The Clark County department head who filed whistleblower and harassment complaints against Councilor David Madore is now suing the county, alleging it failed to adequately respond to a public records request for the Republican councilor’s text messages in connection with his complaint.
Community Planning Director Oliver Orjiako filed a lawsuit against Clark County on Friday, alleging that the county failed to provide all responsive text messages from Madore’s private cellphone, that it failed to provide an affidavit confirming Madore’s cellphone was fully searched, and that it permitted Madore to delete public records.
The lawsuit stems from a public records request filed by Greg Ferguson, Orjiako’s attorney, after he filed the whistleblower complaint in March. Orjiako alleged in that complaint that Madore’s controversial zoning proposal, Alternative 4, violates the Growth Management Act. He also accused Madore of harassment based on Orjiako’s race and Nigerian accent.
Seeking evidence, Ferguson requested all text messages sent or received from Madore’s cellphone during his time in elected office that are related to county business.
The lawsuit requests that the county perform a full review of Madore’s personal iPhone to determine if any records remain. It also requests $100 per day for each day Madore delays signing and submitting the affidavit, and $100 a day per text message withheld. It also seeks proper sanctions for destruction of public records, as well as attorney’s fees.
“We’re not pulling any punches,” Ferguson said of the suit.
Madore did not return a request for comment. County Prosecutor Tony Golik said that as of Friday afternoon that he had not seen the suit, and therefore did not comment. In Washington, the prosecutor also acts as the county’s civil attorney.
Nissen case
Orjiako’s lawsuit comes only a few months after the state Supreme Court’s decision in Nissen v. Pierce County. The court ruled in August that text messages created on public officials’ private phones are public records if they deal with public business.
The Tacoma News Tribune reported last year that open-government advocates hailed the decision as precedent-setting in our modern, technology-driven era. It appears that Orjiako’s lawsuit will be among the first times — if not the first — that new case law will be tested.
Nissen puts the burden on public officials to provide those messages, and only to provide those that are public business. Madore wouldn’t have to turn over a text from his wife asking him to pick up eggs on the way home, for example, but a text from a county employee asking about an upcoming meeting would likely be subject to public records laws.
Officials are permitted to determine what messages may be exempted by the Public Records Act, though they must sign an affidavit swearing that any text messages not provided in response to the request are not considered a public record.
Shortly after the Nissen decision, Clark County implemented a policy in which it asks all employees to sign an affidavit swearing they’ve provided all responsive records if information from their personal devices is requested, according to an email to Madore from Bill Richardson, an attorney in the Clark County Prosecutor’s Office.
But when pressed multiple times to sign an affidavit, Madore refused, email records provided by Ferguson show.
“I was not aware that county councilors were required to sign Affidavits when they provide public records,” Madore wrote in an email on April 14. “Is that standard practice for Clark County elected officials? Or is there something unique about me?”
“You have been the subject of several requests for records potentially held on your personal devices,” Richardson responded. “Your fellow councilors have not. However, please understand that any request for records on any employees (sic) personal device will be (and has been) met with the same equal process.”
Richardson went on to say in a later email that while the county can’t require an independent elected official to sign the affidavit, an official’s failure to sign it “unnecessarily exposes Clark County to potential litigation.”
Clark County’s repeated requests that Madore sign the affidavit show that the “county is working hard to do the right thing,” Ferguson said.
“He encourages people to contact him (on his personal cellphone),” Ferguson said, referencing the many times Madore has publicly disclosed his private cell number and encouraged constituents to contact him. “I know other people who have text messages from him that weren’t produced, which is why I think he struggled with signing that affidavit.”
Ferguson also said the text messages reveal a “spiderweb of back doors” that Madore has used to get around public records laws, including a 2013 text message in which he advises someone to email him using a non-county email address at his company, U.S. Digital.
The suit also cites an email Madore sent to Linnea LaRocque, the county’s public records officer, in which the councilor says he deleted the conversations.
“I emailed all the text messages from my iPhone to my email account and they are all attached,” Madore wrote.
“Now that they have been retained here, I have deleted them from my phone,” he went on.
Doing so “changed the nature of the electronic document,” Ferguson said. Ferguson alleged that is not only a violation of the Public Records Act, which prohibits the destruction of public records, but also a litigation hold Ferguson filed with the county in order to preserve evidence in their native form that might be connected to Orjiako’s whistleblower complaint.
“I think the over-arching issue is that he keeps beating the drum of honesty, integrity and transparency,” Ferguson said. “What’s being revealed is that he has some built-in back doors to his public office.”
