed more than 9,000 times. The 19-minute video by conservative political activist Glen Morgan for his political committee “We the Governed” reflects upon a recent Washington State Supreme Court decision regarding public record disclosure in San Juan County.

On Dec. 12, 2019, the Supreme Court unanimously reversed the Skagit County Superior Court’s dismissal of a lawsuit against San Juan County by Lopez islander Edward Kilduff; upheld the lesser court’s dismissal of an ouster claim against county councilmember and public records officer Jamie Stephens; and remanded the cost of attorney fees back to the trial court for discussion. Skagit County Superior Court oversaw the case because San Juan County is the defendant.

San Juan County Code 2.108.130 said all administrative methods of securing public records must be exhausted before a lawsuit for failure to comply with the public records act can be made. The state Supreme Court invalidated this code in its decision noting, “public records requesters are not required to exhaust administrative remedies before filing a PRA lawsuit.”

The Supreme Court also said that Skagit County Superior Court’s decision to impose fees upon Kilduff for a frivolous lawsuit was an abuse of power.

“… Costs may not be imposed pursuant to RCW 4.84.185 unless the entire case is deemed frivolous,” the justices said in their judgment. “Consequently, even though the trial court determined Kilduff’s [claim against Stephens] was frivolous, his PRA claim was not, so the trial court abused its discretion when it granted a fee award pursuant to the statute.”

According to the Supreme Court’s decision, on May 20, 2015, Kilduff filed a two-part public records request regarding the “wetlands classification dispute and subsequent investigation into improper government action [or IGA].” The judges stated in their case background information Kilduff had requested “all documents, correspondence, memos, statements, reports, and other contents of the [San Juan County Department of Community Development] code enforcement file” and “all documents, memos, statements, reports, correspondence and other records associated with the investigation of [IGA], related to the above-referenced code enforcement file.”

The public records clerk at the time, Sally Rogers, acknowledged the request and told Kilduff he would have the response in 5-10 business days, the judges wrote.

On May 28, 2015, Kilduff said San Juan County Prosecuting Attorney Randall Gaylord called to discuss the request. According to the Supreme Court documents, Kilduff was advised by Gaylord that he had previously directed the code enforcement officer to separate the files and Kilduff agreed to accept the final, redacted IGA report in lieu of the records request.

Gaylord told the Journal in 2018 the county provided documents to Kilduff and Gaylord told him to contact the county if he wanted more information. This assertion was noted in the court documents.

Kilduff disputed that he agreed to limit his request and never received notice in writing of his acceptance of the modification, according to the Supreme Court document.

“The trial court did not make any finding as to whether Gaylord or Kilduff was more credible on this issue,” the justices wrote.

After the May 2015 call, Kilduff was provided 45 pages of documents from the code enforcement file and was told the rest of the requested information would arrive in another two weeks, the justices said. Kilduff was emailed the redacted IGA on June 12, 2015, and was told his request had been fulfilled. Kilduff stated the documents he received did not include an exemption log or indicated that additional records existed but were being withheld.

In June 2016, Kilduff filed a complaint against the county for not producing documents in accordance with the public records act, RCW 42.56, and alleged that Stephens be removed from the county council as he, “occupied two incompatible public offices.”

Kilduff’s lawyers alleged in their complaint that the county violated the state’s public record act “by failing to conduct a reasonable search for responsive records and silently withholding records without an exemption.” He was represented by attornies Nicholas Power of Friday Harbor and Michele Lynn Earl-Hubbard of Allied Law Group LLC in Seattle.

In December 2017, Skagit Superior Court Judge Brian Stiles dismissed the public records act lawsuit claiming the county’s law — now invalidated by the Supreme Court — was clear in requiring a requester exhaust all means of acquiring requested records. He also ruled that the case against Stephens was frivolous and ordered Kilduff to pay $10,000 for recovery of attorney fees.

The case was submitted to the appellate court in June 2018.

Background

San Juan Island resident Sheryl Albritton intended to purchase a property known as lot 9 in the Portland Fair area of San Juan Island in spring 2013. She owns an adjacent property, as does Bob Jarman, who was both a county council member as well as the president of the Portland Fair Homeowners’ Association at the time.

According to a public records act violation lawsuit filed by Albritton against San Juan County in October 2015, she had visited the Department of Community Development and Planning and met with Planner Annie Matsumoto-Grah who told her the wetland on the property would require a full Critical Areas Report. Because of this requirement, Albritton decided to not make an offer on the lot.

The parcel was purchased in November 2013 and in June 2014 the new owners — Chris and Jenise Hughes, no relation to the county council member by the same last name — applied for a building permit. Albritton claimed in her complaint that the county mishandled the permitting process by not requiring a wetland study and then conspired to cover-up its wrongdoing.

According to court documents, in August 2014, Matsumoto-Grah told the Hugheses that a wetland analysis needed to be performed. On Sept. 7, 2014, DCD Director Martha “Sam” Gibboney emailed Matsumoto-Grah saying that County Manager Mike Thomas had visited the property with a “wetland expert (JT)” and had determined there was no need for an assessment. The building permit was reluctantly approved by Matsumoto-Grah on Sept. 12, 2014.

Albritton filed a report with the Department of Ecology on Jan. 18, 2015, according to court documents. She stated she believed the development on the property was in violation of the county’s critical areas ordinance and was not properly reviewed by county staff. The report was given the designation of ERTS #654194.

Code Enforcement Officer Christopher Laws received the complaint and began investigating for enforcement file PCIINQ-15-0003.

According to the complaint, Matsumoto-Grah told Laws that she felt the property was still in need of a wetlands assessment and she wrote in her statements to the county that she felt her authority in her position was being undermined.

Laws said Matsumoto-Grah told him that it was her understanding that the Hugheses had complained to Jarman about the requirement and asked Thomas to visit the property.

The improper government action report, a whistleblower complaint filed by Laws on Jan. 21, 2015, stated that he believed the new property owners had complained to their neighbor and Portland Fair HOA President Jarman who then asked Thomas to personally inspect the property. Laws spoke with Gibboney about how he felt Thomas’ actions were outside of his job duties, ethically concerning and said it was a double standard.

Laws stated in his IGA request that Thomas had restricted or interfered with the work of others, he claimed “ethical impropriety” by the county by utilizing the expertise of Thomas’ wife Jennifer Thomas at no cost while requiring other county residents to pay for such services, and he said there was a conflict of interest because the property owner had allegedly complained to their neighbor who was a county council member, an action that appeared to have impaired the county’s “independence of judgment or action.”

Gaylord investigated the IGA. According to RCW 42.41.030, a county’s prosecuting attorney is the appropriate person to whom to report an IGA.

In two exhibits from the case, written statements by Matsumoto-Grah dated Jan. 22 and 26, 2015, she stated the house was roughly 150 feet uphill from where she had estimated the wetland on the property to be, and she added that stormwater runoff would go toward the east, away from the wetlands. Matsumoto-Grah’s original Jan. 22, 2015, report included accusations of impropriety and noted her discontent with the permitting without a wetlands assessment, according to the complaint. Gaylord reportedly directed Matsumoto-Grah to rewrite the report to exclude that information and a follow-up report was filed on Jan. 26, 2015.

The lawsuit stated that Matsumoto-Grah requested the name of the “local wetland expert (JT)” from Gibboney and never received a response. Albritton too requested the name to no avail, the complaint stated.

Laws, who has a bachelor’s in natural resource management and has received wetland rating training and soil identification training from the Washington Department of Ecology, visited the Hughes property and observed wetlands were “abundantly evident,” according to the complaint. Ecology Wetlands Specialist Doug Gresham reportedly walked the property with Laws on Jan. 26, 2015, during which time Gresham reportedly told Laws there was evidence of three wetlands on the property.

Gaylord’s IGA investigation, released on Feb. 12, 2015, admitted that “the reconnaissance of the wetland was performed in an informal manner.” He stated that if Thomas had done a proper wetland reconnaissance then he should have filed an official report. It was unclear whether Thomas was qualified to make a wetland determination at the time. He concluded that no further action was needed to comply with the law, however.

Laws did not agree with much of Gaylord’s assessment and responded with objections to many of Gaylord’s findings.

According to the complaint, Gaylord conceded some of the errors Laws had identified and released a revised and final IGA investigation report on March 11, 2015.

Also on March 11, 2015, Laws published his final report for code enforcement. With Gresham’s findings, Laws concluded that the building project was in compliance with wetland protection standards, according to court documents.

On March 17, 2015, Albritton made a public records request for “copies of all documents within enforcement file PCINQ-15-0003 related to ERTS#654194,” according to the complaint.

The San Juan County Public Records Clerk at the time, Sally Rogers, acknowledged the request on March 26, 2015, and reportedly requested the documents from Laws on March 31, 2015, according to the complaint.

On May 12, 2015, Rogers emailed the documents to Albritton who said she requested Gaylord’s IGA conclusion but it was not included. On May 20, Albritton was provided a redacted copy of Gaylord’s memorandum, 74 days after she had requested the information.

“Defendants go to considerable lengths to sanitize the enforcement file in a misguided attempt to prevent Plaintiff from understanding what has transpired,” the complaint said. It continued stating that it is custom, policy and practice for code enforcement files to contain the entirety of actions taken. The IGA report was separated from the rest of the enforcement file per Gaylord’s request, according to the complaint.

The lawsuit stated that Laws was directed to remove the IGA documents and references to Thomas from the enforcement file — he refused. Laws disagreed and maintained that not including the investigation report was a violation of the state’s public records law. The complaint stated Gaylord allegedly accused Laws of being insubordinate.

According to the complaint, Gaylord then separated out the enforcement file from Laws’ IGA and the subsequent report.

Albritton said she never received an exemption log which stated that any records were withheld. Her attorneys, Power and Earl-Hubbard, claimed a violation of the Public Records Act, RCW 42.56.

A statement issued by county council members Rick Hughes and Jamie Stephens in June 2015 said Thomas was “within his jurisdiction” when he identified the property as not a wetland. The council members said Thomas’ wife — Jennifer Thomas, who is not a county employee — was in the vicinity, but was not there to assist in a wetlands reconnaissance and that Thomas acted within his authority, stating “He has often intervened … to resolve a citizen issue, at times in conflict with the personal or professional opinions of his staff; with the goal of streamlining a process, resolving long term issues, reflecting the wishes of the council, or with the larger goal of improving the perception of county government within the community.”

Hughes and Stephens also said, Thomas “saved the county an unnecessary expense by his review.”

“The question presented is whether the determination by Mr. Thomas that there was ‘no wetlands’ and directing issuance of the Hughes building permit without a wetland reconnaissance report was contrary” to county code, Hughes and Stephens said.

The county responded by stating that an email from Gibboney to Matsumoto-Grah sufficed as a report. The email read: “Annie – There is a permit application in for a property in the Portland Fair neighborhood. Supposedly one of the neighbors reported that there might be a wetland. Mike walked the site last night with a local wetland expert [JT] and there are no signs of one. So no need for recon.”

Hughes and Stephens’ statement said, “Although we would prefer a more descriptive email be the department’s standards, Ms. Gibboney did provide a record for the file of her determination, based on the county manager’s reconnaissance.”

The council members also added that Gibboney was incorrect when she referred to JT (Jennifer Thomas) as the source of the information on the wetland, though she is a state-certified wetlands specialist.

According to the council members, after Gresham reviewed the wetlands in question, it was decided no further action was needed, but that “in the future, a written reconnaissance report should be received before a building permit is issued.”

Hughes and Stephens concluded, “the county did its reconnaissance for possible wetlands issues properly,” and that “the county has now spent significant resources … to determine that there was no improper government action on the part of County Manager Thomas.”

The lawsuit concluded in January 2016, the total judgment awarded by the court was $53,444, mainly to Albritton’s attorneys: $980 was awarded to Albritton; $24,085 to Allied Law Group of Seattle; and $27,379 to Power.

In March 2017, San Juan County paid Laws $90,000, and his three lawyers were paid $60,000, to settle a wrongful termination lawsuit. According to Gaylord’s office, the case was settled without the county admitting it was liable.

County Councilmember Bill Watson, who defeated Jarman in the race for San Juan Island’s council seat in November 2016, released the following press release on Feb. 14:

“As your council member and neighbor, I have been asked several questions about the Supreme Court case the county was involved in last December. I decided to write this to clarify the court’s decision.

The Supreme Court case

Dec. 12, 2019, the Washington State Supreme Court issued its decision on the case of Edward Kilduff versus San Juan County and Jamie Stephens, San Juan County Council Member and Public Records Officer. The Court ruled on three elements in this case: 1) Can the County require entities who have made public records requests to exhaust the county administrative procedures prior to filing a lawsuit? 2) Did the lower court err when it imposed sanctions on both Kilduff and his attorneys, Nick Powers and Michele Earl-Hubbard, for filing a frivolous suit seeking the removal of Council Member Stephens? and, 3) Is Kilduff entitled to attorney’s fees upon appeal?

The Superior Court decision

Kilduff sued San Juan County alleging that the county had violated the Public Records Act. In the same complaint, Kilduff brought an action (called a quo warranto, and sometimes known as ouster) to have council member Stephens removed from office because Stephens served both as a council member and public records officer. The superior court dismissed the PRA claims because Kilduff had failed to follow the county’s administrative review process. In addition, the court found the quo warranto action frivolous, dismissed the claim and sanctioned both Kilduff and his attorneys.

The three elements of the supreme court decision

The first of the three elements is administrative procedures. It is important to note how the legislative process works and its impact on the development of local government processes. In 1972, the people of Washington voted affirmatively for Initiative 276 that declared the public’s right to access public documents. In response, the legislature established RCW 42.17 Dispositions, which covered disclosure, campaign financing, lobbying and records. Part of the original initiative passed by the voters required government agencies to establish internal review mechanisms for the most prompt possible review of decisions denying an inspection, which were deemed complete in two business days.

In 2005, it became apparent that the RCW 42.17 needed to be updated and was recodified to the RCW 42.56 Public Records Act. As often is the case, the legislature will pass laws that may not be very specific or provide guidance for implementation or administration. The Public Records Act gave state and local agencies the authority to adopt rules, consistent with the Act. To implement the law, learned individuals in the State Attorney General’s Office established internal review procedures for the AG’s office that in the event that a person objects to a denial of a public records request the AG’s office gets a 48-hour opportunity to respond and/or correct before the administrative procedures are exhausted. The AG’s procedures can be found in WAC 44-06-120. San Juan County adopted essentially these same AG procedures on May 11, 2005, with Ordinance 6-2005, with the intent to ensure the county had the same 48-hour opportunity to deliver all the records it has unless it was legally restricted from doing so. Dozens of other municipalities also have adopted similar procedures that are consistent with the AG’s administrative procedures. San Juan County’s procedures received minor updates on November 2, 2015 (Ord. 9-2015) and on Oct. 24, 2017 (Ord. 14-2017).

As is often the case with laws that may not be as specific as intended or have potentially conflicting provisions, it falls to the courts to rule in response to lawsuits on both the intent of the laws and the systems municipalities enact to manage within them. Such was the case with Kilduff v. San Juan County. While the court recognized the burden this decision places on local government, the Court noted that the Public Records Act does not include provisions requiring requesters to use the internal administrative review mechanisms set forth in San Juan County’s rules prior to filing a lawsuit. This not only affects San Juan County, but also the State Attorney General’s Office and the dozens of other municipalities. San Juan County intends to comply with the Court’s decision. If the state legislature feels the court’s decision is unduly burdensome, it is up to them to revise the law.

The second of the three elements deals with the sanctions the trial court imposed on Kilduff and his attorneys for bringing a quo warranto action against council member Stephens. The trial court found this action frivolous and imposed a sanction on both Kilduff and his attorneys, Nick Powers and Michele Earl-Hubbard. The Supreme Court agreed that the quo warranto action attempting to remove council member Stephens from office was properly dismissed, but noted that to impose a fine, all actions within the Kilduff claim must be considered frivolous. Since that was not the case with the administrative procedures portion of the case, the Supreme Court reversed the lower court regarding sanctions but upheld the dismissal of the action seeking to oust Council Member Stephens.

The third element regards payment of attorney’s fees. Because the merits of Kilduff’s public records claim have not yet been resolved, the Supreme Court sent the issue back to the trial court to determine.

The outcome – what’s next?

To quote the Supreme Court, ‘We therefore reverse in part, affirm in part, and remand to the trial court.’ On remand, the Skagit County Superior Court will now decide the merits of the Public Records Act claim.”