There are several pending allegations of law-breaking against Seattle City Council member Kshama Sawant. Let’s get caught up on where they currently stand.
This Wednesday’s scheduled meeting of the Seattle Ethics and Elections Commission (SEEC) has been postponed to May 20, pushing out further a hearing on charges that Council member Kshama Sawant violated the law by using public facilities to promote the “Tax Amazon” ballot initiative.
As SCC Insight reported in February, SEEC Executive Director Wayne Barnett filed charges based upon Sawant using her office to host events and publish information to organize an effort to get the so-called “Amazon Tax” on the ballot later this year. Seattle Municipal Code 2.04.300 reads:
No elected official nor any employee of his or her office nor any person appointed to or employed by any public office or agency may use or authorize the use of any of the facilities of a public office or agency, directly or indirectly, for the purpose of assisting a campaign for election of any person to any office or for the promotion of or opposition to any ballot proposition. Facilities of public office or agency include but are not limited to use of stationery, postage, machines, and equipment, use of employees of the office or agency during working hours, vehicles, office space, publications of the office or agency, and clientele lists of persons served by the officer or agency; provided, that the foregoing provisions of this Section 2.04.300 shall not apply to the following activities:
A. Action taken at an open public meeting by the City Council to express a collective decision or to actually vote upon a motion, proposal, resolution, order or ordinance, or to support or oppose a ballot proposition so long as (1) any required notice of the meeting includes the title and number of the ballot proposition, and (2) members of the City Council or members of the public are afforded an approximate equal opportunity for the expression of an opposing view;
B. A statement by an elected official in support of or in opposition to any ballot proposition at an open press conference or in response to a specific inquiry; and
C. Activities that are part of the normal and regular conduct of the office or agency.
Sawant knows this well; in fact, every year on her financial disclosure form she is required to re-certify that she has read and understands this ordinance.
Since the charges were filed, a Public Document Request submitted by SCC Insight has revealed additional documentation of Sawant’s use of public facilities — including money — to organize and promote the “Tax Amazon” ballot initiative.
Receipts provided by the Council’s financial office document over $2000 spent by Sawant’s office to advertise meetings on January 25 and February 9 to organize a “ballot initiative”; provide food for the meetings; and purchase posters and wood pickets for signs.
(note: the receipt on page 8 includes several additional unrelated charges, stemming from Sawant’s inauguration event on January 13.)
In addition, emails document Sawant’s Council staff — on the clock — initiating, negotiating and purchasing ad space, working on the posters, adding information (including the posters and flyers) to Sawant’s official City Council web site, and organizing the meetings.
Sawant responded in a statement after the SEEC filed its charges in February, in which she says that her understanding was that she was allowed to “encourage community discussions about a potential ballot initiative, even one that hadn’t been drafted or filed” — understating their role in organizing the Tax Amazon ballot initiative. After charges were filed by the SEEC, SCC Insight sent the same information to the state Public Disclosure Commission for their analysis since Sawant’s actions also appear to violate state law (which are nearly identical to Seattle’s laws). In response to the PDC’s ongoing investigation, a representative for Sawant told the PDC that they believe Sawant’s actions do not violate either state or city laws. Their main justification for their position is a 1994 ruling by the SEEC. In that ruling, an unrelated third-party was beginning to organize a ballot initiative and inquired with all the Seattle City Council members as to whether they would endorse it. The SEEC found that because the third party had not filed their initiative yet, it was not officially a “ballot issue” and thus Council members were free to comment on it.
Sawant’s is a bizarre interpretation of the SEEC’s 1994 ruling. There is a clear distinction to be made between commenting on a ballot issue that a third party is organizing, and being the organizer of a ballot initiative oneself. Along those lines, if Sawant’s interpretation is to be followed, then it leads to the nonsensical conclusion that a Council member may use city resources to recruit, assemble, and organize a team of people whose mission is to put a specific initiative on the ballot, and as long as they stop using city resources when the first piece of paperwork is filed with the city it’s all perfectly legal. They are arguing that organizing to write a ballot initiative, and fundraising and forming a group to gather signatures to get it on the ballot, do not count as “promoting” it and thus are unregulated activities and completely up to the discretion of an elected official.
According to SEEC Executive Director Wayne Barnett, the hearing on Sawant’s alleged violation won’t be on the agenda for May 20. “We anticipate scheduling that matter to take place within 45 days of the lifting of the stay-home order,” Barnett said.
However, there is another complaint against Sawant that is likely to be scheduled for adjudication on May 20: late last month, Roger Valdez of Seattle for Growth filed a complaint with the SEEC alleging that Sawant was violating her oath of office by organizing both a rent strike (encouraging people not to pay their rent) and a “car caravan” protest (in violation of the Governor’s “stay home, stay healthy” order).
Barnett quickly dismissed the complaint administratively, saying “I do not think that CM Sawant is in violation of the Ethics Code when she, to quote your letter, ‘urg[es] people not keep their legally binding financial obligations and violat[e] the Governor’s stay at home order using City of Seattle resources and the logo of the City.'” But Valdez filed an appeal of Barnett’s dismissal, so now all the commissioners will be required to hear and rule on the complaint.
In a separate matter, a defamation suit against Sawant continues to work its way through the court system. The case was filed by SPD Officers Scott Miller and Michael Spaulding, who shot and killed Che Taylor in February 2016. The facts of the incident are still in dispute and
an inquest is still pending(correction: the inquest concluded, largely backing the officers; my bad, I incorreclty recalled that it was one of several that are on hold while King County inquest procedures are being modified), but shortly after the incident Sawant made public remarks about the shooting, saying:
“This is dramatic racial injustice, in this city and everywhere in this nation. The brutal murder of Che Taylor, just a blatant murder at the hands of the police, show how urgently we need to keep building our movement for basic human rights for black people and brown people. I want to let you know that I stand here both as an elected official, as a brown person, as an immigrant woman of color, and as someone who has been in solidarity with the Black Lives Matter movement, and our movement for racial, economic and social justice. . . .
And I am here as an elected official because I am completely committed, unambiguously committed, to holding the Seattle Police Department accountable for their reprehensible actions, individual actions. We need justice on the individual actions and we need to turn the tide on the systematic police brutality and racial profiling.”
In June 2017, after different SPD officers shot and killed Charleena Lyles, Sawant spoke again, reiterating some of her accusations about the Che Taylor shooting:
“I join the NAACP in demanding such a transparent public hearing. When Che Taylor was murdered by the police, the community and I demanded such a hearing from the Mayor and from Council member Gonzalez whose committee oversees the SPD, but neither the Mayor nor Council member Gonzalez responded. In . . . in light of the horrific killing of Charleena now I again urge . . . I publicly urge the City Council to hold such a hearing. I have also earlier today sent a number of important questions to the SPD.
. . . We demand that the City of Seattle appoint an independent committee to review this case . . . with . . . with full public accountability. We cannot rely on the existing process to determine why Charleena was killed because that process has failed Che Taylor . . . that process has failed every person who was killed at the hands of the Police. Sisters and brothers, I will add one more thing for our movement that is standing with Charleena to think about, a deeply unequal society such as ours also implies that the lives of poor and low-income people, black and brown people, homeless people, those who have mental health issues and challenges . . . the system treats our lives as expendable.”
The heart of the lawsuit is the assertion that these comments defamed Miller and Spaulding by painting them as murderers. In her defense, Sawant notes that she never refers to the officers by name, thus casting doubt on whether her remarks were “of and concerning” the plaintiffs — as the law requires the plaintiffs to prove in defamation suits. However, the law does not require the allegedly defamed persons to be named explicitly, under certain circumstances:
“One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it if, but only if, (a) the group or class is so small that the matter can reasonably be understood to refer to the member, or (b) the circumstances of [the statement] reasonably give rise to the conclusion that there is particular reference to the member.”
So then the question becomes whether Sawant’s statements were so obviously referring to the two officers who shot Taylor that they satisfy the requirements of a defamation suit. The case history for this type of situation takes into consideration the media coverage at the time of the statements and allows plaintiffs to argue that common knowledge made the reference clear. However, in this case the district court judge found that the plaintiffs had not sufficiently provided evidence that the media coverage and common knowledge would have led people to believe that Sawant was referring to Miller and Spaulding, and dismissed the case. The plaintiffs asked to amend their complaint to add more evidence to make that case, and the judge denied that request.
The plaintiffs appealed their case to the Ninth Circuit Court of Appeals, arguing that the judge erred in ruling that Sawant’s statements were convincingly “of and concerning” them, and in denying them the opportunity to amend their complaint. They also argued that the judge has shown his bias toward the defendant and requested that the case be reassigned to a different judge. Sawant, in turn, argued that the Ninth Circuit did not have jurisdiction to hear the appeal, on a technicality.
Last week the Ninth Circuit ruled on the case, and handed down a mixed decision. First, they rejected Sawant’s argument that they didn’t have jurisdiction over the appeal. Second, they agreed with the trial court that the evidence asserted by the plaintiffs in their complaint did not meet the “of and concerning” standard — but they found that the judge had abused his discretion by not allowing the plaintiffs to amend their complaint. Finally, they rejected the request to reassign the case to a different judge. They sent the case back down to the district court, with instructions to allow the plaintiffs to submit an amended complaint.
So the case lives on, and Officers Miller and Spaulding will get one more chance to make the case that Sawant defamed them.
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