Local reporters and editors request City Auditor to investigate city officials’ use of private email accounts

On By In ethics, legal, letters, media

Today, several local reporters and editors, including myself, sent a joint letter to the City Auditor requesting an investigation into city officials’ practices of using private email accounts and other private electronic media to conduct city business. Below is the letter we sent, along with the attachments demonstrating the extent of the issue.

The City Auditor reports to the City Council, an arrangement that usually is well-suited to the Council’s oversight responsibilities over the executive branch. In this case, however, the issue implicates several (if not all) City Council members and their staff, as well as the Mayor’s office. Since there is a pending lawsuit that addresses the issue of city officials conducting business through private channels, it is unlikely that the Council or the Mayor will weigh in on the issue or request the Auditor to spend time investigating this. However, the Auditor’s Office is empowered to conduct its own self-directed investigations, so it can decide to do this on its own.

I’m going to make an unusual request here: if you believe this is an important issue, please send an email to City Auditor David Jones, davidg.jones@seattle.gov, asking him to conduct an investigation.

December 6, 2018

David G. Jones
City Auditor
P.O. Box 94729
Seattle, WA 98124-4729

Mr. Jones:

As you may have seen from news reports, there have been a spate of recent incidents where city officials used private email accounts to conduct official city business. For your reference, we have attached news reports of such incidents, as well as representative examples of emails demonstrating that this is, in fact, an actual practice occurring today.

As representatives of the local media who rely on the state Public Records Act and the fulfillment of public document requests to do our jobs in holding our local government accountable to the people, we are increasingly concerned that the practice of city officials using private email accounts to conduct city business is both spreading and increasing in sophistication, in violation of the Public Records Act and undermining government transparency and accountability.

We recognize that city elected officials and their staff face challenging constraints: all communications regarding city business are a matter of public record and must be archived as such, while many communications outside of city business – notably including political and election campaign activity – are prohibited from utilizing city-owned resources and must be conducted through outside mechanisms. However, as the recent revelations on the “head tax” repeal demonstrate, officials can easily cross the line between the two without taking care to ensure that the law is being followed. Current practice seems to invoke an “honor system” in which officials using private email accounts voluntarily turn over relevant messages in response to public document requests and legal discovery requests. A system based on voluntary compliance by government officials is dubious at best even when compliance is high; however, in the face of the recent failures of that system, we believe there is an urgent need for a comprehensive review of the city’s policies and practices in this area. This is a task for which the City Auditor’s office is uniquely positioned.

We collectively request that your office use its authority for independent investigations to undertake a broad, systemic review of the practice of City of Seattle employees and officials using private email accounts, including:

  • Quantifying how widespread the practice is;
  • Reviewing the written and unwritten policies regarding city officials’ and employees’ use of private email accounts to conduct city business;
  • Identifying any ongoing potential violations of the Public Records Act through the use of private email accounts by city employees and officials;
  • Auditing whether email communications through city officials’ and employees’ private accounts are properly and timely retrieved and delivered in response to Public Document Requests and legal discovery requests submitted to the city;
  • Assessing the risk and likelihood of abuse where city officials and employees have been granted the ability to use private email accounts to conduct official city business;
  • Assessing whether appropriate procedures are in place to ensure that city officials and employees may not suppress potentially damaging or incriminating email communications from the city’s Public Records through the use of private email accounts;
  • Assessing whether private email accounts used for official city business are properly archived, including after the city officials and employees who use them leave their positions with city government;
  • Reviewing the best practices of other jurisdictions in use of private email accounts by city officials and employees;
  • Providing recommendations on changes to the city’s written policies and practices, and to the Seattle Municipal Code (including the Seattle Ethics Code) to ensure that the city of Seattle meets its legal and ethical obligations to transparency, accountability, and maintaining complete and accurate public records.

While private email accounts are the controversy of the day, it’s worth pointing out that other forms of private electronic communication are equally implicated in this issue, including mobile phone text messages, Facebook and Twitter private messages, and other “apps” such as WhatsApp and Signal. We have also attached some representative text messages to demonstrate the issues this raises. We would further recommend that you consider including city officials’ use of these other media in your review.

We recognize that the city has many pressing needs, but if this can be prioritized in the City Auditor’s Office plan and budget then we believe the results could ultimately save the city substantial legal costs while improving the transparency of government for citizens.

We appreciate your attention to this matter and stand ready to assist you as you take this forward.

Regards,

Ashley Archibald
Real Change

Erica C. Barnett
The C is for Crank and Seattle Magazine

Lester Black
The Stranger

The Editors of Crosscut

Nathalie Graham
The Stranger

Kevin Schofield
SCC Insight

Cc:  City Council President Bruce Harrell, Mayor Jenny Durkan, City Attorney Pete Holmes

Attachments:

Seattle Times article August 2018

Seattle Times article November 2018

City-owned Technology Acceptable Use Policy

Explanation of Sawant office use of private email acounts

Council and staff private email accounts 1

Council and staff private email accounts 2

Council and staff private email accounts 3

Council and staff private email accounts 4

Council and staff private email accounts 5

Council and staff private email accounts 6

Mayor’s office staff private emails

Sawant personal email from Dana Robinson Slote

Gonzalez texts with Cody Reiter including vote count

Herbold and Deputy Mayor Mike Fong text

Herbold and Deputy Mayor Mike Fong text 2

Herbold text message with Katie Wilson

Johnson text message with Shefali Ranganathan

7 comments

  2. I’m curious to see how this plays out, as what you linked above doesn’t seem like it would be in violation of the PRA.

    Trying to reach people for meetings or commenting on statements made to the media doesn’t seem like “city business” or taking actions as an executive/legislative body or like lining up votes.

    In a similar vein, as you point out above, law and policies specifically prohibit using City resources for political and campaign activities. So wouldn’t discussing poll numbers, conversations including strategy with political consultants, and forwarding statements/press releases about political campaigns/lobbying necessarily be off City email accounts and not subject to disclosure?

    Is the expectation that anything the Mayor or Councilmembers do or discuss regarding an issue should be open and transparent? Or do we effectively split up as separate “persons” conversations and actions that are taken as a political candidate/campaign supporter, as an elected official, and as a private citizen?

    1. First of all, remember this is what we (collectively) could get out of the city, often after multiple iterations and in some cases legal action. That doesn’t mean that’s all that exists. Everything produced from private email accounts is effectively on the “honor system” — the city doesn’t have direct access to them and requests that the city employees search and respond themselves. And there are still references to city business throughout this stuff. The expectation is that all discussions our city officials and employees have related to city business are a matter of public record, regardless of whether it’s on city-owned resources or personal devices/resources.

      As we say in the letter, this is complex, because the opposite rule also applies: city officials are not allowed to use city resources for activities related to campaigns, such as organizing an opposition campaign to the head tax referendum. That MUST be done on private email accounts. But what happened back in June is that the Council members, the Mayor, and their staff started organizing opposition to the head tax referendum through personal email accounts, then when poll results told them that they were going to lose, their conversation flipped to repealing the head tax. But that conversation didn’t move back onto city email accounts: it stayed in the personal emails and texts.

      1. Regarding searches of employees’ personal devices for public records, see my appeal of denial of access to messages on devices in the control of former mayor Ed Murray. In it, I cited the “Public Records Act Court Decisions” section of the website of Municipal Research and Services Center, which shows the courts’ resolution of conflict between the public’s right to oversight of governmental activities and the privacy rights of pubic employees as it pertains to their personal mobile devices:

        West v. Steve Vermillion City of Puyallup, 196 Wn. App. 627 (11/8/2016) – Vermillion, a city councilmember, maintained a private computer on which he maintained some private matters along with some items that related to his position on the city council. West requested the “communications received or posted” through a personal website and associated email account run by the city councilmember. Vermillion refused to provide the documents found at his home, on his personal computer and on his personal email account, citing his rights of privacy under the state and federal constitutions. West sued and the trial court required Vermillion to provide those documents that were public. On appeal, the court affirmed, holding that it was proper to require the production of emails from a personal email account that met the definition of a public record and to require submittal of an affidavit in good faith attesting to the adequacy of the search for the requested records. The court held that the First and Fourth Amendments to the United States Constitution and article I, section 7 of the Washington Constitution do not afford an individual privacy interest in public records contained in the personal email account. In reaching its decision, the court relied on the recent case Nissen v. Pierce County, 183 Wn.2d 863 (2015), which related to records found on a private cellphone. The records, even if they are on a private device, may be subject to disclosure if the person “acts within the scope of his or her employment,” in which case the actions are tantamount to “the actions of the [body] itself.” If the records “relate to the conduct of government or the performance of any governmental or proprietary function” and are “prepared, owned, used, or retained by an agency,” they are potentially public records subject to disclosure. There is no constitutional privacy right to records that are public records. The possible disclosure of public records does not violate the right to association.

  4. /1 the auditor request seems awfully similar to what @quietplease321 has been arguing lately, right? appreciate the work of y’all re: pushing for transparency. side deals = private e-mail = pretty sketchy

    /2 so…. some EMC slides leaked this week. (telephone?) poll of ~400 “likely” voters showed that <50% were displeased with SCC. and that's what sent them running scared?

    /3 or what is the Referendum? but good grief – if WA State Leg. went running scared every time T.Eyman got something on the ballot – where would we be today? 😛

    1. from what I understand, the EMC poll that leaked this week is from August, not from June when the Council was dealing with the referendum. EMC is still fighting in court to keep the June poll data under wraps.

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