The PDC failed to fulfill its mission regarding the complaints filed about Tumwater and Olympia’s regional fire ballot measure flyer. The flyer was transparently propagandistic and sent at taxpayer expense in blatant support of the measure. Despite the cities putting their finger on the scale, the measure was decisively defeated by the voters.
Throughout my career in public service, in the executive and legislative branches of government, I have found one of the things most negatively impacting the public’s trust and faith in the government is when administrators, policymakers, and agencies feign action when they have a duty, responsibility, and legal authority to act.
The Public Disclosure Commission (PDC) was created by the People, through a statewide Initiative, to be an independent regulatory agency tasked with assuring transparency and compliance with our campaign and public disclosure laws. It was created exactly because elected officials have an obvious real or apparent conflict of interest in enforcing the rules designed to regulate themselves.
Regulatory agencies, just like courts, have a legal and ethical responsibility to protect the public interest. Because laws cannot anticipate every possible permutation of behavior, they make rulings on a case-by-case basis thereby creating the “guardrails” to be used by all of us.
The City of Olympia has only recently been found to have broken the same law (regarding using public funds to convince voters to take its side on a ballot measure) and paid a fine as a result. In this case, the exclusion of the words “vote for” or “vote against” was intended to protect them from violating the law, even though the flyer was so clearly not a “neutral” effort to educate voters.
The City of Olympia, really the City Council, did what the savvy and well-financed do when they want so badly to accomplish something, no matter the law. They consult their lawyers about how far they can stretch the law and still muster a plausible legal defense.
In this case, it’s the PDC’s job to respond to a complaint by taxpayers who believe the City’s actions went too far. That both the flyer and the cost for attorneys for the cities were paid by taxpayer dollars to first construct a loophole and then defend it to defy the public’s voted interest in disclosure adds insult to injury.
The PDC’s letter did all that was possible to obscure the offenses that occurred and failed to extract real accountability from the parties responsible. The PDC letter to the cities was clear that violations occurred, as they wrote, “…PDC staff is issuing a formal written warning to the cities of Olympia and Tumwater and their officials concerning the prohibition against the use of city facilities and resources to support or oppose candidates and ballot propositions.” It is also why they wrote that they would consider the warning on deciding on further Commission action if there are “future” violations. Also, writing that the “PDC staff found no evidence of further violations” does not exonerate the cities, it just indicates that the complainants did a good job finding the violations.
The PDC not only failed to do their job, but they really did worse than that. They tried to make it look like they are doing their job while actually doing nothing – and thereby sending signals to all local governments about what can be a consequence-free use of public funds in this situation, and what is not.
This is the same agency, led by the same director, Peter Lavalee, which, when considering a complaint against Facebook, for refusing to disclose political expenditures on its site, and after already being fined by the Attorney General’s Office for the exact same behavior, suggested to the Commission that Facebook be slapped on the wrist with a small fine of $60k, that they agreed to, of pennies on the dollar, and when the Commission said “not good enough” sent it to the Attorney general and he successfully sued them for a $25 million fine.
The PDC, with a vital public interest responsibility, has been institutionally designed to fail from the beginning. With its reliance on the people it regulates for its budget and its statutory authority, with its director and some staff seemingly more interested in protecting their careers than fulfilling their obligations to the public, and the appointment of some Commissioners who seem more concerned about protecting the status quo than serving the People who created the agency, it should be little surprise they are more interested in appearing to do their jobs than, you know, really doing them.
We need change to restore the PDC to what the people voted for it to be. Reforms that could be made should include a guarantee of insulation from budget retribution by legislators such as the State Auditor has in its funding of agency performance audits. In addition, it should be explored and considered how those who fund campaigns, especially the millions of dollars spent, usually by big corporations, on ballot measures, should pay a fee for the services they require the state to undertake.
The City of Olympia pushed the limits of the law and good governance, in this case, but the voters delivered an unequivocal message of opposition, and they will hopefully be more mindful and prudent in the future. The PDC, however, rolls slowly on, untethered from the voters and acting as the captured agency it is.
~ Russ Lehman, Olympia
Russ Lehman is an attorney and former member of the Washington State Public Disclosure Commission.
The opinions expressed above are those of the writer and not necessarily those of The JOLT's staff or board of directors. Got something to say about a topic of interest to Thurston County residents? Send it to us, and we’ll most likely publish it. See the Contribute your news button at the top of every page.
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bobkat
Excellent analysis and comment! How do you pronounce O-B-F-U-S-C-A-T-I-O-N!?
Tuesday, July 4, 2023 Report this
HappyOlympian
PDC failed, but would not have had the chance if Olympia city council had the interest of the public in mind when making the horrible decisions they do.
Tuesday, July 4, 2023 Report this
Larry Dzieza
Reading the PDC staff report was like reliving then Attorney General Barr's successful effort in controlling the narrative of the Mueller report. Barr's four-page summary was designed to spin the story by obfuscating the findings.
The PDC should do better and the PDC members, if their mission means anything to them, should take control of this.
NPR 8/20/22 - "Democrats have complained for nearly a year that Barr’s description of the report was skewed and that it altered the public narrative about Mueller’s conclusions. Shortly after Barr issued a letter describing Mueller’s findings, the special counsel wrote to Barr to complain about the framing and to ask that the report’s executive summary be released immediately.
However, Barr declined to allow what he called a piecemeal release of the report, which did not occur until almost a month after it was submitted.
Now, Democrats have a Republican-appointed judge endorsing Mueller’s view that Barr’s characterization led to confusion."
AP 3/5/2020 - "U.S. District Judge Reggie Walton delivered the criticism in a 23-page order in which he directed the Justice Department to provide him with an unredacted version of the report so that he could decide if any additional information from the document could be publicly disclosed.
The scolding was unusually blunt, with Walton saying Barr had appeared to make a “calculated attempt” to influence public opinion about the report in ways favorable to Trump. The rebuke tapped into lingering criticism of Barr, from Democrats in Congress and special counsel Robert Mueller himself, that he had misrepresented some of the investigation’s most damning findings."
Wednesday, July 5, 2023 Report this
waltjorgensen
Thanks, Russ. This critique couldn't have come from a better source than you. If there is a next step, let me know what it is and count me in. Being shoved to the side of the road like this by the PDC, who instead is supposed to be guiding other agencies like the cities down the center line of good governance, is outrageous.
Walt Jorgensen
waltjorgensen@comcast.net
Wednesday, July 5, 2023 Report this
ConnerEdwards
Well said Russ. The decision by staff to dismiss this case without sending it to the Commissioners was appalling. You should consider coming to the next meeting of the PDC to testify on these issues. It will be held on Thursday, July 27, 2023 at 9:30 AM. Anyone can testify and can do so remotely via Microsoft Teams. You can sign up by e-mailing pdc@pdc.wa.gov and requesting to sign up and testify, but if staff ignore your first e-mail make sure to follow up and be persistent: members of the public have a right to testify at these meetings.
Your perspective as a former Commissioner would be particularly valuable. Very few people are willing to offer meaningful critiques of the agency's performance (or lack thereof). Most of the meetings are filled with self-congratulatory reports from staff on what a great job they are all doing and members of the public can't get a word in edgewise except for the first 5-10 minutes of the meeting.
Thursday, July 6, 2023 Report this
WayTooOld
Thank you, Russ.
Friday, July 7, 2023 Report this
TonyW33
Spot on Russ! The PDC has failed here and in other areas of it's mission as well, even core ones like financial disclosure by candidates for elected office. I am tracking local County Commissioner races here and have noted that some candidates show no campaign contributions or expenditures at all. yet when I travel around the county I see their signs everywhere and they are in the new voters election pamphlet. I called the PDC about that and discovered that if a candidate attests that they will only collect a certain amount of money, the PDC doesn't require them to report anything! That means that outside support that doesn't directly get to the candidate's campaign account is also unreported. That is the core mission of the public DISCLOSURE commission in fact and even that they ignore as policy. It seems to me that the PDC's policies actually violate the law that they should be enforcing. Time to revamp this single People's Agency and reassign the scofflaws that occupy the staff positions and director seats there. We the people created this agency and deserve that it serve our interests as voters and citizens.
A reminder of our rights as citizens of Washington State as stated in RCW 46.56:
"The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, 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. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected. In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern."
Sunday, July 9, 2023 Report this