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Pieces of Sunshine

River Park Square souvenirs for Washington’s “Blue Ribbon Committee” on public records exemptions.

By Tim Connor

One of the more colorful inter-generational touchstones in my family is a salty Texan who passed away just a few years ago. His name was Chuck Cole and he was a fixture at Washington State University’s Murrow School of Communications long enough to shove both my uncle and me into our careers as journalists.

Professor Cole posed as a curmudgeon. But at heart he savored good reporting and, without betraying any notion that he could be easily impressed, he loved good reporters. He tried to teach his students to write well and quickly, get their facts straight, and do interviews without embarrassing themselves.

His specialty was public affairs journalism, the grinding art of reporting on government.

Journalism bends toward the “he said, she said” form. But Chuck Cole wanted us deeply engaged in the essence of the craft. Don’t be satisfied with official explanations, he insisted, find and write the truth. He taught this in the way football coaches exhort offensive linemen on hot August afternoons and I will not distract you, here, with his mild profanities. His basic admonition was that there’s often a world of difference between the reality that presents itself in press releases and the actual truth of the matter. And when it comes to covering government, there’s nothing as useless to a reader and a voter as a reporter who is content to be just a good stenographer.

There was an empty seat next to mine a week ago Tuesday, and I wished he could have filled it.

I was at Spokane Falls Community College, to offer testimony for the so-called “Sunshine Committee.”

I now work for the Center for Justice, I explained, but I was there to speak for myself, as the lead reporter on Camas Magazine’s burrowing investigation (2000 thru 2004) into the River Park Square fiasco.

Three days before the Sunshine Committee came to town I made a decision: I would try to show more than tell. Rather than making just another impassioned plea for open government, I would share some of the nitty-gritty details of how lawyers working for the City of Spokane had tried to exploit a serious crack in the state’s public records law, and explain how this effort cost Spokane taxpayers tens of millions of dollars.

There were a couple reasons for this, but the main reason is that absent specifics, the opposing sides in this argument tend to talk past one another. Each has a legitimate point to make. Yet, frankly, my side has been losing the argument because public agencies and their lawyers (no surprise here) are better positioned to effect public policy than are journalists.

The other reason, of course, is that I’m just one of those people who won’t shut up about the River Park Square debacle and what it demonstrates about a peculiar sort of corruption to which Spokane seems especially vulnerable. On this, I would note, the federal Internal Revenue Service seems to agree with me. Spokane’s public records problems (it lost two cases and settled a third) were an extension of what the IRS, four years ago, termed the “particular relationship” that the city had with Cowles family companies in which “public deception” was used to disguise the city’s complicity in the “extremely flawed” RPS transaction.

There are devils in the details of how open government closes down to protect public officials from the public. Working with lawyers at the Center for Justice and a Seattle law firm, we had captured several on paper. Like a kid with fireflies in a mayonnaise jar, I wanted to show them to the Sunshine Committee.

The Sunshine Committee exists because of Washington Attorney General Rob McKenna. To his credit, McKenna took notice that when voters created the state’s public records law by initiative in 1972, there were only ten exemptions to the requirement to produce requested records. Today, there are more than 300, so many that no one is actually sure just how many ways an agency can get around producing a requested document. McKenna found that unsettling and he went to the legislature to request a “Blue Ribbon” committee that would meet regularly to examine the proliferating exemptions, and make recommendations on which to eliminate or modify. The committee was formed last year and is chaired by Seattle City Attorney Thomas Carr.

If during its day-long session in Spokane the “Sunshine Committee” had only been examining agricultural exemptions (like RCW 42.56.380 (6) that allows for withholding “information obtained regarding the purchases, sales, or production of an individual American ginseng grower or dealer”) I probably would have gone to sit and watch for an hour or two. But, as it happened, the exemption that interests me the most, that has left blackened circles of despair under my eyes, was on the agenda. It’s the attorney-client exemption, the one that allows an agency to withhold records that are deemed part of attorney-client communication.

The four lawyers who spoke immediately before me said what I expected them to say: (1) attorney/client privilege is sacred, and (2) public agencies need to rely on confidential attorney/client communication as much as private individuals, and that this confidentiality benefits the public interest. One of the four lawyers was Jim Craven, who only recently stepped down as Spokane’s City Attorney, to return (happily, he said) to private practice. Still, Craven continues to represent public agency clients (including the City of Spokane, albeit on a limited basis now) and he was there to emphasize how, in his words, “attorney/client privilege is at the very core of our judicial system” and to implore the committee to tread very carefully, so as not to infringe upon that privilege.

It’s not my view that public agencies are not entitled to confidential communications with their lawyers. I just believe the protected communication should be tightly limited to legal advice. From my reading of the case law, I don’t think my view is that far from where state and federal appellate courts have come down on this controversy over the years. Even with the Washington Supreme Court’s controversial 2004 decision in Hangartner v. City of Seattle (which was widely criticized as weakening Washington’s public disclosure law) the court majority opinion warned that agencies should not use the attorney/client exemption as cover to try to withhold non-exempt communication because to do so would invite charges of “bad faith.” Under Washington law, “bad faith” is what opens the door for stiff penalties against offending agencies.

The problem is two-fold. The first is that city attorneys and their assistants can get very involved in public policy and business decisions on behalf of their client public officials. There’s just a natural tendency for a city attorney or a contract attorney (i.e. a bond counsel) to have considerable influence in framing legislation and public policies. In Spokane, this was especially true under former City Attorney Jim Sloane who was actually quite open with reporters about his civic vision for Spokane. Sloane was so deeply involved in city decision-making that former Spokane Mayor Sheri Barnard once built her entire election campaign upon the promise that she would return the silver-haired city attorney to his proper quarters.

I’ll try to choose my words carefully in describing the second part of the problem. Although the letter of the state’s public records law instructs agencies and courts to err on the side of disclosure, that’s just not the way it plays out in real life. Judges (being former lawyers) naturally tend to grasp the importance of the attorney/client privilege. But they’re unlikely to be as alert and sympathetic to the public’s rights, under state law, to have access to records showing how and why public officials make decisions on their behalf. Thus, when agency lawyers assert attorney/client privilege as the basis for keeping public records under wraps, judges (especially trial court judges) tend to err on the side of the agency against disclosure. It’s just a safer call. One reason for this is that when basic facts about a volatile public issue or transaction are intertwined in legal advice, the case law holds that these embedded facts can be withheld. And this is how the ostensible bias for disclosure written into the public records law gets reversed. What upends the equation even further is that no one representing public records requesters can practically evaluate or critique a judge’s decision to allow the withholding of a record that only the judge and the withholding agency get to see. The judge makes the decision, and that’s that.

Except, once in a great while, the gilded-winged angels of open government smile on a battered soul who’s fighting city hall. And that’s what happened to me.

I won’t bore you with the details, but in the small riot of litigation surrounding the River Park Square fiasco, dozens of highly sensitive city documents that I’d been seeking were liberated into public domain. This happened while we were waiting for a Spokane County Superior Court judge to review them. To make a very long story short, my lawyers and I suddenly had the chance to read the withheld records.

From a journalist’s perspective, the memos and handwritten notes opened up valuable stories of public deceit and betrayal. But they were also invaluable to us as litigants because now we were able to make very specific arguments about why the documents had been illegally withheld for nearly two years. The extremely rare fluke of having access to the actual documents at issue more than leveled the playing field.

After the Washington Supreme Court ruled, 9-0, that I was entitled to my day in court on whether the records were legally withheld from me to begin with, the City of Spokane decided to settle the case, pay substantial fees and penalties, and extend a personal apology to me and my reporting partner, Larry Shook. In short, it was a good ending, for us. But it would not have happened, I’m convinced, had we not gotten a chance to sharpen specific arguments over specific documents that, in any other case, could have only been inspected by the agency and the judge making the decision.

The first four memos that I decided I wanted to share with the Sunshine Committee were written by Stan Schwartz, the former Assistant Spokane City Attorney who handled much of the city’s negotiations with Cowles family real estate companies in the run up to the River Park Square project. A brief overview of the hidden agenda in the RPS transactions is necessary to understand why these memos were so important for Spokane voters to know about.

There were a host of irregularities in the River Park Square public/private partnership, but two stand out.

The first, of course, was the notorious RPS garage transaction in which brazenly excessive profits for Cowles companies were built into sale of the garage structure, itself, and the exorbitant “ground rent” the public would be charged because the Cowles family retained ownership of the land beneath the newly expanded parking structure. This was done over the objection of the city’s real estate projects manager and accomplished in ways that earned the lacerating conclusion from the Internal Revenue Service that, “the casino was rigged.”

The second secretive part of the transaction is one that far fewer people understand, in large part because the Cowles family-owned newspaper, the Spokesman-Review, has yet to even acknowledge that it happened. (The rest of Spokane’s media also ignored it.) As part of the RPS public/private partnership, the city agreed to leverage all of its annual federal grant money from the Department of Housing and Urban Development (then about $4.5 million a year) as security for a $22.65 million loan to Cowles real estate companies. The purpose of the loan was to help build the new Nordstrom store and other portions of the new mall.

According to HUD guidelines, the city’s loan should have been secured by the Cowles family with an “unconditional, irrevocable letter of credit.” But the Cowles family adamantly refused to put up a letter of credit. That left the city’s federal block grant funds (which go to a variety of programs in Spokane’s poorest neighborhoods) badly exposed. It also led to a lengthy, behind the scenes struggle between the city’s negotiators and Cowles agents as the city tried to get more security from the family in terms of pledged revenue streams and loan collateral. The good people of Spokane knew nothing about this.

All four memos were withheld from me and KXLY-TV reporter Tom Grant with claims of attorney/client privilege. But there’s actually very little legal advice in the memos, the first of which is simply meeting minutes of a conference call with a top federal official who was raising alarming warnings about the city’s risks. Sure, there was a lawyer in the room, but that didn’t make the communication exempt from disclosure. The memos create a record of what key public officials knew about the RPS transaction and the financial risks, at a time when the public was rightly suspicious about the repeated assurances from City Hall and their morning newspaper about what a terrific deal the RPS public/private partnership was for the city and its taxpayers.

CITY CONFIDENTIAL DOCUMENT #51

Dated February 2, 1998, this memo is from Assistant City Attorney Schwartz to three pro-RPS city council members (Orville Barnes, Roberta Greene, and Jeff Colliton) as well as to then-City Manager Bill Pupo, Community Development Director Mike Adolfae and Schwartz’s boss, Jim Sloane.

Subject: “February 2, 1998 Conversation with Paul Webster.”

The Paul Webster in this memo is not a city attorney you’ve never heard of. He’s a top official with the Department of Housing and Urban Development in Washington D.C. Basically, the memo records a striking warning from Webster that the city was exposing itself to future losses of its HUD block grant money in the way the RPS loan had been negotiated. It records this senior federal official alerting city officials that the “promissory note” conveying the $22.65 million loan to RPS was narrowly limited to but a few revenue streams that the Cowles companies had pledged for loan repayment and collateral.

“If the promissory note is payable only if there are sufficient revenues,” Schwartz wrote, “then Mr. Webster considers this a ‘loophole.’ To solve this issue, there must be a promise to pay from the developer with the recognition that the City has priority in certain revenue streams.”

One telling footnote: You’ll notice that the new mayor, John Talbott, and RPS-dissident Cherie Rodgers are not on the distribution list for this memo. Fifteen days earlier, Spokesman-Review editor Chris Peck had assailed Talbott in a Sunday broadside as a “civic terrorist” for raising questions about the loan. Talbott, Peck wrote, was preying upon people’s fears, including feeding “a suspicion that somebody else is doing better.” But this confidential memo shows that Talbott’s resistance to the loan was entirely reasonable.

Federal guidelines say the city’s loan to Cowles real estate companies should have been secured by the Cowles family with an “unconditional, irrevocable letter of credit.” But the family adamantly refused to put up a letter of credit. That left the city’s federal block grant money badly exposed. The people of Spokane knew nothing about this. They were misled by city officials and kept in the dark by Cowles media.

CITY CONFIDENTIAL DOCUMENT #56A

Dated February 9, 1998, this memo is from Schwartz to the three members (all River Park Square supporters) of the City Council Finance Committee.

Subject: “Section 108 Loan”

In the week since the conference call with HUD’s Paul Webster, Schwartz had negotiated with Cowles representatives to try to eliminate, or at least reduce, the city’s exposure in its HU -backed loan to River Park Square. With this memo, he grimly informed RPS supporters inside City Hall, that It didn’t go very well. Once again, Talbott and Rodgers were not in the loop.

“The following issues remain to be resolved,” he began, and then reported, very clearly, that “(t)here must be a clear statement that the developer [Cowles] promises to pay the amount of the Note when due, regardless of whether the identified revenue stream is sufficient.”

Because there was no “clear statement,” no letter of credit, for example, Schwartz had sought other assurances and some loan restructuring. But the memo shows he got next to nothing, just another $100,000 per year in additional funds from Cowles real estate companies. Thus, with the city stuck with the few revenue streams that RPS was willing to assign to the loan repayment, Schwartz ominously pointed out that “the City could find that the developer is making a profit yet the City must use its CDBG [Community Development Block Grant] funds in order to make payment on the note to avoid default [on the city's loan from HUD].” Six years later, Schwartz’s warning would come back to haunt the city, as the city’s loan to RPS did go into default. When that happened, millions of dollars in city block grant funds were essentially seized by HUD to avoid a default on the primary loan, the so-called HUD Section 108 loan.

The two confidential memos about HUD’s fateful warnings to the city about its risks in the $22.65 million loan to River Park Square fell between two remarkable broadsides in the Spokesman-Review that assailed project critic and new mayor John Talbott as a “civic terrorist” for objecting to the loan. The secret memos showed that Talbott’s concerns were right on the mark.

To me, as a journalist, the other thing that was precious about the memo is that it starkly contradicted public assurances by supporters of the RPS project, including several top city officials, that a so-called “Cowles Publishing Company” guaranty would protect the city’s block grant funds. The alphabetized list Schwartz provides on the second page of the memo explains why. His phrase for it is “collateral alignment,” as in: “The developer desires the following collateral alignment.” But what it really reflects is that before even the first dollar of Cowles Publishing Company money could ever be tapped to pay off the HUD 108 loan, all of the city’s available block grant funds would have had to be consumed first. This would be a devastating blow to literally dozens of the city’s anti-poverty programs.

“I suggested, in order to further the ‘public/private’ partnership,” Schwartz wrote, “that the Cowles Publishing pledge be mixed equally with the CDBG pledge for collateral purposes.”

It was Schwartz’s effort to commit the Cowleses to at least sharing the risk of a loan default with the city.

“This was rejected,” he reported.

Footnote: This memo fairly summarized the risks the city was facing as it moved toward approving the $22.65 million loan on March 30, 1998. When Chris Peck used another Sunday column (March 29, 1998) to yet again accuse Talbott of “civic terrorism,” he reported that the loan had been the subject of more than 200 public meetings. And yet the public knew nothing about what was in Schwartz’s memos about the risks involved with making the loan.

CITY CONFIDENTIAL DOCUMENT #98

Dated July 13, 1998

Subject: Memo to File, regarding Cowles Publishing Guaranty, Parking Garage Profits, and “Bad Boy Provision.”

In this memo, an increasingly frustrated Stan Schwartz is registering the results of a meeting he had, earlier in the day, with three pro-RPS council members, the top three city executives, including City Manager Bill Pupo and City Attorney Jim Sloane, and the city’s bond counsel, Roy Koegen.

The Cowles Publishing Guaranty had already been misrepresented at a public meeting on March 30th, and would be even more blatantly misrepresented two weeks later, when the city council would vote for the last time on the loan documents. But what Schwartz is reporting in this memo is yet another key (and secret) concession to the Cowles family by RPS supporters in City Hall. If HUD felt that it needed additional security to assure repayment of its primary loan to the city, it could require deposits into a supplementary escrow account. Because both city block grant funds and an undetermined amount of Cowles Publishing Co. money would be deposited into the account, there was obviously a tussle over how the money would flow out of the account, to HUD, were it needed. Although the public was assured that the Cowles assets would protect the block grant money, in fact just the opposite was true. Here, Schwartz is reporting the final touch: if the escrow account was activated but untapped, the Cowleses’ money would be returned to the Cowleses, as soon as additional block grant money was available to the city. Thus, the memo reaffirms that it was the city’s federal block grant money that was protecting the assets of Cowles Publishing Co., in the event of a loan default.

The short paragraph on “Parking Garage Profits” records Schwartz’s own objections to the almost comical excesses built into the garage transaction. Even after selling the garage for $26 million (which the IRS deemed was at least $11 million more than its market value), the Cowles family wanted a cut of garage revenues, if the facility ever made a profit. As Schwartz records, he “was instructed to ignore this provision, especially since it is unlikely that such funds (profits) will ever be realized.”

The “Bad Boy Provision” was proposed as a way to lay the groundwork for a legal claim against Cowles real estate companies in the event the city might later determine that it had been misled by faulty project revenue forecasts provided by Cowles agents. Without further explanation, Schwartz wrote: “I was instructed that this provision was not to be negotiated or included.”

CITY CONFIDENTIAL DOCUMENT #110

Subject: “River Park Square Parking Garage”

Dated August 25, 1998, this is arguably the most explosive of Schwartz’s memos to the file on River Park Square. It records his frustration about some of the excesses in the RPS Garage transaction, and the apparent advice he received from top city officials to just let it go.

“I stated it did not make sense to me,” Schwartz wrote, “that variable ground rent would be paid to the [RPS] Developer above and beyond the purchase price. This seemed to be an unnecessary payment in that the Developer is realizing its profit through the purchase price and should not be allowed to obtain any additional funds.

But it is his second objection that highlights one of the most astounding features of the elaborate garage lease agreements. In the event garage revenues were less than expected, the city had agreed to “loan” millions of dollars per year from its parking meter fund to the struggling garage. And, yet, if the garage started making money again, the leases required that extra garage revenues go to extra (”variable ground rent”) payments to the Cowleses–even before the revenues could be used to repay the previous loans from the city’s parking meter funds. Schwartz wanted to try to change that. But he failed.

The story doesn’t end there, however. In a remarkable act of litigation chutzpah, the City of Spokane in early 2002 would sue the Spokane Parking Public Development Authority (a body created and appointed by the city) for engaging in an “integrated fraudulent transaction” by signing off on the very lease agreements that Schwartz was objecting to in this 1998 memo. The brazen accusation in the city’s claim against the PDA was that by negotiating and signing leases that so disadvantaged the city, the PDA had violated Washington’s Uniform Fraudulent Transfer Act. And, yet, at the time the city filed this claim (which a federal judge summarily dismissed after one of the more entertaining hearings in the long-running litigation) it was withholding this memo from journalists and the public. What the memo clearly shows is that elected and appointed city officials were actually the ones controlling and refusing to budge on the very lease terms that the city would later claim caused it unjust injury. The PDA (whose small board included two pro-RPS city council members) was simply doing the city’s bidding.

All four of these memos were repeatedly withheld with claims of attorney/client privilege. But as anyone can see from reading them, there’s actually very little legal advice in the memos and, in fact, the first memo is basically just minutes of a call in which a senior federal official was warning Schwartz and others about the “loophole” in the loan to RPS. Sure, there was a lawyer in the room. But that didn’t make the communication (recorded in the memo Schwartz authored the same day) exempt from disclosure

Another point that I asked the Sunshine Committee to take note of is the instances in these memos that Schwartz is reporting critical decisions made by city officials. Yet, there is no record of these decisions being made openly by the city council.

Under the state’s Open Public Meetings Act, all decisions of legislative bodies like city councils have to be made in open public meetings. They cannot be made in secret meetings. In Schwartz’s August 25th memo (#110) he twice references the involvement of the city council Finance Committee which was dominated by RPS supporters from 1995 to 2000. But there are literally no minutes of the Finance Committee available for all of 1997, and the minutes for 1998 have no references at all to any River Park Square related business coming before the committee. And yet, Schwartz’s memo (and subsequent sworn testimony) tells us that this is where the action was in terms of the city’s RPS decision-making.

CONFIDENTIAL MEMORANDUM, NOVEMBER 20, 1997

Subject: “HUD Section 108 Loan Documents”

From: City Attorney Jim Sloane and Assistant City Attorney Stan Schwartz
To: Mayor Jack Geraghty and the Spokane City Council

This document was not withheld from me by the City of Spokane. Jim Sloane gave me a copy in early 2000 after I successfully argued that there was no reason for the City to continue to withhold it after it had been leaked to the Wall Street Journal and cited in a front page story that ran on January 8, 1999.

The reason I wanted to share it with the Sunshine Committee is both because the memo is a terrific example of the abuse of attorney/client privilege, and because it unloosed one of the more bizarre escapades in Spokane history, as the First Amendment attorney for Cowles media led a posse not on a search for the truth, but on a search for whoever had leaked the truth to the Wall Street Journal. It later turned out that the leaker had actually given the memo to the Spokesman-Review first, and had only gone to the national press after the Cowles newspaper refused to publish a story about the memo. But by the time the Wall Street Journal published its story, the RPS loan transaction was a done deal.

The weirdest aspect of the memo is the display of cognitive dissonance. Its conclusions reflect both Jim Sloane’s tireless cheer leading for the RPS project, and his assistant’s darkening mood about the risks involved.

What I called the Sunshine Committee’s attention to were the first and last paragraphs of the five page memo.

Here’s how it starts: “This memorandum is intended to summarize the loan transaction, areas of risk and legal remedies available to the City in the event of a default. This memorandum contains material which is deemed to be proprietary and confidential to the developer as well as our thoughts and impressions communicated to you through our attorney client privilege. This privilege, recognized in state law, allows us to keep this communication private and exempt from public disclosure.”

Granted, I’m biased, but I still have trouble locating the legal advice in this memo. What it is, though, is a very thorough summary of the multiple contract documents that govern the loan and limit the city’s recourse in the event of a default. Is there “proprietary” information from RPS in here? Yes. It’s limited to two sentences on page 4 that describe key provisions of the RPS lease with Nordstrom. But it’s only two sentences. Those two sentences were crucial for the people of Spokane because they disclosed a clause in the Nordstrom lease whereby Nordstrom could reduce its annual rent payments to RPS from $1.3 million to $520,000, if certain conditions weren’t met. And here’s the catch: the Nordstrom rent was 100 percent pledged to the city as payment and collateral for the $22.65 million loan to Cowles companies. I think the public had a right to know that the primary pledged revenue stream for repayment of the RPS loan had a gaping trap door in it.

But it’s the assertion of attorney/client privilege that is so off the mark. This is a memo about business risks and a summary of the remedies available in contracts that are public documents. All the lawyers are really doing is putting in English what exists in the legalese of the public contracts.

Here’s the conclusion: “We believe that this loan could be structured in such a fashion to provide the City with greater security, through for example, a letter of credit or certain restructuring in the Loan Documents. However, this has been resisted and represented as impossible by the developer. Thus we are presented with a loan that has a revenue stream which given the current performance of the Spokane market should be adequate to service the debt coupled with a pledge of collateral that should make the City whole in the event of a default. We must rely on the developer to faithfully discharge its duties under the Nordstrom Lease and keep the project fully occupied. Certainly, the developer is motivated in this regard because it offers the developer the greatest return on investment.”

I don’t think this is legal advice. I think this is attorney/client privilege being used to cover business advice, and that’s what I told the Sunshine Committee.

It turned out that the leaker had actually given the Sloane/Schwartz memo to the Spokesman-Review first, and had only gone to the national press after the Cowles newspaper refused to publish a story about it. But by the time the Wall Street Journal published its story, the RPS loan transaction was a done deal.

What push back I got from my testimony, came in regard to this document. The skeptical questions came from committee member Ramsey Ramerman, a lawyer with Foster Pepper, PLLC, one of the region’s largest law firms. Foster Pepper had a role in the River Park Square transaction as attorney to the bond underwriter and was a named defendant in the federal securities fraud suit brought by RPS garage bondholders. In May of 2004, the firm agreed to pay $1.3 million to settle those claims.

Ramerman’s position was available on the literature table at the hearing. He had co-authored a short article with his Foster Pepper colleague Hugh Spitzer (who was directly involved in the RPS transaction on behalf of the firm) arguing that attorney/client privilege was essential for attorneys advising public agencies because “if attorneys know that their advice will be made public, they will not give candid advice.”

This was his question for me : “Do you think the city council would have asked for this document to be prepared if they knew it was going to be disclosed.”

“No,” I replied.

“So isn’t that the perfect argument for the attorney-client privilege? Isn’t it that but for the attorney-client privilege this document wouldn’t even exist? The public wouldn’t have this document because it wouldn’t have been made. But because we have the attorney-client privilege the city council got decent advice. They happened to ignore it.”

My response was that the memo contained business advice and Ramerman said he agreed that attorney/client privilege doesn’t protect business advice. Still, his argument about how attorney/client privilege benefits agencies and the public actually cuts to the bone of the problem.

The truth is precious. The truth about the risks and excesses of the River Park Square transactions would have been politically devastating to the RPS public/private partnership, and to the elected officials who went along with it. So, as the IRS pointed out in great depth in its 2004 report, an extensive effort at public deception was launched.

Ramerman is probably right that the 1997 Sloane/Schwartz memo would not have been created if either the attorneys or the pro-RPS majority on the council didn’t think that they could keep it secret. But, so what? The people of Washington have already spoken on this. They want to know what their elected officials know when they make big decisions like those that abounded in the RPS public/private partnership. They want to know this so they can hold government officials accountable.

Ramerman strikes me as a very smart guy. What frightens me is that there’s just enough logic in what he is saying that it will persuade his colleagues on the Sunshine Committee to do little, if anything, to reaffirm the public records act’s clarion call for openness and disclosure.

Before and after I testified, lawyers who’d worked with public clients (including Craven and former Spokane City Attorney Mike Connelly) assured the committee that they worked for good and decent public servants who cared about transparency. The clear message was to encourage the committee to trust public officials and the lawyers that advise them, to do the right thing by public disclosure.

Connelly, Spokane’s city attorney during most of the period when the city was illegally withholding the records I sought, even said he would “caution the committee against making changes because of rather extreme circumstances as the RPS case was or because of political considerations.”

As I listened to this, I chuckled softly, and thought back not only to River Park Square, but to my old professor, Chuck Cole.

I wrote earlier that he posed as a curmudgeon. But, in his defense, it was a mask for his commitment to realism. Chuck openly joked about Spokane and its press as “Camelot.” It was his way of making light of his and others’ observations that one of the things that made Spokane’s newspaper special was its unabashed boosterism. To be sure, there’s nothing wrong with telling the good news about your community. But what Chuck was mocking was the imbalance, and the lack of a viable, independent press that could stand outside the Cowles family’s ambitions and business interests and ask the hard questions that reporters have a professional and even an ethical responsibility to ask.

This is where I believe Craven and Connelly are missing the point. It’s not that most public servants aren’t devoted to openness and the public interest. But what’s real is that because public officials are human, they’re fallible, and the natural tendency once people have power is to act to preserve and build upon it. That can easily lead to efforts to control or manipulate information about what they’re really doing.

This is what Cherie Rodgers was talking about earlier this month when she told her former colleagues on the Spokane City Council that no matter what candidates promise voters about how they’ll be open and be responsible to the public, “what happens is almost to a person they became protective of the institution of government.”

The state’s open public meetings act and its somewhat beleaguered public records law are sophisticated because they account for the basic ecology of democracy. These laws declare that the people “do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”

Thomas Jefferson wrote a friend in 1787 that the “people are the only censors of their governors” and that “were it left to me to decide whether we have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”

Jefferson was exaggerating to make a point, which is that a healthy democracy requires a scrutiny and vigilance toward those with whom we invest power. Maybe it’s hard to recognize this seemingly disruptive and inconvenient scrutiny as the genius of American democracy. But that’s what it is. And we shouldn’t have come this far to say it’s now okay for public officials to make a secret record of facts and decisions, so long as their lawyer is in the room, or in charge of writing these things down.

Posted June 20th