Location and Hours

Community Building
35 West Main, Suite 300
Spokane, Washington 99201
(509) 835-5211

The Center for Justice is open Monday through Friday from 8 a.m. to 5 p.m., except during the noon hour and on court holidays.

Mark Richard Responds

Commissioner won’t answer our questions about a public meetings policy that he “lost track” of and no longer supports.

County Commissioner Mark Richard says he now believes politics is behind a long-running Center for Justice open government investigation. For that reason, Richard says, he is absolving himself from directly answering CFJ questions about a county open meetings policy that was announced but never actually promulgated.

The Center’s focus on Richard’s role has been guided by a simple fact. It was Richard himself who assured state Sen. Lisa Brown, in writing, that a policy to deter official interference with people trying to record county public meetings had been “initiated.”

Richard’s explanation for refusing to answer specific questions about his statement to Sen. Brown came Thursday in an e-mail to Tim Connor, the Center’s Communications Director and Open Government coordinator. In the e-mail Richard says he will not respond to questions Connor put to him “because I find it more than a conflict of interest that both the client and the attorney for cfj are major donors to my opponents campaign and my confidence in [sic] legitimacy of the inquiry of this two year old incident or an objective outcome of this questioning is zero. If I felt you personally were after the truth such as you have shown in the past then I might respond differently.”

“The Center for Justice has a clear policy of avoiding involvement in campaigns either for or against candidates for public office, says the Center’s Chief Catalyst, Breean Beggs. “We began this investigation of clear violations of the First Amendment two years ago, long before either Mr. Richards or his opponent announced any intention of campaigning in this election. We had hoped that the original problem had been solved with the promised open meeting video policy. It was only after we requested routine documentation of the policy that we became acutely concerned by the obfuscation that continues with this most recent e-mail attack.”

As Richard’s message itself corroborates, the questions Connor put to the commissioner grow out of incidents that occurred more than two years ago at public meetings where Spokane photographer Don Hamilton’s efforts to exercise his rights to videotape statements of county officials were resisted both by the officials and county law enforcement officers. An edited videotape of the first such meeting can be viewed here (QuickTime player required). In one exchange, captured on the video, Hamilton questions a defiant county engineering department official about whether he is being paid to attend the meeting.

“Of course,” the official says.

“So,” Hamilton asks, “this is a public meeting but you just don’t want to answer questions of mine at this meeting?”

“Are you mentally disturbed?” the official asks, in reply.

Richard’s account of the meeting differs considerably from the scenes captured on the video.

“We did have one incident regarding the [Bigelow Gulch Road expansion] project,” Richard wrote in an e-mail to Senator Lisa Brown on April 19, 2006, “where a gentleman was pushing a camera in his face and he refused to be taped.”

Hamilton’s video provides indisputable evidence that it was not one but several county officials who refused to be videotaped giving information about the project to Hamilton and other questioners. As importantly, the video documents a troubling refrain among the county officials at the meeting, that somehow state law in general and the two-party consent rule in particular applies to public officials at public meetings. But the two party consent rule plainly applies only to electronic communication. So, as Spokane attorney Tom Keefe explained to an unamused sheriff’s deputy on the videotape, the notion that it was meant to apply to public officials at a public meeting is “absurd.”

In response to Sen. Brown’s concerns about reports of the “hostile public process” at the county meeting Hamilton attended, Richard’s e-mail assured the senator that, “we have initiated a policy to clarify that public meetings are open to the public and can be recorded in response to this incident.”

The problem is, there is no evidence such a policy was ever implemented. CFJ attorney Bonne Beavers, who works regularly on open government cases for the Center, followed up earlier this year with a series of public records requests to try to discern what had happened after Richard’s e-mail to Sen. Brown. Her efforts were summarized in a lengthy May 27th letter sent to each of the three commissioners. We reported on those efforts in this space a month ago. Simply put, we finally just asked the county commissioners, including Richard, to explain what happened.

The response came not from Richard or the other two commissioners but from the board’s attorney, County Chief Civil Deputy Prosecuting Attorney Jim Emacio. In the letter Emacio says the commissioners forwarded Beavers’s letter to him “for response.”

“I have attached a working draft policy that I prepared between March 23 and March 27, 2006, with regard to video-taping or recording open public meetings, workshops, study sessions, and individual meetings between County employees and members of the public. I do not have any record indicating I provided a copy to the Board or any other County staff. I do recall having verbal discussions with County staff on the topic.”

Without further describing the content or other participants in the “verbal discussions,” Emacio reported that he did not recall any subsequent complaints from the public and that he had since witnessed “many instances” in which people were allowed to videotape county public meetings.

“Frankly,” he wrote, “I am reluctant to recommend the adoption of a policy of [sic] this topic.”

Given that it was Richard, not Emacio, who’d reported to Senator Brown that the county had “initiated a policy,” Emacio’s response presented us with a quandary. We considered filing another public records request directed solely to Richard, but a records request has its limitations in that it can only be used to obtain existing records. As the county has made clear in its responses to other public records requests, county officials have no duty to respond to questions via public records requests: their only obligation is to provide records, and only if the sought records exist. Emacio’s response left unanswered questions about whether Richard was misled, or whether he was confused, or whether he was purposely misleading Senator Brown.

In fairness to Richard, Connor decided that the best approach, prior to publishing an article about Emacio’s letter, was to simply ask Richard what had happened. He did this with a June 27th e-mail. Richard didn’t respond, but Connor had a brief opportunity to discuss the communication with him just prior to the County Commissioner’s board meeting on July 1st. The conversation was amicable. Richard told Connor that he was “reluctant” to respond to the questions, but that he was in general agreement with Emacio’s opinion that such a policy was not necessary now.

It was after Connor sent a second e-mail summarizing this conversation and again seeking further comments from him that Richard responded with the July 3rd e-mail alleging that the Center was playing politics with the issue. But Richard also disclosed, for the first time, what had happened, that the policy “was never brought to the board and I lost track amongst the many issues we deal with.”

“Will you report my response unedited Tim?” Richard asked in the e-mail. The unedited email is available here, along with Connor’s previous e-mails and his response to Richard.

Although he didn’t name her in his e-mail, Richard is almost certainly referring to CFJ attorney Bonne Beavers. The client is Don Hamilton. At least one of Richard’s opponents in his run for re-election for District #2 County Commissioner is Democrat Brian Sayrs, to whom both Beavers and Hamilton have made campaign contributions. State records show Beavers has contributed $150 to Sayrs’s campaign and that Hamilton Studios has contributed $327.50.

“The Center does not take into account the personal political donations or activities of its clients or employees as long as they occur outside the Center’s premises and work time,” Beggs said. “Any attempt by the Center to encourage or discourage any particular political activity by its employees during their personal time would likely be illegal.”

Posted July 4th