Community Members of Color File Complaints Against Whatcom County Leaders for Misuse of Public Office and Funds in Jail Sales Tax Mailer this Election Season
FULL TEXT OF COMMUNITY MEMBERS' COMPLAINT:
NOTICE OF CIVIL RIGHTS VIOLATIONS AND NOTICE OF REASON TO BELIEVE RCW 42.17A IS BEING OR HAS BEEN VIOLATED
Via Email and Regular Mail, and Registered Mail, Return Receipt Requested
TO: Washington Attorney General Bob Ferguson
1125 Washington St SE
PO Box 40100
Olympia, WA 98504
TO: Whatcom County Prosecutor, David S. McEachran
311 Grand Avenue, Suite 201
Bellingham, WA 98225
TO: Public Disclosure Commission
711 Capital Way #206
PO Box 40908
Olympia, WA 98504-0908
Pursuant to RCW 42.17A, be advised of the following civil rights violations and reasons to believe RCW 42.17A is being or has been violated.
The flyer attached hereto as Exhibit A (“Flyer”) was mailed to select registered Whatcom County voters for the promotion of Whatcom County Ballot Proposition No. 1, and Whatcom County Proposition No. 2015-1 and for the purpose of assisting a campaign for the election to public office. This Notice incorporates the facts reported in the October 15, 2015, Bellingham Herald Article (Whatcom County uses tax revenue to send mailer about jail tax measure), attached hereto as Exhibit B. Whatcom County, Whatcom County Executive Jack Louws, Whatcom County Prosecutor Dave McEachran, and Whatcom County Sheriff Bill Elfo, and other unknown individuals used funds and facilities of a public office or agency, or agencies (directly or indirectly), including the County Executive’s Office, the Sheriff’s Department, and the Prosecutor’s Office for the purpose of assisting the promotion of the two ballot propositions and for the purpose of assisting the campaigns for election of Louws and Elfo.
RCW 42.17A.555 provides, in part,
No elective 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 a 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 office or agency….
A.The Flyer is an impermissible attempt to influence the outcome of the ballot propositions.
The Flyer is a one-sided pitch for mass incarceration. The Flyer completely omits the incarceration facts being examined nationwide at all levels of government. Having examined cost and injustice of our 40-year history of mass incarceration, Republicans, Democrats, Police Chiefs, and Prosecutors nationwide are calling for reduced incarceration. The nation is becoming aware that the U.S. holds 25% of the planet’s incarcerated people, yet has only 5% of the planet’s free population.
We as people of color in Whatcom County are especially concerned about mass incarceration and the potential ramping up of mass incarceration in Whatcom County, especially with our proximity to the northern border and the large presence of Homeland Security. The Whatcom County Jail is disproportionately filled with people of color. With this notice, we therefore intend to put Washington, Whatcom County, and local law enforcement on notice of the existing civil rights violations, and our belief that ramping up mass incarceration while ignoring the system’s racism is a deliberate exacerbation of ongoing racial profiling and civil rights violations. The Flyer, and the three proponents’ (Louws, Elfo, and McEachran) support of the Flyer, increases the level of distrust that communities of color have in Whatcom County law enforcement system.
Mass incarceration is a racist system implemented at the end of, and in reaction to, the gains made during the Civil Rights era. Today, we have a prison-industrial complex expanded to include immigration detention. The Administration, several Congressional leaders, and conservative groups agree that mass incarceration is a serious issue that needs to be addressed throughout our country. The Department of Justice recently announced they are releasing 6,000 prisoners. In Whatcom County, community members and groups have fought for the last decade to bring attention to local leaders and law enforcement, regarding issues of racial profiling and the racially disproportionate population in Whatcom County jails.
The entire country is waking up to years of systemic racism and injustice thanks to community awareness, activism, and books like Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Color Blindness. “More than 130 of the nation’s top law-enforcement officials including big-city police chiefs, sheriffs, prosecutors and attorneys general, have joined the call to end the harsh, counter-productive practices and policies that have driven America’s [mass incarceration] boom, destroyed communities and written off an entire generation of young men of color.” In contrast to reality, a voter reading the Flyer would come away with the impression that there is no alternative to increasing the size of Whatcom County’s jail.
The Flyer was created, in part, by the company hired by the County to provide “full design services” and “assistance in developing a coordinated message and developing graphics to support the message.” The October 1, 2014, DLR Group Contract for Services Agreement is attached hereto as Exhibit C. Local government agencies “...shall not coordinate informational activities with campaign efforts, in a manner that makes the agency appear to be supporting or opposing a ballot measure.” January 12, 2015, PDC Letter.
As opposed to an “objective and fair presentation of the facts,” the message, apparently, is that a new, expensive, larger jail in Ferndale is necessary. The Flyer uses official uniforms, equipment, publications, and the County seal to support its message. The flyer is one sided and fails to inform the voter of the nature, costs and impacts of the proposal—and leaves out the issues, listed below, about which community members have been educating our local leaders for the last decade:
To fall within the WAC 290.05.271 exception, public offices or agencies must make “facilities available on a nondiscriminatory, equal access basis for political uses or [make] an objective and fair presentation of facts relevant to a ballot proposition, if such action is part of the normal and regular conduct of the office or agency.” Further, public funds or resources may only be expended if “the preparation and distribution of information is not for the purpose of influencing the outcome of an election.” PDC Interpretation No. 04-02, Page 4. “Supervisory personnel have a duty to know, apply, and communicate to their staffs the difference between acceptable information activities and inappropriate promotional activities in support of local government ballot measures.” Id. “[I]n no case will the PDC view a marketing or sales effort related to a campaign or election as normal and regular conduct.” Id., at 5.
The Washington Public Disclosure Commission (PDC) has advised, “Such a presentation must accurately portray the cost and other anticipated impacts of a ballot proposition, and must not promote or oppose the proposition in the tenor or tone of the language used.” January 12, 2015, Public Disclosure Commission Letter to Local Government Agency Officials from Tony Perkins, Acting Assistant Director, Re Election-Related Communications by Local Government Agencies (“January 12, 2015, PDC Letter”). “Such a presentation should also explain, in neutral, factual terms, the outcome anticipated if the proposition is rejected by voters.” Id. [A]n “objective and fair presentation of the facts” must avoid . . . Overtly promotional or oppositional content (including inflammatory or emotionally-driven language; check marks and other indications of support; and gratuitous photos that tend to provoke an emotional reaction—e.g. an image of a body on an EMT stretcher, or a house exploding in flames).” Id. (emphasis in original).
“ ‘Objective and fair presentation of the facts’ means that in addition to presenting the facts, the materials should present accurately the costs and other anticipated impacts of a ballot measure.” (January 12, 2015 PDC letter) The Flyer uses official uniforms, equipment, and publications, the us of which is restricted in the January 12, 2015, letter.
The facts outlined in this notice, including 1 through 33, above, demonstrate reason to believe the foregoing legal requirements have not been met.
B. The Flyer contains false statements, conflations, and gives the voters false impressions.
The Flyer appears to be designed to be confusing as it related to existing incarceration alternatives and incarceration alternatives that would be funded by approving the proposed ballot measure. The Flyer makes false statements, conflations, and false impressions, including –
C. The Flyer is not normal, customary, and regular conduct.
The Flyer was created, in part, by the company hired by the County to provide “full design services” and “assistance in developing a coordinated message and developing graphics to support the message.” According to Louws, the Flyer was specifically approved in a $27,000+ funding measure passed by the County Council. The flyer is unusual, and unlike previous information mailed to voters on other issues, including other ballot initiatives.
Passage of a tax that maxes out the ability of the County to charge tax for public safety issues for 30 years is not a normal and regular event, and creation of the Flyer is not normal and regular conduct. Passage of Proposition 1, which will likely permanently reduce the voice of voters of color in County government is not normal and regular conduct.
Further, the County Executive who approved the Flyer has profited from sale of land next to or around the proposed jail.
WAC 390-05-273 (Definition of normal and regular conduct) provides,
Normal and regular conduct of a public office or agency, as that term is used in the proviso to RCW 42.17A.555, means conduct which is (1) lawful, i.e., specifically authorized, either expressly or by necessary implication, in an appropriate enactment, and (2) usual, i.e., not effected or authorized in or by some extraordinary means or manner. No local office or agency may authorize a use of public facilities for the purpose of assisting a candidate's campaign or promoting or opposing a ballot proposition, in the absence of a constitutional, charter, or statutory provision separately authorizing such use.
“The agency must be able to demonstrate that for other major policy issues facing the jurisdiction, the agency has customarily communicated with its residents in a manner similar to that undertaken for the ballot measure.” PDC Interpretation No. 04-02, Page 5.
In the event communications other than a “jurisdiction-wide mailed “fact sheet,” are used, . . . the agency must be able to demonstrate that . . . the method, format, and frequency is typical of how the agency routinely communicates with its audience.” January 12, 2015, PDC Letter.
D. The Flyer is an electioneering communication that identifies political candidates and supports local political campaigns without having been submitted to voters for approval.
Louws and Elfo are running for re-election in this voting period. They are photographed and quoted in the Flyer as authorities on the subjects. The Flyer is designed to minimize and divert attention from their roles in creating the overcrowding situation.
RCW 42.17A.300(1)(b) provides, “Electioneering communications that identify political candidates for state, local, or judicial office and that are distributed sixty days before an election for those offices are intended to influence voters and the outcome of those elections.”
RCW 42.17A.550 provides,
A county, city, town, or district that establishes a program to publicly finance local political campaigns may only use funds derived from local sources to fund the program. A local government must submit any proposal for public financing of local political campaigns to voters for their adoption and approval or rejection.
 October 22, 2015, New York Times Editorial, citing position of Law Enforcement Leaders (lawenforcementleaders.org).
 http://www.whatcomcounty.us/DocumentCenter/Home/View/827; http://www.whatcomcounty.us/449/Background-Documents-on-Jail-Planning; http://www.whatcomcounty.us/449/Background-Documents-on-Jail-Planning; and
 In this Notice, “alternatives to incarceration” is defined as alternatives to pre booking and measures to reduce to incarceration (e.g. mental health services, “Ban the Box” law, etc.)
 NW Citizen article by Tip Johnson, http://www.nwcitizen.com/entry/louwsy-jail-deal.
 NW Citizen article by Tip Johnson, http://www.nwcitizen.com/entry/louwsy-jail-deal