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.[1] 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.”[2]  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:

1. The proposed jail increases the number of Whatcom County jail beds from roughly approximately 280 to 521 (the magnitude of the increase is not even disclosed);
2. The longstanding, well-reasoned testimony, public hearing statements, and oft-repeated concerns of the Whatcom County population opposed to a larger jail;
3. Whatcom County’s incarceration rate is already among the highest in the world;
4. Whatcom County’s booking rates are up, while statewide bookings are down;[3]
5. Whatcom County offers inmates less “good time” (earned early release) than 27 of Washington’s 39 counties (i.e., if you serve time in Whatcom County and behave, you will serve more of your sentence than you would in roughly 7 out of 10 counties in Washington);
6. The absence of Whatcom County law enforcement training regarding alternatives to booking, as in Seattle’s LEAD program, which has reduced recidivism by 25%;
7. The overcrowding is the result of the unlawful mass incarceration policies (including bail recommendation, sentence recommendation, and good time policies) of Whatcom County and the three mass incarceration proponents quoted in the Flyer (Louws, McEachran, and Elfo).  WCC 1.28.100 requires, amongst other things, that Sheriff Elfo release inmates early or transfer them when it is overcrowded.  Sheriff Elfo and Prosecutor McEachran are also the main architects of overcrowding and unsafe crisis of the jail.
8. The feel bad pictures of inmates sleeping on the floor and the absence of adequate space for a dayroom and other programs is not caused by the size of the jail, but rather by Whatcom County’s mass incarceration policies;
9. The jail was deliberately and illegally overcrowded in order to manufacture a crisis that could be used to justify plans to increase Whatcom County’s capacity to incarcerate 521 (or more) inmates at a time.
10. No Flyer space is devoted to facts supportive of static or reduced incarceration rates;
11. Whether the County has made a finding (or has relied upon any information or analysis) that its current mass incarceration policy, or the proposed incarceration ramp-up is (or is not) effective at achieving any public policy goals; and if so, what are the findings and information relied upon;
12. How much Whatcom County has spent planning and promoting the plan for a larger jail verses exploring the data, science, and societal benefit, and economic savings of alternatives to incarceration[4];
13. How much of the local budgets go to incarceration verses incarceration alternatives;
14. The cost of building and maintaining the proposed jail;
15. The cost of building and maintaining a smaller jail;
16. The total amount of additional tax that will be collected over 30 years in the event the proposition is approved;
17. The economic impact of choosing mass incarceration over alternatives to incarceration;
18. The societal impact of choosing mass incarceration over alternatives to incarceration;
19. The lack of an analysis regarding the current make-up (and causes thereof) of the jail population in terms of race, economic status, conviction vs. non-conviction status (i.e. incarcerated because they can’t afford bail or home monitoring), mental health status; number of people incarcerated for drug possession, drug use, drug sales, and driving under the influence (or if such an analysis exists, the fact that it has not been shared with the public);
20. If the jail tax passes, all of Whatcom County’s public safety tax for potentially 30 years will be earmarked for incarceration (that is, by law Whatcom County may not raise any additional tax to fund alternatives to incarceration for potentially 30 years);
21. The exacerbation of the difficulty in finding funding for incarceration alternatives, and enhanced incarceration (as listed in the Flyer by Louws) caused by the proposed tax;
22. There is no analysis regarding incarceration rate, or even information assisting the voters in deciding that they should incarcerate more, the same, or fewer people than they do already (e.g., whether they should incarcerate 523, 403, or whether they should reduce incarceration rates by 25% to 300).
23. Even if the jail tax passes, agreement has not been reached for housing Bellingham’s non-felony inmates; Bellingham has nearly half the population of the entire county; and the County has demanded Bellingham tax payers provide additional funds before the proposed jail would permit housing of Bellingham’s non-felony inmates (beyond the roughly $120,000,000 that will be raised by the proposed county tax);
24. The fact that Whatcom County incarcerates people of color at 5 to 7 times the rate of whites;
25. The fact that Whatcom County law enforcement have provided the public little or no analysis regarding the existence or reduction of its own systemic racism;
26. The absence of racial bias training in Whatcom County law enforcement which is recommended by the federal government and has been proven effective in reducing racial bias;
27. The absence of an explanation for who the additional 120 beds will be used to incarcerate (e.g., does the proposal allow Whatcom County to rent beds to the Federal Government to incarcerate people for immigration violations?);
28. This voting period (ending November 3, 2015) was scheduled to occur two (2) months before the publically funded Whatcom County jail alternatives task force is scheduled to make recommendations; that is, if the proposed tax is passed, 30 years of taxation (roughly $120,000,000) will be unavailable for alternatives to incarceration. 
29. The reason for building the jail in Ferndale, rather than the County’s population center (Bellingham);
30. As people of color we are concerned that the remote location of the proposed new, big jail would make the the concerns and potential abuses less visible, less transparent to the community, and easier for abuses and violations to be carried out.  “Out of sight, out of mind.”
31. The DOJ recommends jails be built next to county courthouses rather than in more remote areas to reduce cost and increase function;
32. The economic impact of building a jail away from the population center (Bellingham has nearly half of the County’s population);
33. The County Executive (and jail proponent in the Flyer) Jack Louws’ financial interest in having the jail built in the proposed location (especially regarding the sale of land under or near the planned site);[5]

 
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 –

1. States that the Jail Facilities Sales and Use Tax is proposed in Whatcom County, Washington Proposition Number 1 (Proposition Number 1 is a different proposition on the ballot this year, which we feel is designed to dilute the ability of people of color to fairly participate in electing county government who represent their interests.[6] The Jail Facility Sales Tax was named as Proposition 1 not once, but twice, in two different ways, on the flyer-a false statement that was amplified and repeated on King 5 News on October 29. Nowhere on the flyer is it described correctly as Proposition 2015-1. Proposition 1 is supported by large-monied industries like the agricultural industry and coal industry; its passage would solidify power for the three elected officials Louws, Elfo, and McEachran, and their allies. This mislabeling cannot be dismissed as anything but intentional.)
2. Conflates safety and incarceration rates. We agree that the Whatcom County jail should be safe. But safety does not immediately mean building a bigger jail when and where the flyer describes.
3. Conflates the need for better jail conditions with the need for a bigger jail;
4. Uses emotional photos and graphic representations to create a false dichotomy (inhumane treatment or larger jail)
5. Implies that safety issues are due to the size of the jail;
6. Implies that increased incarceration is a natural, unavoidable, and even legally required, need (“State law requires...,” “liability,” “By law, Whatcom County requires...” );
7. Consistent with Louws, McEachran, Elfo, and others’ campaign to increase the size of the jail the Flyer manufactures a false choice:  Treat people humanely and approve the proposal; or reject it, and treat people inhumanely; 
8. States that the need for a new jail is “critical,” while at the same time stating that the need has been critical since 1999, and that the estimated date for implementing the proposed solution is 3.5 years from now - Spring of 2019;
9. Implies, confuses, and misleads voters that this measure will also help fund the alternatives, cited in the Flyer;
10. Implies, confuses, and misleads voters that the jail tax will fund the behavioral health and treatment programs listed by Louws;
11. Implies, confuses, and misleads voters that there is existing funding for the behavioral health and treatment programs Louws lists, when the proposal will make funding for such programs more difficult if not impossible;
12. Implies, confuses, and misleads voters that the County funds incarceration and alternatives to incarceration nearly equally ($12.3 and $11.5 million, respectively); or alternatively, implies that if the jail tax is approved, the County will fund incarceration and alternatives to incarceration nearly equally ($12.3 and $11.5 million, respectively);
13. Implies, confuses, and misleads voters that the County has meaningfully examined its policies regarding incarceration rates;
14. Implies, confuses, and misleads voters that the County has examined alternatives to incarceration;
15. Implies, confuses, and misleads voters that there is evidence to support the need for increased incarceration;
16. States that the new jail is “centrally located”;
17. States that there are “. . . no expansion options”
18. States that the “Cities and county agree. . .”

 
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.[7]
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.
 
 


[1] http://www.ibtimes.com/immigration-2015-one-third-6000-prisoners-due-release-are-undocumented-immigrants-2131042.a

[2] October 22, 2015, New York Times Editorial, citing position of Law Enforcement Leaders (lawenforcementleaders.org). 

[3] 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
http://www.nwcitizen.com/blog-entry/the-making-of-a-jail-crisis-part-two-stuff-it

[4] 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.)

[5] NW Citizen article by Tip Johnson, http://www.nwcitizen.com/entry/louwsy-jail-deal.

[6] https://aclu-wa.org/cases/montes-v-city-yakima
https://www.aclu.org/news/federal-court-rules-yakimas-voting-system-violates-voting-rights-act
http://www.yakimaherald.com/special_projects/aclu/
 

[7] NW Citizen article by Tip Johnson, http://www.nwcitizen.com/entry/louwsy-jail-deal